Book Pirates! Diary of an Amateur Web Sleuth
“Businesses based on theft are falling by the wayside or going legit, and a legal marketplace is showing real signs of promise,” wrote Mitch Bainwol, chairman and CEO, Recording Industry Association of America, and Dan Glickman, chairman and CEO, Motion Picture Association of America, in The Wall Street Journal on July 1.
Maybe in the world of DVDs, CDs and software.
The genteel world of book publishing is another story.
Sure, the Harry Potter books have been counterfeited and are selling across Asia.
But I was stunned to find that an obscure book written 50 years ago by my father, that’s still under copyright, was appropriated without permission, republished and offered for sale all over the world.
A Copyright Swiped
My father, Alden Hatch, who died in 1975, was the author of over 40 books, mostly biographies.
In my daily travels through the Internet I discovered that a new edition of my father’s 1947 “Franklin D. Roosevelt: An Informal Biography” had been published by a company called Kessinger that’s out of Whitefish, Mont.
My stepmother is my father’s literary heir and owner of all his copyright works. I called her and asked if she had signed a contract for the Roosevelt book.
She said no.
A nice man from Sterling Point Books had contacted her awhile back about the possibility of republishing my father’s biography of General George S. Patton. Only too happy to have a small advance against future royalties, she signed a contract. The book is out with a new title (“Old Blood and Guts”) and a smashing new cover.
But no one contacted her about the Roosevelt book, and she had never heard of Kessinger.
Nor had I.
The Kessinger Web Site
I paid an electronic visit to www.kessinger.net and discovered it bills itself as “Kessinger Publishing’s Rare Reprints—Thousands of Scarce and Hard-to-Find Books.” These range from 465 titles by “Anonymous” to Samuel Zwemer (six titles).
I found my father’s book right away. Returning to the Kessinger home page I found a box, “Copyright Questions,” and clicked on it.
What came up was the damnedest outline of a business model I had ever seen in my life. I reprint it here in full:
Please Notify us of any Possible Copyright Infringements
Kessinger Publishing LLC respects the intellectual property rights of all individuals, businesses, and organizations. If you believe that we have infringed upon your copyright, please notify us by providing us with the following information:
1. Identification of the copyrighted work(s) claimed to have been infringed;
2. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kessinger Publishing, LLC to locate the material;
3. A statement by you or your authorized agent (the “Complaining Party”) that you are the owner of an exclusive right that is allegedly infringed;
4. Information reasonably sufficient to permit Kessinger Publishing, LLC to contact you or your authorized agent such as an address, telephone number, and, if available, an e-mail address;
5. A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
7. A physical or electronic signature of the Complaining Party.
Notifications of claimed copyright infringement should be sent to:
Kessinger Publishing, LLC
P.O. Box 1404
Whitefish, MT 59937
I could be wrong, but my initial reaction was to reduce this legalese to eight words:
We hijack books. Catch us if you can.
What I Did
1. I ordered a copy of the Kessinger edition of my father’s Roosevelt book from Amazon.com. It arrived a few days later—a paperback edition with Kessinger’s universal cover—plain black type within a yellow border. The back cover was a billboard touting Kessinger’s complete line. The inside—including photographs—had been scanned from the original.
2. I e-mailed the rights department of the original publisher, Henry Holt, and asked if it had made an arrangement with Kessinger. Holt never replied.
3. I went on Google and entered “Copyright Renewal.” The very first listing:
Copyright renewal records
This form searches the US copyright renewal records. Any book published during the years 1923-1963 which is found in this file is still under copyright, ... www.scils.rutgers.edu/~lesk/copyrenew.html - 4k - Cached –
When the page came up, I typed in two words: “Roosevelt Hatch” and instantly the following appeared on my screen:
AUTH: Alden Hatch.
TITL: Franklin D. Roosevelt.
ODAT: 30Jan47; DREG: 11Nov74 RREG: R590254. RCLM: A10155. Holt, Rinehart and Winston, Inc. (PWH)
This states unequivocally that the copyright had been renewed Nov. 11, 1974.
4. I checked copyright law and discovered that if the copyright of a book published from 1923 to 1963 had been renewed within the initial 28-year period, it’s in copyright for 67 more years from the renewal date. This meant “Franklin D. Roosevelt: An Informal Biography” by Alden Hatch is copyrighted until 2021.
5. I found a copy of my father’s will which leaves all his copyright works—and any income derived therefrom—to my stepmother.
