Blurb acquires HP’s MagCloud, aims to dominate long-tail publishing
From CNN Money:
Blurb, a book-printing service, has started making noises again after a few quiet years. The San Francisco-based startup has 115 employees and $21.6 million in venture capital funding. It’ll have close to $100 million in revenue next year, and it’s been profitable for some time.
And yet, until very recently, Blurb has held off on expanding into a very obvious adjacent category: e-books. With Amazon’s push into self-publishing, it follows that the startup might want to help its self-publishers sell digital copies of the books it is printing.
The reason Blurb has held off, according to CEO Eileen Gittins, is to avoid being too early. The iPad only opened its API for book publishing two years ago. The Kindle Fire’s infrastructure is fairly new, too.
Now, two years in, it’s finally time. Last month, Blurb announced Bookwright, a product that allows authors to lay out their work for free. Previously, the company had been focused on printing image-driven books for designers and photographers, partly because Gittins’ background is in photography.
Link to the rest at CNN Money and thanks to Meryl for the tip.
Meryl also sent a paragraph from Blurb’s TOS (Terms of Service) which she (correctly, in PG’s perpetually humble opinion) identified as problematic:
1.6 License. In addition to the licenses granted in the Terms and Conditions, You grant Blurb a non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Books, and to sublicense the foregoing rights to Distributor Channels, for the sole purposes of copying, printing, distributing, and making Your Books available via the Bookstore and the Distributor Channels pursuant to this Agreement. The foregoing license is limited for the purpose of making Your Book available through the Bookstore or Distributor Channels at your request and does not provide Blurb or any Distributor Channel the right to materially modify Your Book’s content in a manner inconsistent with your request that the book be printed and distributed through the Bookstore and the Distributor Channels.
PG says that any licensing provision that is one immensely long sentence raises suspicions in his ever-suspicious mind that counsel is trying to put readers to sleep so they don’t pay attention to the sentence.
He will suggest, however, that the presence of words like “worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner” should raise concerns in any author’s mind.
PG hasn’t read the rest of this document and it is possible it includes other provisions that ameliorate the rights grab in this paragraph. However, PG doesn’t believe this is good drafting practice either. PG has tried a number of cases involving complex contracts and has seen judges completely screw up interpretation of complex contract provisions.
This is a Silicon Valley-style TOS and PG suggests that such documents, as a group, tend to go way over any reasonable line. Since it’s a click-to-accept contract and people roaming the internet see a zillion “Click Here” boxes and click without thinking, counsel drafting various TOS keep adding on more and more stuff because no one ever pushes back.
In a quick check of Blurb’s website, PG found not one, but multiple lengthy TOS documents – Terms & Conditions, Software End User Agreement, Licensed Application End User Agreement, Book Distribution Agreement and several others.
The combined length of Blurb’s various TOS documents is far, far longer than the longest New York publishing agreement PG has ever reviewed. (And PG is not holding New York publishing agreements up as any sort of paradigm of clarity.)
While PG doesn’t do litigation any more, he would love to put a great many of these bloated Terms of Service focused on non-lawyers in front of a judge and attack them on various grounds, including unconscionability and impenetrability by persons of normal backgrounds and intelligence.
One of the things PG would do is call the CEO of the company to the witness stand and ask him/her to explain the meaning of various parts of the TOS. That would be a lovely show.
One of the most basic principles of contract law is that a contract constitutes a meeting of the minds between two parties. If a TOS is so complex and lengthy that a non-lawyer mind cannot understand it, how can two minds meet?
, Amazon will pay Passive Guy a small affiliate commission on any of your purchases. 
“exploit in any manner, any and all of Your Books” seems to be a bit of rights grab.
All your books belong us.
“One of the things PG would do is call the CEO of the company to the witness stand…”
I was recently excused for jury duty. I was relieved, but now you’ve given me a trial to dream about. What I’d pay to see that!
Hmmmm…I wonder if Blurb’s CEO will file a DMCA notice on PG for pointing out this egregious TOS section, a la Autharium.
There’s some schooling going on here.
It gets worse. Even after you terminate the agreement, the clause above lives on.
Thanks for the Heads UP !
