Defending Copyright on “A Summer Fling”: Part 3

I’ve written and deleted the opening sentence to this post three times now.

summer_fling-200x300I’m not really sure how to proceed at this point. If you missed the beginning of this story, it starts here and is continued here. The short version, if you prefer, is this: someone sent Amazon a takedown notice for A Summer Fling. Amazon demanded proof that I was the copyright holder. I sent them everything they asked for and more. I sent the original file of the story with the date stamp. I sent the link to the story on Goodreads (if you’re a member of the GR M/M Romance Group, you too can read the original version there) and the free anthology created from the Don’t Read in the Closet fest.

I sent them the Smashwords URL showing the date I first uploaded A Summer Fling in its current form. I sent the registration number for the pending copyright registration I’d filed. Yes, filed belatedly. More on that later.

I expected this to be resolved. After all, I am the legal copyright holder. This is a self-published free story of little value. Why was this even up for debate?

Imagine my surprise when I got an email from Amazon saying that due to the third party dispute that had not been resolved, they would not be re-publishing my story. Surprise is putting it mildly. I was shocked and upset. I got on the phone with Author Central and KDP. I sought advice from authors who’d been in similar situations (though none quite like mine). I tried to get more answers from Amazon, but was stymied at every turn. The young man with KDP was very nice but he could not determine why the story was being blocked, despite my having provided so much information. He advised me to send a detailed email, outlining everything I shared with him and he would do the same from his end.

Later that evening, I got an email from KDP stating flatly that they would not release the third party’s name or what the basis of their complaint was. I was also advised to hire a copyright lawyer if I wanted to pursue the matter further.

My initial reaction to this situation was to suspect that the now-defunct All Romance Ebooks was behind this somehow. I’m still not convinced that they’re not. Their abrupt announcement of closure, along with offering authors only 10 cents on the dollar of owed 4th quarter royalties, as well as preventing authors from removing files from the ARe platform is suspect, to say the least.

But I have also discovered that copyright claim-jumping of self-published authors is apparently a thing, and that Amazon puts the burden of proof on the author, not the accuser. Self-published authors may be at greater risk.

It may be the case that it is a coincidence I happened to get targeted by a scammer the same day ARe acrimoniously closed their doors. But unless I hire a lawyer I will never know. The various articles I’ve linked discuss what you can do to protect yourself from these kinds of attacks, and the most common bit of advice is to register your copyright claims, even though technically the copyright is yours once you put your words to paper unless you sign them away. I haven’t signed mine away, and yet Amazon isn’t accepting my documentation. And frankly, if this IS an attempt by ARe to lay claim to titles that were simply hosted on their former website, then registering your copyright may have little effect on Amazon’s resolution to reinstate your book.

Kind of like how it happened here with me.

I will be registering all my stories from now on, however, as well as retroactively registering my existing ones. It’s an extra layer of insurance that may well protect you in the future from your run-of-the-mill scammer. The link for the US copyright office is here.

This morning I received a very nice email from Amazon stating that after a careful review of my documentation, they have decided to uphold their decision to block the sale of A Summer Fling, but that they look forward to publishing my future stories.

That’s very telling. They are no longer disputing the fact I wrote the story. They are saying someone is claiming I don’t have a right to distribute the story. A story that’s been freely available online for years. You can see why the list of suspects in this case is extremely short.

As for A Summer Fling, I have a couple of choices. I can file a counter-claim. I’m looking into that, but one of my concerns is making personal information available to this unknown third party. Another option is to contact Jeff Bezos directly and lay out my story. He probably gets thousands of emails a day, so I doubt it will get though, but it’s worth a shot. I emailed him this morning, forwarding all the information I’d given to KDP regarding my story. I stated in my email I wasn’t asking him to reverse Amazon’s decision not to publish my story, but I was requesting the name of the third party and the basis of their claims against me. We’ll see what happens.

