Monthly Archives: January 2012

“I hope they don’t hang you, precious, by that sweet neck.”

“You’re not . . .”

“Yes, angel, I’m gonna send you over. The chances are you’ll get off with life. That means if you’re a good girl, you’ll be out in 20 years. I’ll be waiting for you. If they hang you, I’ll always remember you.”

Dashiell Hammett

From BookBuzzr, a company that provides book marketing tools:

KDP Select is an option for KDP publishers from Amazon. Through KDP Select, for an initial period of 90 days your Digital Book is exclusive to Kindle and is included in the Kindle Owners’ Lending Library Program where it will earn a share of a monthly cash fund when readers borrow it. Also, you can promote your Digital Book as free for up to 5 days during these 90 days.

. . . .

If your book is on the KDP Select program, you are perfectly within your rights to market and promote your book through other sources. For example, you can go ahead and tweet about your book on Twitter. And you can talk about your book on your blog. If you use BookBuzzr technologies to market your book, you are not distributing your book through BookBuzzr or selling your books through BookBuzzr. Therefore, you are not violating Amazon terms of service. So go ahead and continue with your BookBuzzr subscription. It may even help complement your efforts on the KDP Select program.

. . . .

The KDP Select FAQ Page states: “When you choose KDP Select for a book, you’re committing to make the digital format of that book available exclusively through KDP. During the period of exclusivity, you cannot distribute your book digitally anywhere else, including on your website, blogs, etc. However, you can continue to distribute your book in physical format, or in any format other than digital. See the KDP Select Terms and Conditions for more information.”

. . . .

However, when you provide your book excerpt it DOES NOT constitute a violation of KDP Select terms of service. Book excerpts have always been a valid form of book marketing for authors. The BookBuzzr Flipper Widget and Book Sampler is best-suited for book excerpts. If you are part of the KDP Select program, please do not upload your ENTIRE book. But feel free to put up your excerpt.

. . . .

Putting up an excerpt of your book is different from putting up your whole book. Amazon does not restrict you from promoting your own book via a book excerpt. They don’t want you to put up your entire book on places other than Amazon as it will affect their sales. However, putting up a book excerpt on the BookBuzzr widget will actually help Amazon by driving traffic to Amazon.  Having your excerpt up on BookBuzzr does not cause loss of revenues to Amazon since the final sale or distribution of the book happens on the Amazon – Kindle platform itself. If yousell your book on your site then you are in violation of KDP Select terms of service.

Link to the rest at BookBuzzr

Passive Guy hasn’t analyzed the issue BookBuzzr discusses, but this story illustrates some of the challenges small companies face working in the shadow of Amazon and Apple.

Indie authors aren’t the only ones who need to be watchful and agile.

From Paid Content:

The social network Twitter is facing a storm of criticism from users, after revealing that it has implemented a system that would let it withhold particular tweets from specific countries.

The company has insisted that it will not use the gagging system in a blanket fashion, but would apply it on a case-by-case basis, as already happens when governments or organisations complain about individual tweets.

The new system, which can filter tweets on a country-by-country basis and has already been incorporated into the site’s output, will not change Twitter’s approach to freedom of expression, sources there indicated.

. . . .

But some users have been critical of the move, which has already seen an update to Twitter’s API, the means through which programs access and show tweets.

Every tweet includes fields such as the user’s name, time of the tweet and the tweet’s content. But now it will also include a “withheld_in_countries” field.

Terence Eden, a London-based mobile developer, complained on Twitter: “I don’t want to develop on an API which contains a ‘withheld_in_countries’ field. What’s next, a ‘for_your_own_good’ field?” He added: “I helped develop a Twitter client that Chinese pro-democracy activists used. Guess that’s dead now. Thanks, Twitter.”

Eden, who describes the move as censorship, said it would be difficult to work around because Twitter will identify which country a user is in by their internet address. “You can spot the censorship, but it’s hard to route around it,” he said.

Link to the rest at Paid Content

From romance author Roni Loren:

Week One: Book Release Euphoria

You’re so damn happy, you can’t feel your face anymore because you’re smiling so much. Your book is out there! People are talking about it, blogging about it, authors you’re a fangirl of are tweeting congrats to you. You walk into your local bookstore and there it is–your book on the freaking shelf! You vacillate widely between wanting to cry and wanting to break out into song in public. You’re so busy, you’re lucky if you remember to eat and sleep.

. . . .

Week Three: Burning Out

This is when the flip side of weeks one and two rears its ugly head. In all your obsession, you’ve realized not everyone thinks you’re made of awesome and sugar cookies. It’s inevitable. We anticipate that. Hell, we’re writers. We’re built on rejection. How much did we see to get to this point? But anticipating it and seeing it on the interwebs are two different things. Rejection up to this point hasn’t felt personal. It’s been more like structured feedback or the general “no thanks” from the agent. But online, people have no qualms about making it personal, saying mean things, or even making assumptions about what kind of person you are. Maybe one day that stuff just rolls off, but at least for me, I found it affecting my mood and distracting me from whatever I was supposed to be working on. (I’ll blog about this in more depth another day.)