When does a clause like this become unenforceable in a court of law? I know in terms of restrictive covenants (in dentistry) that if they are unreasonable they become basically unenforceable…for example, if you work for a dentist in Chicago and he makes you sign a restrictive covenant for 10 miles when 10 blocks might be reasonable, and you open 3 miles from his office, it is likely unenforceable because it is restraint of trade. I was thinking that such an unreasonable rights grab might be practically meaningless?
Not many of these have been tested in court and the result will likely vary from state to state.
There’s a general sense that a click-to-accept TOS carries a higher burden of reasonability than a paper contract that you sign, but this is a new area of the law and rules are still developing. A lot of companies will pass on trying to enforce some of the more extreme parts of their TOS in court, preferring to use them to intimidate people into compromise.
Generally, all contracts that are unconscionable are unenforceable, but the standards for unconscionability are not well-established. They tend to run toward “I’ll know it when I see it.”
Thank you! I’d guess a lot of authors wouldn’t have the means or inclination (or both) to put forth the effort to fight it out in court as well…
Can we safely assume that compelling participation in the human centipad would be unenforceable?
You know, I forgot to add my last word: Keeping your rights in perpetuity? Now that’s long-tail publishing.
Why I read this blog.
And Writer Beware.
I like to think of myself as of normal intelligence (or higher!) and I do have a law degree… but I would imagine that most folks would, like me, run away from any sentence that includes both the adjectives “irrevocable” and “perpetual” when describing a grant of rights.
There might be a confusion of contracts ['confusion' as in 'large number']. This for example, seems to have an entirely different intent –
8.4.1 License to print your Books. You hereby grant to Blurb a non-exclusive, worldwide, fully-paid and royalty-free license (a “License”) to reproduce and distribute your Book Content for the purpose of printing the Books that you order or that you authorize for purchase by others, and for any other related purpose that you authorize (including the use by other Members as a contribution to their Books). You agree that Blurb reserves the right to maintain the electronic files for any Book(s) to fulfill any further orders which may be placed for such Book(s) and to maintain an archival copy of the printed Book.
OK, it’s worldwide, etc – but – it is for printing the book as authorized by the client? i.e., this may not be as much of a grab as first thought?
Except that you are referencing the Terms and Conditions and the bit above specifically says it is in addition to the rights granted in the Terms and Conditions. The thing that disturbs me is that the phrase “foregoing license is limited for the purpose” sounds like it is limiting the rights grab to a specific purpose, but in strictly grammatical terms it says that the only limit on the rights grab is in relation to that purpose. That’s my linguistic interpretation, not a legal one, but I did run the sentence through Stanford NLP parser to check my assumptions.
My comment here is “To the best of my knowledge.” I am a MagCloud customer, not a lawyer. I read the agreement in its entirety–including the documents included by reference–before agreeing and before panicking over the change.
If this article is about Blurb acquiring MagCloud and how that will impact MagCloud users, then it should be made clear that paragraph 1.6 as quoted in this article is NOT part of the May 5, 2014 TOS agreement that MagCloud users are asked to agree to in order to continue using the MagCloud site and services.
Paragraph 1.6 quoted here is part of the “Blurb Book Distribution Agreement” which to the best of my knowledge is NOT incorporated into the MagCloud agreement by reference. So as far as I can tell, it does not apply to MagCloud users. (Please correct me if I am wrong.) A similar paragraph 8.4.1 as quoted by John Hindmarsh above is included in the agreement. Unless I’m missing something, this one does not raise any red flags for me.
Thank you for opening up the discussion.
Susan, when companies are acquired by others, their TOS change. I would keep an eye on things as they proceed.
Hi Meryl. Thank you for your reply. TOS for MagCoud users have already been updated to Blurb’s TOS as of May 5th. Paragraph 8.4.1 is from the new TOS and it appears identical to Blurb’s TOS. Paragraph 1.6 as quoted in this article is not from Blurb’s TOS as this article states. It is from their “Book Distribution Agreement” which to the best of my knowledge MagCloud users were not required to agree to and it is not mentioned as an agreement by reference within the TOCs.
Like I said, I’m not a lawyer so I could be wrong, but I can’t find anything that would make this big, scary paragraph apply to MagCloud users. I will keep my eyes open though! Thanks again.
