Indie author John Van Stry has won his copyright infringement lawsuit against former Pirate Party of Canada leader Travis McCrea, whose Ebook.Bike platform offered free downloads of many writers’ work including a dozen novels by Van Stry.
“The lawsuit is over, and we won” Van Stry announced April 20 on his Patreon page. Judge Bryson of the U.S. District Court for the Eastern District of Texas ruled that Ebook.Bike’s McCrea willfully infringed 12 of Van Stry’s copyrighted works, and awarded Van Stry $9,000 in statutory damages. McCrea was permanently enjoined from “copying, reproducing, or distributing, either directly or vicariously, plaintiff’s copyrighted works” without authorization. McCrea also was ordered to pay Van Stry $3,605 as a sanction for failing to comply with his discovery obligations, and to pay Van Stry’s costs and attorney’s fees.
John Van Stry took up the basically thankless and highly expensive fight against this scofflaw when no law enforcement or author organization would put an end to McCrea’s activities — which had been going on for years.
MCCREA’S TRACK RECORD. Ebook.Bike’s copyright violations had made national news in Canada. Owner Travis McCrea’s taunting self-justifications featured in a Toronto Star story on March 9, 2019: “Authors irritated by ‘smug’ defence of Vancouver website they say is stealing their work”.
A Vancouver man who led the now-defunct Pirate Party of Canada is being accused by authors around the world of giving their ebooks away for free on a website that boasts everything from Michelle Obama’s bestseller to hundreds of indie books from small publishers.
…McCrea was the leader of the Pirate Party of Canada, which supported net neutrality, open government and intellectual-property reform and participated in multiple federal elections between 2010 and 2015. McCrea himself ran for MP in the riding of Vancouver Centre in 2011.
He said he currently operates the Canadian website of the Idaho-based Kopimist Church and that according to his Kopimist beliefs, “all information should be shared.” The website calls copying information a holy act.
McCrea was on the Authors Guild’s radar, too, but their comparatively passive recommendation was for writers to try and weaponize the Google search engine against Ebook.Bike by making the site harder to find: “Call to Action: Get Google to Remove Ebook.bike Links from Search Results” (March 6, 2019):
As many of you are aware, the pirate website “Ebook.bike” is back online, hosting thousands of books for illegal download. A number of authors have sent takedown notices to the website using its DMCA form. But as far as we know, its DMCA compliance is deliberate subterfuge as its DMCA form often doesn’t work; and even when it does and the books are taken down, other users almost immediately re-upload infringing copies.
…Until Congress closes this loophole in the law that allows websites like Ebook.bike to thrive, we have to band together and take action. For a start, authors have to collectively send a message to Google to delist links to the site’s illegal downloads from search results. There’s no reason why a site that traffics in stolen books should be so easily accessible. If enough authors send Google a takedown notice, it will be compelled to take action against Ebook.bike.
The Authors Guild’s choice of tactics showed it was powerless to directly counter Travis McCrea’s activities despite his flagrant history of digital piracy.
McCrea gained notoriety as a leader of the Pirate Party of Canada which had, as a key tenet of its platform, to “decriminalize non-commercial file sharing.” TorrentFreak reported in 2011 “As part of the ‘war for digital sovereignty,’ as McCrea describes it, he has launched Tormovies, a site dedicated to providing movie torrents. A look at the site’s front page reveals that all the latest Hollywood blockbusters are showcased.” McCrea claimed that his media piracy “isn’t theft,” and stated that he would continue his piracy downloading until the media is offered to him at what he considers a fair and accessible price.
Another of McCrea’s piracy sites traded college textbooks. According to the complaint filed in Van Stry’s lawsuit:
In a May 3, 2013 interview, Mr. McCrea admitted that he ran http://librarypirate.me (“LibraryPirate”), a website that brazenly traded pirated textbooks. Mr. McCrea’s LibraryPirate instructed students on how to make digital scans of their textbooks and post the pirated scans to the site he ran for “free downloading,” boasting he made 1,700 pirated textbooks available by August 2011, and made money by advertising on his LibraryPirate website to the people drawn to his illegally available works.
Then,
January 2013, Mr. McCrea setup his tuebl.ca website. T.U.E.B.L. stands for “The Ultimate Electronic Book Library.” Mr. McCrea solicited individuals who had digital copies of books in the popular ePub format, typically used on e-readers, such as Kindles, to upload their books on tuble.ca and to tuebl.com, the latter of which would redirected to tuble.ca (collectively “tuebl”), after which he would then make copies of the books available to any and all.
