Are There Any Legal Issues If Amazon Accidentally Gives Away Thousands Of Your Ebooks For Free?

from the might-make-for-an-interesting-case dept

Here’s an interesting story of a self-published Amazon ebook author, James Crawford, who discovered that Amazon “accidentally” gave away his ebook for free over 6,000 times, and then refused to pay him any royalties. The “mistake” was really a bad algorithm. Apparently when you sign up for Amazon’s platform, the company makes you promise to give them the best price, and if they find you offering the same thing cheaper elsewhere, they have the right to automatically lower your price. But, here, Amazon’s algorithm mistook a “sample three chapters” that was being given away free on the Nook platform, as if it were the whole book. So it automatically dropped Crawfod’s ebook price from $5.99 down to $0. It took weeks to sort out, and by the time that happened, 6,116 people had downloaded the free version.

Amazon then refused to pay any royalties, saying that under its contract, it’s absolved from having to pay royalties for such mistakes. While that may be true, I do wonder if there’s actually a copyright claim there. Here’s another situation where the murky boundary between sales and licenses gets strange. After all, Crawford appears to be technically licensing his work for Amazon to distribute with a specific condition: that it be priced at $5.99 with certain royalties going back to Crawford. Offering it free seems like a clearcut case of an unauthorized distribution, which could be open to a copyright claim.

That said, I agree with the point that many have made to Crawford, that he’s probably much better off just using this experience for the publicity, and building on that, rather than suing. Suing would be expensive and uncertain. And, it actually could harm sales, as people often don’t like the litigious. Readers might be more willing to support Crawford directly after just hearing his story — and seeing that he was a good sport about it, who could recognize that perhaps this mistake could lead more readers to his work, and those readers may bring in other (paying) readers in the future. Still, it’s yet another case where the difference between physical sales and digital “licensing” becomes abundantly clear.

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Comments on “Are There Any Legal Issues If Amazon Accidentally Gives Away Thousands Of Your Ebooks For Free?”

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JackHerer (profile) says:

Seems like a fantastic opportunity to get these 6K folks to buy his other works for a discount. I know that if i had downloaded a book for free and liked it i would want to know where i could get more of the same. if the author put something up from his website saying “ooh the free book was a was a mistake by Amazon, hope you enjoyed it. If you did then please support me by buying more of my books and I’ll even offer you a discount”. You could even turn it into an overall win as i bet a significant number of those free readers downloaded it because it was free and may otherwise have never heard of it.

xebikr (profile) says:

Re: Re:

I don’t think this author is very progressive in his thinking. From the article: Amazon also offers a 70 percent royalty option for books over $2.99, but Crawford chose the lower royalty (35%) ?because you can opt out of Kindle Lending”

This is a guy who would rather make half as much money on each sale rather than let someone who bought the book ‘lend’ it to someone else. I very much doubt he is going to see this as an opportunity or advertising.

rowena cherry (profile) says:

Re: Re:

There are two Jack Crawfords on Amazon. One only has two e-books, one for $5.99 and the other for $0.99.

JackHerer, Amazon doesn’t allow ebooks to be sold for less. How much of a discount on $0.99 do you want???

What if the ripped off Jack Crawford only had the one book?

Should that make a difference?

Suppose each one of his works takes ten years to research and craft? For all I know, the ripped off Jack Crawford might have labored for ten years researching his Super Love! Kaiju e-book.

Should it make a difference how long it took the author to write a book, or how long it could take to write the next one? No!

Even if Amazon’s mistake put Jack Crawford on the BestSeller list (which I assume it did not), the principle should not change. Amazon ought to pay him.

The Infamous Joe (profile) says:

Re: Re: Re:

It’s interesting to see you argue the correct answer, only to arrive at the incorrect answer, and then use that incorrect answer to justify the correct answer. ๐Ÿ˜›

You are correct, it does not matter how long it takes, or how much it costs, to bring a product to the market. This is called “overhead”, and should not equate into the pricing of a product. If it takes Coke 37 years and billions of dolalrs to perfect their new Ultra-diet-zero fizzy Coke, that does not mean they should value each can at $400. It means that they should probably be in a different business, because they’re not very good at this one.

Similarly, it doesn’t matter how slowly it takes an author to write a book, when deciding how much to charge for it.

