Home » Amazon, Copyright/Intellectual Property » Independent Publishing and DMCA Abuse, or “How a Scammer got My Book Blocked with Very Little Effort”

Independent Publishing and DMCA Abuse, or “How a Scammer got My Book Blocked with Very Little Effort”

3 March 2015

From author Becca Mills:

Okay, I’ve got a story. It’s a sort of scary one. I think independent/self-publishing authors need to know about it, and telling it carefully and correctly is also important for my own situation, so I’m going to take my time and lay it all out in order.

. . . .

On Friday, February 27, 2015, I noticed that my bookmarked Amazon.com link to my first novel, Nolander, was yielding, “We’re sorry. The Web address you entered is not a functioning page on our site.” I went to my Amazon dashboard and discovered the book had been blocked.

In my spam folder, I discovered an email from Kindle Direct Publishing (KDP), Amazon’s self-publishing arm, informing me that someone had sent in a DMCA notice. In response, Amazon had summarily blocked Nolander from sale.

“DMCA” stands for “Digital Millennium Copyright Act.” It’s a Clinton-era U.S. law that lays forth a process for dealing with copyright infringement online. If you find material online that infringes a copyright you hold, you can send the hosting website a DMCA notice; in order to be in compliance with U.S. law, the hosting website has to remove the material and notify the person who posted it.

When I heard a DMCA notice had been filed against Nolander — which is a completely original work — I assumed a reader had reacted badly after reading the book in a boxed set and then finding it available as a standalone. It could be confusing to find the same material in different places, after all. A vigilant reader might think something fishy was going on. So I wrote back to KDP, sending them my U.S. copyright registration info and assuring them that Nolander was my work.


Soon after, I found an email notification from Smashwords as well. That one was a little more informative:

Hi [my real name redacted],

I have just unpublished your book Nolander, formerly found here:https://www.smashwords.com/books/view/272292

As we received a DMCA Notice and I was able to verify that the text in your book, published on Jan. 07, 2013, matched the text of a book made public on August 2nd, 2011.

If you have any questions or can give me critical information about the book, please do.  Per our policy, the book needs to remain unpublished until Smashwords is given consent by both parties to republish it.

Thank you for your understanding.

Cheers,

*[name redacted] – Smashwords Support Team*

. . . .

Also in my email was a notification for a pending comment on my website (I have to personally approve comments from first-time commenters):

Kelvin

February 28, 2015 at 3:21 AM

I can’t find Nolander on Amazon. The link is returning “Page Not Found”. I only found a Print Edition on Amazon which cots $15 ! But I find Nolander on other stores like B&N.

Have you removed your book from Amazon? Sorry but I only download or buy books from Amazon. Please consider your decision again.

. . . .

At that point, KDP got back to me:

Hello,

As stated in our previous communication, we’ve received notice from a third party regarding copyright concerns over B007R6PPZA Nolander (Emanations, an urban fantasy series Book 1) by Becca Mills. We don’t involve ourselves in third party disputes and therefore have removed the availability of the book through our systems until this matter is resolved.

Here you will find information on the party that submitted the notice:

Rajesh Lahoti

theeroticaauthor@gmail.com

If a resolution is reached, before we may take any appropriate action regarding the book(s), all involved parties must contact us via title-submission@amazon.com.

Best Regards,

[name redacted]

Amazon.com

Link to the rest at The Active Voice

PG doesn’t give legal advice on The Passive Voice, but he would suggest giving serious consideration to sending a counter-notification if someone files an improper DMCA Take-down Notice.

See this page for a good explanation of DMCA takedown notices and counter-notices.

 

Amazon, Copyright/Intellectual Property

50 Comments to “Independent Publishing and DMCA Abuse, or “How a Scammer got My Book Blocked with Very Little Effort””

  1. I read the whole thing, and it’s creepy. I still can’t figure out the scammer’s motive. What was he (or she) trying to accomplish?

    • I think he wanted to sell the book to a client.

      If you read through the screenshots, it seems like his “ghostwriting business” is just stealing work from one author to sell to another. Maybe clients wised up and ran the books they received through plagiarism software before sending him final payment? So he needs to make sure that the books he steals aren’t published elsewhere. That’s my guess anyway.

      From their FAQ:
      Is there any proof that you sell each story to one client only?

