An author of “supernatural erotic romance” novels lost her bid for a temporary restraining order that would have forced Amazon to list her books for sale, despite a Digital Millennium Copyright Act takedown notice. According to the court, the author could not establish “irreparable harm”.

Erin Flynn, who also writes under the pen names “Joyee Flynn” and “Flynn Erie” is, to put it mildly, a prolific author in the supernatural erotic romance genre (editor’s note – no clue). She releases a new e-novel every second week (editor’s note – I consider it an accomplishment to get this newsletter out on that timetable, and mine isn’t even erotic – supernaturally or otherwise).

She got into a dispute with her publisher, Siren-BookStrand, when Siren wanted to make certain changes to two of her novels – “Gideon” and “Trapped and Boiled” (editor’s note – any of my readers should feel free to submit book reviews). Flynn, no doubt citing artistic integrity, instead chose to self-publish these two masterpieces. And that’s where the trouble began.

According to Siren, the two novels were each sequels to books that Siren had previously published, which meant Siren had the exclusive right to publish them. Siren sent a DMCA take down notice to Amazon, which promptly removed the novels from its site.

The DMCA provides a safe harbor to Web site operators who may have posted material that infringes on another person’s copyright. A party who claims its work has been infringed can send a takedown notice and the site operator can avoid liability by removing the work. But the DMCA also prohibits copyright holders from abusing the law by sending notices if the work is not really infringing.

Flynn filed suit in a Nebraska federal court claiming her novels were not sequels and arguing Siren had no right to demand their take down. As part of her complaint she sought a temporary restraining order requiring Amazon to restore the books to its site.

Parties seeking a TRO have a tough burden. They need to show “irreparable harm.” "Irreparable" means a harm that money can’t remedy. And that’s where Ms. Flynn got tripped up. According to the court, if she turned out to have a case, her damages could be measured in lost sales, i.e. dollars and cents. And Flynn’s frenetic writing pace weighed against her. The court concluded that her readers were so used to her every two week schedule that they likely bought the books before Amazon took them down. This was not exactly a “no harm, no foul” situation, but more precisely a “no irreparable harm, no foul” case.

Flynn will be able to continue with the case and pursue damages. If she can find the time.