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Amazon Self-Publishers Eye Emerging Legal Arena to Fight Piracy

July 18, 2022, 8:55 AM

When Nick Singh’s self-published book “Ace the Data Science Interview” debuted on Amazon, he thought he’d evaded a big piracy risk by eschewing e-books and only releasing hard copies.

Singh’s guide to getting hired at Big Tech firms landed among Amazon’s top 3,000 best-selling books, but his success also put him in the crosshairs of counterfeit book printers that have proliferated on the online marketplace.

Less than a year after the book’s release, Singh said he spends several days each month pushing requests through Amazon’s take-down system for illegitimate listings, and he estimates he’ll lose 20% of his revenue this year to accounts hawking bootleg copies of his book.

Singh’s saga underscores broader copyright challenges that self-published authors face when publishing both physical and digital books with Amazon, a vertically integrated powerhouse that authors don’t always find responsive to or proactive about infringement claims. A new small-claims court could provide a fresh avenue for authors to recover revenue lost to counterfeit sales. But Amazon’s restrictive author contracts and the sheer number of third-party sellers on the platform spur questions about how effective any after-the-fact legal remedy can be.

“They’re the only vehicle—not only are they the publisher, they’re the seller,” said Katie Sunstrom, senior counsel at Mudd Law, of the dilemma Amazon authors face. “You’re beholden to them in two ways.”

Piracy Problems

Piracy and counterfeiting are by no means new issues to the book industry, but self-published authors often find they lack the resources and know-how to pursue individual sellers that are profiting from knockoffs of their work.

In 2019, the Authors Guild submitted comments to the Department of Commerce that said e-book piracy alone is an industry worth roughly $315 million annually. The group reported an “explosion” in counterfeit hard-copy books, especially among commercial nonfiction and fiction titles—educational textbooks have historically been the main book-piracy target.

Overseas and domestic counterfeit publishers can easily use their own printing presses, hire print-on-demand services, or go through Amazon’s Kindle Direct Publishing arm to produce and sell bogus copies of popular books directly to consumers on Amazon, the group said.

Authors can take a hit on both fronts. Self-published author Parth Detroja has seen sales of illegitimate copies of his book “Swipe to Unlock” undercut sales of the legitimate copies—which he can identify based on the quality of the paper and printing and the size of the book, among other indicators.

Under his publishing contract with Amazon, Detroja said, it’s hard to understand why the company allows other sellers to ship poor-quality, illegally printed copies of his book to Prime-eligible warehouses, which often positions the copycat as the default choice for online shoppers in a hurry.

Matt Harrison, a self-published author and computer scientist, saw that an Amazon seller uploaded an e-book version of his coding guide, “Effective Pandas,” that started siphoning off sales. Harrison had previously chosen to publish his hard copy with Amazon while selling his e-book through his personal website. But the unavailability of the e-book on Amazon left room for a third party to upload a counterfeit, which he said Amazon allowed.

While the bootleg e-book was only available for about a week, Harrison said negative reviews about the quality and formatting of the e-book still plague his author page.

In these instances, it’s the author’s responsibility to report the alleged copyright infringement to Amazon via an online form. Sometimes, Amazon takes down the listing; other times, the listings disappear on their own. But authors say other counterfeit sellers spring up to take their place.

“The frustrating thing is when the biggest player in the game, Amazon, basically incentivizes this, especially when they can do something so easy to prevent it,” Harrison said.

Amazon didn’t respond to Bloomberg Law’s request for data on its enforcement efforts against counterfeit books, nor did it say whether this is an issue it tracks.

Amazon spokesperson Julia Lee said in a statement that “nothing is more important to us than customer and author trust and ensuring that customers are purchasing an author’s authentic titles.”

Lee stressed third-party sellers’ status as “independent businesses” that must still follow the law and Amazon’s policies. Amazon monitors listings and has “measures in place to prevent prohibited products from being listed,” Lee said, which includes a workforce of 12,000 employees and machine-learning technology.

Tilted Contracts

Still, the perception of a hands-off approach toward copyright screening frustrates authors, especially when restrictive contracts leave them with few legal options other than continuously filing Amazon takedown requests.

Per the Kindle Direct Publishing contract’s publicly available terms, authors waive the right to file court proceedings, request jury trials, and participate in class-action lawsuits. They agree instead to binding arbitration—and also that they won’t hold Amazon liable if it fails to enforce its own policies, terms, and conditions. Further, Amazon absolves itself of any liability for the content that others upload and sell on the platform.

“Their terms are 100% lopsided toward benefiting Amazon and limiting the rights of the authors,” said Matthew J. Hefti, an attorney at Parlatore Law Group who specializes in representing authors, publishers, and literary groups.

While the Authors Guild found in 2019 that Amazon generally made good-faith efforts to take counterfeits down and reimburse customers, it said Amazon’s involvement is not proactive and mostly occurs on the back end of a counterfeit sale.

“Because it still earns commissions and fees from the sale of counterfeit and pirated books in the online marketplace, it may not have as much economic incentive as it otherwise would to eliminate those offerings before sales occur,” the guild wrote.

A New Hope?

It’s difficult to hold Amazon accountable for seller listings because federal law typically shields online platforms from liability for third-party content.

There’s a slim chance that Amazon authors could band together and convince a judge that the Amazon contract’s class-action waivers or arbitration requirements are unenforceable and pursue the platform itself, Hefti said. He pointed to a group of Massachusetts delivery drivers who did just that in 2020. He suggested that authors could also try to overwhelm the company with mass arbitration demands.

But an author’s best bet for recovering lost profits may be through the new US Copyright Claims Board, which began taking cases in June. Previously, “there hasn’t been another viable option other than the endless cycle of takedown notices or the often unaffordable option of a lawsuit,” Marc D.Ostrow, a copyright and entertainment attorney at Romano Law, said.

The venue is designed to aid individual creators in pursuing relatively small-scale infringement claims, with an initial filing fee of $150 and damages capped at $15,000 per work and $30,000 per case.

“There aren’t very many restrictions for pursuing this route of recourse,” said Andrew Gross, senior counsel at Foley & Lardner LLP. “It would encompass what an author would want to use the system for.”

Authors might still be limited by how hard it can be to track down individual counterfeit sellers. Participation at the Copyright Claims Board is voluntary, and defendants can choose to opt out of the process. Gross said it remains to be seen whether defendants will find that avoiding federal court lawsuits is enough incentive to participate at the board.

“It’s a brand-new process, and authors, musicians, photographers and other creatives who use it will be sailing in uncharted waters,” said Ostrow.

In the meantime, Singh continues to spar with Amazon over copyright takedown requests while trying to build on the success of “Ace the Data Science Interview” by offering career coaching sessions and creating online content.

He’s doing all of this from his parents’ basement, and he doesn’t see himself moving out anytime soon, given the volatility of his book’s profits. His copyright difficulties have even made him rethink his plan to build a career as an author.

“I see my income go off a cliff every few weeks,” he said. “I don’t know if it’s going to keep happening.”

To contact the reporter on this story: Kelcee Griffis in Washington at kgriffis@bloombergindustry.com

To contact the editors responsible for this story: Adam M. Taylor at ataylor@bloombergindustry.com; Tonia Moore at tmoore@bloombergindustry.com