Home » Big Publishing, Contracts, Legal Stuff » Something Else Penguin/Book Country Should Be Ashamed Of

Something Else Penguin/Book Country Should Be Ashamed Of

21 November 2011

From JW Manus:

I have another blog where I publish my fiction. I do it for fun and because I can and it amuses me. Also just for fun, I publish some works by other writers. One thing I let them know upfront is this: If they would like to submit the works to publishers or magazines or ezines or any other paying market, DO NOT PUBLISH THOSE WORKS ON MY BLOG OR ANY OTHER BLOG OR WEBSITE.

It doesn’t matter that the site makes no money and it’s just goofing around. What matters is that each writer owns her copyright. The monetary value, if any, of that copyright lies in the granting and licensing of publishing rights. There are publishers who do publish reprints under secondary or subsidiary licensing agreements. Usually those reprints come from other publishers. I’m talking about publishers who want only original materials for which they demand exclusive rights, such as First North American print rights or First Worldwide serial rights. (or all of them. See those here) Writers have to be able to guarantee that those rights are available and unencumbered.

. . . .

So after the Penguin announced the self-publishing arm of Book Country, I went to the site and read their FAQs to see what they’re up to. I grew curious as to whether Book Country explains to the writers who are posting material on the site they are encumbering their rights. How by posting the books in part or in whole for public critique they are making the books unpublishable by traditional book publishers. I didn’t find any such warnings on the main pages, in the FAQs or in the discussion forums. I did, however, find it in the General Terms of Use.

Except as set forth herein, you will retain all rights in your Content, including the copyright; posting your Content on the Website does not change your ownership rights. By posting or uploading any Content on the Website: (i) you understand that if your Work is in a genre included on the Book Country Website, and complies with these General Terms of Use, your Work may be made accessible to users of the Website and members will be able to review, comment on it and rate it; (ii) you represent and warrant that you own or control all rights in your Content, that such Content is original and does not, and will not, infringe the copyright, trademark or any other right of any person or entity, and that any “moral rights” in the Content have been waived; and (iii) you grant to us a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable right and license (A) to display the Content on the Website, and (B) with respect to Content other than your Work, to use, display, reproduce, distribute, modify, adapt, publish, translate, create derivative works from, perform, make, sell and export such Content, in whole and in part, on the Website or in any formats and through any media, as we see fit, and you shall have no claims against Book Country for such use or non-use. Although Book Country may maintain copies of your Content, we are not required to do so and we may delete or destroy any such Content at any time.
You will have the right to remove your Content and to terminate your membership at any time, by clicking on the “Deactivate my account” button on your profile page. We will remove your Content and terminate your membership as soon as practicable following receipt of your request. Once we remove your Content it will not be retrievable, even if you reactivate your account. However, the inclusion of some Content on the Website (e.g., comments you may post on the Website) may be perpetual and irrevocable.

I’m not an attorney. I’m not even terribly bright. I’m smart enough to realize that posting your writing on Book Country encumbers your rights. If you are a new writer, you probably see Book Country as a chance to get some critiques. Maybe some pros will offer tips, guidance and encouragement. Maybe as a result you end up with a pretty good book that everyone agrees should be published. Go back and read that Harlequin clause. You’ll find similar wording in almost every publishing contract (including Penguin’s). Your only choice will be, stick the book in a drawer and forget it, or self-publish it.

Link to the rest at JW Manus

Passive Guy hasn’t read the rest of the Book Country Terms of Use, but the part Jaye quoted is very problematic.

Big Publishing, Contracts, Legal Stuff

46 Comments to “Something Else Penguin/Book Country Should Be Ashamed Of”

  1. I checked out several other critique sites, too, PG. There are several who state (including the other publisher-created site, Authonomy) that take “non-exclusive use” in exchange for using their site. This doesn’t mean the site will profit off those licenses or even misuse the works in question. The problem lies in publishing contracts. Every one I’ve signed demands “exclusive” use of the rights they license. I’m no attorney, but aren’t “non-exclusive use worldwide rights” and “exclusive use of worldwide rights” mutually exclusive?

