Okay, I’ve got a story. It’s a sort of scary one. I think
independent/self-publishing authors need to know about it, and telling
it carefully and correctly is also important for my own situation, so
I’m going to take my time and lay it all out in order.
Pressed for time? You can skip to the bottom for the
TL;DR summation.
On Friday, February 27, 2015, I noticed that my bookmarked Amazon.com link to my first novel,
Nolander,
was yielding, “We’re sorry. The Web address you entered is not a
functioning page on our site.” I went to my Amazon dashboard and
discovered the book had been blocked.
In my spam folder, I discovered an email from Kindle Direct
Publishing (KDP), Amazon’s self-publishing arm, informing me that
someone had sent in a DMCA notice. In response, Amazon had summarily
blocked
Nolander from sale.
“DMCA” stands for “Digital Millennium Copyright Act.” It’s a
Clinton-era U.S. law that lays forth a process for dealing with
copyright infringement online. If you find material online that
infringes a copyright you hold, you can send the hosting website a DMCA
notice; in order to be in compliance with U.S. law, the hosting website
has to remove the material and notify the person who posted it.
When I heard a DMCA notice had been filed against
Nolander —
which is a completely original work — I assumed a reader had reacted
badly after reading the book in a boxed set and then finding it
available as a standalone. It could be confusing to find the same
material in different places, after all. A vigilant reader might think
something fishy was going on. So I wrote back to KDP, sending them my
U.S. copyright registration info and assuring them that
Nolander was my work.
Soon after, I found an email notification from Smashwords as well. That one was a little more informative:
Hi [my real name redacted],
I have just unpublished your book Nolander, formerly found here: https://www.smashwords.com/books/view/272292
As we received a DMCA Notice and I was able to verify that the text
in your book, published on Jan. 07, 2013, matched the text of a book
made public on August 2nd, 2011.
If you have any questions or can give me critical information about
the book, please do. Per our policy, the book needs to remain
unpublished until Smashwords is given consent by both parties to
republish it.
Thank you for your understanding.
Cheers,
*[name redacted] – Smashwords Support Team*
This was mystifying. I could imagine a vigilant, informed reader
emailing Amazon about copyright concerns, but hunting around on other
retailers for the book and contacting them? That seemed strange. I
started to get a little worried.
I poked around on my hard drive and found a finished draft of
Nolander
dating from March 29, 2012. It’s the one I sent my husband so he could
help proof the manuscript. I have it in mind that the book took
about three months to write and a month to edit, so I probably began
writing it in November or December 2011. August 2011 was situated
conveniently before my writing would’ve begun.
Still, I figured Ockham’s Razor dictated this was an instance of
boxed-set-related confusion. I’d seen such confusion arise for another
author, though that confusion didn’t progress to a DMCA, so far as I
know. Perhaps, I told myself, the Smashwords rep had been using a form
letter and had neglected to replace “August 2nd, 2011″ with the correct
publication date for the boxed set.
I wrote back to Smashwords with the same info I’d sent Amazon. Then I proactively contacted the other platforms where
Nolander is available, hoping to head off any further take-downs.
Also in my email was a notification for a pending comment on my
website (I have to personally approve comments from first-time
commenters):
Kelvin
February 28, 2015 at 3:21 AM
I can’t find Nolander on Amazon. The link is returning “Page Not
Found”. I only found a Print Edition on Amazon which cots $15 ! But I
find Nolander on other stores like B&N.
Have you removed your book from Amazon? Sorry but I only download or buy books from Amazon. Please consider your decision again.
You can see the comment toward the bottom of
my books page on this site. I approved the comment and responded:
Becca
February 28, 2015 at 7:31 AM
Hi, Kelvin. Yeah, someone apparently sent Amazon (and Smashwords
also) a DMCA (Digital Millennium Copyright Act) notice. That means they
think the book infringes on a copyright. But I am the copyright-holder
for the book, so I assume this is some kind of mix-up. The book will be
unavailable until Amazon figures out what’s going on. Very annoying!
You can email me at bccamills@gmail.com, and I’ll send you a PDF. Kindles can display those.