Numbers posted on that site said it contained 32,000 books by 13,000 authors, and their books had been downloaded over 9.5 million times.
About December 2015, McCrea began redirecting users from his tuebl.ca website to the Ebook.Bike website.
And in 2017 he was alleged to be the developer of Audiobook.cafe which let users stream and download pirated audiobooks.
McCrea also registered “The Kopimist Church of Idaho Inc.” as a Religious Non-Profit Corporation with the state of Idaho August 20, 2012, later adopting the title of “Chief Missionary and Outreach Officer and Director.” He referred to himself as “reverend” and was on record as having said that “giving away other people’s intellectual property” is his “religious vocation.”
LITIGATION BEGINS. McCrea dared anyone to sue him in a TorrentFreak interview in March 2019:
“While we stay committed to following all US copyright laws and ensuring we maintain our DMCA compliance, I would like to reiterate that I am a Canadian and my focus is on upholding the laws of my country. It just has always been that the DMCA provides the best framework for how to handle copyright complaints,” he said.
“I use the DMCA because it offers the best framework, not because I feel I’m obligated to. If they feel I’m liable, come sue me.”
A week later, Van Stry did.
John Van Stry had strong motives for taking up the fight: “[McCrea] was making money off of the stolen work of me and other authors, and bragging about it… He never complied with any take-down requests. Oh, I know he claimed he did, and I was told by one author that any books taken down (in the few instances he appeared to do that) were back up again in days. He was destroying the retirement of many authors, who rely on the royalties they get from their backlogs to pay their bills. This is a real thing! People were being financially hurt! This wasn’t some small pirate site that maybe a couple of dozen people go to. The site was getting over a million hits per month, by his own account. Millions of books were being downloaded. Books are not like songs where you listen to them again and again. You read a book once, that’s it. People who steal books don’t come back and buy them later. Claiming that they do is a myth.”
Van Stry also feared repercussions against his legitimate sales: “I was worried that Amazon might pull my books and punish me, for them being on his website. After all, [McCrea] was claiming he had permission for them to be there. Other authors were highly concerned with this as well.” And not only were Van Stry’s sales being hurt, “He was impacting my sales ranking and my marketing. The secondary impact of this theft is a lot harder to estimate, but it was there, and I felt it. Again, other authors felt it too.”
In anticipation of a lawsuit, McCrea started a GoFundMe appeal to finance his defense. The Digital Reader’s Nate Hoffelder fact-checked some of McCrea’s claims there in a March 28, 2019 article:
McCrea has launched a GoFundMe campaign to raise a defense fund. He lies multiple times in the brief description.
“Let me be clear: At no point have I uploaded content I didn’t own to Ebook Bike,” he writes “and I have always ensured that copyrighted material wouldn’t be uploaded (using the same methods and techniques used by YouTube, Facebook, and others).”
That is an utter falsehood; I just (in the past couple minutes) downloaded A Memory Called Empire and Mike Resnick’s Soothsayer. Both books were complete (and both are in copyright, obviously).
JURISIDICTION. Van Stry hired professional lawyers to litigate his case. McCrea defended himself, pro se. McCrea blew off discovery, making the minimum responses needed to keep the case going while Van Stry’s legal bills bled him financially.
Although the defendant was in Canada, the Federal District Court in Van Stry’s home state of Texas accepted the lawyers’ arguments that it had jurisdiction:
Court has subject matter jurisdiction at least under 28 U.S.C. §§ 1331 and 1338(a), the first providing for federal questions and the latter providing that “[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to . . . copyrights . . .”
Van Stry’s attorneys also argued the court had jurisdiction over McCrea and another co-defendant (the ISP) because through the internet they were offering the copyrighted works in Texas:
Mr. McCrea advertises, distributes, and imports via Mr. McCrea’s eBook.Bike website (see below for description) and allows for and does reproduce the copyrighted Works (also described below) in copies without permission or license into Texas and this district.
In addition, they pointed out an established principle about suits against non-U.S. residents:
For all venue purposes, a defendant who is not a resident of the United States may be sued in any district…
THE DECISION. Initially, Van Stry asked for statutory damages of $15,000 per book, and a permanent injunction to prevent further infringement of his copyrighted books. He also asked for an award of costs and attorney’s fees.
