From Dean Wesley Smith:
It’s got a ton of stuff in it. And takes a vast amount of time to go through. But worth it.
And their new side-business they are only offering to big publishers is flat scary.
Horrifying, actually if they are doing it wrong.
And I got a hunch that unless they are pulling names, that new business is setting them up for more lawsuits than I want to think about. Because from my understanding, they are releasing personal sales numbers of writers to businesses who can get past their paywall.
. . . .
Data Guy, Hugh, tell me I am wrong here… Please?
I know in the free report you released some names and blocked some information and other names. I hope that every bit of data you release attached to a name is permission granted. Please, please tell me you are doing that…
Because behind that stupid paywall of needing ten million in sales, any of my pen names, my name, Kris’s name, or our numbers better not be out in public there. And how will I know? Let me think… I have been around this industry for forty years and have a lot of friends who will be glad to send me information about myself they buy from you.
Link to the rest at Dean Wesley Smith
PG is an admirer of Dean. And Dataguy and Hugh.
Each of them has contributed a great deal of information (without compensation) that has benefited all authors and indie authors in particular.
PG is a big believer in personal and business privacy for those who don’t affirmatively spread their personal business everywhere.
However, the first question which came to PG’s mind after reading Dean’s comments, having earlier seen the information Dataguy made available from his new data analysis.
Who owns the information about how many books Dean (or any other author) sells and the prices at which those books are sold and the royalty rates Amazon and others pay to authors who self-publish with Amazon, Kobo, etc.?
Does Dean own the information because he wrote the books and owns the copyrights?
Does Amazon own the information because it reflects the number of books it sells on its own website?
Does Dataguy own the information because he gathers and aggregates it in ways that Amazon/Kobo, etc., don’t?
PG took a quick blast through the KDP Terms & Conditions which Dean and any other author who sells via KDP has agreed to. He did not find anything in the Ts&Cs that directly addresses the question of who owns the data respecting the sales and pricing of ebooks that Amazon sells. (PG suspects we can look for some clarifications on this topic in a future edition of the Ts&Cs)
PG did find some terms that tangentially address data ownership, however. (This is from the version last updated on September 1, 2016)
Here’s a first section – Customer Prices:
5.3.4 Customer Prices. To the extent not prohibited by applicable laws, we have sole and complete discretion to set the retail customer price at which your Digital Books are sold through the Program. We are solely responsible for processing payments, payment collection, requests for refunds and related customer service, and will have sole ownership and control of all data obtained from customers and prospective customers in connection with the Program.
The question here is that, if Amazon has sole ownership and control of “all data” obtained from customers “in connection with the Program,” what things do “all data” cover?
The prices the customers paid for ebooks and the numbers of ebooks they purchased would seem to be part of the data obtained from customers in connection to purchases of books offered for sale via the KDP program. If so, the author doesn’t own that data.
Is there an implied license permitting Amazon to aggregate and categorize this data? Those activities, although not expressly mentioned, are required if Amazon is to calculate and create royalty reports for the purposes of paying authors. Providing authors access to this type of information would also seem to be required under Paragraph 5.4.2 which says Amazon will “will make available to you an online report detailing sales of Digital Books and corresponding Royalties. ”
Since this is so exciting, let’s move on to 5.5 Grant of Rights.
You grant to each Amazon party, throughout the term of this Agreement, a nonexclusive, irrevocable, right and license to distribute Digital Books, directly and through third-party distributors,
. . . .
(e) use, reproduce, adapt, modify, and distribute, as we determine appropriate, in our sole discretion, any metadata that you provide in connection with Digital Books;
. . . .
In addition, you agree that we may permit our affiliates and independent contractors, and our affiliates’ independent contractors, to exercise the rights that you grant to us in this Agreement. “Amazon Properties” means any web site, application or online point of presence, on any platform, that is owned or operated by or under license by Amazon or co-branded with Amazon, and any web site, application, device or online point of presence through which any Amazon Properties or products available for sale on them are syndicated, offered, merchandised, advertised or described.
Metadata is not expressly defined in the KDP Ts&Cs. Paragraph 5.1.2. requires the author to make certain she/he provides correct metadata. Under Subparagraph (e) of 5.5 above the author permits Amazon the right to use, reproduce, adapt, modify, and distribute . . . any metadata it receives from the author.
Is pricing of the book metadata?
One definition of metadata outside of the KDP docs is “a set of data that describes and gives information about other data.”
PG has a hard time seeing that the price of the book is not metadata – it describes and gives information about what the royalty rate will be under KDP and provides a basis upon which the mathematical calculation of the total royalty payable to the author will be calculated.
If pricing is metadata, Amazon can do almost anything it wants to do with pricing information, including distributing it to others besides the author.
