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Opinion: Amazon is right not to offer public domain books
September 22, 2009 | 10:31 am
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By Paul Biba
The decision by Amazon not to offer public domain books has caused some angst in the ebook community, but from the perspective of a corporate lawyer I think it is the correct decision, at least for now.
Don’t forget that Amazon can be sued, and even be subject to criminal charges, if it violates the copyright laws. One suit against Amazon could easily eat up any of the fees Amazon would collect for public domain books for years to come. These things are extremely expensive to defend – costs in the millions are commonplace. Many plaintiff’s lawyers work on a contingency basis and only get paid if they win or force a settlement, so while Amazon is paying millions in defense fees the plaintiff is able to bring the suit almost for free. (Why do you think there are so many class actions suits over relatively trivial matters.)
Further, if Amazon did offer these books, how is it to vet each and every supposedly public domain book to see if it is, indeed, in the public domain. Again an expensive and time consuming operation for very little return. While there certainly are sites out there offering public domain books there is no question that, legally, they are taking a risk with each book they offer. That may be OK for the little guy, but the big guy is always in the gunsights of the plaintiff’s bar.
To make this risk greater, even if Amazon put on a good faith effort to vet all the “public domain” books, hired staff, did the research, and was wrong, this isn’t a defense if sued. Further, there is a growing tendency to prosecute people who “facilitate” the violation of copyright laws, even if they don’t violate the laws directly – look at Pirate Bay and Scribd. Again, expensive to defend against.
Finally, you get into the very muddy area of having someone take a public domain book, make a few changes or format it in a special way, and then copyright the result. So we have a copyrighted public domain book. How is Amazon to deal with this? Or even determine what the status of the book is?
Nope, if I were on the staff of Amazon’s legal department I would advise them that making public domain books available is subjecting the company to a real risk and could easily result in legal expenses that would eat up any profits the company could make by engaging in their sale. From my perspective they are making the right decision.
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Amazon, copyright, Paul Biba, TeleRead, public domain
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Comments:
Are they going to stop selling hard copies of public domain books, then?
Hard copies are usually provided by a major publisher who has done the copyright vetting before offering it for publication and can take the primary copyright risk and even indemnify Amazon from any suit they might be involved with. There is still a risk, but the risk is much smaller. Most ebook versions are provided by individuals or small companies who can’t give an effective indemnity.
Your argument has nothing to do with public domain books, and everything to do with small publishers.
What’s the difference to Amazon between a small publisher claiming that a book is public domain when it isn’t, and a small publisher claiming it has a licence to an in-copyright book when it doesn’t?
It seems to me that what you are suggesting is that Amazon should stop selling ebooks from any small publisher in order to avoid any possible liability.
If Amazon supported open formats on the Kindle it wouldn’t have to worry about doing any of this work. Amazon the retailer has no reason to be involved in the upkeep of public domain books, but Amazon the device manufacturer has a good reason to provide access to the millions of works in the public domain to Kindle users. Support epub, etc… and make it the community’s problem.
@Paul: Although a good argument, there is a fallacy — Amazon currently has no way to know whether any book is violating someone’s copyright and third-party indemnification agreements are only as good as the pockets are deep (how valuable is such an agreement from Harcourt which is on the verge of bankruptcy?).
Amazon assumes that Knopf Doubleday has the right to distribute Dan Brown’s latest novel as an ebook, but unless it vets the contract between Brown and Knopf, it really doesn’t know.
Granted that there is less risk because Brown would be screaming bloody murder, but Amazon is still taking a risk with lesser-known authors. Granted I haven’t practiced copyright law in a number of years so things may be different today and in the ebook world, but I don’t think Amazon’s exposure is any greater on a public domain book provided by Random House than one provided by Jerk Jones Press. And as with most every other thing, I suspect that Amazon could insulate itself fairly well. One easy way is to require the posting of a bond that is tied to expected sales or to require a quarantine period where a book is available to publishing competitors for a 60-day period to challenge — and provide proof — whether a book violates their copyright. Kind of like an affirmative defense.
A decent lawyer should be able to come up with a number of ways to minimize Amazon’s exposure without simply cutting off the head.
Paul’s essay is yet more proof that we don’t have party lines at TeleRead—despite our generally pro-consumer positions. I respectfully disagree with him. I’m fervently in favor of Amazon continuing to make public domain titles available, for free and otherwise. On a budget of next to nothing, Project Gutenberg has avoided huge legal payouts. The key is for Amazon to require publishers of all sizes to document that a title is in the public domain—whether the repro is E or P. Such an approach, similar to those advocated by others, has worked for years for Gutenberg. Why not Amazon? If the right precautions had been in place, 1984 and Animal Farm would not have slipped through.
Thanks,
David
Though I’m not a lawyer, I have studied copyright law a little bit.
Amazon is doing a lot right and a lot wrong. As they have stated their intentions, it is out of consumer interest that they slow down/halt the production of these PD texts. Is it the best of the best interests for the customer to let them go through a million copies of what’s basically the same file to find the one that they really need? Is it fair for the consumer to think that a copy that’s priced at $4.99 is better than the $0.99 copy when, most likely, they came from the same Project Gutenberg file and took less than a minute to go from the start of the project to the final product? The point of all this is to cut down on all of that. They are already offering their free version, do we *really* need a million more copies in addition?
This is decision is *not* new. It was just poorly enforced until recently. In fact, I remember when I was looking up all the rules and regulations that Amazon had for the Kindle publishing; there was a line that stated that they weren’t going to accept multiple copies of the same Public Domain files and, if you did, chances are it would be deleted. It was put in as a first come, first serve basis.
