[Becca Mills]

Holly, dunno if you heard about my copyright scam earlier this year, but writing to Jeff Bezos is what fixed it. Then again, all that really did was put me in touch with Executive Customer Relations. Since you have a rep, you're already in contact with that level of the company. Writing to Bezos should not be necessary to get their attention.

Have you filed a proper DMCA counter-notification with Amazon? That's essential. Essential, but unfortunately, not a guarantee.

The DMCA does require Amazon take down a book upon receiving a notice of copyright infringement. A DMCA notice is not something Amazon can choose to ignore -- not without substantial legal risk. (Of course, if the notifier is a scammer, that risk will never come to anything.)

But once an author files a DMCA counter-notification, Amazon then has room for choice. It could 1) restore the book automatically, until such time as the notifier obtains a court ruling against the counter-notifier, or 2) take a look at the situation and restore the book if the counter-notifier seems to be in the right. As I understand it, the DMCA provides safe harbor for either one of these reactions: Amazon could do either one of these things with zero legal risk. But -- and this is key -- the DMCA does not require a site to restore notified-against material upon receiving counter-notification.

Unfortunately, Amazon has so far chosen to ignore DMCA counter-notifications in favor of telling the two parties to work things out on their own. It's a recipe for disaster.

That said, I'm shocked that this has happened to someone of your stature. The scammers are fools to target major authors.

 

[Becca Mills]

So, let me get this straight. If I send one of those DMCA notices to Amazon, claiming that I hold the copyright to, say, The Stand by Stephen King, they would remove King's book, no questions asked?

According to my understanding, yes, that's what the law would require them to do. In actuality, of course they'd ignore it.

In all honesty, I would've thought Holly would've achieved "couldn't happen to her" status as well.

The main difference, I'm guess, is that King's works are not handled by KDP reps, who seem unempowered to do anything besides react in rigidly scripted ways. The people in other parts of the company have the autonomy to stop and think, "Wait a minute ..."

P.S. Don't test out the King thing, Kylo. False DMCAs = perjury.

 

[Becca Mills]

Obvi, hypothetical.

Yeah. But as I read your post, a little devil was whispering "Do it! Just to see what'd happen!" in my ear.

 

[Becca Mills]

Did you not receive mails like the one the other author got in the other thread (referenced above) where you're also commenting, Holly? Because the way you state it in the OP -- that they're asking for proof you're you -- it doesn't sound at all like an extortion scheme like Becca was a target of. It sounds like you overlooked or simply decided you didn't need to respond to the emails they sent to you.

She says she "received no warning, no notice--nothing." That said, it's worth mentioning that the notification KDP sent me when Nolander was taken down did land in my spam folder.

 

[Becca Mills]

Isn't extorsion a major crime you could report to the FBI or something?

You can report it, but the FBI cannot reach across the world to pluck a nameless two-bit crook out of who knows where.

 

[Becca Mills]

If the books weren't pulled down in the Great Keywords Cleanse that just hit a bunch of folk -- several bestsellers, too, that I personally know who got hit -- then, because Holly is saying it's over copyright, there are two likely reasons that might happen. 1) A DMCA notice was filed. But she's not saying the emails said anything about a DMCA. When your book got tagged, the email in your spam folder was clear on that count, wasn't it, IIRC? So, 2) it's most likely a rights verification thing. If it wasn't a DMCA notice, then why on earth would Amazon willy-nilly pull down not just *a* book, but 4? There's no precedent for that -- at least none I've been privy to. But there is tons of precedent for rights verification mails being sent out with a 5-day deadline. It's certainly possible those mails wound up in spam. I'm simply suggesting there was effort made on Amazon's part to contact her. Because I've not failed to receive the over 50 or so of them I've been sent.

If someone targeted her books, Amazon wouldn't be coy about saying that's what happened, right? They weren't coy with you. But it *feels* like Holly is being coy with us, bringing extortion into the conversation when it doesn't seem Amazon is saying it was a DMCA thing at all.

So, I'll ask right out: Holly, what did the emails you receive notifying you the books had been taken down actually say?