However, I agree that Amazon should pay this guy what he would have made– the fact that his price was dropped to zero was to directly caused by a mistake in their algorithm, through no fault of the author’s. The contract seems to say that Amazon can change the price of his book if he sells it cheaper somewhere else– but as far as I can tell, he didn’t, but the algorithm reacted as if he did.

They should have just ponied up what they owed him, because the money would have been a small price to pay to keep consumer good will.

PaulT (profile) says:

Re: Re:

Ah, too dense to understand the problem again?

There was one mistake – a single period of time where the price was lower than it should have been. During this time, 6116 legal purchases were made at the incorrect price, but that does not mean that 6116 mistakes were made.

A subtle point, but worth pointing out. But, hey, you guys are improving. You managed a whole sentence without trying to insult or attack anyone…

Anonymous Coward says:

Re: Re: Re:

Wait, I get it….

So when a ‘movie’ or ‘song’ is posted to a website or torrent tracker, it’s really only ONE act of copyright infringement (by the initial person who posted it), the following 1 million people had no idea that they weren’t viewing legally authorized material, so none of them are ever liable for copyright infringement. One act of infringement and a million people taking advantage of it, it is a subtle point, and I’m glad you pointed it out, we need to make some judges aware of this fact…

Am I doing it right? I think I need to take a broad brush approach and point out that someone is obviously a corporate lobbiest or shill (these trolling rules are so complicated…)

Anonymous Coward says:

Re: Re: Re: Re:

He voluntarily posted the book with the intent of it being distributed through Amazon. There is no copyright infringement and people were there to legally obtain the book. Obtaining a song from an unauthorized source is entirely different and is a singke criminal act for each person who does it. Amazon’s 1 mistake was messing up there programming and dropping his price. It’s not a crime and Amazon’s contract shields them completely

PaulT (profile) says:

Re: Re: Re: Re:

No, but it’s cute that you keep pushing your idiocy.

The mistake was the pricing error. Between the time that the mistake was made and the time that it was corrected, 6116 downloads were made. However, this still makes just one error – the same as if your local supermarket misprices an item on their till. It doesn’t matter how many purchases were made at the incorrect price, just one error was made.

One error. Up to 6116 purchases made on the basis of that error, but one single error nonetheless.

ltlw0lf (profile) says:

Re: Re: Re:

I think you’ll find they did buy it, just at no cost, they still had to click on checkout and buy.
Also, it will be down to the plaintiff to prove lost sales, if this went to court, which I’m pretty sure the author has said it’s not.

Absolutely agree, but along these lines — can’t Amazon just null the purchase and remove the books from the person’s account? They’ve done this before (although with a lot of gnashing of teeth by their customers,) and it would seem that this would be the place where removing the book would be semi-justifiable. If the people still want the book, then they could pay for it (and of course, very few probably would.)

I’ve downloaded free books from Amazon before (not the public domain ones, but the current ones that are listed as $0.00 on their website.) I had no clue at the time whether the author wanted it available for free or not — and I’d be pissed if they disappeared from my collection since some of them were really good books (though I have since bought a bunch of books from the same author I downloaded for free, which I wouldn’t have done if he hadn’t offered his books for free.)

Rikuo (profile) says:

Re: Re: Re: Re:

How can it be justifiable for Amazon to delete e-books from their customer’s accounts? So what if Amazon screwed up…if I go to a checkout at a store and the item scans for free, the store has the option of either allowing the “sale” to go through or deny me the sale. They do not ever have the right to give it to me for free, then later take it away. Doesn’t matter whether its a physical object or digital

Ron Rezendes (profile) says:

Re: Re:

Agreed, this doesn’t need to take up any court time, no lawyers required.

Amazon made a mistake that could in no way be attributable to the other party.

Amazon should make out the $12822.19 check and pay the man. All instances of copyright claims would just be water under the bridge and hopefully a lesson well learned. Amazon should be thankful it wasn’t downloaded 61,000 times!

Anonymous Coward says:

“That said, I agree with the point that many have made to Crawford, that he’s probably much better off just using this experience for the publicity, and building on that, rather than suing.”

Standard Masnick advice : make a lot of bloggy noise, but when it comes to the crunch just give in and and make fatuous rationalizations about publicity etc which don’t amount to a hill of beans.

Anonymous Coward says:

Re: Re: Re:

The publicity advantage has all ready been achieved (very limited though it is).

