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Monday News: Amazon v. Indies, round 500; U of Mississippi cures...

It’s possible that giving anti-retroviral drugs so early prevented the AIDS virus from hiding in her white blood cells, which can serve as “reservoirs” of infection. These reservoirs of hidden cells can cause the disease to come back if patients stop their medications.

USA Today

But the issue became a giant “Amazon against Indies” thing.  Authors came out on Twitter and their blogs accusing Amazon of oppressing them again.  Jamie McGuire was being punished for self publishing and then moving to traditional publishing after her books were bought by Atria, a division of Simon & Schuster.  Yet, there was one big difference between the self published version and the Simon & Schuster. The original self published version contains virtually all the lyrics to the Rolling Stones’ “Satisfaction.”  The S&S version has basically one line, the start.

This was an unfortunate mistake by McGuire.  Inclusion of the entire song violates copyright and well established licensing rules.  Fair use for songs generally run around one line because the song is so short.  Inclusion of the entire song would be like lifting the manuscript of Beautiful Disaster and inserting it into another book.

Using song lyrics requires permission and it is extremely expensive.  Blake Morrison writes about having to pay 300 pounds for the use of one line.

In sum, it could be that Amazon is punishing self published authors or it could be that Amazon is trying to get out from between a copyright infringement suit.  The Stones don’t take copyright infringement lightly.  For instance, the band, The Verge, used a sample from an orchestral version of the Stones’ “The Last Time” in “Bitter Sweet Symphony.”  The song became super popular.

Originally, The Verve had negotiated a licence to use a sample from the Oldham recording, but it was successfully argued that the Verve had used “too much” of the sample.[14][15] Despite having original lyrics, the music of “Bitter Sweet Symphony” contains bongo drums sampled from the Oldham track, which led to a lawsuit with ABKCO Records, Allen Klein‘s company that owns the rights to the Rolling Stones material of the 1960s. The matter was eventually settled, with copyright of the song reverting to Abkco. Songwriting credits were changed to Jagger/Richards/Ashcroft, with 100% of royalties going to the Rolling Stones.[1]

So yeah. I can see Amazon trying to get out from under that. When S&S removed the song, one would have thought McGuire might have known something was wrong with her self published version at that time. But currently she disclaims all responsibility or knowledge and places the blame squarely on Amazon.

My guess is that the Stones almost has to pursue this and announce some kind of monetary victory because otherwise others will be tempted to use the lyrics without compensation.

Now it could be something else entirely but the copyright issue would explain why McGuire is being affected; why the S&S version is where readers are being redirected; and why others are not.

Update: Amazon sent me this email:

The initial email sent to customers re: the availability of “Beautiful Disaster” was an error. We’ve since sent a follow-up email to those customers to clarify that there’s no action required for them to continue enjoying the book.

P.S. I do think Amazon is evil, but I don’t think it’s evil by trying to oppress indies.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

29 Comments

  1. library addict
    Mar 04, 2013 @ 04:20:01

    I buy books by new-to-me authors mostly based on recomendations of people I only “know” from on-line, including from sites like Dear Author. But I also look at blurbs. And while covers don’t make me buy a book, when browsing a good cover will get me to look at the blurb. So, I guess I am in the minority.

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  2. Merrian
    Mar 04, 2013 @ 06:21:36

    I think the categories for defining discovery are mixed up because friends can recommend books via twitter or blogs or their reviews on Goodreads, etc. I’ve bought books based on the conversation in a comments thread that have nothing to do with the book review the thread was linked too. I would call that a friend’s recommendation. It isn’t friends OR these channels but friends via these channels. I think it would be interesting to ask when and how people talk about books with their friends and then ask how and who they define their friends.

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  3. Sirius
    Mar 04, 2013 @ 06:22:25

    Library addict, i think they may have meant trusted online friend – I do not have people in real life who share my love for gay romance (well no – I have one person who became Rl friend because we turned out to live close to each other), but I have several very trusted online friends whose tastes are very close to mine . It is very true for me that on their recommendation I will buy a book that I won’t usually touch, be it the trope I won’t read or author I never heard of. So I guess to make a long story short if they meant online friends/ buddies , for me it is true.