Folks who know my email address might notice I typed it wrong, but Kelvin tracked me down anyway. I got this email on Saturday:
Regarding Your DMCA Problem
Kushal Das <kushaldas.usa@gmail.com>
Sat 2/28/2015 12:10 PM
Hello Becca,
I am Kushal, who posted on your blog with the screen name Kelvin. I
have experience with various aspects of online business including DMCA
process, hence I thought about contacting you.
Since you are saying that there has been problems both at Amazon and
Smashwords, are you sure that it’s a mix-up? That would be quite
unlikely. I don’t know about Indie Fiction Authors but in case of
Webmasters, YouTubers and Indie Non-Fiction Authors, DMCA process is
often abused. Are you sure someone is not deliberately doing this?
Anyway, if the problem does not get resolved then you can let me know
what Amazon is saying and I will see what can be done.
Paranormal authors with unique story telling angles are damn hard to
find, so I don’t want you to go through this. A malicious DMCA attack
can end a person’s career (happened with many YouTubers).
That’s why I am concerned. I hope you won’t find it creepy.
If possible, you can send me a pdf of Nolander.
P.S: I don’t live in USA. I live in India but I am currently going to
take the GMAT and I use this email address to communicate with various
American B-Schools.
Best Regards
Kushal Das
“How kind!” I thought. I set it aside to respond later. That’s the
great thing about indie publishing: people come out of the woodwork to
help you. It’s amazing.
At that point, KDP got back to me:
Hello,
As stated in our previous communication, we’ve received notice from a
third party regarding copyright concerns over B007R6PPZA Nolander
(Emanations, an urban fantasy series Book 1) by Becca Mills. We don’t
involve ourselves in third party disputes and therefore have removed the
availability of the book through our systems until this matter is
resolved.
Here you will find information on the party that submitted the notice:
Rajesh Lahoti
theeroticaauthor@gmail.com
If a resolution is reached, before we may take any appropriate action
regarding the book(s), all involved parties must contact us via
title-submission@amazon.com.
Best Regards,
[name redacted]
Amazon.com
So, my proof of official, pre-publication U.S. copyright was not going to be enough. In order to get
Nolander
restored, both the DMCA complainant and I would need to write to Amazon
giving permission. This was alarming. What if Rajesh Lahoti never
responded? All they’d have to do was ignore my queries, and
Nolander would never appear on the Amazon storefronts again.
A friend I spoke to about the situation pointed out how easy it would
be to make my April 2012 book appear to rip off material from an August
2, 2011 book – all someone would have to do is take a book published
August 2, 2011, stick a bit of
Nolander into it somewhere,
upload the new file, and then point Amazon/Smashwords at the new
version. It doesn’t take much for a book to appear to be in copyright
violation, right? Anything that’s not fair use is a violation. I bet a
single paragraph would do it. Who knows? Maybe less.
This too was alarming.
I dashed a quick, neutral email off to Rajesh Lahoti saying I’d been
informed of the DMCA notice by Amazon and asking for more info about
their copyright concerns. I was still hoping this was an honest mix-up.
Then I turned back to Kushal Das’s generous email offering to help me with my “DMCA problem.”
Reading it again, I began to have some doubts. If Kushal was already a
fan of my writing, why had they been trying to download the first of my
series from Amazon? Hadn’t they already read it? And it sure was
coincidental that they had emailed me about
Nolander’s absence from Amazon the very day it happened.
So I wrote a careful response, trying not to give away anything new
and yet not wanting to assume the worst of someone who was quite
possibly a genuine good Samaritan:
Hi, Kushal. Thank you for the lovely compliments! I’m so glad you like my writing. :)
Here you go – attaching Nolander. This is actually the brand-new
revised copy, which I’m just now having formatted. If you’d like a copy
of the older edition, which is the one you would’ve read, just let me
know. I have that too. I’m planning to make the new edition available on
my website for existing readers to download, if they choose, rather
than pushing an update through Amazon.
>> P.S. Hmm … I’m getting an error when I try to send this, so
I’m going to try without the PDF attached. I can send the attachment
later from home – have done it before, so I know it works. Maybe this
café’s router balks at large attachments, or something.<<
If I get the book back up on Amazon, that is. Yeah, I didn’t want to
sound alarmist in commenting on my website, but I am concerned about the
situation. All I know is the name and email address of the complainant.