Late last night, in a last-second cliffhanger twist, I was tagged on Facebook by someone involved with publishing the old DRiTC anthologies. She apologized profusely to me and said it was a possibility her statement to Amazon that no one else was allowed to publish the anthologies except her might have triggered this situation. She’s promised to speak to Amazon on my behalf, and for that, I am deeply grateful. However she did not realize I’d changed the title of my story. Unless she sent in a takedown notice for my story by name, then her blanket statement isn’t behind the complaint. That’s why I need to know who IS behind the complaint before I take further action.

Beyond that, I’m looking into my legal options. But honestly, I can’t afford to spend a lot of money on a free story. Perhaps that’s why it was targeted in the first place. In the meantime, it’s available on Smashwords for free, and it is my intention to send it out to other sites as well. Grab it while you can in its various forms, all linked in this post. Consider leaving me a review on Goodreads or Smashwords, as Amazon is no longer an option. It would be greatly appreciated.

Mostly, be aware. Amazon places the burden of proof on the accused and apparently *anyone* can waltz in and file a complaint. How can I address the complaint when I don’t know who made it or what the basis of their claim might be? Only by hiring a lawyer, and I’d be willing to bet most of us aren’t in a position to do that. My accuser could be someone with an axe to grind, a random scammer, or a former retailer looking to take advantage of the fact they are still holding my files. Amazon has blindfolded me and left me in the ring to duke it out against an unseen opponent who merely has to walk away to win this round.

If it is a certain retailer, then I am not the only person with stories at risk. I also have grounds for going to the people forming a class action lawsuit with additional information. But I can’t move forward without knowing the name of the third party.

If you know of anyone, or if you yourself have recently experienced something similar at the hands of Amazon, I would appreciate you letting me know. If this is not an isolated incident, it gives even more credence to my suspicions as to who the guilty party might be.

 

 

 

Defending Copyright on “A Summer Fling”, part 2

summer_fling-200x300A lot of people have asked for the details surrounding my current copyright dilemma with Amazon. Here they are to the best of my recollection:

As you can see from the book cover and the banner at the head of this website, there has been a longtime connection between myself and A Summer Fling. It was originally titled Surf’s Up and is part of the 2011 Don’t Read in the Closet fest with the M/M Romance Group on Goodreads. It was a light frothy story written to a photo prompt and included in the anthology produced by the group.

In 2013, I edited the story and bundled it with a short story I’d written for the Just One Bite contest, using the fictional character Mikhail Frost created by my fictional author, Ryan McFarland. I thought it would be fun to put the two stories together–kind of like Rick Castle writing the Nikki Heat stories. I created a cover based on my website’s banner and submitted the new combination to Smashwords on July 28th, 2013. A short while later (the actual date is unclear–I can’t access it any longer on the websites in question), I submitted the story to Amazon and ARe. The story has largely been a permanent freebie ever since.

Over the weekend, I modified my bio within the story to include a link for my website. When I went to upload the new version on Amazon, I could no longer set the price to zero. I didn’t worry too much about it–I’d pulled it from Smashwords and ARe had folded. It was my intention to place it in KU (though in retrospect, its previous incarnations would prevent that) so I left the price as 99 cents and went on with my day.

That evening I received an email from Amazon. At first, I thought it was just a glitch, a red flag triggered by something I did in the update. But here’s the crucial statement that belies that:

“Prior to your submission, we received a notice and takedown for a book that matches to yours, from a third party claiming that the distribution of the book above was not properly authorized due to copyright infringement.”

So someone out there is ACTIVELY claiming this work belongs to them, not me, and though I provided Amazon with all the information they requested, it’s not good enough. Moreover, this attempt to snag the book took place prior to my making changes, so it isn’t that I did something to trigger a red flag. Someone is trying to steal it, but Amazon is laying the burden of proof on me and refusing to publish something that’s been on their website under my name for years. At least they are no longer threatening to ban me for life. I’ve asked for more information, but I have not heard back from them yet.