      Yes! KDP has a duplicate content checker which will block a book if it is being uploaded multiple times on Kindle. Check on Warrior Forum and Google about how many people got their Amazon KDP account terminated for uploading PLR books. If your book is accepted by KDP, it means that it is unique.

      • I thought of this possibility, Barbra. But if Das was looking for erotica to sell, he’d have to do quite a bit of work to whip Nolander into shape. (pun intended) 😉

        • The fact that he wanted the PDF suggests the intent is some sort of IP theft. I’m not sure why he specifically wanted a PDF when he probably already had the MOBI/EPUB.

          • Maybe, Amy. I had offered him a PDF when he first contacted me on my website as “Kelvin.” Maybe he just couldn’t say “no” to it without seeming suspicious! The PDF has been free from Smashwords for a couple years, now, it’s hardly a prized rarity.

            Dunno. His (her?) true motives are probably going to remain uncertain. In a way, that might be worse — the mysteriousness of it makes it even less clear what we need to protect ourselves from.

  2. I’ll keep that page filed away in case I ever need it. (UPDATE: The link to chillingeffects.org’s counter-notification generator no longer works. I rooted around their website but can’t find it. Here’s one that might work. Or, search for “DMCA response example.”)

    Coincidentally, I had just finished reading her post. In her case, there are a couple of circumstances that make this unique.

    First, it appears that this was an attempt at revenge, possibly blackmail, because of a previous encounter online dealing with a writer who offers a ghostwriting erotica service. There are no specifics, and even the poster isn’t sure that blackmail was involved. This was not a random act, nor the act of roving gangs of pirates.

    Second, the “proof” that resulted in the takedown was a link to a post on a Blogspot site that pre-dates the publication date of the book. People have said in the comments that this can be easily falsified, making this a terrible standard of proof.

    • Definitely true, Bill. The same goes for Word Press. You can date a post whatever you want and if in the past it will insert the post in the display sequence just as though that was when it was originally published. I had that happen the first of the year, thinking I was scheduling a post for a few days in advance and instead published it 363 days retroactively. 🙂

    • Don’t know about Blogspot, but, when I make a post on my own blog using WordPress, it asks what date I want on there. This is why I have posts from 1996 on the blog, as I copied them over from my old web site and set the date to when they were first posted.

      As we were discussing the other day, the DMCA is completely broken, unless you’re Big Media Company wanting to destroy someone’s personal web site.

    • Totally agreeing about the standard of proof, Bill. I think that’s what convinced Smashwords.

      FYI, Kushal Das’s interactions as “Ghost Author” on Warrior Forum were not with me. So far as I know, I’ve no contact with this person whatsoever.

    • To me, this is the big takeaway. Independent authors (hell, all authors) need to lobby Amazon and other retailers – and politicians to get the law changed – to ensure that blog posts can’t be used in DMCA notices. Any kind of content on a website is too easily manipulated. DMCA takedowns for published fiction should require the actual copyright.

  3. It’s a scary story, especially in the light of:

    . So I wrote back to KDP, sending them my U.S. copyright registration info and assuring them that Nolander was my work.

    The author sent them a U.S. copyright registration info and Amazon still kept her book blocked. I would like to know is this just an Amazon glitch or is for Amazon the U.S. copyright registration worthless.

    • Amazon not getting involved in “third party copyright disputes” is a policy thing. They also excused themselves from issuing judgments when Games Workshop accused me of trademark violation for my space marine novel, even when I sent them documentation proving the accusation was spurious.

      This author might want to contact the Electronic Frontier Foundation, see if they’d be willing to help her the way they did me.

      • Just to note also, that in the UK at least, legal representation is often one of the benefits rolled up with household and contents insurance. Might be worth checking whether she could get funding for legal representation to actually go after this person.

      • Thank you, M.C.A. I remember hearing about your experience — wretched! — and I’m so glad EFF was able to help you stop that abuse. I’m hoping Amazon will come through for me on this one. They’ve always treated me well in the past.

        But I have drafted an email to EFF, just in case. 😉

        • I wish you every luck, Becca! I went to Amazon with a boatload of evidence, but they repeated their line about not wanting to get involved with third party disputes. I was grateful the EFF was able to help. I hope your situation resolves more easily than mine, but I absolutely recommend them if you don’t manage it on your own. 🙂

          • Thank you! Maybe I’d better send that email now. Really, it’s very disappointing. :-/

          • That’s an odd line to take, because I’d consider removing content to be very much ‘getting involved.’