  2. wOw! That is seriously messed up to have those terms buried in their TOS. While it’s not uncommon for websites to have a TOS that basically says the same thing (blogs and online forums for example; including our own) the intent is to protect both the author and the blog/forum/publisher from people leaving comments, etc on their site.

    I didn’t realize that Book Country basically has people publish entire books to their site and then that encumbers their book – just as if it were a blog comment/forum post/etc. That’s idiotic of them; how stupid do they think people are?

    • Book Country boasts of 4000 users. I wouldn’t call them “stupid,” Jonathan. I would call them hopeful, starry-eyed, and ignorant. Agents and writers who deal with publishing contracts on a consistent basis screw up all the time by misreading the clauses, misunderstanding them, not looking far enough into the future to realize what it can mean down the road, or just plain rolling their eyes and signing anyway because it’s too difficult to negotiate. Given that, it’s a little much to expect people who’ve never had to deal with licensing rights or even thought about what the value of those rights are, to fully understand what the TOS actually means.

      What I find especially callous is that the two worst sites, Book Country and Authonomy, come from people who know exactly what they’re doing. They don’t care. It shows me how much contempt they have for their users (Who cares if we encumber their rights? It’s not like they’ll ever get a real publishing contract anyway.)

      • Further, many/most sites that already have such terminology have already explained it as “it’s what we need to transmit the posts all over to our users, and so that people can use the Quote function to make comments about it.” It’s what we’re used to, so it doesn’t stand out except as “blah blah blah boilerplate to let them do the electronic thing.”

      • By “stupid” I meant the publisher in this case – not the starry eyed users. I have a HUGE respect for the creative process and the artists and authors who flex those muscles anyway they can. Book Country looks ambitious, but I just can’t believe they are using (what looks like to me, but I’m am not a lawyer) a basic boiler plate forum/blog style TOS. The people who wrote the TOS are assuming people don’t pay attention to these things, which is not the case.

  3. Yes, but we can trust Penguin, because they are “legitimate,” right?

    • You are absolutely right, Scott. Bringing this up is just plain petty of me. I should be pointing out instead the long, laudable history publishers have of treating authors as valuable partners in producing fine literature and how they always work in the authors’ best interests. Oh wait…

  4. So are you saying that if I put my graphic novel (“Hecock”) on my blog for the public to view, it will also prevent traditional publishers from picking it up? Or is this just applying to Penguin and Book Country? I plan on self-publishing anyway, but it is always good to know what limitations are being set by certain actions. Thanks.

    • Noni, it will prevent any publisher who wants exclusive rights to publish your work from picking it up.

      If you self-publish and sell a million copies, or, if your posts are getting 10k hits a day, a publisher might very well be interested in some kind of deal, even if it’s not exclusive and all inclusive.

      • Really? Then how are so many self-pub’d people getting contracts for publishers to put their (already published) books out?

        I may be missing something here, but my understanding was that first print rights are required if you want to sell a short story to a market, but not a big deal at all for a novel.

  5. I’m curious about the part that says this:

    (iii) you grant to us a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable right and license (A) to display the Content on the Website, and …

    and then the part that says this:

    “You will have the right to remove your Content and to terminate your membership at any time, by clicking on the “Deactivate my account” button on your profile page. We will remove your Content and terminate your membership as soon as practicable following receipt of your request. Once we remove your Content it will not be retrievable, even if you reactivate your account. However, the inclusion of some Content on the Website (e.g., comments you may post on the Website) may be perpetual and irrevocable.”

    Because one clause essentially sounds as if you are licensing some rights to Book Country forever; the next clause gives you a way to “remove” your content, but “some” of it can be displayed “irrevocably” & “perpetually”, without a definition of “some”.

    So you can quit being a member, & you can take your stuff down, & it is a non-exclusive license, but still, Book Country can keep “some” of the content on their website forever, but they’ve not defined “some” (they’ve offered an EXAMPLE of what “some” might be, but they haven’t offered a specific DEFINITION). Is Book Country selling direct to the public via their website as well as uploading to other sellers like Amazon? Because if they are doing direct sales, could the entire book less the table of contents fall under the broad vague term of “some”?

