For once, I'm wearing my programmer and ex-lawyer hats as well as the writer/publisher hats.
On Tuesday, Galley Cat ran a story on indie writer James Crawford. It seems Mr. Crawford's book Blood Soaked & Contagious was priced at $0.00 by Amazon without his knowledge or approval. Dianna Dilworth's article at GC strongly insinuates that Amazon deliberately screwed Mr. Crawford out of the royalties of the 5,104 books that were downloaded during the free period.
The following is merely speculation on my part on how this happened:
Mr. Crawford states in the comments over at The Passive Voice that he'd distributed the free sample of his novel through Smashwords. Even though he'd unpublished the sample, it remained on Barnes & Noble for some time.
So let's say the free sample of BS&C was still on Barnes & Noble's website when an Amazon 'bot strolled by. The 'bot pulls out his master list. Ooo, same title and same author. 'Bot starts comparing the first X words of found book against his list. Perfect match. 'Bot runs back to Amazon's Master Computer, screaming "I've got one!" The Amazon Master Computer matches the price of the Amazon version with the version the 'bot found.
Now from a programmer's POV, I wouldn't program the 'bot to check every single word of the document. Why? It's inefficient and slow. If the first, let's say, twenty percent of the document matches, odds are high that it's the same document. Mr. Crawford's free sample chapters fell within that X% sampling that the 'bot took. The 'bot's programming said, "If X = Y, then I go narc."
Now, I'm not blaming Mr. Crawford for the snafu either. It made sense to put out free sample chapters prior to releasing a book UNDER THE OLD SYSTEM of marketing to create buzz. Sample chapters with the same title because you WANT people to find your book.
The problem is that old system of marketing doesn't exactly work under the new paradigm. When an e-book is uploaded to a retailer like Amazon or a distributor like Smashwords, they AUTOMATICALLY create a FREE SAMPLE. The writer/publisher doesn't need to do that anymore.
Now I'm not saying an indie writer SHOULDN'T create pre-release buzz. But he/she needs to look at alternatives under the new paradigm than posting a sampler on a retail site where confusion can happen. Personally, I post the first chapter on my readers blog. But there's lots of other methods.
On the legal side:
Smashwords's contract specifically states you're not supposed to post unfinished works to their site. Both Amazon's KDP contract and Barnes & Noble's PubIt contract state that the retailer is allowed to price match if they learn that you're selling the e-book for less elsewhere. So the 'bot, based on its programming, assumed Mr. Crawford had posted Blood Soaked & Contagious at a lower price.
So neither side is entirely blameless. But I don't believe either side intentionally tried to do anything wrong either. Should Amazon be liable for the royalties on the 5,104 books accidentally given away for free? Regardless of intent of the parties, Mr. Crawford would have to prove he could have sold those books without the price drop. That's going to be very hard to do.
The biggest problems here are:
1) Amazon's handling of the situation. They should have handled communication with Mr. Crawford better after the snafu occured.
2) Programming of the 'bots. Can the programming be modified to prevent such problems in the future?
3) Should Amazon remove Mr. Crawford's books from people's Kindles? Let's see. One pissed off writer versus 5,104 pissed-off customers. Nope, I can't see that happening. And if I were in Mr. Crawford's shoes, I wouldn't want it to. 5,104 one-star reviews from irate readers who had their supposedly free book taken away is not going to help my sales. Not one little bit.
4) Galley Cat's handling of the story leaves something to be desired. Kris Rusch wrote a pretty thorough essay on the yellow journalistic aspects of the initial story. Look, I know everyone in trad-publishing looks at Amazon as the Evil Empire, but take a page from the LAPD manual. Don't make the mistake of having racist cops try to frame a guilty black man. It doesn't work.
Angry Sheep now stepping off her soapbox. Have a terrific weekend, everyone!