The email I got from KDP was extremely short. Like, a sentence or two. I didn't really understand it meant when I first got it. It didn't say that a DMCA notice had been filed, or give the name/contact info of the person who'd made the claim, or give any specifics at all. Working from memory, it was something like, "Your book Nolander [ASIN] has been blocked due to disputed copyright. You and the other party must both contact KDP with written permission for the book to be restored." And that was it. If I hadn't gotten a more detailed email from Smashwords soon after, I would've been at a loss as to what was going on.

But yeah, it was clearly different from the run-of-the-mill "Is this really your book?" email baldricko quoted in that other thread.

 

[Becca Mills]

But, if you are contacted and they demand money. 1) The email they send could be traceable. 2) They have to have you send the money somewhere, that is traceable, unless it's some offshore account in the Cayman Islands? Shouldn't something be done with the evidence that is there?

Also, couldn't you just send the email to Amazon and say "Hey look Jeffy, EXTORSION! Fix it!"? Amazon can't be that daft as to just ignore clear evidence of a crime against you can they?

That is, in effect, what I did, and Amazon did fix it. But I was able to connect the name of the person who contacted me offering help to the email address from which the DMCA notification had been filed. The case wouldn't have been nearly so clear-cut if I hadn't been able to make that link.

I wish the FBI were willing to work with the Mumbai police to arrest and extradite someone who's blackmailing an American author for $200, or whatever the sum would've been, but I think the chances of that are hovering right around zero. That's why these scams pose such a threat and why Amazon and the other retailers really MUST step into the breach and help. The safe-harbor provisions are built into the DMCA to prevent this sort of thing, but if a company refuses to use the safe harbor, the law can be abused grossly.

 

[Becca Mills]

This is absolutely disgraceful. They shouldn't be pulling titles unless they are 100 percent certain that there is plagiarism / breach.

You have to wonder about who is making these decisions. If this is the level of respect / professionalism Amazon deals with one of their most successful indie authors, it speaks volumes to the vulnerability of every author publishing with them.

The DMCA requires them to pull the title. There's really no way around that. The wiggle room the DMCA affords comes after counter-notification. That's when Amazon could safely restore the title.

What I fear whenever I see this sort of thing is that it will happen to me. I'm a non US citizen and hence have no rights. Over here, we don't have a proper certification thing for copyright. We have the British Library and 5 copyright "offices" that hold copies of our paper books, but we don't get a reg number or certificate. When asked "You don't need it, you wrote it, you own it."

I'm told I could register in the US, but as Becca said, the good guy AND the bad guy have to come to "terms" and email KDP to say it's sorted. What BS is that?

If anyone needs yet another reason to NOT be exclusive with anyone, let alone Amazon, this bollocks has go to be it.

Mark, you can register your copyright here in the U.S. Your citizenship doesn't matter.

As I discovered, holding official copyright is not enough, on its own, to make Amazon put your book back up. But my copyright papers were in the packet of materials I sent to the [email protected] address. It may well have had an impact.

 

[Becca Mills]

So basically you're saying anyone who writes a fake email based on nothing can sabotage any author? That Amazon have no choice, but to abide by a suspicious request even when they suspect it to be from a possible scammer?

Yup, that's my understanding of the DMCA. In defense of the law, it can work to our advantage, too: if someone pirates your book and puts it up for sale on Amazon, you don't have to take that person to court. You just shoot off a DMCA notification, and the problem is gone. The DMCA makes defending copyright doable for indie artists because doing so is cost-free.

You can thank the DMCA for that. It was pushed through Congress by IP Barons who wanted to be able to pull anything off the Internet at will.

The problem, as others have mentioned, is two-fold:

1. Amazon apply different rules to trade publishers and indies. Claiming you wrote the latest Stephen King novel won't get it pulled.
2. Amazon don't apply the DMCA properly, because the author should just be able to say 'it's my book, put it back'.

According to my understanding, Amazon is acting within the letter of the law in not restoring books after the author says, "it's my book, put it back." (That is, after the author files an official DMCA counter-notification.) The DMCA stipulates that a site safely can restore material following a counter-notice, but it doesn't say a site must restore. It's optional.