One last KDP paragraph:
7 Confidentiality. You will not, without our express, prior written permission: (a) issue any press release or make any other public disclosures regarding this Agreement or its terms; (b) disclose Amazon Confidential Information (as defined below) to any third party or to any employee other than an employee who needs to know the information; or (c) use Amazon Confidential Information for any purpose other than the performance of this Agreement.
. . . .
“Amazon Confidential Information” means (1) any information regarding Amazon, its affiliates, and their businesses, including, without limitation, information relating to our technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (2) the nature, content and existence of any communications between you and us, and (3) any sales data relating to the sale of Digital Books or other information we provide or make available to you in connection with the Program. Amazon Confidential Information does not include information that (A) is or becomes publicly available without breach of this Agreement, (B) you can show by documentation to have been known to you at the time you receive it from us, (C) you receive from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (D) you can show by documentation that you have independently developed without reference to any Amazon Confidential Information.
PG didn’t find a specific provision where the author agreed that Amazon Confidential Information is the sole property of Amazon, but reaching that conclusion from the language above is a short step.
This provision limits what the author can do with information the author may receive from Amazon. The author is prohibited from disclosing any information regarding Amazon:
- Business Affairs
- Communications the author receives from Amazon
- Sales Data related to the sale of Digital Books by Amazon
- Any other information Amazon provides the author with respect to the KDP program
This covers a lot of ground.
Taken according to its terms, the author is not permitted to disclose:
- Finances – Do sales and royalty reports the author receives disclose information about Amazon’s finances if the author shares them with others?
- Business Affairs – Is there anything Amazon does that isn’t covered by this term?
- Content of Communications between Amazon and the author – Are the contents of sales and royalty reports made available to the author communications? PG thinks so.
- Sales Data related to the sale of Digital Books – If Content of Communications doesn’t cover sales and royalty reports provided to the author, Sales Data certainly does. If Sales Data is Confidential Information the author can’t disclose, does that mean sales data regarding number of books sold, prices for those books, etc., owned by Amazon. Again, there is not a specific agreement with respect to ownership of this data in the T’s&C’s, but, as between Amazon and the author, the author will have a hard time arguing he/she is the owner of the sales data.
- Any other information Amazon provides the author about the KDP Program – This provision is a catch-all for just about anything Amazon provides the author.
For any visitors to TPV experiencing shortness of breath, PG will point out the boilerplate exceptions to the definition of Amazon Confidential Information. Anything that falls into these baskets is not Amazon Confidential Information even if it’s described in the first part of Paragraph 7 as Amazon Confidential Information (aren’t contracts wonderful?).
- information that (A) is or becomes publicly available without breach of this Agreement,
- information that (B) you can show by documentation to have been known to you at the time you receive it from us,
- information that (C) you receive from a third party who did not acquire or disclose such information by a wrongful or tortious act, or
- information that (D) you can show by documentation that you have independently developed without reference to any Amazon Confidential Information
If anything in complex Ts&Cs is straightforward, the exceptions to Confidential Information are.
- If other people know about it without you telling them, it’s not confidential.
- If you knew it before Amazon told you, it’s not confidential.
- If somebody besides Amazon told you and that person got the information without committing a bad act, it’s not confidential
- If you figured out something that Amazon told you, it’s not confidential.
So where does PG end up on this issue?
First, the standard disclaimers –
- This is not legal advice, you obtain legal advice by hiring a lawyer (and hopefully paying a lawyer) and not by reading a blog.
- PG could totally be wrong about this.
- PG spends more time before he provides legal advice than he does before he makes a blog post.
- PG might have missed a piece or lots of pieces of the KDP Ts&Cs that totally obliterates his reasoning.
- PG typed this post without reading it.
- PG could be high on Coke Zero and out of his mind.
- Those monkeys in the corner of PG’s office might not be real.
- Ditto for the aliens looking in through PG’s office window, one of whom looks like Jeff Bezos in disguise.
With the standard disclaimers firmly before you, PG thinks:
- Amazon probably owns and controls the data related to the ebooks (and other books) it licenses and sells to its customers.
- This data includes how many books it sold that are written by a particular author and how much money it paid to the author.
- If Amazon owns the data, it could release the same information as Data Guy publishes to the whole world if it wanted to do so.
- If Amazon owns the data, it can share as much of the data as it wants to with third parties, including Data Guy, subject to whatever limitations it places on Data Guy’s use of the information.
- In their disclosures of information, both Amazon and Data Guy should be sensitive to the privacy issues of authors even if they are not contractually required to do so.
One of the aliens just brought a pizza into PG’s office as a sign that aliens want only peace. There is no spinach or canned tuna on top of the pizza, so PG will close for now.