The wrong has not been righted, and if the issue is not perused the powerful will get evermore powerful and contemptuous of the rest of us … and the apologizes like Masnick will keep on sucking up while remaining irrelevant.

Coasty (profile) says:

Amazon screws up twice in one go!!!

Well, I suppose by a literal reading of the contract Amazon may not feel obligated to reimburse the author, but it would be the moral, ethical thing to do.

Covering the same territory as AC in the 2nd comment, I could see Amazon’s position if the mistake happened 30-40 times, or something like that in the low numbers, but 6,000 times!!! Uh huh, Amazon is being disingenuous at best.

Amazon’s response does not say anything remotely good about their ethics!!!

Coasty (profile) says:

Amazon screws up twice in one go!!!

Just as an addendum to my above comment….

The sales, according to the figures in Mikes blog, grossed $36,634.84. I don’t know what type of royalties Amazon pays authors, but let’s say it’s 5%. At 5% the royalties owed to the author would be $1,831 and change. Now, for a measly $1,831, why does Amazon want to buy themselves this kind of bad publicity?

The only thing that people reading this are going to see and remember is that Amazon is purposefully ripping off an author. Things like this, like their deleting books from Kindles debacle, are not forgotten.

I can’t fathom how presumably intelligent executives could be so stupid!!!

John Doe says:

Re: Amazon screws up twice in one go!!!

From my understanding, royalties for self publishing run 70% for books above $2.99 and 30% for books below $2.99 So that is a royalty of $25,643. No small amount. The question is, would 6,100 people have bought the book for $5.99 or would some of them have passed? Either way, Amazon should do the right thing here and pay up.

rowena cherry (profile) says:

Re: Re: Amazon screws up twice in one go!!!

If the book under discussion is “Blood Soaked and Contagious”
by James Crawford,

the Digital List Price information suggests that the price of $5.99 was set by the publisher (James Crawford), which means that he was on the 35% rate.

Mr. Crawford must have decided that 35% of $5.99 was preferable to 70% of whatever Amazon would have sold it for, taking into account the fact that Amazon allows lending of books on the 70% rate by every customer who buys a copy, also account sharing for up to at least 6 customers, and now lending by Amazon to Prime-paying customers in addition.

Also, Amazon is able to change its contracts with authors at any time without notification. 35% looks like a sensible deal to me!

Anonymous Coward says:

Readers might be more willing to support Crawford directly after just hearing his story — and seeing that he was a good sport about it, who could recognize that perhaps this mistake could lead more readers to his work, and those readers may bring in other (paying) readers in the future.

Are you out of your mind? What do you think would happen if Amazon “accidentally” sent him twice the amount of royalties due under the contract? Do you really think that Amazon would be a good sport and forget about it? Hell no. Amazon would take their money out of future earning.

Butcherer79 (profile) says:

Re: Re:

Difference being that amazon didn’t make any money on this either.
If he got sent twice the royalties then he’s dishonestly holding on to funds and could be done for theft when he knowingly spends it (certainly in the UK if they could prove he knew about the mistake)
If he hasn’t had a minimum price (and therefore minimum royalty percentage) written into his contract then legally, he has nothing to stand on. Morally, I agree that amazon should take the hit and stump up at least some of the dough.

Anonymous Coward says:

Amazon then refused to pay any royalties, saying that under its contract, it’s absolved from having to pay royalties for such mistakes. While that may be true, I do wonder if there’s actually a copyright claim there. Here’s another situation where the murky boundary between sales and licenses gets strange. After all, Crawford appears to be technically licensing his work for Amazon to distribute with a specific condition: that it be priced at $5.99 with certain royalties going back to Crawford. Offering it free seems like a clearcut case of an unauthorized distribution, which could be open to a copyright claim.

This is not a case where the “murky boundary between sales and licenses” is in play. Nor is there a “copyright claim.” You really don’t understand this stuff, do you? This is a straightforward contract case. Your “legal analysis” is much better when you just copy it from other people (like you normally do).