    Do they address whether they will remove content from the etailers they’ve uploaded the work to? Could it stay up as a “Book Country Edition” at Amazon for however long they want to leave it up?

    In either case, if you have terminated your membership with Book Country, based on the fact that you’ve agreed they get a non-exclusive license in perpetuity, could they make money without ever having to pass a portion along to you the writer because you have “terminated your membership” with Book Country?

    I am absolutely NOT a lawyer. But the way these excerpted clauses are phrased, makes me wonder. of course, I also haven’t read the entire agreement. (Probably won’t, either, since I have no interest in using Book Country’s services …)

    • If it’s a normal forum, I bet the trick they’re talking about is nuking an account; there’s a way in most forum software to delete a user and all their posts. However, if any of the material that user posted was quoted by another user, it would take a manual search-by-hand to seek out all references, and even then, it’d probably miss stuff that was quoted with a mangled or lost attribution.

      Honestly, for a forum… those aren’t really inexcusable terms. They are, in fact, probably necessary for the forum to work.

      The issue is that if you post your work on a public forum, then unless a given publisher is understanding about first drafts and whatnot… Yeah, there goes the ability to assign exclusive rights to anyone else. A public forum and exclusive rights just can’t go together, by the nature of the beasties in question.

      Of course, if Book Country is selling/giving away the works that people post for comment, that’s a whole ‘nother kettle of fish entirely.

  6. This sounds like the typical, draconian contracts that you have been warning us about. The difference here is that it’s hidden away in the hopes that authors won’t even realize that they’re giving the farm away by cliking a button.
    How many of us even realize how many ways there are to fall into a contract? I’m also not a lawyer, nor do I play one on TV but I’m pretty sure you simply need offer, acceptance and consideration. It can be on a napkin, it can be verbal, it can even be a button on a website (you are giving them money after all…).

  7. The main point you mention, about decreasing your chances of publication by putting your works at the Book Country site was one I had when I first heard about it. But during a panel about Book Country, it was stated that because you had to sign up to be included to view more than a certain % of the books that the problem would not apply. Only if you belong to Book Country and the author of the book has marked you as someone who can read new chapters of the work, will it be then viewed by anyone. At least this was my understanding. Colleen Lindsay is one of the major spokes people for Book Country. Perhaps you can make her aware of the seeming issue and get info from that side of the fence on this? Just a thought.

  8. First, it appears this isn’t the ebook contract as such, but for posting material on a website. For what purpose, we are not told, perhaps critique, I’m guessing.

    Second, the rights that are given is only for them to display the “content” on the website, based on the last section, as long as you hold an account with them, you cannot demand that they remove any content you’ve posted, either on your own stories or comments you’ve made on other people’s stories.

    Third, it is non-exclusive, which means you can get the work published anywhere else. Just posting on their site isn’t granting them exclusive rights, which would mean you can’t publish it anywhere else.

    Fourth, I noticed that third section says they will have the right to do all those things in reference to everything *other than* your work. I’m not seeing the definitions here, but “work” would most likely be the book/story itself. IOW, you are granting them the permission to “use, display, reproduce, distribute, modify, adapt, publish, translate, create derivative works from, perform, make, sell and export such Content, in whole and in part, on the Website or in any formats and through any media, as we see fit” for your comments and any other content you post, *not* including your “work.” So I would take that to mean it doesn’t apply to your book.

    Fifth, the comment about publishers wanting “first” rights only really applies to short stories and the like. Magazines typically ask for those, but not book publishers. So publishing a novel on a blog or website like this isn’t likely to keep a traditional publisher from seriously looking at it. Indeed, being able to show a decent sales history or hits on the story would be a draw for most traditional publishers because it means less risk for them to publish it. Gives the author greater leverage in negotiations as well.

    That’s why Dean Wesley Smith suggest you self-publish your novel, and then send the publisher a copy of the self-published book instead of a manuscript.

    I didn’t see anything there that would either prevent me from getting my book published at another publisher, or that would give a traditional publisher pause at considering my book because I’d posted it there.

    Indeed, I wouldn’t be surprised to find that publishers were scanning the posted books, hoping to catch a good one to publish before Penguin saw it and hopped on it.

