23 May 2004

Marketing Over Substance. Again.

It appears that Amazon has not learned a damned thing from objections to Search Inside the Book last fall. Its "new" (well, it's a couple of months old, but it's at a new address) SITB publisher sign-up form has more problems than I can shake a stick at. But not more problems than I could name in a complaint complying with Fed. R. Civ. P. 8—particularly since Amazon is on legal notice of the scope of the problems inherent in SITB.

The "disclaimer"—and, in reality, that is all this is—at the top of the form is particularly obnoxious.

To get started in the Search Inside the Book program, you must be the exclusive rights holder (including copyright and marketing/promotion rights) of the titles you wish to submit to our Search Inside the Book program.

Aside from being insufficient on its face, note that it still makes the Tasini assumption: that the entire book is the only meaningful rights/copyright unit. This invalid assumption was specifically pointed out to Amazon, in writing, several times last fall. This is not even an arguable position, particularly in Washington (which falls inside the Ninth Circuit, and therefore squarely inside of Napster).

Second, and perhaps more interestingly, note that there is no provision for a signature on the form. Under the Copyright Act, transferring any right resting on the Act may be done only with a signed writing. Well, OK, it is an electronic form, so perhaps an electronic signature might be good enough. Might be. But this form doesn't even do that—not under New York, California, or Illinois law; not under UCITA; and not under Washington State law. I promise that I won't mention the words "legal" and either "malpractice" or "ethics" immediately next to each other: I'll put conjunctions between them.

The real problem here is that the program still reflects the "neato marketing strategy" focus inherent in the whole program. SITB is one of those "we'll do this because we can, and to hell with the rights of anyone else connected to it" marketing strategies to popular in the entertainment industry. One might draw comparisons between SITB and the "justifications" offered for Napster and KaZaa (and all of the other systems that might—wink wink nudge nudge know what I mean—enable copyright piracy), with the exception that Amazon's system at least bears some arguable relationship to an actual sales effort. Arguable only, though; that is only the general context.

Third, and perhaps most interestingly, the actual "participation agreement" requires agreeing that Amazon may "reproduce the entirety of each Book". In other words, this implicitly denies participation in the program to any multi-rights-holder book; but this is not noted on the enrollment form, nor are various terms necessary to understand what this clause really means defined anywhere in the "participation agreement." Compare this language to the language at the top of the enrollment form (quoted above) and you'll see exactly what I'm talking about.

That's enough. Let's just say that this program could not be put to death under the Supreme Court's guidelines for execution of the intellectually incapable. And, sadly, that it reflects more thought and originality than most publishing/entertainment industry marketing efforts.