I’m not a lawyer, but PG is. There’s a direct contradiction between that and the terms of the distribution agreement. Perhaps PG could tell us what that means in terms of which one overrides the other.
Again, I am not seeing the distribution agreement mentioned as an “agreement by reference” within the TOCs. So I’m not sure how it could be considered binding. I’m guessing it is a separate agreement for separate services.
I think I found the answer. It does not appear to be a direct contradiction to the TOCs because it is for a separate contracted service.
“The following Blurb Book Distribution Agreement (the “Agreement”) sets forth the legally binding terms pursuant to which You authorize us to sell and distribute the Books that You select (”Your Books”) (a) on the Blurb Website, including in the Bookstore and (b) at Your option, through one or more of the Distributor Channels that You select (collectively, the “Program”).”
Perhaps because MagCloud users are not at this point selling on the Blurb website and Bookstore is why we have not been asked to agree to the Book Distribution Agreement. If Blurb absorbs the MagCloud site then this could change. Time will tell.
It seems to me that there’s no way Blurb isn’t going to take over MagCloud without also taking over the sale of your books. Be very, very attentive to any changes in terms and/or emails you receive about the merger. I hope you’re right, and that your terms stay the same. But if not… run very quickly away.
Although PG has not weighed in here, I thank everyone else for your input. It is extremely important to be diligent about reading TOCs and especially all the documents that are incorporated by reference.
As for this question, I tried to go straight to the source yesterday by contacting Blurb customer support. While they were prompt in their reply, they did not answer the major question about the “Book Distribution Agreement” as it relates to the TOCs and if I had unknowingly agreed to it by agreeing to the TOCs. I have not yet received a reply to my second attempt to get the question answered.
This morning, I have asked my question on their Facebook page. I also included questions regarding pricing and quality. Others have been successful in receiving very prompt replies to their concerns. So we’ll see! I will post their response here if and when they address my concerns. If you are interested, here is the link:
https://www.facebook.com/BlurbBooks/timeline?filter=2
Thanks again.
I just received a direct reply via email from a Senior VP at Blurb. I will not post the exact content of the email here as I am a firm believer in copyright protection for the written word even in email correspondence. However, I will say that as a MagCloud publisher, I am satisfied with his answers to my questions as they pertain to pricing, formatting and product quality. We will continue business as usual for the next three months and wait to see how things work out when the new changes are in place.
In regards to the big, scary paragraph posted above, I am also satisfied with his reply. I do not believe Blurb is out to seize control over our products or “exploit” them in the derogatory sense of the word. I have been assured that I may remove any of our publications from their servers at my discretion. Finally, the “Book Distribution Agreement” only applies to books which are distributed through their various channels. At this time, our publications do not exist within those channels.
If you are a MagCloud or Blurb customer and have questions regarding these changes or their Terms of Service, I would suggest you contact the company directly and consult with an attorney if you are uncomfortable.
For the curious, see – http://www.blurb.com/terms
You’re correct, John, but that’s not the only one. See – http://www.blurb.com/asptandcs for example.
I think you’d need a good IP lawyer to sort that out! Layers and layers.
Good rule of thumb is if opposing counsel drafts a convoluted document, they are trying to pull one over on you.
Here’s a question–how many people read the TOS?
If you don’t read it and accept the terms, could the difficulty of the TOS language still be applied in the same manner?
Please don’t take this personally–it’s not directed at you, A.R. BUT: Any writer who does NOT read all of the legal documents on every site where they sell their books is an idiot. If you can’t understand the terms, googling around usually gets you to someone’s blog where they’re discussing them.
I get not reading the TOS when you register to read the New York Times online. But there’s no excuse for not protecting your legal rights. If you don’t like them, don’t put your books for sale on those sites. If you can’t understand them, definitely don’t put your book for sale there.
Er-Hem… I don’t know if you have but I read Amazon’s TOS and while I found them completely impossible to comprehend plus impossible to know the potential import of them regarding myself as a foreign national publishing my books via KDP, I decided I had to take the risk anyhow.
I don’t know if KDP have upgraded their silicone valley gobble-de-gook since I last read it – or if anyone has sought to test the wording in court but it’s an example of a TOS that holds a lot of people hostage to words they cannot understand.