Anonymous Coward says:

Re: Re: Response to: Anonymous Coward on Nov 8th, 2011 @ 4:34am

It’s actually not. If you read the Amazon contract, it is a program you are signing up for not publishing deal. The terms of a publishing deal tend to involve exclusivity requirements and minimum pay rates. Amazon’s program, on the other hand, is more of a gamble since you basically have to just hope the site doesn’t break down and you make a little money

Anonymous Coward says:

Things that come to mind:

It is the first time this happened, mistakes are a thing of life and I see little justice in punishing people or companies for honest mistakes, I do understand that this happened before in other places like Dells computers that sold LCD monitors for absurd low prices and had to honour those sales, still the law doesn’t care about common sense or justice, it is about what the interpretation of what was written is and so I can see Amazon being responsible not only for damages but for statutory damages.

Some day people may just drop writers, musicians and studios from their sales because it is just to expensive to make business with those people.

Others probably will do what every business do when they are truly forced to deal with something and create their own offerings cutting the other ones out of the loop.

Anonymous Coward says:

Bad algorithm?

I understand programming mistakes happen, but why was a price of $0 even an option? I would think Amazon could have the decency to put a safegaurd in place that would notify the author that the price dropped to $0. I assume this is all automated, so I guess Amazon’s system scans random sites for prices. Just find it odd how the free ebook ended up on Nook, Amazon’s main competion. Kinda makes you wonder if the heartless stance Amazon is taking is intended to discourage other publishers from submitting free material to Barnes & Noble. It’s true that Amazon didn’t make any cash, however they could at least temporarily boost his royalty rate. It’s an eBook….not like it costs them anything but a few megs of web storage

Anonymous Coward says:

Re: Bad algorithm?

Actually, I just read the terms and looks like $.99 is the minimum price the author can set. However, due to the joys of our corporate owned system, Amazon is relying on the old “you are voluntarily a part of our program, it’s provided to you “AS,IS”, so if you get screwed out of cash that’s too damn bad.” Therefore, an author can submit his work with the expectation of at least their percentage of $1 and then two sentences (We reserve the right to set the price;we are not liable for any loss of profits for any reason) can allow Amazon to sell it for free. God, I love lawyers

Togashi (profile) says:

Re: Re: Bad algorithm?

From those same terms:

A. 35% Royalty Option.

i. Example:
? U.S. Dollar List Price = $0.99.
? We aren’t matching a free promotion on another sales channel.
? Your Royalty per sale to a customer in any location from is:

0.35 x $0.99 = $0.35
Royalty Rate x List Price = Royalty

ii. Example:
? Same as above but we’re matching a free promotion on another sales channel.
? Your Royalty is zero.

In this case, Amazon (thought it) was matching a free promotion on another sales channel.

Anonymous Coward says:

Re: Re: Re: Bad algorithm?

But at the same time, I would have expected the programmers to account for promotions. BN tends to offer a couple free chapters and then has its full list price on the same page. There is no reason why the programs at Amazon couldn’t filter out 0 and then go for the next highest price list on the page. It seems like it just tagged the wrong listing or link for the book. But I suspect that one could section off the freebies from being evaluated by Amazon at all and then prob solved

Michael Kohne says:

I have to say...

While I understand WHY Amazon contractually insulated themselves from the results of their own mistakes, I’m NOT sure it was a good idea. This kind of thing is going to get bad press every time it happens, and they are NOT the only outlet for e-books. They wouldn’t have a PR issue at all if they’d just pay the guy and call it a day.

It also sounds like Amazon needs to get their act together on the customer service front. They appear to have taken quite a while to correct the issue (he wrote about the problem on Oct 7, they fixed it on Oct 20 after much customer service hassling).

I’m clear that Amazon is legitimate as far as everything up to when he contacted them (after all, mistakes do happen, that’s why the contract is written the way it is), but taking from the 7th to the 20th to fix the problem? That’s completely unreasonable, and they ought to be made to pay out royalties for that time.

Should he sue? Absolutely not. He doesn’t have the resources to make it stick, and it would cost him more than he’d get. No benefit there. His only sensible course of action is to try to use the fiasco to boost sales of his other works.

Doesn’t mean this shouldn’t stick in everyone’s craw through. The amount of money they would owe him is $12,822.19 (according to the linked story). I’d have thought that number (or some lower offer) would have been a good (and cheap) PR move on their part.

FarSide (profile) says:

How hard is it to fool their algorithm?

I have a feeling Amazon’s point of view is along the lines of “If we let this guy get money, it will encourage people to game the system”

Also, “If he sues we can bog him down in legal crap for 10 years”

Amazon should just see what his rate of sales had been before and offer him some amount based what expected sales would have been during that time. Plus a little.

mbeilke says:

not fair!

