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Tuesday
Dec252012

Amazon removes A Long Time Ago from Kindle for supposed trademark infringement

Kindle Direct Publishing informed me today--Christmas Day--that they have removed my self-published book, A Long Time Ago: Growing up with and out of Star Wars, from the Kindle store because it "contains references to the trademarked term, “Star Wars". 

I first published the book on Kindle in August. Since then it has been downloaded, either by purchasers or for free using Kindle promotions, over 400 times. There is also a paperback version, created through Amazon affiliate CreateSpace, which has sold about 120 copies so far. The CreateSpace version is still available, who knows for how long, but the Kindle version is now gone.

Until yesterday, Amazon had never raised any sort of complaint about the fact that my book uses the phrase "Star Wars". Why would it? My book is just a memoir of how Star Wars affected my life as a child and continues to do so today. If I had tried to publish a piece of Star Wars fiction without Lucasfilm's authorization, such as a novel set in the Star Wars universe, I would understand Amazon's position. But people are free to write books about how pop culture phenomena affect their lives. Amazon has been carrying John Booth's great Star Wars memoir since 2008. See also Simon Winder's The Man Who Saved Britain: A Personal Journey into the Disturbing World of James Bond, or Michael Uslan's The Boy Who Loved Batman: A Memoir

All this started very innocently a few weeks ago when Amazon announced they were making Kindle books available for sale from the Canadian Amazon store. Authors were invited to add a Canadian price to their books. Any time you make a change to your book on Kindle, KDP reviews the book before approving the change. This usually takes no more than 48 hours. This time, however, my book was under review for over two weeks. I wrote to ask what was going on. I assumed there was some sort of technical glitch. I only got standard form replies until yesterday, when I got this: 

Thank you for submitting the following book(s) for publishing to the Kindle Store.

2353856    A Long Time Ago: Growing Up With And Out Of Star Wars

During our review, we found that your book(s) contains references to a trademarked term. Due to this issue, your book(s) have been moved into a blocked status. We need you to take an additional step to confirm that you are authorized to use the trademarked term:

If you are authorized to use the trademarked term for this book, please provide any documentation or other evidence that proves you have retained rights for these book(s). Please send any  correspondence regarding these book(s) with the title and id of the book to title-submission@amazon.com. Failure to respond to this email may prevent your book(s) from being available in the Kindle store.

Please respond within 5 business days with the requested information. Your book has been moved to a blocked status on your bookshelf and will not be available for sale in the Kindle store until we receive the documentation requested.

Thank you for your interest in publishing with Amazon KDP.

This email didn't tell me what the trademarked term was. Of course I guessed it was "Star Wars", but I didn't really know. If it was Star Wars (and all the other trademarked terms that go with it), the answer was that I didn't have "any documentation or other evidence that proves you have retained rights" to talk about Star Wars in a book about my childhood. I never asked Lucasfilm (or anyone else) for such rights and I don't believe I have to. 

I replied to Amazon's email like this:

Hello,

See below. Please explain what this is all about. My book has been in the Amazon store for months. What term are you referring to, and what is the issue? Please reply with an informative e-mail, not something vague.

Thanks,

Gib

I confess I was a bit impatient, but I was not angry. I was convinced--and remain convinced even now--that this was a mistake and nothing more. It will get sorted out, I told myself.

Here is KDP's reply:

Thank you for the information you provided regarding the following book(s): 

A Long Time Ago: Growing Up With And Out Of Star Wars (2353856) 

Your book(s) contains references to the trademarked term, “Star Wars (Trademarked Term)”. We have reviewed the information you provided and have determined that we will not be making the book(s) available for sale in the Kindle store at this time. While we cannot advise you on trademark laws, we encourage you to conduct your own research by possibly going to your local library or using other online resources that may be available to you. 

If you have any questions regarding the review process, you can write to us at title-submission@amazon.com. To contact us about an unrelated issue, please visit: https://kdp.amazon.com/self-publishing/contact-us

Whereas before KDP was at least willing to give me a chance to show I had some right to use the trademarked term, now they have simply pulled the book. There does not appear to be any avenue for appeal--no one I can speak to, no willingness to reconsider.

I am awfully upset about this. I spent two years writing the book, as followers of this blog know. People seem to like it: it received a positive review on Wired.com's GeekDad blog and, as of this morning, it had six customer reviews on Amazon.com and one on Amazon.co.uk, all rating it four or five stars.  

