455 Massachusetts Avenue NW, Suite 700 · Washington, DC 20001 · (202) 347-3375 · www.publishers.org October 7, 2022 Daniel Lee Asst. U.S. Trade Representative for Innovation & Intellectual Property Office of the U.S. Trade Representative 600 17 th Street, NW Washington, DC 20508 Subject: 2022 Special 301 Out-of-Cycle Review of Notorious Markets: Request for Public Comments (Docket No. USTR-2022-0010) Dear Mr. Lee: The Association of American Publishers (AAP) provides this submission in response to the request for public comments in the 2022 Special 301 Out-of-Cycle Review of Notorious Markets by the Office of the U.S. Trade Representative. AAP is the national trade association of the U.S. book and journal publishing industry. AAP represents the leading book, journal, and education publishers in the United States on matters of law and policy, advocating for outcomes that incentivize the publication of creative expression, professional content, and learning solutions. The book and journal publishing industry is a vital sector of the U.S. economy, generating $25.71 billion in revenue in 2020, 1 and as part of the U.S. core copyright industries, employing some 5.7 million American workers with highly competitive wages. 2 This submission identifies online markets that provide access to unauthorized infringing copies of books and journal articles, thus adversely affecting publishers, and the authors, writers, editors, illustrators, researchers, and scholars — American workers whose creative and scholarly output publishers bring to market, through new and innovative ways, to entertain, educate, and inform. We appreciate the U.S. government’s continuing efforts to work with our trading partners to encourage adoption of measures to mitigate piracy, whether occurring online or in physical markets. Notorious Online Markets Online platforms continue to make available, without compensation to nor permission from publisher rights holders, unauthorized and pirated copies of books (consumer trade or professional books, textbooks) and journal articles. These platforms include online distribution 1 See https://publishers.org/news/book-publishing-revenues-flat-at-25-71-billion-for-the-year/. 2 See https://www.iipa.org/files/uploads/2020/12/2020_Infographic.pdf. 2 hubs (“cyber lockers”), auction sites, P2P technologies, apps, and other online services that provide unauthorized access to, or infringing copies of books and journal articles. Unfortunately, the infringing activity occurring on online platforms is supported, whether wittingly or unwittingly, by third-party service providers such as hosting providers, payment processing services, advertising networks, domain name registrars, and content delivery networks (CDN). While some platforms grudgingly cooperate with rights holders to address the infringing conduct, many continue to impede the ability of rights holders to take effective action against the infringing activity occurring on their sites. For instance, it continues to be unnecessarily difficult to gain the cooperation of content delivery networks when they are apprised of the infringing activity of certain sites for which they provide services. The sites listed below continue to provide access to infringing copies of books and journal articles, impinging on the intellectual property rights of authors and publishers. Though some sites respond to take down notifications, removing or disabling access to infringing content, the problem of the same infringing content being re-uploaded to the site remains a persistent problem. For the most egregious sites, take down notifications from publishers regarding infringing activity occurring on the site are routinely ignored. Libgen.is (also libgen.rs, libgen.me ), collectively the Library Genesis Project, is a locker site registered in both Russia and Amsterdam, which operates an enormous repository of infringing content — from consumer trade books, scientific, technical, and medical (STM) journal articles, technological standards, to scholarly materials. It is, by far, the most problematic of pirate sites plaguing the trade, education, and STM publishing sectors. The STM articles made available on Libgen, and its many mirrors are obtained via Sci-Hub (described below). Libgen boasts that it hosts 2.4 million non-fiction books, 80 million science magazine issues, 2.2 million fiction books, 2 million comic strips, and magazine articles, 3 which content is also being made available through multiple mirror sites. Libgen.is’ current Similarweb global ranking is 3,214 with over 12 million sites visits a month. Most site visitors are in the U.S. (20%), followed by Brazil (8%), and India (8%). In 2015, publishers obtained an injunction under Section 97A of the UK Copyright, Designs and Patent Act (1988) to compel service providers to block access to the Libgen-related sites, and the site continues to be subject of a blocking order in the UK. The site and some of its mirrors are also subject to blocking orders in Belgium, Denmark, France, Germany, Italy, Portugal, Russia, Spain, and Sweden. On August 25, 2022, the French book publishers’ association (Syndicat national de l’edition-SNE) successfully secured an order enjoining French ISPs to block 249 domains associated with this group of sites. 