Process of elimination and the unethical behavior of All Romance Ebooks makes them the most likely suspect in my mind. Not just because they closed their doors with little warning, offering 10 cents on the dollar in owed royalties, but only if we promise not to take legal action. Not just because of the timing–within 24 hours of ARe’s closure. But because whoever this third party is laying claim to my story, they have a strong enough stance that Amazon is taking them seriously–despite my sending them all the information they requested to prove my copyright.

dont-read-in-the-closetMy proof of copyright is sufficient enough that Amazon is no longer threatening to ban me from publishing on their site for life. But it is not sufficient enough to utterly disprove anyone else’s claim? The logical choice here is that someone with power and prestige–not some low level scammer who preys on indie titles–is behind this contested copyright. And since a takedown notice was given, this is either someone with a personal vendetta against me (not a fun thought) or someone with much bigger fish to fry. Because as I’ve said elsewhere, A Summer Fling is a lightweight FREE story. It was never meant to generate tons of sales. So why would anyone contest copyright on it? The Goodreads Group would not. The story has been freely available online in multiple formats for years. Why go after a free story now?

For me, the logical conclusion is that this is a test case on someone’s part. I only have a couple of self-published stories that would be open to such an attack. And since whoever it is has a strong enough stance that Amazon didn’t immediately dismiss their claim, I can only assume it is an entity with more online presence than your typical scammer. As in, someone who can claim they ‘published’ my story when they merely hosted it on their website. Incidentally, A Summer Fling is the first title that comes up on my self-published listings on ARe’s former site.

So, some words of advice here. If you aren’t in the habit of registering copyrights on your creative work, start doing so now. Factor it in as a cost of doing business. I never worried about A Summer Fling because it was never intended to be a big money maker for me. From now on, however, I will be registering copyright on ALL my works.

From the US copyright office:

1. Copyright, a form of intellectual property law, protects original works of authorship.
2. Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
3. Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law.
4. The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country. For a listing of countries and the nature of their copyright relations with the United States, see Circular 38a, International Copyright Relations of the United States.

Here is the link for the US copyright office. Yes, it is an extra step and there is a fee, but that additional layer of protection just may prevent the kind of headache I’m experiencing right now.

In the meantime, I can’t but assume ARe is behind this grab until I have proof otherwise. In part because of the suspicious timing, and in part because Amazon is taking the claim seriously despite my proof of creation. But also because the wording of Amazon’s email and their current stance to the issue suggests that my creative copyright isn’t being questioned as much as my right to distribute the story. I’ve sent Amazon additional information, including this document provided by ARe when I uploaded my story to their site. Pay special attention to the passages 3c and 4b.

All Romance eBooks Publisher’s Agreement

 

This Agreement is entered into on this date (logged as registration date), between All Romance eBooks, LLC, a Florida limited liability company (hereinafter known as “All Romance”), which provides content and services to www.allromanceebooks.com and omnilit.com (hereinafter known as “site”), located at 303 Main Street #186, Safety Harbor FL 34695 with an email address of info@allromanceebooks.com and a fax number of  1-866-844-5457, and the registrant whose details have been accurately entered and attested to upon acceptance of this Agreement (hereinafter known as “Publisher”);

 

In consideration of the foregoing the parties agree as follows:

 

  1. Governing Law

 

This Agreement is legal and binding in all countries. The laws of the State of Florida USA shall apply to the interpretation and enforcement of this Agreement.

 

  1. Non-exclusivity

 

This Agreement is not exclusive and does not impose any obligation or restrictions on either party with respect to competing business relationships or opportunities.

 

  1. Warranties by Publisher

 

(a) Publisher has the full power, right and authority to enter into this Agreement;

 

(b) Publisher has not previously and will not grant any rights to any third party that are inconsistent with the rights granted herein;

 

(c) Each item provided to All Romance by Publisher and any other material including data and images (in each case, collectively the “Work”) are (i) either owned or licensed by Publisher with full right to publish in accordance with this Agreement, and (ii) do not and will not infringe any copyright, patent, trade secret, or other proprietary right held by any third party;

 

(d) Publisher warrants that product or associated marketing data supplied contains no libelous or unlawful statements and does not infringe upon the rights of others;

 

(e) The Publisher agrees that the regular list price of the Work on the All Romance site will not be higher than the regular listed price of this Work on any other site.