    Unless I’m missing something, I don’t see the problem there.

    • I will guess some of the people who use those critique sites are working on material they would like to submit to traditional publishers. If that’s the case, then there is a problem. Most publishers seeking original fiction don’t want “sloppy seconds.” There’s a big difference between a book with a huge following and one the publisher is going to have to develop from scratch (so to speak). In the latter case, the publisher is going to demand exclusivity.

      My warning is for those who would like to go the traditional route. If the contract has a warranties clause similar to Harlequin, the writer has to guarantee they are licensing rights on an exclusive basis. As I pointed out before, you can’t grant non-exclusive rights to one place and then turn around and warranty they are exclusive in another.

      • From what I’m seeing, a traditional publisher, if they picked up a book posted there, could get an exclusive deal. The problem is they should make it so you can get work removed without having to discontinue the account, but at least that is an option. Just discontinue the account and the work gets take off the site. Then the traditional publisher can have exclusive rights.

        It would be the same thing if I had self-published a title that was picked up by a traditional publisher, I would have to take my version off the market. Exclusive doesn’t equate to “never has been published anywhere before,” but that they are the only one’s publishing it with the signing of that contract.

        As far as “sloppy seconds,” my guess is if the quality of the work is in question has little to do with being put on that site. Putting it there doesn’t mean it is low quality work. No one is going to want to publish that no matter if they put it there or not.

        Still not seeing the connection here.

        • Your approach would be reasonable, R.L., but many publishing contracts include a standard provision under which the author warrants the work has not been previously published. There’s certainly room to argue about whether posting on a public critique site is publishing or not, but it is an issue that should probably be raised with the publisher and mentioned in an exception to the standard warranty.

          • Exactly. Most traditional publishers still want First Print Rights – ie. something that has never publicly seen the light of day until they bring it out.

            I agree that the exception is the self-publisher who hits it really big… but there’s no guarantees either way. :)

          • AFAIK the big question, for the US, is: Is the critique group where you post your work public, or is it closed (login and password required)?

            If it is public: You have published your work. (Also important for various copyright issues, say the date.)

            If it is closed: You did not publish your work. Argument: Giving it to a real world critique group is not publishing either.

            This argument apparently hinges on on the definition of publish.

            • @Chasm – perhaps this is where things begin to break down. A “virtual critique group” could be an arbitrary size – how many people would have to be a member before it is no longer considered private? 10? 50? 500? 4000? Facebook? (i.e. non-facebook members don’t have access to FB-only content). This may be simply semantics, but the distinction is important.

            • @jonathan – There sites with more than 10k members, such large sites are often quite old. – Large but definitely not Facebook sized.
              Also, several authors actually use closed parts of FB for their own critique groups.

              Which leads to the next problem, changes in contracts.
              One the one hand publishers want -and need- new, publishable material. (The can’t or won’t invest time and money into it, very few publishers still do slush.) Cutting off critique groups further culls the pool but also the quality of the available material. So that is not really in the interest of the publishers.

              OTOH they want to protect their investment once they make it as far as possible which results the aforementioned right and license grabs. (Also the burger flipping clause, the draconian non-compete clause, a great term) I think that this aspect is only going to get worse.

              The critique groups them self are quite safe as long as they stay closed and thus do not publish the material. After all the author puts the content up out of his or her own free will.

              If there is a problem it’s in the additional right and license grabs (other than first publication) the contract makes. This is the point where you either have to remove or change the questionable passages from the contract or need the interpretation of your own lawyer.

              As always: This is also very much depending on the local laws. Some of the provisions would be outright void in Germany.

          • I wonder, then, if that is a “standard provision” that isn’t paid much attention. I mean, according to Dean, my only real source on this, and being a long time author I figured he knew what he is talking about, to publish a novel, the traditional publishers don’t care if it has been self-published, put on a website, etc. prior. According to him, first rights are primarily wanted by magazines for short stories and articles.

            I will say I’ve not looked at a bunch of publishing contracts, so I don’t know from experience like he does. But if he is right, and that contract term is in there, I guess it is mostly ignored? Or taken out when the publisher knows it has been “published” before, like on a website? I mean, it you’re signing the contract that means they want it and would likely know if it had been published before. Or maybe it is there if the author is hiding something.

