DMCA Problem Resolved — for Me. Not So Sure About Everyone Else.

I’m delighted to say that Nolander is back on sale — or on giveaway, anyway — on Amazon. Even as the lower levels of KDP were churning out the form letter I quoted in my last post, the upper levels must have been giving the problem more individualized consideration. So, thank you to Amazon and KDP for taking care of this problem. And a huge thank you to the folks on Kboards who orchestrated an attention-getting email campaign on my behalf. You guys are the best. :)

Hopefully this situation is all wrapped up. I’ve been in touch with other retail platforms, asking them to be alert for fraudulent attacks on my books. Fingers-crossed, I won’t have to deal with this sort of thing again. But of course, other people might. In fact, I might be safer than others, now, since there’s a paper trail (“electron trail”?) at all the retailers documenting my having been targeted.

For the time being, I had better go grade some student papers.

But I want to think about this DMCA-scam issue some more. My scammer clearly made some mistakes, and those allowed me to build a convincing case. But what if there are no mistakes, next time? The person I spoke to at Amazon said the company doesn’t want to inadvertently aid spurious uses of the DMCA and that it would be taking a fresh look at its current policy. I trust they will do that. Nevertheless, it seems like a tough problem to solve. The DMCA may have been written for the digital age, but it wasn’t really designed for a truly global environment — nothing that leans so heavily on the U.S. legal system for both its teeth and its safeguards is going to work properly when information flows unimpeded across borders. And it doesn’t seem to have been designed with today’s massive digital sales environment in mind, since retailers apparently see themselves as exempt from the counter-noticing process.

I’m not quite sure what to make of it, but it seems like a problem we need to solve. Anyone have any ideas?

March 7 update: Aftermath for Nolander, and thoughts on how retailers could react to fraudulent DMCA notices more effectively.

32 thoughts on “DMCA Problem Resolved — for Me. Not So Sure About Everyone Else.

  1. You are right about the borders issue. Here in Australia, a dated, stated, Copyright stands us on proper legal ground without having to list our work with any copyright service. If I had a hassle in the U.S., I have no idea what the ramifications would be.

    I have had a great deal of my work stolen by people in India since I first went online in 1998. It’s odd to me, as the Indian people I know face to face, are beautiful people. With my blog I realise that anything I put out there will be stolen. I have argued black and blue with the guilty parties, but there is a different values system in some people’s heads which I can’t switch off.

    The best option it to live in a cave, but that is not for me. We all need to feel the fear and do it anyway. Online, offline, life is full of challenges. We need to push through, regardless.

    • In the U.S. you don’t need to go through the legal hoops Becca went through, either. That is just an extra step that is supposed to have more legal weight and make owner faster to prove in a dispute. But it didn’t …

    • FYI, Cate, you can register your copyrights here in the U.S. if you want to. Works the same way for non-U.S. registrants as is does for us, so far as I know. The cost is $35/work — that’s what it is for me, anyway.

      Though there are plain old thieves everywhere, I think cultural differences probably account for some of this stuff. I know from teaching that there are different attitudes in different cultures toward using other’s words and ideas, appropriate citation, etc. Heck, even here in the U.S., there’s plenty of piracy, so beliefs about what is and isn’t okay to take clearly differ. I think you’re right that there’s not much that can be done about it. You just have to decide what your “red line” is, depending on your values and resources. Otherwise, right … you’ll be driven into that cave. That’s no good.

      I think my red line is positioned in a fairly permissive spot, but actually preventing me from *giving away my own work for free*?? I’m sorry, but that’s waaaay over the line! LOL.

      • Thanks so much for the info. I have twelve books… there is no way I can afford $35 a pop right now. I completely agree with you about giving away freebies too. That has shot us all in the foot. People collect free books, then won’t buy or review. I have one free, as for the rest, sorry $. They aren’t expensive.

        Have a great weekend.

        • Thanks, Cate — hope you’re having a nice one yourself! :)

          Yeah, first-in-a-series free can be a powerful marketing tool, but even at that (non-)price point, there’s a awful lot of competition, these days.

  2. I think that when a retailer such as Amazon receives a DMCA notice the company should contact the author, prior to taking any further action and ask them to respond. Hopefully such an opportunity to respond would head off most (if not all) spurious DMCA Notices. Kevin

    • I do believe they’re required by law to contact the author, Kevin. But they have to take the book down anyway, no matter how spurious the DMCA notice appears to be. That’s my understanding, anyway. As DRMarvello points out below, the key moment comes after they take the book down: will the abide by DMCA counter-noticing, or won’t they? Their current default position seems to be that they won’t, and that’s a significant problem because it pushes the author toward the possibility of having to negotiate with a blackmailer who lives outside the jurisdiction of their own nation’s laws.

  3. Amazon were definitely the point of failure here. The DMCA contains the provisions necessary to protect copyright holders (and vendors) from false take-down notices; Amazon just didn’t abide by those provisions. That is what needs to change. You can’t honor take-down notices without also honoring counter-notices, or you are effectively siding with the scammers.