4 The libgen.is site lists what appear to be the three primary Libgen websites: libgen.gs, libgen.rs, and Z-Library (z-lib.org ), from which a cascade of mirror sites may be accessed. 5 As 3 See https://www.revolutionreport.net/libgen-library- genesis/#:~:text=You%20can%20find%20a%20wide%20array%20of%20files,books%2C%202%20million%20comics %20strips%2C%20and%20magazine%20issues. 4 See https://www.sne.fr/actu/action-judiciaire-contre-z-library-une-nouvelle-victoire-des-editeurs-contre-le- piratage/. 5 See http://libgen.gs/mirrors.php and http://libgen.lc/mirrors.php; accessed October 8, 2021. 3 of September 2022, some 108 mirror sites continue to be associated with the Library Genesis Project. Of the active 108 mirror sites, the sites with the highest numbers in terms of global site traffic are: book4you.org; 1lib.in; b-ok.cc; b-ok.asia; b-ok.lat; b-ok.xyz, 1lib.domains; 3lib.net; b-ok.africa; and usa1lib.org. The Libgen group of sites has increased in sophistication over the last few years. The site now aggregates all active mirror sites, reads IP address data from its users, allowing the network to re-direct users to the mirror site more readily accessible in their region. Z-Library, one of the top mirrors, ran a funding campaign from September 15 to October 1, 2022, accepting donations through Alipay, Amazon, and PayPal gift cards, and promising unlimited downloads to all donors. Read Online Sites are platforms that provide the text of an ebook to be viewed or “read online.” The number of “read online” sites is increasing, supported by ads served up by Google Ads, Microsoft Advertising, Steepto, and MGID. As “read online” sites are optimized to allow for “viewing” or “reading” on mobile devices, these sites reach more consumers than sites optimized for desktop or laptop devices given the ubiquity of mobile devices through which infringing works can be accessed without having to download the work. This type of online book piracy is particularly problematic as it significantly increases enforcement costs for publishers. In the “read online” scenario, the infringing content is displayed across several linked pages on a website. For download sites, one takedown notification will address a complete work. In contrast, for a “read online” site, a takedown notification must be sent for every online page (i.e., every URL) associated with a single title. This easily translates into hundreds of takedown notifications for a single work, and thus, thousands of notifications by a publisher for the many copyrighted works they protect. Examples of such sites include full- english-books.net and novel22.net – which both use Cloudflare as their CDN. Others include: graycity.net (registered 2018, using Google ad choices to serve ads, hosted by Shinkiru Technology Snd Bhd – SHINJIRU-MY), which appears to be part of a group of related read- online sites, bookfrom.net; archive.bookfrom.net; readfrom.net; celz.ru; efrem.net; and ereads.net — all of which use the same IP and hosting address (IP: 101.99.94.14; ISP: Shinjiru.com.my). Combined these sites receive more than 2 million visits per month. Rapidgator.net provides free file hosting and sharing services. It advertises features such as “extra fast downloads” and “unlimited file storage.” The site also advertises an affiliate program through which users earn money for uploading files. Rapidgator’s current Similarweb ranking is 1,670. The service is most popular in Japan (32%), with the highest combination of visitors and page views for the site, followed by the U.S. (10%), and France (6%). The domain was registered in 2010, and its current hosting provider is Team Internet AG (DE). The site’s IP address puts it in Russia, but the site lists a Belfast, Northern Island address in its “About Us” section. Nitroflare.com provides free file hosting and sharing services. Nitroflare’s current Similarweb ranking is 7,794. The service is most popular in the U.S. (12%), with the highest combination of visitors and page views for the site, followed by Germany (11%) and France (11%). The domain was registered in 2014, and its current hosting provider is GLOBALLAYER, NL via Cloudflare. 