            But what I’ve been told is that book publishers aren’t that concerned about getting first rights, though obviously they would like to have them if possible. But that having a book published previously won’t hurt your chances of getting picked up by a traditional publisher. At least, according to Dean.

            Anyone here been turned down by a traditional publisher because your book had been previously published? Or the opposite, picked up even though it had?

            • R.L. – Typically, the only time anyone looks at a contract once it’s signed is if there is a problem.

              The simple way to deal with potential earlier publication issues is to include something in the contract to the effect that the publisher is aware of previous self-published versions of the work and such versions won’t violate any warranty or contract provision provided they’re discontinued.

              The problem with having “ignored” contract provisions is they’ll cease being ignored if the author and publisher get into a fight over something like rights reverting to the author. Fights almost never arise unless there’s money on the line.

              Additionally, a typical publishing contract runs for the life of the author plus 70 years these days, so the people doing the fighting may have no knowledge of what was involved in the original agreement that wasn’t written down.

            • PG, I believe I get that. I think what I was thinking, if I think at all, is that unless the author has hidden the fact it had been previously published on a website, etc., in most cases the publisher going into the agreement would be aware it was previously published. So in those cases do they leave that in there and ignore it, or modify it?

              Just because the contracts tend to have that phrase in there, doesn’t mean they won’t consider something previously published. It only means that the majority of manuscripts they get and publish tend to be first time rights, and they, by default, want that when they can get it. But if they like a story and want it, just because that contract provision is there doesn’t mean it is going to stop them from buying it, and changing the contract to match.

              Thus, I don’t think the fact that line is a standard in contracts means that previously published is a deal breaker. That they will refuse to look at something self-published either through CreateSpace, Kindle, or a website/blog/forum.

              However, that is all mute since it has been revealed that their site is password protected. Everything I’ve ever heard is as long as it isn’t available to the general public, and is restricted, it hasn’t been published. I think you confirmed that in a previous post.

              And that really addresses the “irrevocable” issue as well. Even if you couldn’t delete the story from their site for the life of that site, because it is behind a password protected site, there is no way it is considered published or encumbered, especially since it is “non-exclusive.”

              So I don’t see the issue here, really. And I’m no fan of the epublishing through their club thing either. It’s just, there’s not much sense in attacking straw men, even though I can understand why some might not have been aware it was a straw man to begin with. Granting someone irrevocable and permanent rights is “scary.”

              What would be interesting is to compare this with other critique sites TOS, to see if they are similar or this is unusual language. I’m betting it is fairly standard, but I’ve not looked. Most of us sign up for these sites without ever reading the TOS. ;)

        • R. L., I apologize for the sloppy seconds remark. That was me being vulgar, not passing judgment on anybody’s writing.

          If you’ve been told publishers are not concerned about getting first rights, you’ve been told wrong.

          Copying straight off a Harlequin book contract:

          Author acknowledges… The Work has never been published… she had done nothing to encumber her title to all or any part of the Work…no part of the Work has never previously been published in any form or is in the public domain…

          As far as contract language goes, that’s pretty clear.

          There ARE publishers who do reprints, and those who will contract for a work that has been self-published. But, and here’s the big but, if they want exclusive first rights, including digital rights, that means it better not be or ever has been posted on your blog, or website or on a critique site. That means at any time. That’s what I want to warn writers about.

          • R.L.- It’s a problem that’s solved by disclosure. Disclose what was done to the publisher and you’re probably fine, particularly if you disclose it in writing and keep a copy.

            You’re correct that sitting behind a password-protected site makes anyone claiming the manuscript was published (as defined in the Copyright Act) have to stretch the definition quite a lot.

            However, there is nothing in any publishing contract I’ve seen that limits the definitions in the contract to the Copyright Act plus the statutory language was written long before anybody thought of the Web and everything that’s on it.

            An attorney for a publisher might put together an argument that releasing the manuscript to, say 5,000 people behind the wall coupled with some people downloading the ms to their Kindles or iPads to read, then sharing it with their own offline critique group might be a foreseeable cyber-era publishing.

