Games Workshop, well-known publisher of tabletop games such as Warhammer 40,000, has decided that they need to take the fight to cyberspace over the use of the term “space marine” in science fiction. Having spent part of my life living in a comic book store, I’m used to seeing GW games and reading their short-but-punchy inserts for their games. As part of their ongoing mission to own the term “space marine” GW saw fit to have Amazon.com remove author M.C.A. Hogarth’s book Spots the Space Marine from their cyber-shelves.
The e-book was removed after a complaint from GW to Amazon.com about the use of the words “space marine” in the title.
Fortunately, the story doesn’t end there. The complaint and takedown happened last month and now—due to widespread bad press for GW and Amazon.com—the e-book has been restored. Numerous individuals and outlets worked to bring light to this issue including Slashdot, Cory Doctorow, and Wil Wheaton.
The story of the takedown and the implications of this behavior has far-reaching issues for people who write e-books and rely on e-book publishers such as Apple and Amazon.com. Especially in light of the quick-and-easy takedown—in this way it’s very similar to the chilling and swift effect of the use of DMCA to erase videos from YouTube.
Hogarth’s story is a common one:
In mid-December, Games Workshop told Amazon that I’d infringed on the trademark they’ve claimed for the term “space marine” by titling my original fiction novel Spots the Space Marine. In response, Amazon blocked the e-book from sale [original post and update]. Since then, I’ve been in discussion with Games Workshop, and following their responses, with several lawyers…
In their last email to me, Games Workshop stated that they believe that their recent entrée into the e-book market gives them the common law trademark for the term “space marine” in all formats. If they choose to proceed on that belief, science fiction will lose a term that’s been a part of its canon since its inception. Space marines were around long before Games Workshop. But if GW has their way, in the future, no one will be able to use the term “space marine” without it referring to the space marines of the Warhammer 40K universe.
Cory Doctorow himself notes that much of the weight of this issue rests heavy on the shoulders of distributors such as Amazon.com. “Amazon didn’t have to honor the takedown notice,” he wrote in his article on the subject. “Takedown notices are a copyright thing, a creature of the Digital Millennium Copyright Act. They don’t apply to trademark claims. This is Amazon taking voluntary steps that are in no way required in law.”
The argument over if Games Workshop can even hold a trademark on the term “space marine” (a common and deeply rooted science fiction genre term, see my Universe At War: Space Marines in Science Fiction or just the TV Tropes article) doesn’t even need to be addressed in light of how a single complaint had the e-book shuffled away so effortlessly.
The Electronic Freedom Foundation believes that this sort of act is so easy (Amazon.com taking down someone’s work at the mere breath of complaint) is a sign of issues that impact and imperil online speech and publishing.
“Offline, most legal users can ignore improper trademark threats, because the bullies will probably have the good sense not to test the matter in court and have little recourse through third parties,” writes Corynne McSherry. “In the Internet context, however, individuals and organizations rely on service providers to help them communicate with the world and sell their products and services (YouTube, Facebook, eBay, Amazon.com, etc.). A trademark complaint directed to one of those third-party providers can mean a fast and easy takedown–as it did here.”
E-Books a powerful innovation with a lot of dangling responsibility yet-left-unchecked
The revolution of e-readers and mobile devices has done a great deal for the publishing industry, and while electronic reading has a lot of benefits over dead-tree publishing, there are some obvious pitfalls. Unlike a book or a magazine, an e-book doesn’t sit on a shelf or in a store before it’s purchased: it exists entirely in an electronic format, so when it’s “pulled from the shelves” it literally disappears outright (and in other cases we’ve seen suddenly become unavailable to people who have already purchased it.)
E-books are highly lucrative format for traditional publishers, but they’re even better for budding writers and indie authors to strike out into the market with few costs. Numerous distributors enable them, e-book reading apps proliferate through tablets and mobile devices, and ostensively e-reading devices (such as the Amazon Kindle) double up across a multitude of media.
In Hogarth’s case, much of the sales of her e-books are a distinct part of her income. In a “normal” trademark case, there would be due process of law instead of the sudden cessation of service by a publisher—Amazon acted without even an order from a court. That Amazon.com didn’t restore the title until there was a gigantic community and celebrity uproar suggests that other writers may not have fared so well against any given trademark bully in this regard.
This sort of behavior favors the already-powerful in the publishing market and not just stifles innovation, but it means that potentially disruptive models could easily be snuffed by these sort of dirty deeds.
Although the e-publishing market is coming to bear and becoming more of a way-of-life with the cloud and mobile devices, it also means that there’s a great deal of legal instability for it to overcome. No entertainment market is going to sustain itself well if it doesn’t also provide for the care-and-feeding for the indie portion of that market and that includes authors such as MCA Hogarth and her Spots the Space Marine.