Like the notification provision of the DMCA, this reluctance to restore can work in our favor. What if Amazon automatically restored following counter-notification? Say that someone in a legally inaccessible nation pirated your work and put it up on Amazon for sale at slightly below your price. You file a DMCA notice, and Amazon takes the pirated book down. Then the pirate files a counter-notification, safe in the knowledge that you cannot sue her/him from overseas. Amazon gets the counter-notification and automatically restores the pirated version. You're screwed, right?

So, we don't really want Amazon to respond automatically to counter-notifications. Automated responses are not our friend! What we want is a thinking, trained human being to look at the situation and decide whether or not to restore the notified-against material. I think the DMCA is set up to allow this sort of considered reaction. It's good that restoration following counter-notification is permitted but not required: it allows room for consideration of particular situations.

The problem is that, rather than using the DMCA's safe harbor provision to introduce human common sense to these situations, Amazon has chosen to go with automatically ignoring counter-notifications.

Sounds to me like someone either on Amazon's behalf, or the people in charge of these laws, needs to step in protect rights holders from the current situation that defies logic. And if people don't speak up now while it's happening to someone else, then one day it will happen to them.

I think Amazon and the other retailers are going to need to invest people and money -- not a huge amount, but some -- in dealing with these disputes in-house in a more personalized way. It's just not possible to devise a copyright mechanism that can run automatically. If you err on the side of giving the publisher of the potentially offending material more power, then it becomes too difficult for small players to defend their copyrights. If you err on the side of giving the complainant more power, then it becomes too easy to run scams. The only solution is to have human eyes on each disputes.

Yeah, human eyes are expensive compared to automated processes. But not that expensive. A lot of these cases could be wrapped up in about five minutes. The thing that happened to me was very, very, VERY obviously not a legitimate copyright complaint (the stuff I posted about it at the time was only about a third of the evidence I submitted to Amazon). Any person who took the time to look at the situation would've known I was being scammed by someone without a legit copyright claim, and they would've known it very quickly. I think a handful of well trained people could deal with these issues at Amazon, and I think we -- indie writers -- should be worth that investment. We've earned Amazon quite a bit of money, and we're providing the backbone of KU, which is one of their entry points to the Amazon ecosystem.

We deserve help with this copyright stuff, and Amazon can use the DMCA process to provide that help while incurring NO legal risk and making a relatively minor investment.

 

[Becca Mills]

I agree and was shocked there wasn't one when I joined the scene. There are a massive amount of us.

I dont think anyone has ever called me 'coy' before. I'm usually blunt. I was trying to *not* sound super p*ssed off last night. It must have clouded my words a little. I did not get a warning email, it was a copyright claim on books that were posted in 2013, and there was nothing in my spam folder. I checked. A verification request of copyright was sent and my books were taken down until such a time that Amazon said they could verify my account. They then said if I did it again, I'd be suspended. It was similar to what they sent Becca from the sounds of it.

Actually, it sounds significantly different in one respect: you're not being patted on the head and told to "go work it out" with the complainant. Instead, Amazon is saying they're wiling to look at evidence and come to a judgement themselves. If I'm understanding that correctly, it represents a very positive difference from my experience, IMO. "Positive" does not mean "not hideously frustrating," of course! But the stance they took in my dispute was so bad that any improvement is a good thing. If they're moving toward willingness to examine claims themselves, that's good.

 

[Becca Mills]

I know that I can, but as you said earlier Becca, Amazon doesn't have to restore anything without agreement by both parties involved. If Jeff hadn't intervened you'd have been screwed regardless. I am reading the forms now. It seems to require two physical copies be sent, Do you know if that's right? I have 16 titles and rising.

If there's a physical edition at the time of registration, yeah, I think that's right.

I think someone needs to challenge the concept that Amazon is a service provider, particularly when in many cases they take the lion's share of royalties. The safe harbor options were intended for internet service providers or services which temporarily store files to be shared between users (such as dropbox). Amazon transforms the product you upload into a customer-tailored product for consumption and collects royalty payments. DropBox doesn't collect royalties or change your files to a proprietary format for their own proprietary device, such as Amazon does. This idea that Amazon is an ISP in this case is very farfetched.