While McCrea sandbagged the discovery process, the judge prodded the parties to settle. But as Van Stry wrote when the decision came out this week —
…[For] all of those saying I should have settled out of court? We tried. Three times. The first time? Mr. McCrea sent US the settlement offer. One that was a hell of a lot better than what he was hit with today. He asked us to write it up for him (because of course he didn’t have a lawyer – right). So I paid my attorney’s to write it up exactly like he sent it to us.
And he never signed it.
Twice more we sent it to him, at the judge’s (subtle) urging. He didn’t respond to the first of those and was a bit rude on the last time.
As the prospect of a trial grew nearer, the judge also told the parties – who by then were willing to have him to render summary judgment on the record already before him – that the certain way to avoid the possibility of a jury trial was for Van Stry to ratchet down his request for damages.
“[I] note that the right to a jury trial on the issue of statutory damages does not apply when the plaintiff seeks an award limited to the statutorily guaranteed minimum amount…
“In light of Mr. Van Stry’s acknowledgement that damages in this case are likely to be illusory, he may wish to limit his request for statutory damages to the statutory minimum award of $750 per work —an amount that Mr. McCrea has already agreed would be appropriate. In that event, a jury trial on damages would not be necessary.
“Mr. Van Stry may, if he chooses, make the request to limit the award of statutory damages in the alternative. The request, that is, would only control in the event that Mr. McCrea does not waive his right to a jury trial.”
Van Stry took the hint and adjusted his damage claim downward. A dozen books at $750 apiece – thus in the final verdict, the court’s damage award of $9,000.
The court also sanctioned McCrea for his non-cooperation in the discovery phase, and granted Van Stry costs and attorney’s fees:
Mr. McCrea’s positions in this case have been distinctly lacking in both legal and factual support, and Mr. Van Stry has prevailed on all his claims. Moreover, Mr. McCrea’s lack of diligence in this case and his conduct during discovery have unnecessarily extended the proceedings and have driven up the costs of the litigation for Mr. Van Stry. And Mr. McCrea’s actions resulting in this lawsuit were willful, not innocent. Indeed, Mr. McCrea has said that he did “not care if the website was illegal and would do it either way.”
…Considerations of compensation and deterrence also favor an award of attorney’s fees. Mr. Van Stry has experienced significant and sometimes unnecessary litigation expenses in maintaining this lawsuit… Awarding fees in a clear-cut case such as this one does not give rise to any countervailing interests, such as the risk of discouraging others to build on an author’s work.
THE JUDGE’S REVIEW OF THE DEFENSE. The court opinion deconstructs McCrea’s defense, which rested on (1) denying anyone had downloaded copyrighted work from his site, (2) that he was entitled to the safe harbor protections of the Digital Millennium Copyright Act, and (3) he was exercising his religious freedom.
McCrea hamstrung his first two arguments by failing to answer allegations in discovery – as a result, things alleged by the plaintiff ended up being treated as admissions by the defendant — treated as fact for purposes of the case.
Mr. McCrea denied any wrongdoing because there was no evidence, according to Mr. McCrea, that there had been any downloads of copyrighted material. Id. at 3. At the same time, Mr. McCrea said that he was “practising [his] religion by helping authors connect with their readers.” Id. at 2. Mr. McCrea also claimed that his actions were protected by the safe harbor provision of the Digital Millennium Copyright Act. And, in the event of liability, Mr. McCrea disputed Mr. Van Stry’s contention as to the appropriate amount to be awarded in damages. Id. at 1–2.
… Beyond the fact Mr. Van Stry’s prima facie case of willful copyright infringement is established as a result of the Court’s sanctions order, Mr. McCrea’s challenge to liability on the merits is not supported. He contends that summary judgment should not be granted because the plaintiff “has no evidence that any of their work was actually available on the website” and no evidence that the books were “downloaded from the site.” Dkt. No. 54, at 3. Mr. Van Stry replies that Mr. McCrea admitted (by failing to respond to requests for admission) that all twelve copyrighted books at issue in this litigation available for distribution on Mr. McCrea’s website and that they were distributed into the United States. Dkt. No. 59, at 3. Mr. Van Stry’s counsel also submitted an affidavit stating that as part of his pre-suit investigation, he downloaded all twelve books from Mr. McCrea’s website. Id.