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  4. Sunny
    Mar 04, 2013 @ 06:40:57

    I shop around for ebook prices, but I use Calibre to convert them to something I can read on my Kindle. I know the majority of people don’t do that, but I’m definitely not a tablet user either, so I wonder about that report.

    DA are definitely part of my “trusted friends” at this point, you do serious damage to my wallet but I’ve found so many wonderful authors through you folks, and I’m grateful for it. :)

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  5. Ros
    Mar 04, 2013 @ 06:55:37

    Oh, Jamie McGuire. I love how her FB rant is all about her having to pay for the refunds.

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  6. Sarah
    Mar 04, 2013 @ 07:17:18

    I can’t help thinking Jamie McGuire was kind of a loose-cannon indie author before. I remember reading something quite awhile back. Maybe she was a bad GR author? Anyway, this just seems like another sign of that zaniness.

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  7. Anne
    Mar 04, 2013 @ 07:30:15

    Maybe I shouldn’t be, but I’m shocked that Amazon is handling Beautiful Disaster this way. It seems to me the right thing to do would be to replace it (for free) with a non-copyright infringing version. Even if that meant deleting a page, that would be better than just pulling it and asking full price for a replacement.

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  8. Has
    Mar 04, 2013 @ 07:59:48

    @Anne:

    That might be due to the fact that its two editions and published under two different entities. It may be harder to do especially if there might be a clause with S&S saying she has to pull all previous editions. And in her original post outlying this – she was getting returns from the original self published edition and probably contacted Amazon over this matter which led to this whole kerffulffle. But this also raises the fact that self published authors should be aware about the issues of copyright especially quoting song lyrics or other material which have legal boundaries.

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  9. Jill Sorenson
    Mar 04, 2013 @ 08:08:43

    Why would Amazon be legally accountable for the misuse of song lyrics in the self pub version instead of the author?

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  10. Moriah Jovan
    Mar 04, 2013 @ 08:54:31

    Jill, because they’re easiest to sue and most likely to pay up. If I were Amazon, I’d want to squiggle out from under an ignorant author, too. Pronto.

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  11. coribo25
    Mar 04, 2013 @ 08:57:01

    Amazon are now apparently sending out apology mails saying there’s nothing wrong with Beautiful Disaster – although they still managed to get the title wrong… (got this from facebook)

    Hello,

    You may have received an e-mail from us yesterday stating that the edition of “A Beautiful Disaster” you purchased is no longer available. This e-mail was incorrect, and there is no action required to continue enjoying the book.

    If you are having any problems with the book, please feel free to contact us by replying to this message, and we will be happy to help you.

    We apologize for any misunderstanding our e-mail caused.

    Sincerely,

    The Kindle Team

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  12. susan
    Mar 04, 2013 @ 08:57:43

    What Moriah said. They went after Amazon because of deeper pockets. Amazon is distributing the book and paying the author for sales, and a better source of money.

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  13. Jill Sorenson
    Mar 04, 2013 @ 09:11:32

    @susan: @Moriah Jovan: Okay, that makes sense. It still seems very strange to me. I was also wondering why they wouldn’t ask the author to cut the lyrics, but maybe she can’t because of her new contract.

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  14. Jackie Barbosa
    Mar 04, 2013 @ 10:18:41

    @Jill Sorenson: I was also wondering why they wouldn’t ask the author to cut the lyrics, but maybe she can’t because of her new contract.

    This is an issue I’ll bet a lot of authors who’ve sold their self-published books to major publishers didn’t think about. McGuire can’t excise the offending text from her book and re-upload it to Amazon so that those who bought the self-published version can get an updated copy because she no longer holds the copyright.

    I have to admit, however, that if Amazon’s actions are motivated by fear of a lawsuit over the copyright infringement, simply offering refunds seems like an odd way to respond. Surely the only way to protect themselves would be to withdraw all the self-published copies from all readers who purchased it and refund their money. It seems to me that unless they refund every dollar paid for the infringing version of the book, then they have surely profited from distributing it and would be on the hook in a lawsuit.

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  15. Sam
    Mar 04, 2013 @ 11:51:11

    “Surely the only way to protect themselves would be to withdraw all the self-published copies from all readers who purchased it and refund their money.”