6. Only one piece of the puzzle remained—the original contract between my father and Henry Holt. When the book went out of print, did the rights revert to my father (and, by extension, to my stepmother)?
All my father’s and stepmother’s papers were donated to the University of Florida Smathers Libraries in Gainesville, Fla. I got in touch with archivist John R. Nemmers, who expressed me a photocopy of the original contract. The rights did indeed revert to my father.
All the ducks were in a row. I had caught Roger and Joanne Kessinger with their grubby little paws in my family’s cookie jar.
It was time to contact Kessinger Publishing and hit it up for a contract and the royalties due my stepmother.
One of the major questions in the world of intellectual property is how to find the rightful owners of copyright material. In the April 9, 2006, Financial Times, Patti Waldmeier wrote an article titled, “Copyright is stifling US Culture.” She wrote:
American universities, museums and libraries hold huge collections of material that they dare not post online because of the risk of massive liability if an unknown copyright owner later surfaces to sue them. Dealing with all these orphans is a hugely costly business: Cornell University, for example, says it spent $50,000 of staff time and several months calling publishers, authors and authors’ heirs, trying to get permission to digitise 343 monographs on 19th- and 20th-century agriculture—and still failed to identify 58 percent of the owners.
For a complete discussion of Orphan Works, visit http://www.copyright.gov/orphan/.
Would Kessinger make an orphan copyright claim—that it tried in good faith to locate my father’s heirs before publishing?
The plea would not hold water. Google “Alden Hatch” and immediately up comes the Smathers Library with his papers. Write, phone, fax or e-mail Smathers—as the publisher of the Patton book did—and the archivist will put the inquirer in touch with my stepmother.
My letter to Kessinger:
ATTN: Copyright Department
Dear Kessinger Publishing,
I have discovered my father’s biography of Franklin D. Roosevelt is in the Kessinger catalog and is for sale.
Title: Franklin D. Roosevelt: An Informal Biography
Author: Alden Hatch
Attached please find the relevant section of my father’s will that leaves all his literary rights to my stepmother, Allene Gaty Hatch. My father died February 1, 1975.
Mrs. Hatch is now 80 and in need of money. I spoke to her and she denied having signed a contract for the Roosevelt book and has never heard of Kessinger. She asked me to pursue this matter.
As heir to the literary legacy of Alden Hatch, she is entitled to royalties from any sales of this book.
Will you kindly get back to me with the following:
(1) The year of publication by Kessinger.
(2) Who signed the contract with Kessinger in behalf of Mrs. Hatch?
(3) How many copies have been sold?
(4) How much money is due in royalties?
Thank you for your assistance in this matter.
The letter went out May 1, 2006, to the Kessinger P.O. box via USPS Priority Mail and was signed for by J. Kessinger on May 6. My object was to get a contract from Kessinger and some royalty money for my stepmother.
On May 7, my father’s Roosevelt book was expunged from the Kessinger Web site. But fingerprints of Roger and Joanne Kessinger’s perfidy were all over the Internet.
The following week I received an unsigned letter from Kessinger Publishing:
May 8, 2006
Dear Mr. Hatch,
Thank you for notifying us about Franklin D. Roosevelt: An Informal Biography.
We will of course, discontinue the book immediately. The reason we missed the copyright renewal on it is because the copyright office has the author’s name as Alden Hatch and not Hatch, Alden. The book sold one copy in one year.
Please be aware that although we will not be printing or selling the book, it takes several months for the bibliographic information to show it as out-of-print. For instance, Amazon.com will show an out-of print title as available in four to six weeks. In addition, a wholesaler may have one copy in stock and will show it as available. This is unlikely though as all of our titles are print-on-demand.
Again, thank you for your letter notifying us of this.
This unsigned letter is clearly an admission by Kessinger that it took my stepmother’s copyrighted property, defrauded her out of royalty money and justified it with the “Oops” defense.
Would the “oops” defense—or more recently called the Ken Lay Defense (“Gee, I did not realize . ...”) stand up in court? It didn’t help Ken Lay.
Further, Kessinger’s excuse is an absolute crock.
With thousands of titles in print, Kessinger knows perfectly well how to find whether a copyright has been renewed. I—an amateur outsider—found it within 15 seconds.
The Plot Thickens
Kessinger has dragged a number of unsuspecting, reputable businesses into the sordid world of interstate (and international) trafficking in other people’s property.
Print on demand represents the future of book publishing. Rather than the old-fashioned model where huge investments had to be made in warehouses filled with books stacked floor to ceiling and gathering dust, the new book warehouse is in a computer hard drive where books and their covers are stored electronically.
