Amazon.com's Internal Search Feature
This page is intended only to assist you in managing your intellectual property. It is not a substitute for legal advice. Although many infringements are clear, and particularly so to the copyright holder, you should be aware that improper assertion of copyright is itself prohibited by the Copyright Act. This page is intended to assist authors (and other copyright holders) in:
Last Updated: 12 January 2004
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In October 2003, Amazon.com announced a new feature, akin to a full-text index across most of the books it sells. This feature allows site users to search for particular text, whether one word or a phrase, and retrieve either all books with that search term or all pages containing that search term in a particular book.
This may itself be a copyright violationin some circumstances. One of the rights of copyright holders is the preparation of indices of their works. Amazon.com has certainly done so. However, many book contractsparticularly for nonfictiontransfer the right to create an index to the publisher. Under those circumstances, such an index is not an infringement, if the publisher has consented in advance. (Ironically, the index itself, so long as it is more than merely mechanical, would be entitled to independent copyright protection as a derivative work; Amazon.com's system is so mechanical that I think that a losing argument, but it's strong enough to run up some serious legal fees in reaching that result.)
Clicking on the links at Amazon.com that are provided after the search takes one to an image of the page on which the search term occurs. One can move forward and backward from this page in browse mode. Supposedly, there is a limit on how much of a book one can retrieve, at least without reinitializing the search; defeating the limit is trivial (and would take longer to describe than it would to figure out). In any event, that image is a quick trip to an OCR program away from being made available in text form on the Internet.
Authors whose individually copyrighted works, such as short fiction, essays, and poems, appear in collections or anthologies are at significant risk to each of those works. Amazon.com's position appears to be that standard publishing contracts allow publishers to publish an "excerpt" for publicity purposes, and that therefore their program is just fine. That is an arguable position for book-length manuscripts, although the facts should cause anyone who has read Tasini with any degree of care to pause. It is not an arguable position for shorter works contained within a whole. There is no good-faith argument under existing law or for a reasonable extension of existing law that retrievability of 100% of an independently copyrighted work is an "excerpt" of any kind, within the reasonable meaning of the termespecially under the reasoning of Tasini. This is consistent with the recent line of cases concerning freelancers' inability to rely upon the compilation copyright of periodical publishers to protect their individual works.
Further investigation into the matter has disclosed a disquieting problem: That some distributors have pretended to be the publisher and authorized the inclusion of works into the search system. Distributors do not have that right; and it is arguable that only the actual publisher can authorize such excerpts on ordinary contract language, without any right to delegate that authority to a third party. This is particularly troublesome for books from small publishers that do not do their own fulfillment; for example, iBooks is distributed by Simon & Schuster. My preliminary investigation on behalf of several authors indicates that S&S did not consult with the actual publisher(s) before permitting Amazon to put books that it only distributed into the program. I am confident that S&S is not the only culprit here; it's just that, at this writing, I have some evidence to that effect concerning S&S, and the example helps illustrate my point. Since the initial posting of this article, I have gotten solid information that Publishers' Group Westa purer distributor, and not a publisher at allhas been even more aggressive than S&S. Since not even a complete maroon could pretend that PGW is the "publisher" authorized to give permission to do anything, it seems fairly clear that whoever at Amazon came up with the administrative system for this program just didn't care about the authors or the legalities.
An individual author may decide that he or she does not care if the material becomes available through Amazon's program. That is his or her right. It is not, however, the right of either Amazon itself or the publisher (unless special contract language exists) to make that decision for the copyright holder for parts of a book that have independent copyrights.
This program was clearly not thought through at many levels: at Amazon, at distributors, and at certain publishers. The Authors' Guild's response has been quite tepid to date, most likely because its membership overwhelmingly consists of authors who write only at book length. The "excerpt for publicity" clause in many of those book contracts makes the Authors' Guild's situation less solid than is the situation for writers of shorter works whose works have been collected or anthologized in book form.
Contrary to the Copyright Act, Amazon's counsel indicated that only a request from the publisher would be honored. This is not consistent with 17 U.S.C. § 512 (the DMCA's "notice and takedown" feature), which I have discussed more thoroughly elsewhere on this site. However, failure to provide a DMCA notice may cause problems if later litigation becomes necessary; thus, I suggest a belt-and-suspenders approach to authors who wish to opt out of the Amazon program for specific books. This belt-and-suspenders approach is the basis for the following sample letter. The letter should certainly be adapted for an author's specific circumstances, and is intended only to ensure that all of the necessary information gets to the right people. You may freely copy and adapt this letter to protect your own rights. Please do not redistribute the letter; instead, please point people wishing for a copy to this page, as the use notes appearing below will probably evolve in the near future.
[your return address, telephone, fax, and e-mail]
[full address of your editor at the publisher of the book in question]
RE: Notice of Copyright Infringement and Demand to Remove
Dear Mr. Garver and [your editor]:
I am the copyright holder of [specify the short work], which was reprinted in [specify the book] ([full URL to retrieve the first page of the short work from Amazon's system; this may take several lines]). I confirmed on [date you retrieved that first page] that [all/a substantial portion] of [the short work] can be retrieved using Amazon's "search inside the book" feature. Neither Amazon nor [publisher] has the contractual or other right to make an entire work available for downloading free of charge. Amazon's inclusion of [short work] in its search program is not acceptable.
I demand that you immediately remove access to [short work] through the "search inside the book" feature because appearance in that feature infringes my copyright. Please respond in writing within 72 hours of receiving this letter. Pursuant to 17 U.S.C. §§ 512(c)(1)(C) and 512(g), telephone or other oral notification is not satisfactory, and will not provide any entitlement to limitations of liability available under 17 U.S.C. § 512.
Pursuant to the Digital Millennium Copyright Act, this letter serves as actual notice of infringement in the event of legal proceedings. The information in this notification is accurate, and under penalty of perjury, I state that I am the owner of exclusive rights infringed by the specified material, and that I have a good faith belief that the use described above is not authorized by contract or by law.
[your typed name]
A few notes on efficiently using this letter:
Again, it is the copyright holder's privilege and right to determine whether entire works may be made available without charge. Some holders may decide that the publicity is of greater value than any possible damage; but that is the copyright holder's individual decision, not a general one implicitly, or even explicitly except in very rare circumstances, delegated to anyone else.
You may need specific legal advice for your situation if:
Although there is a great deal that one can do without a lawyer's assistance to assert a copyright, there are many pitfalls once one moves past a simple, obvious infringement. There is no substitute for legal advice from an attorney whose practice includes copyright law.
Intellectual Property Rights
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