            Again, disclosure solves the problem.

  9. No, Book Country for all intents and purposes, counts as just another password-locked crit website, like AW’s crit forum and OWW. Unregistered users are restricted on how much of your work they see, if anything, meaning what the public sees is just a promo/crit sample. Book Country used as a crit site does not take your first rights. Plus, you don’t have to upload your whole book.

    • Again – similar to @Chasm’s point above – when does private become public? How many users? Is a 4000 person critique group really “private”?

      Perhaps instead publishers should start rethinking their requirements and recognize that with the ease of POD, Self publishing, blogging, ePUB, etc etc things are going to eventually change in favor of Author Rights.

      • Password locked is ALWAYS considered private. Just like email, just like printing it on your personal printer or reading it to a in the flesh crit group. Even uploading it to Lulu as a private document and printing yourself off a copy, as long as it is not up for public sale is not considered “encumbering” your publications rights.

        There’s a lot to be upset at publishers for, you don’t need to make things up. Self publishing should be about making the best choice for you and your work, not about rebelling against anyone, or jumping on a bandwagon based on completely wrong or made up information. For godssake, educate yourself about actual facts, not bs manipulations.

  10. Actually, Jaye Manus is misreading our Terms of Use and creating a great deal of unnecessary panic where none is warranted. I’m surprised she didn’t just contact us and ask us directly, as we clearly addressed the Terms of Use for posting on the community back when we first moved into public beta and our contact information is readily available on the site.

    In short: No, your rights are in no way encumbered by Book Country if you choose to post a portion to the community for workshopping services. Period. You also own the copyright to all the fiction you publish to the site. Period.

    The long legal answer: We worked with a large group of agents and editors (and not only Penguin editors) when we put together the Terms of Use. We also confirmed with all of them that they would not consider a writer’s work to have been “published” if the writer were to upload a portion of that work to a community site for the purposes of workshopping and getting critiques.

    The purpose of the community portion of this site, after all, is to workshop unfinished manuscripts.

    As for the Terms of Use, Jaye is combining two clauses and misinterpreting them.

    Part A: “By posting or uploading any Content on the Website: … iii) you grant to us a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable right and license (A) to display the Content on the Website” — This clause applies only to a writer’s fiction, and applies only so long as that fiction is actually posted on the site. Once a writer deletes a project, or that writer terminates his or her account, Book Country deletes all of its copies of the work as well (which is very clearly stated in the Terms of Use).

    Part B: “B) with respect to Content other than your Work, to use, display, reproduce, distribute, modify, adapt, publish, translate, create derivative works from, perform, make, sell and export such Content, in whole and in part, on the Website or in any formats and through any media, as we see fit, and you shall have no claims against Book Country for such use or non-use.” — This clause refers to anything on the site that is *not* your original fiction.

    IE, if you participate in a Discussion, and we want to use a screenshot of that Discussion in an online advertisement for Book Country, we are allowed to do so. If we want to pull out a line in your Bio for the same reason, we have the right to do so. This is fairly standard TOU for online communities, by the way.

    Additionally, if a writer chooses to delete his or her account, that writer’s contributions to the community in the Discussions forum, critiques on another writer’s work or comments on a critique will remain on the site (unless it violates our community guidelines, contains hate speech, etc). Our community guidelines clearly address the reasons for this in plain English; I would encourage you to read them.

    Lastly, writers utilizing the community have always had the option to make their work Private or remove it altogether if they are planning to shop it or if they have found representation with a agent.

    In short, a little bit of research always works better than speculation and assumptions.

    Best,

    Colleen Lindsay
    Book Country community manager

    • Colleen, I’m sorry, but Penguin/Book Country can’t just declare what constitutes publication and the use of rights.

      As Passive Guy (who is a lawyer) said: “… the part Jaye quoted is very problematic.”

      I hope he does read through this more thoroughly and weigh in further.

      • Book Country didn’t “declare” anything.

        Several attorneys actually wrote our community Terms of Use, and they were then vetted by literary agents and editors who helped us ensure that our Terms of Use would be fair to authors whom we knew would eventually be shopping finished novels that may have been workshopped in part on our site; all of them were satisfied that our terms in no way encumber an author’s rights for all of the reasons I have already stipulated.

