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Steal this book online

Copyright attorney Doug Isenberg examines whether Amazon.com inadvertently opened a digital Pandora's box.

I wrote a book that sells for $17.95. Amazon.com has always advertised it for 30 percent off. Now, the Web retailer is offering online access to every page of my book for free. I like the idea, though the copyright lawyer in me is a bit uneasy about it.

Here's what's happening: Amazon recently launched a new service called "Search Inside the Book," which allows anyone to search the contents of 120,000 books, a total of 33 million pages. Every person who conducts a search on the Amazon Web site will now have the option to see actual pages of books that contain those search terms. The technology is amazing.

"With this powerful new search feature, customers can discover books that may never have surfaced in previous results!" Amazon says.

The company says it has agreements with 190 publishers to publish their books' actual pages online. But I've not heard of Amazon asking for permission from the books' authors, and, as an author myself, I can say for certain that neither Amazon nor Random House directly asked me to participate in this feature.

Just like individuals who "share" digital music on the Internet without permission from the necessary intellectual property rights owners, a company that reproduces books without permission from the copyright owner may be responsible for copyright infringement. Part of the reason e-books have never taken off is because publishers have been concerned about widespread copying.

The legal issues surrounding "Search Inside the Book" are novel.

A June 2001 U.S. Supreme Court case involving the rights of freelance authors to prohibit electronic reproductions of their works is limited to narrow issues involving newspapers and magazines, not books. Unlike a dispute between e-book publisher RosettaBooks and Random House that was settled in December 2002, the publishing contracts for the books in Amazon's program presumably gave the publishers more than just the right to "print, publish and sell the works in book form."

A company that reproduces books without permission from the copyright owner may be responsible for copyright infringement.
I readily admit that the "world's largest bookstore" may have the right to offer its "Search Inside the Book" feature. In their book contracts, authors may have granted to their publishers the right to participate in a program such as this--although I suspect most authors (including yours truly) never envisioned that the entire content of their books would be available for free on the Internet, and the Authors Guild has said "the contracts of major trade publishers" don't allow this.

Fortunately, Amazon has taken some steps to make it difficult to read an entire book online. Once a search term is located, Web users can view only the page on which the term is located plus the two earlier and two later pages. And, apparently in response to immediate criticism after this new feature was launched, Amazon disabled the ability to routinely print the pages shown on the screen.

Still, these limitations are not foolproof. By conducting repeated searches and using multiple accounts, users can view much more than just five pages. And, by using simple screen-capture software, it's easy to print pages and avoid Amazon's technical restrictions.

Of course, these work-arounds are awkward and, I suspect, won't encourage many people to read, let alone print, an entire book on the Amazon Web site. The more interesting issue is whether Amazon needs permission from us authors or even, for that matter, from our publishers themselves. Under copyright law's "fair use" doctrine (a topic, ironically, addressed in my book--search for "fair use" and "Internet" on Amazon.com to see for yourself.), Amazon's digital reproduction of these books may be perfectly legal.

One of the four factors required by the U.S. Copyright Act to determine whether a copy is legal under fair use is "the effect of the use upon the potential market for or value of the copyrighted work." In other words, what impact will Amazon's "Search Inside the Book" feature have on sales of books in this program?

So far, at least, Amazon reports that its new program is actually increasing sales. "In the first five days, sales growth for titles included in Search Inside the Book outpaced growth for titles not in the program by 9 percent," the company said.

Obviously, Amazon must have thought the feature would drive sales, since it makes money not from searching but from selling. And the publishers who signed up with Amazon must have thought the same thing. I think I agree.

Fortunately, Amazon.com has taken some steps to make it difficult to read an entire book online.
In the past, anyone who wanted to find my book on Amazon had to enter my name, one of the few words that appear in my book's title, or, I suppose, one of the words that closely corresponds to the topic of my book. But now, everyone who enters relatively obscure terms in the Amazon search box--such as "UDRP," "ACPA," or "browse-wrap agreements"--will be led to my book. I suspect some of those people may buy my book.

If Amazon's new search feature increases sales of my book, then I'll be a happy author. If, on the other hand, this search feature somehow enables the technically savvy to easily create and distribute electronic versions of my book, or otherwise substitutes for sales, then I'll be an unhappy attorney. For now, though, the author in me says the final chapter has not been written on the effect of this program, and, of course, the lawyer in me says the jury is still out.