4 Sci-hub.io (also sci-hub.se ; sci-hub.st ), first encountered in May 2013 (as Sci-Hub.org), continues its flagrantly infringing conduct, facilitating unauthorized access to over 88.34 million journal articles and academic papers (over 85% of all toll access journal articles published). Sci-Hub obtains infringing copies of publishers’ copyright protected works by illegally accessing the computer networks of universities, using hijacked proxy credentials that allow legitimate users to remotely access university intranet systems and databases. Once the operator gains access to the database, it harvests numerous articles and stores the purloined articles on its own servers, while also posting these articles to Libgen.is and its related mirror sites (see Libgen.is description above). The site and its operator are in Russia and continue to operate with impunity. Though the site operator claims to have no knowledge of illegal tactics used to con legitimate subscribers into disclosing their personal credentials, there are reported incidences of students and academic personnel, at university institutions whose systems have been compromised, being subjected to phishing schemes. For instance, emails claiming that a student’s library access is due to expire, and the individual is required to “update” his/her login credentials through a provided link (that collects the individual’s personal, private information). The site appears to be funded through donations, with some evidence indicating that funding is made through Bitcoin. 6 ISPs in Belgium, Denmark, France, Germany, Italy, Portugal, Russia, Spain, and Sweden are required to block access to the site, per injunctions secure by a group of STM journal publishers. The site remains the subject of a site blocking application in India, which unfortunately remains unresolved. 7 AAP member publishers, ACS 8 and Elsevier, 9 both secured judgments against Sci-Hub and its operator in 2017 in the U.S., resulting in injunctions requiring U.S. domain name registries to suspend the site’s U.S. administered domains. Despite its obviously criminal conduct, Sci-Hub’s operations remain active, in large part due to the difficulty of addressing online entities located in non-IP friendly jurisdictions. It is telling that the site’s criminal activity has been the subject of warnings issued by a law enforcement entity. 10 Telegram, the social media platform, is emerging as a leading source of pirated text- and professional books and journal articles (along with other copyrighted content), as it allows 6 https://www.coindesk.com/markets/2020/06/22/blackballed-by-paypal-scientific-paper-pirate-takes- bitcoin-donations/ 7 On December 24, 2020, the site operator committed to the court (essentially enjoining itself) that there would be no uploads of new articles until the court rules upon the application. https://images.assettype.com/barandbench/2020-12/9d2b7dc9-c33a-43c2-af0d- 2d4fd03a1f52/Elsevier_Ltd_vs_Alexandra_Elbakyan.pdf. Despite the court’s direction not to upload articles to the site, on September 5, 2021, the operator uploaded 2,337,229 newly pilfered articles to the site. 8 See Court grants default judgment for ACS in its case against Sci-Hub. 9 See Judgment Against Sci-Hub is a Win for Authors and Publishers. 10 See Police warn students and universities of accessing an illegal website to download published scientific papers | City of London Police. A December 2019 news article reported that the Department of Justice was investigating its operator on suspicion of working for Russian intelligence. 5 infringing content to be distributed to large, encrypted private groups. The app, which over one hundred million people downloaded in 2021, now has approximately 500 million active users. Other pirate networks (such as Sci-Hub and Libgen) operate Telegram bots which enable users to download infringing copies of books and journal articles within the Telegram platform. There appear to be no effective mechanisms through which a rights holder may seek the platform’s assistance in removing infringing content. Though rights holders have attempted to send take down notifications to the platform, any response is typically long delayed and thus inadequate in expeditiously mitigating infringing activity on the platform. The platform has been the subject of enforcement actions and lawsuits in several jurisdictions, requiring the platform to remove infringing content 11 or block channels providing infringing content. 12 Thepiratebay.org site claims to be “the world’s largest bit torrent indexer.” Because no torrent files are saved at the server, the site denies any responsibility for copyright infringements that take place with the dissemination of infringing content through the site. The Pirate Bay was organized in Sweden in late 2003, but now operates as a non-profit, registered in the Seychelles. Its current Similarweb global ranking is 1,983. The site logs over 26 million visits per month and is most popular in the U.S. (21%), followed by Canada (8%), and Australia (4%). The site continues to be hosted by Shinjiru-MY-AS-AP, Shinjiru Technology Sdn. Bhd, MY (111.90.150.18), via Cloudflare. Tiny-files.com is a non-compliant free file-hosting and sharing service. The