    Realistically, if Amazon *had* followed the rules, “Nolander” would still not be available on Amazon because your counter-notice (had it been honored) would have given the scammer up to 14 days to respond with a lawsuit. In the best case, Amazon would have put “Nolander” back online in 10 days. You obviously got personal attention here because Amazon made a judgement call and actually put themselves at risk by agreeing the take-down notice was false. Such is the power of a grassroots email campaign. ;-)

    Many questioned the value of a registered copyright in your case, but copyright is irrelevant in a DMCA dispute until the case reaches a court of law. Amazon is *not* a court and has no legal right to judge the legitimacy of a copyright claim. Had the scammer been foolish enough to sue you, that is when your registered copyright would have come into play. And you would have eaten his lunch. :-)

    • I think that’s all exactly correct, Daniel. I’m thinking the best thing for Amazon to do is to recognize and act on properly filed DMCA counter-notices. If they really want to be a mensch about it, they could make a nice fat donation to the EFF to help people take filers of fraudulent counter-notices to court (I’m sure counter-notices would be abused occasionally).

    • The problem is, Amazon has very little incentive to get involved in cases like this. There’s no risk to them in taking down the work until they reach an agreement. In fact, it’s probably smart business for them to remove anything with even a whiff of controversy.

      Unless these issues start happening with major frequency, impacting their sales (which is hard to imagine with the millions of titles they carry), or if these issues start pushing authors away, they have little reason to review these policies and make any changes. As the largest publishing platform in the world, they have all the leverage on their side.

      • I fear that you’re right, jmpayer. :(

        Well, hopefully it *won’t* start happening with major frequency. I’d be delighted to be unique in this area. ;)

        • Well, I think the important thing is that you’ve shared this story and raised awareness of the issue. Hopefully it doesn’t start happening more frequently and when it does author’s can get it resolved more quickly with the advice from people like yourself.

          • Thank you, J.M.! If my experience at least sets a precedent with Smashwords, Amazon, and the others, that would be great.

  4. Amazon’s competitors could destroy its entire business over a weekend with an investment of a few thousand dollars under the original policy. It would be very simple to hire an offshore outfit, perhaps in India, to generate tens of thousands of fraudulent takedown notices. Amazon’s book business could be eliminated quickly – starting at the top, with the top sellers — using backdated blog posts. But it’s non-book business is equally vulnerable. Unlike traditional catalogs, Amazon uses seller-provided copy and images in its product descriptions. These are vulnerable to claims of copyright infringement. Takedown notices could be used to pull everything off the shelves – lawnmowers, music, computers, barbecues, vitamins and pretty much everything else it sells. The doors would have to shut in a month or two.

    Of course it would never come to that. Amazon would revise its takedown policy pronto as soon as the scam was detected. But taking the policy to its logical conclusion only shows how absurd it is. It’s better to change the policy now than invite disaster.

    • This is my thinking also, Steve — better to be prepared, on the off chance that this is A New Thing coming down the pike. I have trouble imaging quite the vast assault on Amazon products you outline here, but scammers are nothing if not creative. The opportunity for mischief, disruption, and bad PR seems pretty large.

  5. A writers’ advocacy group, formal or informal, could address such issues. The greater the numbers the more attention these companies pay to our issues.

    Thanks, Becca, for keeping us informed. I’m glad the situation was resolved relatively quickly and in your favor, and I agree with you that more needs to be done.

    • Thank you, elle! :)

      Advocacy groups sound like a good idea to me. Indie authors are a wide-ranging bunch, so it make take a coalition of groups to have an impact. Perhaps something could grow from the professional associations that are now beginning to accept indie authors, such as RWA and SFWA. And there’s the Alliance of Independent Authors (ALLi): Perhaps they’ll expand in the future.

  6. Becca, I’m happy that matters have been resolved. I shared the initial bad news on FB and earlier again today after hearing the good news. I read your previous posts with interest and I wondered about the person’s motivations for doing this. It sounded to me like he/she wanted to steal the work to reproduce as their own. No other explanation makes sense, at this stage, anyway.

    Also, I wonder what are the chances of them leaving comments to your posts? Sounds like they’d be that arrogant.

    • Thanks for sharing my situation with others, Woelf! I think the attention it garnered was a big help in getting it resolved. :)

      As for the motives of the scammer, who knows? They really could be anyone, anywhere, with any one of a variety of motives. I’ll probably never know.

  7. I’m sorry you are going through this. But I thought I might tell you, in case it made you feel better at all, I never would have found your books without the posts all over (Like Ilona Andrews) about the situation. What I’ve seen so far I enjoy, so you’re getting sales from me at least. And probably from others as well.

    • Well now, Erin, that is a heck of a silver lining. Thank you for reading my books, thank you for dropping by to let me know, and thank you for mentioning that Ilona Andrews had talked about it.

      Er … trying really hard not to have an embarrassing FAN GIRL MOMENT and not really succeeding. That’s so cool. Wheeeee!

      Okay. Nothing to see here. Moving on in a professional, adult manner. Ahem. ;)

  8. […] Por lo que respecta a Amazon, Mills nos contaba que durante su disputa fue informada de que «la compañía no quiere ser cómplice en este tipo de prácticas y revisará su política acerca de las disposiciones de la DMCA» sin que se ofrecieran más detalles ni se haya realizado declaración oficial alguna. No obstante, ante el aluvión de comentarios, la insistencia de Mills y, no olvidemos, la chapucería del denunciante, Amazon volvió a distribuir Nolander. […]

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