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Copyright Resources

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:

  • Understanding Amazon.com's "search inside this book" feature implemented in October 2003;
  • Understanding the dangers posed to some authors by the feature;
  • Considering appropriate self-help steps to end the infringement; and
  • Determining when they need legal advice.

Last Updated: 12 January 2004

 

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Charlie Petit
cepetit@scrivenerserror.com

Understanding Amazon.com's "Search Inside This Book" Feature

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 violation—in 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 contracts—particularly for nonfiction—transfer 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.

Risks to Certain Authors' Copyrights and Intellectual Property

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 term—especially 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 West—a purer distributor, and not a publisher at all—has 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.

Blocking the Feature From One's Own Material

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]

Legal Department
attn: Adrian Garver, DMCA Agent
Amazon.com, Inc.
1200 Twelfth Avenue South, Suite 1200
Seattle, Washington 98144-2734
[optional: fax to (206) 266-7010, attn to Mr. Garver]

[full address of your editor at the publisher of the book in question]

RE: Notice of Copyright Infringement and Demand to Remove
[author/editor and name of book]

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.

Sincerely,

[your signature]

[your typed name]

A few notes on efficiently using this letter:

  • If you have two or three stories/articles/poems in the same book that might be affected, just repeat the first paragraph ("I am the copyright holder…") for each story/article/poem, and list the titles of all of the affected works in the takedown demand ("I demand that…").
  • If you are the author of all of the works in a given book, give only one example short work, and change [short work] in the takedown demand to "each work appearing in [book]".
  • If you are the author of more than three, but less than all, of the works in a given collection or anthology, be creative and use an attached list. Be sure that your attached list is specifically referred to and includes all of the data for each work that would be in the first paragraph of this letter.
  • Wait at least a week after sending the letter for results. It will take some time for the letter to work through the system; although I bear Mr. Garver no ill will—he was cooperative when originally contacted—I suspect that he will be getting more than one of these letters… Update, mid-January 2004: Although I have not seen every letter actually sent, at least forty authors individually contacted me requesting guidance on how to get Amazon to take their stuff down by early November 2003. As of December 2003, response time appeared to average ten business days, which is arguably not "expeditious removal" pursuant to 17 U.S.C. 512(c).
  • Do not rely upon e-mail in this context. Although legally e-mail is sufficient notice, a letter with your signature is harder to ignore and is better evidence than e-mail (should anything end up in court). E-mail may well be sufficient for DMCA notifications alone, but this is a more complex situation. Relying on a fax, however, would be satisfactory from both a DMCA and evidentiary point of view. Keep in mind that a telephone response from Amazon or your publisher is not sufficient; DMCA notices are entitled to a written response, whether in the mail, by fax, or by e-mail.
  • If there is more than one book involved, save some postage by putting everything in one envelope.
  • If the work appeared in a multiauthor anthology that you did not edit, send a courtesy copy of this letter to the anthology editor or packager.
  • As a published author, you do know to keep a record copy of anything you sent, don't you?

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.

Legal Advice

You may need specific legal advice for your situation if:

  • You are the creator of a work, but are unsure whether you hold the copyright.
  • You are the holder of a copyright, but are unsure whether a use merely exceeds that which you granted to a publisher. This may particularly be the case when you have contributed to a multiauthor anthology and do not have a copy of the contract between the anthology editor and the publisher, or if the book was created by a packager.
  • You have taken appropriate self-help steps without obtaining a satisfactory result.
  • There is more than one copyright holder (such as for a jointly authored article), and not all copyright holders either are aware of the infringement or have agreed with the particular action taken and result (or lack thereof).
  • A previously authorized distributer (generally publisher) has gone or is going through bankruptcy or another change of ownership other than voluntary dissolution. The Bankruptcy Code (Title 11) has many traps for intellectual property, and the various laws of corporate governance have even more.

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

© 2003–08 C.E. Petit, Esq. All rights reserved.
   This notice overrides any alleged copyright or license claimed by any person or entity absent a signed writing that complies with the requirements for transferring the entire copyright. This includes, but is not limited to, translation or other creation of derivative works, use in advertising or other publicity materials without prior written authorization, or any other non-private use that does not qualify as fair use under United States law. Commercial use, publicity or advertising use, or republication in any form will be treated as an infringement absent written authorization.
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