 

(f) The Publisher agrees that all data provided to All Romance, including a Work’s categories, heat rating, summary and sample excerpt will all be chosen to honestly and accurately reflect the Work’s content.

 

(g) All Works uploaded by Publisher to the All Romance site shall be subject to this Agreement and additionally eligible for participation in the All Romance “Buy ten, get one free program.”

 

(h) Publisher hereby grants All Romance the rights to reproduce, display, market, and store digital versions of Publisher’s Works on one or more computer facilities of or under the leased or similar control of All Romance on a worldwide basis, and to resell Publisher’s Works directly to consumers;

 

(i) To promote sales for Publisher’s Works, Publisher grants All Romance the right to distribute any and all content electronically including text, cover art, and metadata associated with Publisher’s Works.

 

  1. Warranties by All Romance

 

(a) All Romance warrants and represents, solely for Publisher’s benefit, that All Romance has the full power, right and authority to enter into this Agreement.

 

(b) Except as otherwise set forth in this Agreement, All Romance acknowledges that all rights, title and interest in and to all intellectual property comprising the Works, including copyrights and trademarks used in connection with the Works, are the property of Publisher or its licensor(s), and in no event, including upon the termination of this Agreement, shall All Romance obtain any rights, title or interest in such intellectual property, copyrights or trademarks.

 

(c) All Romance agrees that no changes, additions, deletions, abridgements, or condensations in the text of the Work or changes of title shall be made by All Romance, its agents, or employees, without the expressed, itemized, and specific written consent of Publisher.

 

  1. Warranty Disclaimers and Limitations of Liability

 

All Romance shall not be liable or obligated to Publisher with respect to any breach of this Agreement or otherwise under any contract, negligence, strict liability or other legal or equitable theory for any amounts in excess in the aggregate of the fees paid to All Romance by Publisher during the one year period prior to any such breach with respect to the applicable material. In no event shall All Romance be liable to Publisher for any incidental or consequential damages including, but not limited to, loss of anticipated profits, or benefits of use or loss of business, even if All Romance is apprised of the likelihood of such damages occurring.

 

All Romance shall not be liable for misuse or unlawful distribution of Works by any customer, consumer or other third party.

 

  1. Termination

 

Either party may terminate this Agreement without cause upon not less than ninety (90) days notice to the other party. Any termination of this Agreement or withdrawal by Publisher of specific Works or other materials will be prospective, with respect to future sales only. It is the responsibility of the withdrawing party to remove or de-activate from sale all Works covered under the terms of this Agreement.

 

  1. Restrictions

 

All Romance reserves the right not to accept any particular Work submitted by Publisher at All Romance’s sole discretion, and may remove any particular Work from sale at any time and for any or no reason. Pornographic and obscene Works are restricted and not allowable for upload on the All Romance site, including without limitation, Works depicting sexual acts involving persons under eighteen years of age (exceptions may be made for certain works of literary fiction involving time periods wherein the age of consent was less than 18 and the purpose of the depiction is not for sexual titillation), Works involving any exploitation of minors, sexual or otherwise, Works which contain incest or pseudo-incest themes for the purpose of titillation, Works that are written for or being marketed to the barely legal market, Works that contain rape  or scenes of non-consensual bondage or non-consensual sado-masochistic practices that are for the purposes of titillation, bestiality with naturally occurring animals, sex with non-animated corpses, snuff or scat play.

 

  1. Security and Buyer’s Terms of Use

 

All Romance does not encrypt the Works that it sells, apply DRM technology, or prevent printing or “Read Aloud” or “Text to Speech” functions. All Romance posts a message on its web site indicating the copyrighted nature of all material and the fact that making illicit copies is in violation of copyright law. The Publisher is encouraged to indicate the copyrighted nature of each Work.

 

  1. Reporting and Payment of Sales Commissions

 

(a) Publisher will have access to a Publisher’s Sales Report that details each of their work’s sales activity during the requested period.