            I hope this all works out.

    • I thought about that, too, except that anyone could apply for a copyright on a work. It’s granted automatically without investigation by the U.S.

      But there needs to be some mechanism that would allow a company to make a choice between two parties, and be shielded if it goes to court. A human looking into this case could tell pretty quickly who was the true owner. I know, having published books for five years, that I’d be very upset if one of mine were challenged, and Amazon looked at my substantial online presence and said “work it out yourself.”

  4. Looking at the difference between Amazon’s response and Smashwords, this looks like the best reason so far to avoid Select and Kindle Unlimited and go non-exclusive. If that’s the level of support and interest Amazon provides, then I’m dividing up my eggs very carefully between baskets.

  5. Passive Guy, thanks so much for covering this, and thank you for the link on counter-notification. That page offers a wonderfully clear explanation.

    The thing is, no one’s been able to tell me if retailers are bound by the requirement to reinstate removed/blocked content within 14 days. I’d be delighted to hear that they are. Two weeks is an awfully long time to have one’s book down, but it’s a lot better than forever. But this article suggests that retailers are not bound to reinstate: http://www.dbllawyers.com/2014/11/help-my-seller-account-has-been-disabled/

    If anyone knows the answer for sure, I’d love to hear it.

    • Becca, thank you for writing down and sharing your experience. I hope that situation with Amazon will be resolved soon.

  6. Sheesh! This is really alarming. I feel for Becca Mills, and I worry for the rest of us who are vulnerable.

  7. Yikes. I just read the whole post. This is an awful situation and I hope it’s resolved quickly.

    Becca is awesome (as well as wise) for taking the time, during a highly stressful experience that would surely leave me sitting on my couch whining while mixing bourbon and ice cream, to document her experience so thoroughly in a public forum where others could benefit from it.

  8. Is this the kind of situation that the legal support of organizations like RWA, HWA, and SFWA would provide to their membership? (If so, I may reconsider applying for membership–qualifying under the new rules for self-publishing.)

  9. What’s troubling to me, beyond everything going on, is Amazon’s attitude.
    They caved to the complaint immediately, and their response to the author was “work it out for yourself”.

    It seemed like such a gold mine for Amazon. Put the books up and rake in the dough. But it’s not that simple in the real world where unscrupulous people want to do real harm. Amazon doesn’t want any part of that, like unfair reviews of books not read, or complaints about foreign words. They will unpublish a book in a blink of a nanosecond but won’t do anything about verifying complaints.

    An author’s recourse is trying to email someone in Bangalore for whom English is a second language and American culture is foreign.

    • The problem is that if Amazon doesn’t take the work down if the person filing the DMCA says it’s theirs, then Amazon becomes liable for huge amounts of money ( $150,000 per copy plus damages IIRC )

      the counter-notice is pretty toothless, it’s just a note to everyone involved that you dispute the DMCA claim, if the person who filed that claim then says that they see your counter-notice but still think they own the copyright, you are out of luck unless you get lawyers involved. Amazon, Google, or anyone else is pretty much unable to do anything without becoming at least partially liable if it turns out that the DMCA takedown notice was correct.

  10. Scary story indeed! Crossing all my fingers and toes for you, Becca, in hopes you get this resolved soon!

  11. I’ve seen this happen to an author before who was blackmailed by a shyster publisher. He falsified a contract rather than a DMCA, but with the same result. Amazon never backs the author in these cases without something more concrete to go on, like a restraining order. They listen to restraining orders in my experience.

    I sue more people as an author than I ever did before I became one. Actually, I never needed to sue anyone until I encountered publishing. There are a lot of con men in this business.

  12. Thank you for sharing, Becca. I really hope this works out for you.

    I also doubt that this is the first false DMCA filed by this person, and hopefully now others will see this and come forward.

  13. I don’t actually see Amazon’s justification for their stance. Surely if a copyright duly registered is sufficient to open the question of damages in a court, it should be enough for them, and they should put the contested content back up without further delay.

    I also expect this whole nightmare of false takedowns is giving their security and rights people very severe gastrointestinal symptoms.

    • They probably figure that for small-fry authors, it’s more risk than the loss-of-returns for that book’s income is worth if something actually comes of it and gives them legal fees. (Especially when the book is apparently free, so it’s making them no money at all).