DMCA. The DMCA grants internet service providers a safe harbor against liability for copyright infringement by works available on their websites if they adhere to several requirements. One of them is to have a designated agent to receive takedown notices, and the contact information must be on the ISP’s website, and provided to the Copyright Office.
Mr. McCrea does not dispute that he did not designate an agent with the Copyright Office. See generally Dkt. No. 54. To the contrary, Mr. McCrea previously admitted that he had no designated agent by failing to respond to a request for admission directed to that very issue.
Therefore, the court rejected McCrea’s safe harbor affirmative defense.
RELIGIOUS EXEMPTION. McCrea had told the court that his “religion should be protected by the 1993 Protecting Religious Freedom Act,” and that he is “practising my religion by helping authors connect with their readers.” Also, “[i]t is the position of the Kopimist Church that copying is a holy act, to share files is a holy act, to share knowledge is a supremely holy act.”
The court ruled that McCrea’s reliance on the RFRA was misplaced, because it does not apply when the “government,” as defined by RFRA, is not a party to the action.
Besides, said the court, copyright law was not really an obstacle to this claimed religious practice:
… Mr. McCrea certainly could have approached Mr. Van Stry to obtain a license to copy, make available, and distribute Mr. Van Stry’s copyrighted works, if that was how Mr. McCrea chose to help connect Mr. Van Stry with his readers. Mr. McCrea’s conclusory assertion that licensing would be “impractical” does not alter the analysis.
FURTHER THOUGHTS. Why did McCrea do it? What were McCrea’s motives for running Ebook.bike [Internet Archive link] and his other sites?
Van Stry told his Patreon readers, “He was stealing my work, and the work of other authors to make money, lots of money, with which he bought two airplanes and lived a pretty good life.”
Van Stry’s lawyers pointed to McCrea’s claims on his Kopimist Church site that he received enough donations to buy a private plane, and photos in which he “projects a life of luxury, including yacht trips in the English Bay of Vancouver and horse riding.” It suited their purpose to take these statements at face value.
On the other hand, there was no charge to download the books. Was there advertising on the Ebook.Bike site? — the Internet Archive snapshots I reviewed didn’t show any, although I just looked at the front page, which presumably would get the most hits. Did he get something in exchange for recommending the ebook-reading programs linked from his site? Was there user information collected at some step in this process which could be turned to commercial gain? Are there other ways to profit from a pirate site?
The inference that someone would only go to such effort for money is understandable, but users of social media have also witnessed people expend a great deal of energy in return for a sense of power, or to enjoy widespread public attention. Maybe McCrea made a lot of money. He definitely seemed to enjoy taunting the victims and critics of his filesharing sites.
LEGAL BILLS. Meanwhile, John Van Stry has shouldered heavy legal bills. Will he recover any of it through the court’s awards? That’s a good question.
At least he’s received some support from his “Bring ebook.bike to Justice” GoFundMe, where with the help of 397 donors he’s raised $31,547 of his $70,000 goal.
More than half the donations are anonymous, but the named donors include many indie writers — $500 from Craig Martelle (20BooksTo50K) — and even publishers — $250 from Suzan Tisdale (Glenfinnan Publishing, who was thanked by the Authors Guild for her own efforts against McCrea’s site, but whose name has since become more recognizable as one of the duo whose ethics complaints triggered RWA’s penalties against Courtney Milan.)
WORTH THE PAIN. With the decision in, Van Stry is able to freely share his feelings about the case:
Mr. McCrea survived only because lawsuits are expensive. He knew this, hence his challenge ‘just sue me!’ He knew most authors can’t afford it. Well unfortunately for him, I could. I saw authors whom I’m a long time fan of complaining about the damage, I saw reflected in my own sales damage. I’ve been very successful as an author, I’m very thankful to all my fans, and all of the authors who have gone before me.
So I saw this as an opportunity to pay them back, to give something back to the writing community. To take down someone who was stealing, who was profiting from that theft. Someone who was so self-entitled that he was laughing at the rest of us and just challenging us to sue him while bragging about the money he was making.
Understand that I did NOT want to do this. But if not me, then who? If not now, then when? Sometimes, you just have to stand up for what is right. This lawsuit hurt me, considerably, and not just because of the money that came out of my pocket. Rarely did a day go by that I wasn’t thinking about it, and rarely did a week go by when I wasn’t having to deal with my attorneys. But it wasn’t just about me, it never was.
He has also made available for download three documents in which Judge Bryson explained his rulings:
These documents are all a matter of public record.
