A number of people have pointed out to me that I might have a valid case for legal action in regards to Kindle Direct Publishing’s error. Maybe so. Maybe so.
There is a problem with taking KDP to court. They are one arm of a giant monster, and it holds the Sword of Damocles over the heads of unrepresented, independent authors. The magical blade in question is forged from their right to terminate your contract with KDP at any time, for any reason, and NEVER WORK WITH YOU AGAIN.
The estimates say that 80% of the e-book market is Amazon.com.
What you court, when you tickle the giant, is 80% of the e-book market being easily available to you for your publishing pleasure. That is a lot of potential customers and a lot of potential income at stake. (Welcome to Fear and Loathing in E-Publishing)
Would it be a dick thing to do, terminating your contract, even if your cause is just and your heart is pure? Yes. Does it matter to the giant monster? No. Why? There’s another rube just like you uploading his books right now.
Sure. I might win a lawsuit. I might recoup my losses… at the cost of the beneficent friendship of the giant monster… and lose 80% of the market.
It wouldn’t kill Laurell K. Hamilton, Jim Butcher, or Kim Harrison’s writing career, but it would leave mine in a dismembered, bloody mess. The worse part about this, is that by speaking up at all, having my complaint aired on the internet, the likelihood that the giant will see me (and feel my lice-like tickle) is GREATLY increased. All the giant needs to do is swat me once, lawsuit or no, and I’m done… no money… no market… 3/4 of a second of notoriety… and the rest is silence.
See? My head is already poking out of the hole. I don’t know if I care to poke it up higher. That’s a mighty sharp sword.
Update: Please note the fabulous comment from Jessica about this post. She makes, what I feel to be, a very valid point.
I think your absolute biggest problem with a potential lawsuit against Amazon (and it’s something that Amazon would argue and that I’m surprised no one has brought up) is this simple question:
If your book had stayed on sale, not free, can you guarantee without the shadow of a doubt you would have still sold 5,000+ copies of the novel in that span of time? Because if not, then there’s no case–you haven’t lost anything because you wouldn’t have made the sales to begin with. You would be forced to prove that you would have made the sales for there to be a verifiable financial loss due to Amazon’s mistake (because they did, in fact, make a mistake). But there’s no way you can prove that unless you can show that your novel’s sales were trending significantly in that direction or you had a history of sales that high.
I’d take it as a learning lesson: it’s free publicity. It’s obviously worked to your benefit, and perhaps you can use those 5,000 sales as a basis to build a readership, IF you capitalize on it quickly. Hopefully you can get something else out there fast, so that way readers who “bought” the first book while it was free will be willing to pay actual cash money for your next work.
Good luck to you! And for the record, I have plans to purchase the book myself. I’m a sucker for zombie novels and a fellow zombie author myself!
Your point is well taken Jessica, and I’ve pretty much come to that conclusion myself (in terms of proving actual LOSS of profits). Unfortunately, I can’t get the sequel out that fast. I’m only halfway through writing it. The first Super Love! story is up, but the sales have been lackluster. Best wishes to you in your publishing adventures!
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Doing the math, the most Amazon could be liable for is around $21,400 USD. That’s more money than most author’s make on a single title in a month, but yes, it’s not enough to be worth trading 80% of your e-book sales for life over.
On the other hand, this is the exact reason that individual writers do not often bring lawsuits against major corporations. That’s what our writer’s unions and guilds are for. This case may be too dangerous for an individual writer to pursue, but it would make an excellent exemplar in a lawsuit filed on behalf of ALL publishers, from the indie author to the major Big Publishing conglomerates, against Amazon and their draconian and unjust business practices.
At the end of the day, this aspect of Amazon’s “contract” with publishers is the one aspect of their business model that is most likely to topple Amazon as a source for e-content in the future. The majority of their customers are not thieves or pirates by nature: if these people wanted to steal from an author or a publisher, they would get their books from torrent sites. People buy from Amazon because they want legitimate copies, and they want to support the publishers and authors who produce this content. If it becomes clear that Amazon cannot be trusted to give their favorite writers a fair deal, some other vendor will have a clear opportunity to sweep the field and become the Bookstore of the Future.
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