        Best.

        Colleen

      • To be fair to Book Country, it would be necessary to read the entire Terms of Use to understand obligations, revocability of a license, rights to withdraw, etc.

        I took a quick look at the definition of “Content” on Book Country.

        “Any information, proposals, requests, manuscripts, creative works, pictures, photographs, letters, documents, demos, ideas, suggestions, concepts, methods, systems, designs, plans, techniques or other materials submitted, posted, uploaded, sent or otherwise transmitted to us on or through the Website in any manner, or by email (collectively, the “Content”)”

        Here’s the removal of Content clause:

        “You will have the right to remove your Content and to terminate your membership at any time, by clicking on the “Deactivate my account” button on your profile page. We will remove your Content and terminate your membership as soon as practicable following receipt of your request. Once we remove your Content it will not be retrievable, even if you reactivate your account. However, the inclusion of some Content on the Website (e.g., comments you may post on the Website) may be perpetual and irrevocable.”

        Again, I haven’t read the entire Terms of Use, but the “inclusion of some Content” statement only lists examples of what may be kept on the site permanently without limiting Content that may be retained.

        I would probably have been more comfortable if the Content that might be kept on the site permanently was explicitly described and assurances were given that all other Content would be permanently removed.

  11. Thanks for chiming in, Colleen. Alex from Scriblio popped in on my blog to chew me out for the same thing. You’re saying the same thing he says, that I’m worrying people about losing their copyright. Nope. Never said that.

    I never said posting to a critique site in any way endangers a writer’s ownership of copyright. I’m talking about granting rights and encumbering rights. When I write a short story, I own the copyright. I can publish it (and if the public has access to it, it is published) on my blog. I’ve exercised worldwide digital rights. I can then, license print rights, or serial rights, or comic book rights, movie rights, skywriting rights. The rights are mine to do with as I please, until somebody pays me for a license. Once somebody pays for that license, I cannot exercise that right myself. If I assign the license for digital rights, I cannot then turn around and publish the story on my blog. Even though I still own the copyright. That would be stealing from license-holder.

    Now, say I have a novel I want to sell to a publisher. Unless it’s work for hire, I’m not selling my copyright. That’s mine. When the contract arrives and the contract says I have to warranty the work has never been published and that none of the rights I’m granting are encumbered, do I say, “Well, yeah, but that’s okay since the Penguin editors said that posting on a public site doesn’t constitute publication. And oh yeah, their worldwide use of my work on their site is non-exclusive. That’s okay, right?”

    I have a feeling that with many publishers it is not okay. Writers should know this upfront. It’s disingenuous of you to try to shift the focus to copyright when the real danger lies in potentially affecting a writer’s ability to bring unencumbered rights to the negotiating table.

  12. Your rights are not encumbered by posting to a workshopping site because your work is not published when it is being workshopped, and the version that is online is not the same version that would ultimately be shopped in any case. Any agent or acquiring editor will tell you that. Your argument is invalid.

    • Colleen, I want to make sure I understand you. Are you saying that if I publish a free draft of my book on my web site for the purpose of public critique, that does NOT count as first publication? Because that was the message being told to all of us online writers for the last few years. It’s been drilled into our heads, publishing online=losing first print rights.

      But so now what you’re saying is, if I say “no that was another draft,” and I change a few words here and there, then what I published online doesn’t count. I still get to ask for first print rights, and a publisher cannot legally declare that the work is already online, even if it’s still online, because it’s another draft.

      Is that what you’re claiming here? Because that would contradict what we writers have been told by any “agent or acquiring editor” for a few years. In fact, I can’t recall anyone but you saying this. So when exactly did this new definition of published become the new rules? And can you provide links to other agents and editors also saying the same thing?

      • Zoe, the key word is password locked. Book Country is Password locked. So is OWW, so is Toasted Cheese, so is AW, so are a lot of crit forums. If you post your book in an ordinary blog post, you’re publishing it. If you put it behind a password you’re not publishing it, even when you give out the password. Mary Robinette Kowal commonly posts chapters of her works for crits on her own blog behind a password and she’s sold two of them now, with no issue on rights.