As a self-published author, I’ve wanted to put a book up for free to draw potential future sales, but the lowest price Amazon permits self-published authors to set is 99 cents. This guy should consider himself lucky. It’s a tough market for indie authors. Most indie books get buried very quickly after publishing.

Anonymous Coward says:

Re: not fair!

You now have the ‘business model’ to list books for free on Amazon…

1. List book on Amazon for .99
2. List book for FREE on nook
3. PROFIT…..

Obviously Amazon is just providing ‘guidance’ to future authors who may want the publicity associated with giving away free books whey they don’t have a method setup to allow authors to do so legally…..

out_of_the_blue says:

What has he lost? -- Nothing! Still has his data, right?

Following the “free” principles here, shouldn’t matter to him even if had been a million copies! Of course, no one is able to say /how/ the author will ever benefit from this “exposure”. My guess is that 6000 people were interested at no cost, but won’t be back to pay. Publishing necessarily and inherently depends on people taking a risk and paying to read the whole thing — else authors wouldn’t put out “sample” chapters to tease into buying the rest.

Mike is sort of mistakenly trying to retroactively apply morality to this case, which would be great IF this wasn’t a clear test of the notion that he advocates — give away and pray — and as it’s obviously going to result in zero income for author, Mike can only waffle off into musings.

There’s much wrong with Amazon trying to monopolize the book market; this illustrates their ruthless methods. Their contracts are one-sided, and they’re not responsible for mistakes. It’s yet more of the same old capitalist exploitation: to even have a chance in the market place, the poor do all the work, then /have to/ cut The Rich in on any profits, and subject themselves to unfavorable conditions.

Butcherer79 (profile) says:

Re: What has he lost? -- Nothing! Still has his data, right?

“and as it’s obviously going to result in zero income for author”
How is this correct?
I often buy books based on the author, if I’ve read one of their books before and enjoyed it, if I see their name again, I’ll buy. If I borrowed the first book (from a library for instance, before the ‘freetard’ comment come flying in) I may even purchase that book so it’s in my collection.

If this author is good enough, people will pay for future releases, I’m living proof – Your argument is flawed at best.

Anonymous Coward says:

Re: Re: What has he lost? -- Nothing! Still has his data, right?

And you’re not alone, sir. I too am the same way. If I accidentally stumble upon an author (either by being lent a book or having one recommended to me by a friend/associate) and they write something I like, I will go out of my way to purchase all their works. Not necessarily all at once mind you, but as I have the funds I’ll get a book here, two there, etc. Until I have everything by an author. Heck, if the author is really exceptional I’ll buy multiple copies.

One of my favorite authors, Tom Clancy, I did this for. I originally purchased all his books in paperback. Eventually, I had the funds to purchase them all at once in hardcover form. I then gave my paperbacks to a fellow Clancy fan/friend, who got into him by originally being lent the books by me. From there, he’d lend out the paperbacks to other friends of ours, who’d then buy the books on their own.

In effect, our lending (which started with me) led to MORE sales for Tom Clancy. Which, when you think about it from the perspective of some ACs on here, my lending should have led to lost sales and be seen as a crime. Lending?! In this day and age?! Bunch of freetard thievery and tomfoolery is what that is. But nope, lo and behold, it led to more sales and no downloading whatsoever.

Then again, me and most of my friends value a good book way more than any movie or album.

PaulT (profile) says:

Re: What has he lost? -- Nothing! Still has his data, right?

I know I shouldn’t feed you, but here goes…

“Of course, no one is able to say /how/ the author will ever benefit from this “exposure”.”

People will pay for authors they enjoy. Many of the people who bought for free will never have discovered the author if the free option was not there. Most people will take more of a chance on an unknown author for $0 than for $6, especially in ebook form where they can’t resell a book they didn’t like. They will also recommend the book to friends, who may pay for a copy. All assuming the author’s any good of course – if he’s crap, he just got 6116 people who will tell others that as well…

Not rocket science.

“My guess is that 6000 people were interested at no cost, but won’t be back to pay.”

Good guess. My guess is that many of those people will never have read the author’s work without the freebie, and those who like his book will be more willing to buy his next one. Guess what – my guess is based on the ame level of factual evidence as yours.