    I have a problem with that, as a customer who purchased this book. Take away the buy button, for future purchases. If a Publisher sent me a letter telling me a print book I purchased is no longer available and I could either: A. replace it with a new one at a higher cost or B. have them come into my home and remove it from my shelf and slap down what I paid on my coffee table. It would be the last time I would buy anything from them. Ever. Not to mention, illegal. If there is a copyright issue, since it’s self-pubbed, should fall to the Author to fix it monetarily. If whole chunks of their book were used and not as a “sample”, the pitchforks would be out.

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  16. Jackie Barbosa
    Mar 04, 2013 @ 11:57:24

    @Sam: I’m not saying I think Amazon should have withdrawn the book from readers who purchased it. Far from it.

    What I am saying is that, if Amazon’s motivation for sending out the email was fear of owing monetary damages for the copyright infringement, I can’t see a way for them to shield themselves from liability by any other means. Simply informing readers that they have the option of requesting a refund is hardly going to get them off the hook.

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  17. Marc Cabot
    Mar 04, 2013 @ 13:24:40

    @Anne: Whoa, whoa, whoa. If Amazon did that to the book without the author’s permission, they’d be in even worse trouble. They’d be messing with her copyright, probably violating their contract with her, and maybe even looking at a Lanham Act violation.

    The situation is, alas, probably irretrievable. The author can’t put up a corrected version because she’s almost certainly contractually barred from doing so. Amazon can’t fix the book, and can’t put up a new version. The publisher of the current version isn’t going to give away copies of their e-book to people who bought something they didn’t get any money for. Nobody who can do anything is allowed to and nobody who is allowed to is going to do anything.

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  18. Lynnd
    Mar 04, 2013 @ 13:39:38

    @Jackie Barbosa: I suspect that there is no way for Amazon to get out of a lawsuit if the copyright holder for the Stones is going to pursue it. Not only does Amazon have deep pockets, the Stones will want to send a message that Amazon and other entities that promote self-publishing platforms need to be vigilent about copyright infringement by self-published authors. Going after the author alone does not send that message because that path only places responsiblity on the author. All that Amazon can do at this point is mitigate the damages. It will be interesting to see how they balance the customer dissatisfaction issues at the same time. It will also be interesting to see if and how this changes their self-publishing services. As for the author, the best thing that she could do at this point is keep her mouth shut – anything she says about this matter will find its way into evidence in the event of a lawsuit.

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  19. Carolyn Jewel
    Mar 04, 2013 @ 13:50:07

    It seems to me that the real issue (if the song lyric allegations are correct) is this:

    1. Maguire did not obtain permission to use the lyrics and does not have a valid fair use defense

    2. It doesn’t matter what anyone does after the fact. If #1 is true, it’s too late. Every single book sold with the lyrics in it has damaged the lyric copyright holder. Fixing the book now doesn’t remediate that past harm.

    So, if this is true, the author needs to make good — to the lyric copyright holder. Period.

    The issue of what happens to all those copies sold in the past is not relevant with respect to the copyright claim. It may be relevant to a completely separate set of damages to the purchasers, if, for example, their copy is removed or made inaccessible to them without refunding their purchase price.

    I’ll be interested to see how this plays out.

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  20. David
    Mar 04, 2013 @ 14:06:05

    Given that this is a NYT bestselling author who presumably sold a considerable number of copies containing the aforementioned lyrics, I would say that this is exactly who any copyright holder should seek to recover damages from. She will have funds, and it would send a strong message that we all have to have proper respect for others intellectual property. In this instance Amazon have my sympathy as this appears to be a situation not of their creation. It may however have far reaching consequences for writers selling their work directly through Amazon. That’s very regrettable and could have been easily avoided. McGuire playing the victim card appears to be quite shameful.

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  21. DS
    Mar 04, 2013 @ 14:12:36

    Again assuming that this is the reason for the email and the fuss, I would bet that Amazon has a “hold harmless” clause in their contract with the self published author.

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  22. Ridley
    Mar 04, 2013 @ 14:35:13

    A good rule of thumb is to take the word of Jamie McGuire and assume that the truth is the opposite of that.