 

(b) All Romance will pay Publisher commissions based upon the Sale Price (List Price or Discounted List Price as paid by the buyer, whichever is less) and as reported by All Romance’s Publisher’s Sales Report. This commission shall be sixty percent (60%) of the Sale Price. Payments for sales are made quarterly in US dollars, within 45 days of the close of each calendar quarter, and are net of bad debt and refunds.

 

(c) Once each calendar year, Publisher or their duly appointed representative shall have the right to examine at their own expense the accounts of All Romance pertaining to sales of Publisher’s Works for the twelve months prior to the date of the request for examination. Requests to assert this right must be made by the Publisher in writing and receipt must be acknowledged in writing by All Romance and such records shall be made available by All Romance to the Publisher within thirty (30) days. In the event that discrepancies are found between commissions paid and those owed in the Publisher’s favor, All Romance shall tender such monies due to Publisher within ten (10) days of acknowledgement by All Romance of the discrepancy. In the event that discrepancies are found between commissions paid and those owed in All Romance’s favor, All Romance shall deduct this difference from the next quarterly payment(s) due.

 

  1. Bankruptcy

 

If a petition in bankruptcy is filed by All Romance or against All Romance (and is not dismissed within 90 days), this Agreement shall terminate automatically without notice, effective as of date of All Romance’s filing of a voluntary petition (or the expiration of the 90 day period, as applicable) and all rights granted in this Agreement shall revert to Publisher.

 

  1. Benefit

 

Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators and assigns of Publisher, and upon and to the successors and assigns of All Romance.

 

  1. Survival

 

All provisions of this Agreement requiring performance after any termination or the breach of which is not discovered until after termination shall survive and apply to the parties with full force and effect notwithstanding any such termination.

 

  1. Force Majeure

 

All Romance is released from partial or complete non-performance of its obligations under this Agreement should force majeure circumstances occur, which prevent the fulfillment of such obligations, including without limitation, fire, flood, earthquake, strikes, labor disturbances, revolutions, embargoes, insurrection, governmental orders or regulations, electrical or computer failure, act of, delays or failure to act by any internet service provider or carrier or agent All Romance may use, systems, telecommunication companies and other entities of similar purpose, or any other conditions beyond the control of All Romance. The time stipulated for the performance and fulfillment of such obligations shall be extended for a period equal to that during which the circumstances of force majeure last.

 

  1. Entire Agreement; Venue.

 

This Agreement constitutes the entire agreement between All Romance and Publisher with respect to the subject matter hereof and supersedes all prior and contemporaneous communications. This Agreement may not be modified or amended except by an instrument accepted by both parties. All Romance and Publisher are and remain independent entities. This Agreement does not create any partnership, joint venture, agency, franchise, sales representative or employment relationship between All Romance and Publisher. Publisher and All Romance agree that any suit or proceeding in connection with this Agreement shall be brought exclusively in the state and federal courts presiding in Pinellas County, Florida USA and that service of process may be made by certified mail, return receipt requested, to the addresses of record for the parties under this Agreement.

 

  1. Electronic Signature

 

A check in the box below by Publisher shall constitute Publisher’s signature signifying acceptance of this Agreement with the intent that it be valid for all purposes and in compliance with the U.S. Electronic Signatures in Global and National Commerce Act of 2000 and the laws of any other applicable jurisdiction.

 

Updated: 03/14/12 12:00 Central U.S.

At the moment, my story is still blocked on Amazon and I have not received a response to my additional inquiries. I’ll let you know what happens.

Part Three Here.

Dear Broke Reader and your sense of entitlement (Part 2)

book by Ricardo Vasquez/freeimages.com

book by Ricardo Vasquez/freeimages.com

So, a funny thing happened earlier this week. Someone on Facebook wrote a post asking for links to pirate sites–and then defended her actions by claiming to be poor. While many berated her for illegally downloading books, thus defrauding authors of their royalties, many defended her actions (and theirs) as well.