“the notion that he advocates — give away and pray”

You mean, the notion he has specifically criticised and written about being a terrible business model? Seriously, you guys don’t seem to understand points that have been explicitly spelled out on numerous occasions…

“There’s much wrong with Amazon trying to monopolize the book market”

Yes, those Barnes and Noble bastards are also trying to sell books! Damn them!

“Their contracts are one-sided”

No author is required to sign them if they find the terms unacceptable.

Anyway, I’ve learned something from this thread. I thought you morons only hated Google for pathologically illogical reasons, now it’s apparently any company who makes a profit from selling digital goods. I don’t tend to accuse you people of being paid by a legacy industry to post your idiocy, but really what other explanation is there?

Anonymous Coward says:

As noted above, this is a simple breach of contract case occasioned by Amazon and its failure to verify the legitimacy of the “price reduction”. In such instances the non-breaching party is entitled to the benefit of the bargain, which in this case would be whatever monies he would have earned had Amazon sold the books at the agreed upon price. For example, if his “cut” on a legitimate sale would have been $3/book, he would be entitled to $18K.

Of course, the trick here is to figure out a path forward to collect that which the author is due under the contract. Based upon experience, a courteous plea to the senior most official at Amazon almost invariably resolves the matter quickly, quietly, and satisfactorily.

Andrew (profile) says:

According to the book’s product page on Amazon, Blood Soaked and Contagious currently has a sales rank of 64,240 paid in the Kindle Store. I believe that the sales rankings at this sort of level are recalculated approximately weekly, so there should certainly have been enough time for Amazon’s sales ranking to reflect paid sales from 20 Oct to 8 Nov. This chart [1] from Foner Books suggests he would be selling about 5 books per week, which seems consistent (give or take a factor of 10) with the 6 sales in one day Crawford mentioned on his blog [2].

Of course I don’t have access to Crawford’s sales figures and I’m doing quite a lot of hand-wavy speculation here, but if we assume he would have experienced roughly consistent sales over the free book period 30 Sep – 20 Oct* then he’s missed out on around 100 purchases, or just over $200 royalties [3]. While I’m not hugely up on advertising rates, $200 seems pretty cheap for articles about your book on PaidContent, Techdirt and shared on Twitter & FB, not to mention the additional exposure through 6000 new readers. Personally, I’d make the most of Amazon’s mistake. ๐Ÿ™‚

* His sales before and after the period seem fairly similar.


(I’m sorry for the footnotes instead of hyperlinks – if I use real links it seems to end up in spam.)

Atkray (profile) says:

Re: Re:

I agree with you with the additional that it would be wise of Amazon to say to him you were selling 6 books a week before you continue to sell six books a week after. We’ll give you a week’s worth of sales because that is what you would have gotten.

I do think the guy is an idiot for not taking advantage of the free advertising and using the exposure to show what an awesome writer and person he is instead of demonstrating his overinflated ego and sense of entitlement.

Andrew (profile) says:

Re: Re: Re:

I should probably be clear: I don’t think that what Amazon did is a good thing (except perhaps serendipitously) – they clearly shouldn’t have reduced his book to $0 as they did. But, as you (and many others) said, this mistake probably going to work out for the best for him going forward, and his actual lost sales are probably pretty small. I certainly hope he sees it that way.

Deirdre (profile) says:

So Amazon will not allow self published authors to price their book below 99 cents. (Ebooks that show a publisher may offer books for free.) However, some authors who want to make their books free for a short period of time puts the books up on Smashwords or some other site for free. Amazon’s spider finds it and reduces the Amazon book price to free. When the promotion is over then the price of the book is raised to the old price on the old site, the spider finds that and sales go on as before. I’ve seen this done deliberately by self published authors several times since authors figured out they could do it.

I don’t know what happened in this case because I have not seen a screen capture of the B&N offering but I’m think there is a good chance the author failed to put Sample or some other language to distinguish his free sample from his actual book in the title on B&N.

Kristine Katheryn Rusch blogged about this. While she starts out talking about the reporting on the Galley Cat site, she does get to the author and his issues.

Anonymous Coward says:

“And, it actually could harm sales, as people often don’t like the litigious. Readers might be more willing to support Crawford directly after just hearing his story — and seeing that he was a good sport about it, who could recognize that perhaps this mistake could lead more readers to his work, and those readers may bring in other (paying) readers in the future.”