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  23. Ros
    Mar 04, 2013 @ 18:59:43

    @Carolyn Jewel: Right.

    I hope the Stones sue McGuire for every penny they can get.

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  24. Courtney Milan
    Mar 04, 2013 @ 19:44:03

    I think there are some factual inaccuracies here.

    Under current US law, I think it’s very likely that Amazon would not be liable for copyright infringement as a publisher of stuff written by other people. It probably falls into the DMCA safe-harbor whereby it won’t be deemed to be liable for copyright infringement until it receives a DMCA take-down notification. (This is where you can argue about whether it appropriately falls into the “right and ability to control” exception to the safe harbor: this is something courts haven’t looked at as much as they could, but I think almost any reasonable interpretation would have KDP falling under the safe-harbor; the Amazon imprints, on the other hand, would be directly liable.) So, yes, I think that unless and until Amazon receives a DMCA take-down notification or the equivalent, they can duck out of an infringement lawsuit fairly easily.

    Amazon’s behavior is extremely unlikely to have been spurred by a DMCA takedown notification, or it would have to be taking down McGuire’s cloud-stored content (which it is not doing) and letting her know (which it did not do) and potentially asking her to provide an alternate version (which it also did not do). (All of this is according to McGuire, though, so my saying that Amazon didn’t do these things is subject to her version of what transpired being truthful.)

    The second thing: It would actually be really easy for McGuire to upload a new version of BD to Amazon, even though the book has been taken down–old versions remain in your KDP account even if you remove them for sale, and you can still edit the books that are there and the file that is uploaded–so she could upload the new version & Amazon could use that to replace whatever it had in the cloud, thus satisfying everyone. They’d probably have to have someone manually throw the switch to overwrite prior cloud versions, but it would be a really easy switch to throw. This wouldn’t be in violation of her contract, since she isn’t making the new version available for sale anywhere or distributing to anyone except to those who already had licensed the content.

    So I think it unlikely that Amazon’s actions had anything to do with the Stones lyrics. Amazon’s actions don’t quite match what they would need to be doing to combat a copyright saber-rattling action in an attempt to escape liability. And if there was an underlying copyright issue here, Amazon wouldn’t have sent a retraction.

    That being said, great job on McGuire’s part, getting people to pay attention to her book and wonder what was wrong and point out that it infringes on copyright in a big way. I wonder how long this will escape the Stones’ notice now.

    Also: authors who commit full-fledged for-commercial-profit piracy themselves should forever lose the right to bitch.

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  25. Has
    Mar 04, 2013 @ 20:26:38

    @Courtney Milan:

    Could this be about the returns? McGuire was griping about that and demanded Amazon to stop and they did this instead?

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  26. Beth
    Mar 04, 2013 @ 21:20:58

    …. and so are the days of Jamie McGuire’s life
    She should just skip on to her autobiography because it will be a page turner!

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  27. B. Sullivan
    Mar 04, 2013 @ 21:28:59

    Because Allen Klein died in 2009 I keep wondering what would be different in this story (the Jamie McGuire book/Stones’ lyrics thing) if he were still alive. The way I’ve always heard the Verve story Klein was integral to getting the rights (as far as pushing the legal team), and that was one of many things that led to the Verve’s (first) breakup. Though it was a “band against the corporation story,” and you rarely find stories about such fights written with the corporate side as the hero. Anyway, that’s one story we won’t have, though I’ve read elsewhere that the Stones’ legal team is insanely serious about keeping up with use of their works pretty much everywhere online, in various media, etc. So I’m sure their people are in contact with McGuire’s people. I wonder if we’ll ever hear about how it’s resolved.

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  28. Deb Kinnard
    Mar 05, 2013 @ 09:40:43

    Why didn’t AMZ pull McGuire’s book at the time the rights transferred to her trade publisher? Do they continue to sell the self-pubbed version when they don’t technically have the rights to sell it after a certain date?

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  29. Ros
    Mar 05, 2013 @ 18:04:48

    @Deb Kinnard: I thought the point was that they had pulled it. That’s why they can’t just offer an alternative to the edition people had bought – only the new, expensive one (although see Courtney’s comment). These emails are being sent to people who bought the old edition months/years ago.

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