site’s current Similarweb global ranking is 107,202. The site receives over 474 thousand monthly visits and is most popular in the U.S. (32%), which has the highest combination of visitors and page views for the site, followed by the UK (15%) and Italy (8%). The domain was registered in 2017, and its current hosting provider is ABELOHOST.NL (185.145.130.125), via Cloudflare. The site ignores takedown notifications entirely. Several other problem sites rely on this cyberlocker to host infringing copies of works, including the site ebook-hunter.org , which hosts hundreds of thousands of infringing copies of trade books and education textbooks. As tiny- files.com , the supporting cyberlocker, is non-compliant, ebook-hunter.org’s repository of infringing content continues to grow. Ebook-hunter.org’s current Similarweb global ranking is 56,337 and is most popular in the U.S. with 741,000 sites visits per month. Tokopedia.com is one of Indonesia’s largest online marketplaces, with a Similarweb global ranking of 213, with users primarily from Indonesia, Singapore , and the U.S. The site provides third-party vendors the platform through which to post listings of products they are selling, hosting a range of products for sale from clothing to electronics, as well as pirated copies of academic textbooks and English-language teaching materials. Tokopedia provides means through which infringing products made available on the platform can be reported to its compliance team, and the site is responsive to takedown notifications. While the platform has been proactive in engaging with publishers to address 11 See Telegram Copyright Lawsuits Pressure Messenger To Install Anti-Piracy System * TorrentFreak. 12 See Court Orders Telegram to Block Access to Piracy Channels With Millions of Members * TorrentFreak; Delhi High Court directs Telegram and Mega to immediately take down any illegal content uploaded on their platform relating to DocTutorials | SCC Blog (scconline.com). 6 enforcement deficiencies, and certain improvements to the platform’s enforcement mechanisms have been made, 13 the continued availability of pirated and counterfeit books on the site remains problematic. The site operators are encouraged to continue to improve the platform’s piracy mitigation processes. Uploaded.net offers file hosting and sharing services to users who register with a name and email address (only email addresses are verified, as a user’s access data is sent to the provided email address only after the user activates the account via the link sent to the registration email). Registration options include free or premium accounts. Users can also collect points to upgrade their accounts. Premium account holders have access to full speed download, unlimited storage for uploaded files, parallel downloads without restrictions, ad free downloads, the ability to manage their uploaded files through a “file manager,” and earning options. Premium account fees depend on the desired duration of the account (from 48 hours to 2 years). The highest premium fee is 99.99€ (USD$97.99), whereas the lowest is 4.99€ (USD$4.99). Uploaded.net was registered in 2005 by Daniel Hrnjak (who remains listed as the CEO) on behalf of Cyando AG, which is currently located at Alte Steinhauserstrasse 1, 6330 Cham, Switzerland. The site lists a customer support contact number and email and provides a “takedown” webform through which links “that contravene the site’s TOS” can be reported. Uploaded’s ISP is Eweka Internet Services in the Netherlands, and its current Similarweb global ranking rank is 6,785. The site receives 12.9 million site visits a month and remains popular in Japan (33%), followed by France (10%), Spain (9%), Germany (7%), and the U.S. (6%). In June 2021, the Court of Justice of the European Union (CJEU), ruling on the Cyando case as referred by the German Federal Court, held that a platform will be liable for the unauthorized uploads of its users/subscribers, if said platform fails to take appropriate measures to remove or block access to the infringing content of which it has specific knowledge, or where said platform knows or “ought to know” that infringing activity is occurring in general, fails to adopt appropriate technological measures to mitigate against such infringing activity, or where said platform was actively involved in making available the infringing content by selecting the content, providing tools for illegal sharing or adopting a financial model which encourages sharing of protected content. In June 2022, the case went back to the German Federal Court, which, following the CJEU reasoning, held that a platform will be directly liable for the act of communication to the public where such platform has or should have general knowledge of the availability of the infringing content uploaded by its users but fails to adopt proactive measures to address the infringing conduct. It specifically held that reactive measures were sufficient to fulfill its obligations. In August, the case was remanded to the Munich Higher Regional Court as there are findings of facts that still must be established, such as whether Cyando failed to adopt proactive measures to combat infringement and whether Cyando’s business model encouraged its users to upload infringing content. 