Order a book and a computer somewhere tells a book printing machine to print one copy (or 10 copies or 100 copies) of that title. The efficiency of the new system is truly elegant.
The largest print-on-demand publishing operation is Lightning Source, headquartered in LaVergne, Tenn.—a division of Ingram, the world’s largest book distributor. Its Web site boasts of “more than 100,000 orderable titles” and “2,300+ publishing partners.”
In a Web site error, AllBookstores.com listed the publisher of my father’s Roosevelt book as Lightning Source, clearly linking the print-on-demand giant to Roger and Joanne Kessinger.
Since I didn’t believe Kessinger’s oops defense—and since many publishers are congenital liars about book sales and regularly screw authors out of royalties—I had reason to disbelieve the claim that only one copy of the book was sold in the course of the year. And even it were only one copy, my stepmother is due a royalty payment.
My Letter to J. Kirby Best
I wrote a short, simple letter to Lightning Source CEO J. Kirby Best reminding him that we had met the prior year at a book summit conference. I informed him that I was “involved in a theft of copyright situation and I understand that Lightning Source is the printer.” I wanted to know how many copies of the book had been printed and gave all the information about the title including the Kessinger ISBN number.
In addition I enclosed a photocopy of my letter to Kessinger and Kessinger’s reply to me.
My letter to Best arrived at Lightning Source via FedEx on May 18, 2006, and was signed for by G. Greggory at 8:39 a.m.
Best had three choices.
(1) Deny Lightning Source was the printer.
(2) Refuse to tell me the number of books he had printed, claiming that was confidential information between Lightning Source and Kessinger.
(3) Tell me how many he printed, say that a clause in the print order included Kessinger’s guarantee that it had the rights to republish the property, apologize for what seems to have happened and promise to take immediate corrective action if my charges were true.
Lightning Source took a fourth option. It ducked the issue by not responding at all.
Roger and Joanne Kessinger have also corrupted Lightning Source’s business. How many other of the 100,000-plus orderable titles in the Lightning Source database are in violation of copyright? For example, I spent an hour noodling through the Kessinger author list and found seven titles that were under copyright:
“My Antonia” by Willa Cather
“Crime: Its Cause and Treatment” by Clarence Darrow
“Erik Dorn” by Ben Hecht“Jesting Pilate” by Aldous Huxley
“The Haunted Bookshop” by Christopher Morley
“Parnassus on Wheels” by Christopher Morley
“Swiss Family Manhattan” by Christopher Morley
Of course Kessinger may have contracts with the copyright holders, in which case the publication is perfectly legal.
This new edition of the Roosevelt book was being offered for sale on 31 Web sites including all the usual suspects—Barnes & Noble.com, Powell’s, Booksamillion.com, Half.com and Amazon.com in the United States, France, Canada, Japan and Germany. It was also featured on Google’s Book Search.
On July 2, 2006, the Associated Press reported that local police and Secret Service agents went to the Westfield, Mass., home of William Keys to confiscate photos of Angelina Jolie and Brad Pitt in Africa.
Under that law enforcement model shouldn’t the FBI and Interpol raid Kessinger, Lightning Source and booksellers’ offices and warehouses here and abroad to confiscate all publishing records, book scans and printed copies of my father’s pirated Roosevelt book?
What My Lawyer Said
I took the dossier of documents and two copies of the Roosevelt book—my father’s original edition and the Kessinger edition—to my lawyer. He said this was a copyright matter, and he would consult with a specialist and get back to me.
A few days later he came back with the verdict. I would have to prove monetary damages and that copyright law depended on the mood of the judge. He could award me $200 or $100,000, depending on how he felt.
In other words, I said, I could spend $10,000 going after these people and wind up winning $200—or nothing at all.
My lawyer nodded.
I may be dumb … but not that dumb.
Meanwhile, I ordered another copy of “Franklin D. Roosevelt: An Informal Biography” from Amazon at the end of June. On July 1, 2006, I received an e-mail confirmation that the book was in the mail.
P.S. This past May my stepmother called to say a publisher in Connecticut that specializes in World War II books showed interest in republishing two of my father’s books: “Glenn Curtiss: Pioneer of Naval Aviation” and “Franklin D. Roosevelt: An Informal Biography.” I sent copies of the original editions to this publisher, but was forced to mention in the cover letter that the Roosevelt property was currently in print illegally and siphoning off potential buyers. No doubt the Kessingers’ actions will have queered that deal, thus inflicting very real financial damage to my stepmother.