On Monday, I wrote a post with my reaction to this sense of entitlement on the part of readers who illegally download and share files. It was just a typical Monday for me, in which I jotted down some thinky-thoughts on a subject that had been preying on my mind for a while now.

Apparently, I struck a chord with fellow authors and readers who legitimately purchase stories.

That’s putting it mildly. I’ve had over 50 K hits on the website since Monday. To date, the post has been shared on Facebook over 10 K times, and has over 300 comments. At first I tried to respond to every comment. Hey, that’s the only polite thing to do, right? But I’d never written a post which triggered such a response before. The traffic was so heavy the site crashed repeatedly. My inbox exploded with Facebook, Twitter, and comment notifications. I am working my way through them, but realize it’s probably not possible to address them all and still make my writing deadlines. I confess, I wish I’d timed this post with my upcoming release, but I had no idea it would attract so much attention!

I’ve learned a couple of things since Monday’s post. First, there are a LOT of people who feel the way I do. Who believe that getting stories free through pirate sites or uploading an stories to torrents for thousands to download without paying for them is theft of that property and denies the creator of the payment due to them. However, I’ve also learned that technically this isn’t theft as it is legally defined. It’s not theft because no one has removed the original work from my hands. At best, it can only be considered a copyright violation, and besides, none of these people would have purchased your story anyway. Consider it free advertising. Once I release something into the wilds of the internet, it’s no longer mine and I have no right to be compensated for it. Copyright laws are full of crap anyway, and have no purpose in today’s digital world. Authors shouldn’t be paid forever for sales of digital books–it is unfair.

I call bullshit on that mindset. That is exactly what I mean by ‘sense of entitlement’. The irony is your sense of entitlement is depriving me of what I’m actually entitled to receive.

Frozen HeelsWhile some of the defenders of illegally sharing and downloading files might be technically correct in the fact that these acts aren’t thefts per se, they are still robbing me of income. Let’s take the example I was given after I compared buying books to buying shoes. One person responded to this by saying I have no say in what someone does with a pair of shoes after they buy them. I agree. I can buy a pair of shoes, take them home and decide I don’t like them or don’t want them anymore. I can give them to my BFF, or donate them to Goodwill, or throw them in the dumpster. Someone else can get them for next to nothing or even without paying a dime. (I wouldn’t do that, though because I *love* shoes)

What I can’t do is upload the shoes to the internet, where thousands of people can grab a pair for free. I can’t do it because it is physically impossible. I don’t do it because it is morally wrong. It’s wrong because if thousands of pairs of these particular shoes are available online for free, then the chances are good the sheer availability of ‘free’ shoes will cut into the market of legitimate shoe sales. So you can tell me that illegal downloaders would never buy my stories in the first place, but even if ten percent of those people were forced to make a purchase because they couldn’t obtain the story in any other way, that would make a huge difference in my bottom line. On one torrent alone, a bundle of four of my books has been downloaded over 16 K times. I keep bringing up that number because, yeah, sixteen thousand illegal downloads. From one site. And there are hundreds of sites. So don’t tell me *none* of these people would have purchased these stories legally if there were no ‘free’ downloads available.

As I said in the previous post, I get ‘broke’. Honey, I’ve collected aluminum to buy a tank of gas and sold plasma to help pay the rent. But not only are there many options for legal free reads, I honestly believe the truly poor represent a very small number of these downloaders, much as I believe the people in foreign countries with no access to libraries don’t represent a large number either. I think the vast majority of the I’m broke, therefore I have to get my books illegally camp are really saying, “I have spent my discretionary income on things I can’t download without paying for them.”

Fellow author Suzan Tisdale has put together a poll for authors in order to get a feel for how pervasive battling piracy is. The information is confidential, so if you’re a writer who is frustrated by the ongoing battle to keep your works available only through legitimate channels, consider dropping in and answering some questions.

In the meantime, I have one book in edits and another on a deadline. I plan to continue answering comments on the original post–it’s just going to take me a while to go through them all, and more are coming in every day. I just want to say how much I appreciate everyone spreading the word and entering into the discussion, even if we don’t see eye to eye on everything.