To answer the question about the copyrights of copyrighted public domain texts, that is already laid out within the US copyright laws. That would mean significant changes (i.e. Pride & Prejudice & Zombies), quote books (where what is being copyrighted is more of the arrangement than the actual text), or original introductions and annotations. All works of this nature should be legally copyrighted before sending it to the Kindle for publishing globally. So, the simple answer would be to provide proof of copyright ownership.
How to figure out what’s in copyright? Not too hard for the most part. Just use a database of acceptable PD books. Simple for books before the 1920s, but can get a bit difficult for books post-1920s where full lists of books that have fallen out of copyright are not available without research. This would mostly apply to books that weren’t renewed by the author/publisher/estate or didn’t have a copyright notice printed during the time media was required to have the notice to stay in copyright. Creative Commons, I’m sure, also causes a bit of strain in finding out what’s acceptable.
As for checking of content, have a simple solution that many teachers use today to combat plagiarism — file submitted, file compared with all available resources to find out how much of a paper is verbatim from another source. A legitimate copy should be as close to 100% as possible.
It’s a sticky situation all around to let everything go for so long and then suddenly start enforcing your rules out of nowhere. And now they have put themselves into a position where instead of first come, first served, it’s a decision of, how do they judge what’s the better versions to keep?
Copyright probably plays a major role in it, but it’s one that could have been avoided for the most part. A book like 1984 isn’t so obscure that they should need to do a lot of research to find its US copyright status.
Amazon is not much different than the on-demand publishers in their decision. They’ve been going through the same problems for years. It would probably be best for them if they took advice from those companies.
From a purely practical standpoint, PG hasn’t been sued because suing them wouldn’t yield anything. Amazon, OTOH, is a very attractive target.
In addition, as long as PG is around, Amazon selling public domain books offers no public advantage. In the case of a lawsuit, they’d have no one on their side.
I sounds like a good business decision.
Regards,
Jack Tingle
It strikes me that Paul’s arguments (as others have noted) apply to a lot more than simply public domain books. All small publishers, yes; and all publishers who don’t have an ongoing proven relationship with Amazon, would fall under this shadow.
The very nature of the automated self-serve DTP side of Amazon Kindle editions opens the company up to all the dangers Paul enumerates.
But what are the potential good things Amazon might gain that could overbalance these risks?
By offering DTP services, Amazon becomes a publisher. This is vital for Amazon’s future considerations as it aims to corner the market and establish itself as the North American ebook monopolist.
If Amazon merely offered epub editions that all the big NY publishers put out, and let those publishers set their own cover prices (subject to discounts similar to those Amazon applies to printed/bound books), then Amazon would gain no significant advantage. They would be in the same boat that they are in now, vis a vis the printed/bound book world. That is, they would have the advantage of being big, the biggest — an advantage Amazon had to fight many years, and put out millions and millions of dollars, to achieve; an advantage that is precarious should Microsoft bundle their own epub mechanism in every copy of Windows, or Apple put an epub store in the iTunes or App stores, or Barnes & Noble go after epub bigtime.
The proprietary format, along with the speicalty reader and the subleased cellphone connections, and DTP, allow Amazon to offer more books, and more unique books, than anybody else.
This would presumably include public domain texts published by small fries.
Actually, this issue of ‘customer confusion’ makes little sense to me. Amazon already has a mechanism for book reviews and ratings to help us decide which books and other items we want to buy from Amazon. It helps us decide which edition of the printed and bound King Lear we want to buy, out of the dozens (hundreds?) of those in print.
I can’t imagine that this is a copyright issue. Paul Durrant is right: how does Amazon know the books I upload, which I claim I’ve written, are really my IP? (Maybe I shouldn’t even raise the issue, or they might decide I can’t sell my ebooks at the Kindle store after all.)
If they’re going to worry about infringement with public domain books, they’re going to worry about infringement by individuals who upload their own stuff. After all, Charles Dickens isn’t going to sue, but a living author whose work has been stolen might.
Just a couple of thoughts here….
Yeah, it is true that suing Project Gutenberg is unlikely to net any major profits for the person doing the suing, however, it seems to me that if there were enough serious issues of copyright violation involved, that it might well have been shutdown by now.
Paula B — Of course this is a copyright issue. It is copyright that determines whether or not something is your Intellectual Property.
Ultimately, all of this shows what a mess the current copyright scheme supported by the Berne Convention is. Unregistered copyrights whose term is undefined, and very vague notions of what can and cannot be copyrighted put the very concept of the public domain in danger. We need much clearer definitions of what can be copyrighted (merely reformatting or presenting in a new format should not entitle one to a new copyright) and fixed terms (I personally believe copyrights should be registered and require reregistration every 10 years with a fee involved).
As a Janeite (Jane Austen fan), I find it interesting that Amazon uses Pride and Prejudice as its example of public domain works. P&P is absolutely in the public domain, and most reasonably well-informed ebook readers probably realize that. That doesn’t mean that different editions of the novel don’t have value. Most Janeites own more than one copy of each of her novels. We have intense and nerdy discussions which edition is the best. The Jane Austen Society of North America recently had a big discussion about whether to use the Oxford Illustrated or Cambridge editions as its official edition for purposes of journal citation (it was decided that either is acceptable, I suspect partly because the Cambridge set costs $999).
If someone has a favorite edition for one novel, they might choose to seek out the same publisher for the other novels. For instance, if they like the Penguin edition of Persuasion, they will buy the other five novels in Penguin editions. I suspect that many readers would do the same for ebook publishers.
My point in all this rambling is that there is value in having different editions available, and while I truly believe that Amazon is acting with the best of intentions, by placing these restrictions they are throwing the baby out with the bathwater. There is a little too much of this going on in the ebook world, the Google class action settlement being exhibit 1. We need to slow down and do it right instead of always taking the cheap and easy way. It does a disservice to the ebook industry to do anything else.