I’ve written to that person asking for more information about their
concerns. Hopefully it is just a misunderstanding.
I’ve never heard of malicious DMCAs being used against an author. If
this is malicious, I guess I’ll have a real gem of an experience to
share. :-/
At any rate, thank you so much for offering to help. It’s not creepy
at all. Quite the opposite – it’s extremely kind and generous, and I’m
grateful! I’d appreciate hearing any ideas or wisdom you have to share.
Good luck on your B-school apps! I’ve gone through the applying-to-grad-school thing. It’s tough and stressful, I know!
All the best,
Becca
The thing about not being able to attach the PDF was the only fib, here. I’ve been working on revising
Nolander for the last few months. Bringing
Solatium to completion was a tough but very good experience. It (I hope) made me a stronger writer, and I figured
Nolander
could benefit from my improved skills. Maybe I could do something about
all those “it starts off slow” responses! But free book or not, the
last thing I wanted to do was put the new version in the hands of
someone I had doubts about.
Then I started poking around.
Since, based on the email address I was sent, the DMCA
complainant appeared to be a writer, the first thing I did was check
Amazon and Smashwords for books by Rajesh Lahoti. No one has published
under that name. I Googled it and didn’t come up with anything notable.
Then I Googled Rajesh Lahoti’s email address, “theeroticaauthor@gmail.com.”
Nothing showed up … except for this, the hit at the top of the results:
Clicking on the link in the Google results led me here:
http://gotoanswer.stanford.edu/?q=The+Ultimate+KINDLE+EROTICA+GHOST+WRITING+Service%3A+Best+Quality%2C+Best+Price
The link has functioned on and off this morning, so here’s a screenshot of where it led when I clicked on February 28:
goto: answer is a search engine that indexes material posted on technical forums (according to its front page,
http://gotoanswer.stanford.edu).
Google seems to have indexed one of its search-result pages, creating a
snippet based on what that search was returning at the time. All but
one of those forum posts have since been deleted, so when I clicked on
the link, I got the above: a mostly blank page, with just the one
remaining post. But the author and location of that post caught my eye:
The email address “theeroticaauthor@gmail.com” suggests that Rajesh
Lahoti writes erotica, and I (and a bunch of other people) once had a
run-in with some Warrior Forum members over on the Kboard Writers’ Cafe.
So I followed that “… Ultimate KINDLE EROTICA …” link. It led to a
Warrior Forum page on which a member going by “Ghost Author” had
apparently posted a thread offering to ghostwrite erotica and had later
deleted the posts:
http://www.warriorforum.com/warriors-hire/1015285-offer-removed.html
Curious, I clicked through to Ghost Author’s profile:
http://www.warriorforum.com/members/ghost-author.html
(I’ve saved and screen-shotted these pages, but to save space, I’ll hold off as long as the links still work.)
There I noticed the link in Ghost Author’s signature, which leads to an ad for his ghost writing services:
http://www.warriorforum.com/warriors-hire/1016548-rave-reviews-best-kindle-erotica-ghost-writing-service-content.html
And what do you know? Ghost Author also goes by “Kushal”:
I scrolled down to the thread of queries and responses from Warrior
Forum members interested in Kushal’s services and found these comments:
First name and last name: Kushal Das. So, the person who’d emailed me
with the kind offer to help me with my “DMCA problem” apparently owns
the email address from which the DMCA take-down notice was filed.
Honestly, you could’ve knocked me over with a feather. When I went
looking for some possible connection between Kushal Das and Rajesh
Lahoti, I wasn’t expecting to find they were the same person. Talk about
hitting pay dirt.
So, this person files a dishonest DMCA, gets my book taken down from
two sites, and then contacts me, offering to help me deal with it. But
why? I’m not a big seller. There’s little monetary potential in stealing
my books and none at all in stealing a free one.
A vendetta, maybe? As you might imagine, I looked around for any
connections between Kushal Das and past run-ins I’ve had with people. I
couldn’t find any. Couldn’t find any connection between his name and me
or my books, any connection between Warrior Forum and me or my books,
any connections at all.
I was mystified. Why was Kushal Das targeting me?