What is certain is that Amazon screwed up. They should have ponied up the royalties without the need for litigation. Amazon should consider the bad publicity and correct their mistake. This will certainly weight on other authors considering licensing their works through Amazon.

Andrew D. Todd (user link) says:

The Books Went On Amazon's Virtual Discount Sale Table.

Amazon’s search engine is designed to list things by price if they meet the other search criteria. If a book is cheap or free, that, automatically, gives it preferential billing. Amazon’s free e-books are mostly books from the major public-domain projects, that is, Gutenberg and Hathi Trust, which they were forced to list as free, in order to pre-empt the people who were automatically copying thousands of titles from these projects, falsely claiming copyright, and selling them at substantial prices. Obviously, there is a sizable population of people who tell Amazon, “show me some vampire novels,” or words to that effect. Amazon quite correctly shows what its records list as free vampire novels, on the sensible grounds that if the reader doesn’t like the book, he isn’t out of pocket. It would appear that Amazon’s error resulted in certain authors getting free publicity, which Amazon would not have given them if they had charged substantial prices.

When I typed “vampire” into Amazon’s search engine, it brought up a whole series of books, which were all e-published, with no indication that they had been published in paper, and which were all priced at zero. I would not be surprised to find that Amazon’s price comparison program was designed to scrutinize only those books which were not published in paper, and it may have systematically picked off all the people who listed their e-books with both Amazon and Barnes & Noble. I suspect that many of these authors accepted the situation, having gotten far more free downloads than they had ever gotten sales.

There are mail-order bookstores which specialize in remainders, eg. Edward R. Hamilton, whose customers are accustomed to browsing the cheap stuff. Obviously, there is a market for remainder-browsing.


A great many novelists would do better to simply put their books up on websites, without prematurely burdening themselves with the baggage of commerce.

Here is something interesting I turned up:

C. B. Rykken, _Highroad to Carthage_.

The story is set in 455 AD, the year the Vandals sacked Rome. Faced with a barbarian threat from outside, the Roman leaders are mostly concerned with plotting to assassinate each other. The populace is half-starved. The army is unpaid. Both are unpredictably dangerous. It is rapidly becoming a real question of who are the civilized men and who are the barbarians. The heroine, Adriana Marcella, is the estranged wife of a Roman official. Under the mask of a proper Roman matron, she has a strong tomboy streak. Having angered a powerful courtier, she is on the run. She meets Wolf, a Vandal captain who has gotten left behind as the Vandals withdraw after sacking Rome. Wolf is one of the many bastard sons of the Vandal King Geiserich, the product of a one-night-stand. Brought up as a monk, he has been expelled and sent into the army after having killed a man, more or less justifiably (*). They flee across southern Italy together…

(*) The runaway/evicted monk turned soldier is a recurrent device, going back to A. Connan Doyle’s The White Company. It enables the writer to plausibly introduce a character whose thought processes are not too dissimilar from those of the reader.
I found this book in a rather roundabout way. Readers of Techdirt will be aware of the Baen Free Library. Baen Books, a major publisher of computer books and science fiction, has a practice of putting its books up on the internet for free at just about the time that paper copies are turning up in local used bookstores at prices of a dollar or two. At that level, of course, mail order cannot compete, nor can new bookstores located in high-rent shopping malls. So Baen doesn’t really lose anything by making the books available for free. This is something of a special case, because people who read and write science fiction tend to be computer whizzes, and vice-versa. They are more comfortable thinking in internet terms than the people associated with other genres of writing.

Fiction writers tend to be more than usually resistant to the idea of using the internet. When they are talking about royalties, they are talking about virtue, not about the practicalities of earning a living. An academic author will pay a couple of thousand dollars to get a book published, for good and sufficient reason. A fiction writer will put a vast effort into door-to-door salesmanship in order to be paid a couple of thousand dollars in royalties, even if he could have made much more money working as an electrician. The professional authors’ associations are full of people whose literary earnings are in the hundred-dollar range. Jerry Pournelle, past president of the Science Fiction and Fantasy Writers Association, estimates that there are only about twenty people actually making a living by writing science fiction, and the same is presumably true in other genres. So the pursuit of royalties is very much a case of the tail wagging the dog. I have a certain professional interest in this question as the author of a computer program designed to do for online novels what blogging software does for blogs. A novel is a book of at least twenty chapters, and possibly as many as two hundred (_War and Peace_), which presents special problems of page navigation. I wrote a program to address this problem. This gives me a certain interest in persuading good novelists to publish on the internet without going in for counterproductive copy protection and so forth.