This seems like a great point to me, but I think such a case has happened, and that online retailers are being treated as ISPs for the purposes of the law.

 

[Becca Mills]

Yeah, there's no basis for a lawsuit, so far as I can see. Amazon is acting according to the letter of the DMCA, and the TOS we all signed allow Amazon to take books down for whatever reason they like, anyway.

I do think there's room to pressure Amazon to respond more individually to DMCA counter-notifications (and Holly, Phoenix is right -- until you file a proper counter-notification, Amazon has no legal safe harbor to restore your books). But that pressure will need to come through publicity, not the courts.

 

[Becca Mills]

Very well. I don't know American law, although I can't believe the law dictates a DMCA has to be responded to instantly without any control. In any case, my suggestion for a petition to Amazon to revise their rules and internal policy on how they handle dmca's, specially for more established work still stands. 10,000 petitioners ought to make jeff or someone give it a thought.

The petitions done through change.org are public and can be shared through social media for extra effect.

The law states that in order to avoid legal liability, a site must

"(C) upon notification of claimed infringement as de-scribed in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

[...] ''(3)ELEMENTS OF NOTIFICATION.-

''(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

''(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

''(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

''(iii) 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 the service provider to locate the material.

''(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

''(v) 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.

''(vi) 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 in-fringed. [...]

''(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity [...]

''(1) NO LIABILITY FOR TAKING DOWN GENERALLY.-Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

(source)

As you can see, the notifier does not have to provide any evidence that the notified-against work actually does infringe a copyright; all they have to do is "identify" the work they claim is being infringed. Upon receiving notification, the site must "expeditiously" take the material down and cannot be held liable for damages for having taken the material down.

The DMCA places tremendous power in the hands of the person claiming infringement, whether they're a legitimate copyright-holder or not. ISPs (and retailers like Amazon) are given discretion regarding the challenged material only after counter-notification has occurred. Prior to counter-notification, the law binds them to take the material down as quickly as they're able, no questions asked.

 

[Becca Mills]

So exactly what documentation does one provide to prove that you are really you and your book is really your book?

To prove that you are your pen name, you usually need to use your publicly available author email address to respond to a query KDP has sent to the email address they have on file for you as a publisher. That email triangle proves that you, the real person whose SSN/tax number is on file with Amazon, have control over the pen name's web presence.

To prove that you are the rightful copyright holder of your book ... well, that's trickier. I sent a PDF of my U.S. copyright registration. If you didn't file for copyright, you could offer to send multiple rough drafts showing the book's development over time. You could also indicate a place where early text from the book was published online with a clear date attached. There are probably other tactics as well. In my case, most of my focus was on disproving the scammer's claims, not on proving my own copyright.

 

[Becca Mills]

Or you could purchase an ISBN for a measly $10.00 or less I think for a package of 10.

Here in the U.S., I'm pretty sure 10 ISBNs would cost a few hundred dollars. Given the cost, hardly any of us bother buying them for ebooks. How does having one prove your copyright?

 

[Becca Mills]

There's a lot of talk here about copyright protection etc, but I don't see how this copyright protection actually protects anyone from a DMCA takedown. It looks like it happens anyway. Part of the problem to me seems to be that Amazon (and other vendors) don't require proper verification of copyright when the book is put on sale initially. It's just a check box asking to confirm you own the rights. Something more rigorous might help prevent some of this extortion.

Once you suffer a DMCA takedown, the challenge is getting your work put back up. If having a copyright registration in hand helps you do that, great. Even if it's only one small piece of getting your book restored, it's worth it, IMO, e.ven if it doesn't prevent the initial takedown (which it won't)

For Amazon to go through copyright verification on every submitted book before putting it on sale would take a far greater investment of personhours than just subjecting the occasional DMCA counter-notification to individual scrutiny. I think the latter would be the easiest and most effective course. Especially since, as Mark noted above, many nations have no official copyright registration process.