      It’s a terrible position for the author, but given Amazon’s size I can understand it.

      • The weird thing is that filing a DMCA counter-notice is supposed to create a safe haven for Amazon to restore the content. They’re no longer legally liable for any infringing content — not from this instance, anyway. That liability passes to the filer of the counter-notice.

        So, yeah. Not really understanding why Amazon is so rigid on this matter. Now that I’ve filed the counter-notice, they’re in a risk-free position — as I understand things, anyway (not a lawyer).

        • the person who filed the DMCA takedown can now respond and say that they still think it’s theirs, and the DMCA process presumes that they are telling the truth.

          In a case like this where the initial takedown notice was faked, why wouldn’t they still claim that it’s theirs.

          Amazon probably has a practice of waiting for the response from the person who issued the takedown before they restore it.

          In case it’s not clear, I’m not a lawer either, but I’ve seen enough DMCA thuggery reported, and followed it in enough detail to be horrified at what the process entails.

          • So, in cases like these, the U.S. copyright, unless one is willing to sue, is pretty much worthless?

  14. Just to say that this link – http://www.thisismoney.co.uk/money/smallbusiness/article-2762403/SMALL-BUSINESS-BOSS-How-protect-winning-idea-against-copycat-crooks-without-paying-1-000s-court.html – looks pretty relevant. Info about policies specifically designed for if you might need to sue the a** off anyone who tries this!

    ‘Policies can also cover the legal costs of defending your company if a third party accuses you of infringing their rights’

  15. This is why the DMCA has been a joke from day one. It has not stopped one item from being pirated. It only causes problems for those who can’t afford to hire lawyers to defend their copyright. Even if you can hire lawyers (RIAA/MPAA) your stuff is STILL out there free to download!
    So how does the law help? It doesn’t. Plain truth that’s hard for some to see.

    As to what you can do about this instance of abuse check out this site:

    http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content

    Look closely at this line in the explanation of the law:

    If you send a counter-notice, your online service provider is required to replace the disputed content unless the complaining party sues you within fourteen business days of your sending the counter-notice. (Your service provider may replace the disputed material after ten business days if the complaining party has not filed a lawsuit, but it is required to replace it within fourteen business days.

    According to this Amazon is REQUIRED to republish your material unless the original filer of the complaint files suit within 14 days. It’s written in the law that way. Not sure Amazon can willfully not repost it. At least that’s how I read the law.

    Am I missing something?

    Hope this works out for you. It should not have to be this way.

    • The problem is that a bona fide DMCA Counter Notification is going to have to be formatted in a particular way with specific phrases included.
      It’s also not something that you would send to the customer service group that notified you about the DMCA notification, but to Amazon’s DMCA agent.

      • That makes sense on where to send it for Amazon. But from reading around on the web it seems most DMCA notices issued are just a standard form letter, of which you can download lots of templates, some from lawyers. It also seems they have the counter notice forms as well. Just run a search on Google. A huge percentage of legal forms are standardized plug in your info types, even the ones your lawyer will use in a lot of instances are just like that.

  16. Query to PG:

    Is Amazon an “online service provider” as the term is used in DMCA?

    Sounds like it:

    (1) Service provider. — (A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

    (B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

  17. Not PG, but I believe they are considered a retailer, not an online service provider. This is probably the screen they stand behind to avoid getting involved.

    • Hmm. I can see how they can call themselves a “retailer” to the customer buying the ebook – but if you are using KDP, you are using Amazon’s PUBLISHING SERVICES to publish your book. All it’s going to take is one person hiring an attorney to get that established.

    • It can be both. I don’t see any exception in the statutory definition for “retailers.”

  18. Thank you for sharing this awful experience, increasing awareness of the potential problems that may lie ahead. I do hope that the matter will all be resolved soon.

  19. I know less people will be reading now that this has dropped to page 2, but I’m sure TPV readers and commenters would be interested to know that some of Becca’s supporters have started an email campaign to Mr. Beelzebezos, asking if he and the lesser demons could please take a look at this policy and see that it’s untenable in cases of deliberate fraud and griefing like what’s happened to Becca.

    You can join in by writing to jeff@amazon.com and cc’ing copyright@amazon.com.

    And here’s a link to a post on the K-Boards: http://www.kboards.com/index.php/topic,210271.0.html

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