Yes, I read them. They’re an example of the kind of terms that are discussed in various places, including right here at TPV.
But the thing is, you read the terms of service. I’m going to assume you are smart enough to recognize a rights-grab clause. There are no red-flag clauses in the KDP terms like the one quoted above. Amazon is just selling your book, not grabbing rights, and even if you can’t understand everything in the terms, you can come away from them knowing you get to keep your rights. I think this is pretty clear:
This might be helpful to Blurb/MagCloud users then. From the Blurb TOS:
“8.1 Definitions. “Content” includes text, files, design templates, images, photos, video, sounds, works of authorship, and other material. Your “Book Content” includes Content that you include in the Books, submit to Blurb for Books and print services, or that you contribute to the Books of other Members. BLURB HAS NO OWNERSHIP OF ANY OF YOUR BOOK CONTENT.”
For Blurb users
Yes they have “no ownership of any of your book content” but they have a right to USE it forever (as Meryl points out in her blog):
from Blurb TOS
” 3.4 Survival. The provisions of Sections 1, 2.6, 2.7, 2.9, 2.10, 3.3, 3.4, 4, and 5 of this Agreement will survive any termination of this Agreement.”
where Section 1 states:
“1.6 License. In addition to the licenses granted in the Terms and Conditions, You grant Blurb a non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce…”
And she also points out that (from Blurb.com TOS):
Then it says:
“The foregoing license is limited for the purpose of making Your Book available through the Bookstore or Distributor Channels at your request and does not provide Blurb or any Distributor Channel THE RIGHT to materially modify Your Book’s content IN A MANNER INCONSISTENT with your request that the book be printed and distributed through the Bookstore and the Distributor Channels.”
the above is basically from Meryl’s blog.
My summary of all this in plain English:
“your books still ‘belong’ to you but you give control to them completely to us forever.”
Its like this protected marshland in the backwoods of Ontario for sale I came across. The town that wanted to sell it informed me that I would own it. It would be mine but I could not drain it and use it since it was a protected marshland. Basically I could not do anything it. There was a small dry area in the corner (a fraction of 1 acre) of the 40 acres that I would be able to build a small cottage even though all the 40 acres would be “mine”. And of course the misquotes would eat me alive in the summer. I did not go for the deal! oy vey.
Thanks Meryl!
You’re welcome.
Wow. Swampland in Ontario, Jeff? That is a completely new one to me.
Although, that typo above? “The misquotes would eat me alive in the summer”. Hehehe. Great typo for a writer to have, and watch out for those pesky misquotes!
mosquitoes! of course. Although misquotes also eat me alive –from within. lol This is what happens when Jeff does not have his proper dose of caffeine for the day.
Yes there is marshland in Ontario. It’s not a swamp per se like you find in certain areas of Florida. It has less water and much more ‘mushiness’ (higher soil to pure water ratio) to it if I can put it that way, and of course Florida swamps are in hot zones.
But I could not believe the sellers were serious (they were dead serious in fact). I am the enemy you see: the bigshot from the big city Toronto invading their little backwater town and boy they would teach me a thing or two, yes sir!
Anyway when I see TOS like Blurb’s it always reminds me of that little town’s “offer”. They would had me sign a contract that stated all this in ‘legalese’. And because ‘protected areas’ in Canada are taken very seriously (federal level law) it would have been difficult challenging it.
Well, I’d been considering Blurb for a short, sentimental poem with photos about the place I grew up. I wanted a few copies for family members. Hmm… thinking again. Glad I’ve been too busy writing to actually approach Blurb.
“One of the things PG would do is call the CEO of the company to the witness stand and ask him/her to explain the meaning of various parts of the TOS. That would be a lovely show.”
I want the popcorn concession at that oral argument, in exchange for one front row seat.
I tweeted about your post — with a MUCH blunter description (I called it an egregious rights grab) — and they answered my tweet with this:
@CarmenWBuxton We totally understand the concerns around this. We’ve put together an FAQ to help clear things up: http://blur.by/1ssmkzC
I read their FAQ, and it seems to consist of them saying “It’s not as bad as it sounds.”
Yeah, because “it’s not as bad as it sounds” = “well we didn’t mean THAT” … except when it goes to court and they say, “that’s what you signed, sucker.”