At any rate, I was trying to find out if anyone was taking the “free publishing” approach outside of the computers-and-science- fiction area. I didn’t find very much, but I did turn up _Highroad To Carthage_. C. B. Rykken formerly ran a small academic press, A-R Editions, which publishes critical editions of classical music composers. In short, unlike many novel authors, he was not looking to turn his novel into a career, and he had spent his life working in a literary profession. He seems to have completed the book in 1992, and I suppose he must have sent it through the usual “agony hall of the publishers and agents.” In 2000, Rykken published the book, after a fashion, through Xlibris, which I suppose I would describe as an “eyes-open vanity publisher,” the kind that doesn’t pretend to be able to place books in bookstores, but at least gives a means to distribute them by mail-order. However, in 2001 the internet became available, and Rykken went for it, with no apparent mental reservations. I have read about half of _Highroad To Carthage_, enough to judge that it is good, solid craftsmanship, by which I mean, as good as, say, the works of Parke Godwin or Catherine Christian, and nearly as good as those of Rosemary Sutcliffe or Robert Graves. It is that last one percent of quality, of course, which makes the difference between someone who can make a living as a novelist, and someone who cannot. You can still make a living as an academic scholar without getting tenure at Harvard, but the situation is somewhat different in novel-writing.

————————————————– ——————————————-

I found Highroad to Carthage listed in a kind of online equivalent of the book department of a thrift store, with good stuff and the worst kind of junk promiscuously intermingled.

I found this site with the aid of a librarian’s website.

Another book I might mention is:

Dana Blankenhorn, _The Chinese Century_

This is a “roman a clef,” written during the 2004 Presidential election, by a well-known computer journalist and blogger. Since he already had a blog, he naturally used it to post his evolving novel.

Carolyn Jewel (user link) says:


This incident was a topic of hot discussion among authors. My own opinion is that, yes, Amazon made a mistake in price-matching his book to free. But the most they should pay for is the sales he’s likely to have made had the book NOT been free. That is, extrapolate from his prior sales. If he was selling x books a day prior to being tagged free, then reimburse him for those sales only times the number of days the book was mistakenly free.

I happen to write for Big 6 publishers as well as self-pubbing my backlist so I have some personal experience with this. Every single author I know who’s had an AMZ book priced at 0 sees HUGE downloads of the free title AND a huge increase in sales of their other not-free books. The increase in paid sales lasts long past the free period of that title. In other words, a free title sells your other books for quite some time.

This author isn’t seeing that happen because he does not have any other titles. But now there are 6000 people who have his book and if he can get another title out there pretty quickly, he’s likely to do substantially better in sales of the new book than if his other book had not been free.

The strategy for authors with multiple (related) titles is to price one of them free at another vendor and pray that Amazon will price match, because once that book is free, the increase in sales of the related titles more than makes up for a title being free for a limited period.

Amazon should agree to pay him for the sales he would have made had his book not been free. That’s it. If this author is wise, he’ll get more titles out there and hope he can get another free book at Amazon.

G Thompson (profile) says:

He could have a case of Unconscionability

Just because a term is written into a contract and therefore everyone, including some lawyers I suspect from reading comments, assumes that Amazon can point to the contract and state that “no we didn’t breach anything since this was part of the contract and we are therefore not liable for anything” does not actually mean they are correct.

The contractual term could on first reading in this situation be classified as unconscionable and ther could be a claim for relief by the author under the Restatement (second) of Contracts treatise.

This is because there has been an absolute gross disparagy in consideration by one party (Amazon) since they have obtained Good Will (Consideration doesn’t just have to be fudiciary) by allowing the product to be sold for nil cost, whether it was by mistake or not, in one instance or several has no relevance. The disparity has occurred and the actual term of the contract that states that this mistake is fine could be deemed unconscionable. It could also be deemed voidable under equitable/promissary estoppel though a LOT harder to prove.

Though taking all this to court would cost a lot more than the Author has (which is another reason for tort reform) Amazon has shown all other authors that by not taking the moral high ground here and paying what they are morally obliged too that this mistake could happen to anyone and that the best advise now to ALL Authors that use Amazons service is to redo their contracts and remove this term post haste.

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