        Password locked forums and blog entries are considered the same as emails. Not everyone can access them. Ditto with magazines that take online/form submissions. By the logic you all are using here emailing a copy of your work to yourself is publishing it.

        • They don’t need to keep the material forever. Neither Inkpop nor Authonomy hold onto material if the writer leaves the site and wishes to pull their material. This clause for a perpetual rights is not just unneeded. It comes across to people as a grab for rights they don’t need. And Colleen’s attitude is, “I don’t really need to detail why it’s okay for us to need this when other similar operations don’t.” Okay, maybe she doesn’t, but for sure, I won’t bother using the site, or her services. So I guess she wins that case for herself.

          And you’re saying that she’s right, and if I put up a password on my web site, publish a draft for free, but say it’s only for critique, it’s not really published and available to the public. BOTH SITES are open to the public. But what you’re saying is putting up a password barrier means it’s not really, really published. And if that’s the case, a whole bunch of WebLit folks who password protect their content now have the right to ask for first print rights if they submit the fully revised book to an agent or publisher. Which would contradict everything they’ve heard from agents and editors. All of them…except for Colleen, who “doesn’t need to explain herself.” Fine, she doesn’t. But I still won’t use Penguin’s site or trust the word of a dismissive agent using the logic “we got lawyers to agree to this.” Yes, and Bush got lawyers to agree with torture. It’s got nothing to do with our concerns about why they need irrevocable perpetual rights.

    • “Your rights are not encumbered by posting to a workshopping site because your work is not published when it is being workshopped, and the version that is online is not the same version that would ultimately be shopped in any case.”

      This is very interesting and I would like to know is this Colleen Lindsay’s personal opinion or is this Penguin’s policy, because if it is the latter, this is quite something, isn’t t?

    • Colleen – One of your reasons that posting a manuscript on the Book Country website is not a publication may be valid. The other is entirely bogus.

      Under the Copyright Law, “‘Publication’ is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” (17 USC 101)

      A password-protected site with some sort of limitation on membership probably avoids publishing the manuscript under the distribution of copies to a group of persons for further distribution or public display prong of the definition.

      Your second reason, “the version that is online is not the same version that would ultimately be shopped in any case,” is entirely incorrect.

      Under your reasoning, an author could license the fifth draft or version of a book exclusively to a publisher and self-publish the first version of the book or license the first version of the book to another publisher.

      Alexander Gigante is the General Counsel of Penguin USA. Ask him how he would respond to an author who signed a publishing contract with Penguin while self-pubbing the first draft of the manuscript on Amazon.

  13. [...] The Passive Voice blog picked up the post about the legal concerns. Lo and behold, the community manager from Book Country popped in to argue the issue in the comments. [...]

  14. Bottom line, there ARE legal implications to posting one’s work on line. What they are exactly gets into murky areas that lawyers and judges are going to have to sort out. That Book Country’s TOS includes language to protect themselves from other publishers tells me they are fully aware that there are legal implications.

    Writers should be aware of it, too. They need to weigh the risks against the benefits in order to protect themselves from nasty surprises further down the road.

  15. I left a long reply over on your site, Jaye. I think your concern about legal issues is correct, despite Colleen Lindsay’s assurances that all is well, and I outlined them over there. Of course I’m not a lawyer, but I’ve read my fair share of contracts, including some real stinkers, and I think they may have glossed over a thing or three.

  16. [...] Something Else Penguin/Book Country Should Be Ashamed Of is at the blog-stead of David P. Vanagriff, the artist formerly known as Passive Guy. Here, we find JW Manus holding forth with a boisterous comments section—into which dropped Colleen Lindsay, Book Country Community Manager, to clarify points of the Terms of Use. #bbpBox_138626336611774465 a { text-decoration:none; color:#0099B9; }#bbpBox_138626336611774465 a:hover { text-decoration:underline; }@DonLinn especially since Book Country makes it very clear what its strengths and weaknesses are compared to other services!November 21, 2011 9:34 am via Seesmic twhirlReplyRetweetFavorite@sarahwSarah Weinman [...]

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