eBooks and DMCA Abuse: A Few Suggestions Based on My Experience

Thanks to the fine people of the indie-publishing community, Nolander has recovered wonderfully from its week’s vacation. Folks on The Passive Voice blog and the Kboards Writers’ Cafe urged downloads, and a number of discounted/free book sites spontaneously advertised the book: big thanks to OHFB, Pixel of Ink, Flurries of Words, eBookDaily, and Free Kindle Books for your generous help. With so many people in its corner, Nolander got a couple thousand downloads and bounced up into the top two hundred free books on Amazon. It was an amazing and moving thing to see. The self-publishing community is strikingly diverse, and we don’t always agree on stuff. But we’re there for each other at the big moments, and that tendency to act together — fostered by those sites that give us places to gather — gives us some leverage. Thank you all so much for using that leverage on my behalf.

Now, I think we need to keep applying leverage: how retailers respond to DMCA take-down notices needs adjustment.

The best-case scenario is that my experience was a one-off event — that my scammer had something against me, personally, and this won’t happen to anyone else. Fingers crossed that’s the case. But it might not be. This could’ve been a money-making scheme, with the target being selected wholly or partly at random. Worst-case scenario, Nolander was a trial balloon for someone(s) with bigger plans.

I think distributors and retailers need to figure out how they’re going to deal with this sort of thing if it happens again. It’s obviously no good for retailer sites to become hunting preserves where scammers troll around, looking for their next mark. And if retailers unintentionally and unwittingly ended up making blackmail easier in a consistent way, that would be awful.

Solving this problem is probably above my pay grade. I hope the retailers have people working on it, and that they come up with better and more creative ideas than mine. But FWIW, here’s what I’d suggest:

  1. Send the author the full name, email address, and physical mailing address of the filer of any DMCA notice immediately. Include a link to the evidence of copyright infringement the filer submitted. These things did not happen in my case. From one retailer, I received the name and email address only; from the other, I received none of the above.
  2. If the author submits a DMCA counter-notice, restore the book to the site within the time-frame stipulated by the DMCA. What I’m recommending here would, apparently, be a significant change of policy. Unlike ISPs, retailers consider themselves exempt from the counter-noticing provisions of the DMCA (I don’t know if this is a reasonable assumption, on their parts, or a legally established status). On the face of things, the exemption makes some sense: retailers have the right to sell whatever they want for whatever reasons they want, right? If Amazon wants to refuse to sell any book with the word “The” in the title, it can go ahead and do that, so far as I know. The problem with this approach is that the counter-noticing provision is the DMCA’s one and only safeguard against abuse by non-U.S. residents, who cannot be curbed through the U.S. courts. It was built into the law for a reason. If retailers react to noticing (as they must) while ignoring counter-noticing, they render the law dysfunctional and create a dangerous imbalance of power.
  3. Put some well trained people to work actually looking at the evidence submitted with DMCA notices and counter-notices. (So far as I can tell, this did not happen in my case. The evidence seems to have initially been accepted without examination.) A retailer must remove a book if it receives a DMCA notice. So far as I know, there’s no way around that rule, even if the notice is obviously fraudulent. But does the law say a retailer cannot then reach out to the book’s author and suggest independent resources that would help the author move forward with appropriate counter-noticing? Not that I know of. So, in cases where they see clear evidence of fraud, retailers should reach out to authors in this way, IMO. Perhaps authors identified as potential victims of fraud could be directed to the Electronic Frontier Foundation or some other source of assistance.
  4. Indie authors should support any organization that steps up to provide effective advice and assistance in these matters, especially if caseloads rise in the future. I’m sure even small donations would help. We don’t have large corporate legal departments standing behind us. (That’s something traditionally published authors get in exchange for their lower royalty rates.) Sending some of our profits to organizations that help with this sort of thing would probably be a good idea.

Would these changes solve the problem completely? I don’t think so. But they’re the best ideas I’ve been able to come up with. If you think of other possibilities, please share them.

Distributors and retailers obviously have a big stake in this issue, legally. But the repercussions for individual authors may be even bigger, when you consider possible career impact. If we have ideas to offer, we should make them heard. Perhaps we can help our book-selling partners make the marketplace safer for all.

With deep thanks, Happy reading to all!


P.S. Not sure what this is all about? Start here.