13 For instance, the criteria for repeat infringers appear to have been clarified and the platform indicates that it is taking steps to “review sellers to block IP infringers from creating new accounts by linking new sign ups to previously banned sellers.” 7 VK.com is a well-known Russian online social media and social networking service, with a Similarweb global ranking of 16. The site receives an average of 1.4 billion visits a month and is most popular in Russia (82%), followed by Belarus (3%) and Ukraine (3%). Many of the site’s subscribers are prolific uploaders of infringing content such as ebooks. Though the site acts upon take down notifications for infringing content, there are no consequences for repeat infringers and the volume of infringing content posted by subscribers continues to increase. In 2020, an AAP member reported over 18,790 links to infringing content to the site, compared to 3,000 infringing links for 2019. In 2021, the same member company indicated that it reported 26,030 instances of infringement. 80lib.com is a Chinese-language website that facilitates access to infringing copies of journal articles, which are obtained from publisher databases without permission or authorization. The site requires a user to register for a paid “subscription,” through which the user may then access infringing copies of scientific research articles published by AAP member publishers. The site advertises itself as providing access to “more than 50 domestic and foreign famous school libraries, including many of the world's TOP10 schools,” and lists ScienceDirect and Scopus among the publisher databases to which it can provide unauthorized access, noting that “(w)ith the click of a mouse, you can access these prestigious libraries at any time, freely access and download documents, and download scientific literature from here.” Though the site primarily caters to Chinese-language speakers, automatic translation offered by several Internet browsers makes the site readily accessible to English-language speakers. Audio book piracy . With the continuing growth of the audiobook market, the industry is also seeing an escalation in the availability of pirated audiobook content on more dedicated sites. Prior to 2020, most audiobook piracy occurred on YouTube. Delivery methods for pirated audio book content differ, with some entities utilizing Soundcloud or Spotify to stream the unauthorized content, while others rely on Dropbox or other cyberlockers to host the infringing content. The sites draw revenue from advertising; unfortunately, there has been little cooperation with advertising services on this matter. Listed below are examples of such sites, which have generally ignored takedown notifications sent by publishers. • galaxyaudiobook.com- Similarweb global ranking of 96,828. Over 700,000 visits per month. The site is most popular in the U.S. (31%), followed by the U.K. (7%) and India (6%). Host IP:94.242.50.253/Host ISP:VEESP-AS, RU • tokybook.com- Similarweb global ranking of 47,094. Over one million visits per month. The site is most popular in the U.S. (44%), followed by the U.K. (7%) and Canada (5%). Host IP:185.224.82.115/Host ISP:ABELOHOST, NL • audiobookss.com- Similarweb global ranking of 73,745. Over 450,000 visits a month. The site is most popular in the U.S. (30%), followed by Mexico (6%) and the U.K. (5%). Host IP:94.242.50.253 / Host ISP:VEESP-AS, RU Conclusion Publishers deliver engaging, entertaining, and educational content to students, teachers, researchers, scientists, and readers of all ages. Rampant online piracy, however, continues to 8 adversely affect authors and publishers, and all American workers involved in the collaborative endeavour of bringing a book or journal article to market, including literary agents, editors, researchers, illustrators, and other personnel in the publishing ecosystem. The infringing conduct of these notorious markets harms legitimate American businesses and the American workers they support. While such harm is difficult to quantify, it is evident from the millions of infringing copies of books and journal articles that proliferate on these platforms. AAP and its member publishers appreciate and support the work of the U.S. government in identifying notorious markets that traffic in infringing content and encourage continued collaboration with trading partner economies to more effectively address the borderless nature of online piracy. Sincerely, M. Luisa Simpson Senior Vice President Global Policy