It cannot be right that authors can be shut out of the biggest book market in the world on such a slim pretext. Trademark protection is important, of course. But so is free speech. My book does not raise any serious trademark concern that I can see. Certainly no one would confuse my book with a licensed Lucasfilm product--my feelings about Star Wars are far too mixed. I am a lawyer, but I'm not an intellectual property lawyer nor a US lawyer, and I don't claim any expertise in these areas. But I know a thing or two about human rights, and I've always understood that fair use and comment are defences to trademark infringement claims. And in any case, as far as I know no one has actually made a trademark infringement claim; Amazon's emails don't say that Lucasfilm has complained about the book. I can't imagine that they would. Anyone who has read it will know that it is, ultimately, a sort of tribute to George Lucas and his creations.

If you think my book should be brought back to Kindle, please let Amazon know. You can use @AmazonKDP in a supportive Tweet, or share this post on Facebook, Twitter, Reddit and elsewhere by clicking on "Share Article", above. I would really appreciate your help. I like Amazon and I think they'll correct this mistake if I can get their attention, but they're such a big organization that I think it will take some support from you to help me get through to them. 

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Reader Comments (5)

There's a lot of rot talked about "fair use and comment" in relation to copyright, and that may have you confused. Putting that aside, there's no such defence in relation to trade mark claims - because one isn't, in theory, needed.

What trade mark law is supposed to do is protect a commercial right to sell goods and services. You aren't prohibited anywhere from mentioning Star Wars. You are prohibited, where a trade mark exists, from selling goods or services in relevant categories by exploiting the mark.

Amazon is wrong to suggest just mentioning it is unlawful. However there are legal rules in most jurisdictions that make trade mark a great nuisance both to holders and to casual mentioners in the web age. The doctrine of exhaustion requires trade mark owners to defend them. Acquiescing in any unlicensed or unacknowledged use use can destroy the owner's rights. Therefore use tends to trigger automatic cease and desist letters in any borderline cases. These usually get reported or understood as "ravenous big corp tries to crush small trader" but that really isn't what's going on.

The web adds another layer: Huge volumes of data and further automation. In sales of physical goods through physical distribution, you could simply acknowledge the trademarks, and LucasArts would be satisfied as long as you weren't actually trading off their goodwill. But with Amazon in the chain there is added a further motivation: Amazon avoiding costs over its catalogue of millions of titles by pre-empting disputes. It is better from Amazon's point of view not to make a judgment of the merits or facts of the individual case but just to sweep away anything using a well known mark without checking how it is being used.

It is a classic unintended consequence and example of distributed computing upending existing structures. The exhaustion convention was originally supposed to *limit* the power of trade mark owners to markets in which they are actually actively trading. In practice it forces them to be broader and more aggressive in their assertion of rights than would otherwise make commercial sense and raises everybody's costs.

December 26, 2012 | Unregistered Commenterguy herbert

Hello,

its another explanation of why we should stay away of amazon, kindle, various apps store and such as they now just can kill wathever plese them :/

just self publish it or go to a publisher like http://www.orbooks.com/

Cheers

December 26, 2012 | Unregistered Commenterbilbo-the-hobbit

Thank you for your thoughtful and helpful comment. What I especially like about it is that you are able to explain, to some extent, Amazon's side of the story. I am not anti-Amazon and I don't doubt the good faith in which they have made this decision. But I do think the decision is wrong and I believe it will be corrected in time. The fact that all this has happened during the holidays is unfortunate, as the people with authority in Amazon are likely away, but I am willing to be patient.

Thanks again!

December 26, 2012 | Registered CommenterDark Helmet

It's available on Amazon.com for the Kindle: http://www.amazon.com/Long-Time-Ago-Growing-ebook/dp/B008XRNRJ8

December 26, 2012 | Unregistered CommenterCol

What is "a lot of rot" is modern "IP law" iand that's where these sorts of actions originate.

Under the US Constitution as originally drafted, there is absolutely no protection for "trademark" and both copyright and patent are intentionally protected for limited periods of time. The reason for this is simple: creative enterprise should inure to the benefit of society at large, with a circumscribed financial incentive provided to the benefit of authors and inventors. However, the greed of baser men than those who founded this country with due deliberation has inverted that former schema into one where commercial interests have encroached the public domain to the point of near eradication. Society is the poorer for it, quite literally.

I'm glad you prevailed in this instance. The chilling effect of the "lot of rot" that is "IP law" is a disgrace to the heritage of Western civilization. People who promote commercial value over social value are simply anti-social.

December 29, 2012 | Unregistered CommenterDarkSideLawyer

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