The evening of February 28, I sent Kushal Das a PDF of the current (not the revised) version of
Nolander. Why not? It’s been available as a free PDF download from Smashwords for years.
Then I sat tight and waited for him to email me back. I figured I
might never hear from him. Maybe he only contacted me because he wanted
the satisfaction of hearing that I was worried. But there was the chance
that he wanted something from me. Maybe this was some sort of scam. If
so, finding out what he wanted would be good.
On the morning of March 1, Kushal Das emailed me.
Re: Regarding Your DMCA Problem
Kushal Das <kushaldas.usa@gmail.com>
Sun 3/1/2015 8:16 AM
Hi Becca,
Thank you for sending the pdf. I would just like to say one thing
about your problem though – please don’t try to upload the new version
of Nolander on Amazon without sorting this DMCA thing first. Otherwise,
it will get ugly.
You said you have got the complainant’s details. Is the person
providing a real looking US/Western Country address and contact details?
Abusing DMCA is a serious offence which can result in prison time. So,
99% of the time DMCA abusers use fake name and addresses based in
countries like India, China or Russia. It’s because they know you won’t
dream of suing someone in those countries. To add to the problem, big
sites like Amazon and YouTube don’t verify the complainant’s identity at
all. Anyway, in the next couple of days, it be clear where this is
heading.
Thanks again for sending the updated novel. Am looking forward to reading it.
Best Regards
Kushal Das
There wasn’t much here to work with. “[I]t will get ugly” sounded
like a threat, just as “you can let me know what Amazon is saying and I
will see what can be done” had sounded like some kind of solicitation.
But it was all vague.
I responded:
RE: Regarding Your DMCA Problem
Becca Mills <bccamlls@gmail.com>
Sun 3/1/2015 9:51 AM
Hi, Kushal. Wow, I hadn’t really thought about potential problems
with uploading a revised edition right now. How come that would be bad?
Would it upset Amazon?
It’s distressing to hear that companies like Amazon don’t make any
effort to verify the complainant’s identity. I hadn’t realized that. It
seems like that would open the door for all kinds of abuse. Some angry
person using a fake name to file spurious DMCA notices against their
ex-spouse — that kind of thing. And you’re right – I can’t think of any
way to confirm the info Amazon sent me about the complainant. It could
be fake, for all I know.
Well, I’ve written to the complainant. I haven’t heard back yet, but
I’m still hoping this is a real reader who’s misunderstood the
situation.
All the best,
Becca
I got the word out on Fb and my blog that
Nolander was down
due to an errant DMCA notice. Since I wanted to keep the dialogue with
Kushal Das open, I kept most of what I knew out of those posts.
On March 1, a friend suggested I send Amazon and Smashwords a DMCA
counter-notice. A counter-notice is a way of saying to an internet
service provider (ISP), “Hey, this material doesn’t infringe anyone’s
copyright, and I take responsibility for it.” After receiving a DMCA
counter-notice, an ISP is supposed to restore the content within ten
days—the matter is no longer their problem.
Of course, Amazon and Smashwords are not ISPs. They’re retailers. It
could be that they aren’t bound by the requirement to restore the
content they’ve taken down. Retailers can decide what products they want
to sell, right? If they want to make those decision capriciously, who’s
to stop them?
At any rate, I began drafting the counter-notice, using models I found online.
In researching the issue, I found that Kushal Das (not surprisingly …
he/she should know) had been quite right in saying that DMCA notices
can be and are used as weapons.
Here are some articles and resources on the phenomenon.
As you can see, none of them are quite like what’s happening to me.
These abuses of the DMCA were motivated by ideology, commercial
interests, and so forth. But what could motivate Kushal Das to attack a
free book?
This morning, I sat down to my computer to think some more about the problem.
It occurred to me that filing a DMCA counter-notice is risky because,
as I understand it, my counter-notice will be forwarded to Rajesh
Lahoti/Kushal Das. Do I really want a document containing my full name,
mailing address, and account-associated email address in the hands of
this person?
I decided I would have to send the notice as “Becca Mills,” with my
rented private mailbox as my contact info. It’s not optimal, but I don’t
see another path forward.
I very much resent the idea that I might be forced to
give identifying information to someone who has behaved fraudulently.
Needless to say, I’ve frozen my accounts at the credit bureaus. What a
drag.
At first I intended to tell this story after it had all been
resolved. That’d be so much more satisfying, wouldn’t it? I planned
to keep stringing Rajesh Lahoti/Kushal Das along by email until I
figured out what’s motivating all this. And it sure would be nice to be
able to report that DMCA counter-notices do work on ebook retailers.
But then I thought better of waiting. Trying to engage with a scammer
is asking for trouble, and every day that goes by is a day
Nolander
is not getting into readers’ hands. The book was getting about twenty
downloads a day and generating decent sell-through to the next in the
series. Now my business model is in serious jeopardy (Amazon accounted
for 68% of my writing income last month, and Barnes & Noble, where
Nolander is free through Smashwords, accounted for another 5%)
.
Last but not least, indie authors need to know about this. And here’s the TL;DR:
wholly
fraudulent DMCA notices can be used maliciously against independent
authors, and registering for U.S. copyright and submitting proof of
copyright is not going to suffice as a defense.
Depending on how Amazon and Smashwords react to my counter-notice,
we’ll see how well equipped online book retailers are to handle this
form of fraud. It seems obvious to me that “you two go sort it out among
yourselves” is not an appropriate position when the DMCA complainant is
acting in a fraudulent, malicious way. Hopefully Amazon and Smashwords
will see it that way as well.
P.S. Just after posting this, I got another email from Kushal Das:
Hi Becca,
Sorry for the late reply, have been very busy today. To confirm, yes,
if you upload the new version, it will seriously create problems.
Amazon might block it outright. Or even if the new version goes live, if
the person who filed the complaint points out the new uploaded version,
Amazon will then block it. Amazon will also automatically assume that
you are trying to game the system by uploading a slightly modified
version of the “plagiarized book”. 3 copyright blocks result in
automatic KDP account termination, without any hearing or recourse. So
you don’t want to reach 2 blocks.
Very few people realize how shockingly easy it is to abuse DMCA.
Since complainants’ identity is never verified (unless you are
complaining against a huge best selling author like Dan Brown), anyone
holding a grudge against an author can ruin his /her book. Indies are
especially vulnerable. It either happens if someone holds a personal
grudge, like you pointed out or someone online finds the author’s
religious or political views offensive. At least in case of YouTube,
most DMCA abuse is related to religious, political or human rights (like
gay rights) views.
Please do keep me updated. If it doesn’t get resolved within next couple of days, I will see what options are available for you.
One thing, since I live in a complete opposite time zone, I might take 12 – 24 hours to reply. Hope you don’t mind.
I wish you the best.
Thanks
Kushal
The guy’s good, eh? (Or “the person,” I should say — I keep reminding
myself I have no way of knowing who Kushal Das really is, including
their gender.) The information about Amazon being provided above might
well be true and genuinely helpful. And it’s all so personable. If I
hadn’t found that connection between Rajesh Lahoti’s email address and
Kushal Das’s Warrior Forum presence, I might’ve packed away my
suspicions.
I wonder what “options” Kushal Das would’ve offered me in a few days?
Maybe a Nigerian-prince-style suggestion to send along my account
numbers? Or maybe nothing. Maybe the point is just to have an inside
view of my reactions as I watch my nascent writing career wither way.
P.P.S.
Nolander is back up at Smashwords! A
big thank you to Smashwords for a quick, personal, and effective response.
Based on what a Smashwords rep said, I think I know how Rajesh
Lahoti/Kushal Das showed evidence of prior publication of the material
in my book. Apparently, they pointed Smashwords to a 2011 blog post that
contained material from
Nolander. Now, I don’t think blogs are
a good form of evidence. Here on WordPress, when I revise one of my
posts, the platform doesn’t add an “edited” line. The post just keeps
the original date. If that’s the way most blogging software works, it’d
be very easy to use a blog post to “prove” prior making-public of
someone else’s writing: you’d just delete the contents of an old post
and fill it up with someone else’s book text. Then it’d look like you’d
written the book yourself, years earlier.
Ebook retailers need to be on the lookout for this sort of thing, IMO.