Link to the rest at Fiction Groupie and thanks to Elizabeth for the tip.

From the New York Times:

In the brutal world of online commerce, where a competing product is just a click away, retailers need all the juice they can get to close a sale.

Some exalt themselves by anonymously posting their own laudatory reviews. Now there is an even simpler approach: offering a refund to customers in exchange for a write-up.

By the time VIP Deals ended its rebate on Amazon.com late last month, its leather case for the Kindle Fire was receiving the sort of acclaim once reserved for the likes of Kim Jong-il. Hundreds of reviewers proclaimed the case a marvel, a delight, exactly what they needed to achieve bliss. And definitely worth five stars.

As the collective wisdom of the crowd displaces traditional advertising, the roaring engines of e-commerce are being stoked by favorable reviews. The VIP deal reflects the importance merchants place on these evaluations — and the lengths to which they go to game the system.

Fake reviews are drawing the attention of regulators. They have cracked down on a few firms for deceitful hyping and suspect these are far from isolated instances. “Advertising disguised as editorial is an old problem, but it’s now presenting itself in different ways,” said Mary K. Engle, the Federal Trade Commission’s associate director for advertising practices. “We’re very concerned.”

. . . .

By last week, 310 out of 335 reviews of VIP Deals’ Vipertek brand premium slim black leather case folio cover were five stars and nearly all the rest were four stars. The acclaim seemed authentic, barring the occasional indiscretion. “I would have done 4 stars instead of 5 without the deal,” one man bluntly wrote.

VIP Deals, which specializes in leather tablet cases and stun guns, denied it was quietly offering the deals. “You are totally off base,” a representative named Monica wrote in an e-mail.

But three customers said in interviews that the offer was straightforward. Searching for a protective case for their new Kindle Fire, they came upon the VIP page selling a cover for under $10 plus shipping (the official list price was $59.99). When the package arrived it included a letter extending an invitation “to write a product review for the Amazon community.”

“In return for writing the review, we will refund your order so you will have received the product for free,” it said.

Anne Marie Logan, a Georgia pharmacist, was suspicious. “I was like, ‘Is this for real?’ ” she said. “But they credited my account. You think it’s unethical?”

. . . .

Even a few grouches could not spoil the party. “This is an egregious violation of the ratings and review system used by Amazon,” a customer named Robert S. Pollock wrote in a review he titled “scam.”

He was promptly chastised by another customer. This fellow, himself a seller on Amazon, argued that he had both given and gotten free items in exchange for reviews. “It is not a scam but an incentive,” he wrote.

. . . .

Amazon, sent a copy of the VIP letter by The New York Times, said its guidelines prohibited compensation for customer reviews. A few days later, it deleted all the reviews for the case, which itself was listed as unavailable. Then it took down the product page itself.

Link to the rest at the New York Times

From the Los Angeles Times:

When asked if the emergence of new, lower-cost tablets was affecting the success of the iPad this week, Apple Inc. Chief Executive Tim Cook said he wasn’t seeing it.

“I looked at the data, particularly in the U.S., on a weekly basis after Amazon launched the Kindle Fire, and I wouldn’t — in my view there wasn’t an obvious effect on the numbers plus or minus,” Cook said.

But one clear minus was Apple’s declining share of the growing tablet market. Despite gang-buster sales last quarter, the iPad has lost more than 10 percentage points of market share to rival Android tablets since the fourth quarter of 2010, according to a new report from research firm Strategy Analytics.

The iPad dropped to 57.6% of the tablets sold during the most recent fourth quarter, from 68.2% a year earlier, while Android rose to 39.1% from 29.0% a year ago, the report said. While Apple shipped 15.4 million iPads during the quarter, Android makers shipped 10.5 million tablets, more than tripling the 3.1 million they shipped a year earlier.

Link to the rest at the Los Angeles Times

Passive Guy decided it was time for a survey.

After you finish, you should see the results.

Well, Wilmer, I’m sorry to lose you. I couldn’t be fonder of you if you were my own son. But, well, if you lose a son, its possible to get another. There’s only one Maltese Falcon.

Dashiell Hammett

From Paid Content:

Apple’s new big play for the education textbook market is a big letdown, according to a developer for one of the leading interactive kids’ education books publishers.

“iBooks 2 looks very interesting from a commercial point of view. From a creative point of view, it’s very, very, very disappointing,” said Alex Morrison, managing director of Cogapp, developer for Dorling Kindersley’s Eyewitness travel guides and other iOS apps.

Why? “Because it’s just eye candy. The capacity for the user to interact is so limited. The degree of feedback about consumption of our content is so limited.”

. . . .

“It’s a good way of producing a very glossy app,” he told an audience. “But it’s a huge missed opportunity. Maybe it’s a good first step. But I’d be be very worried that Apple thinks they’ve done it now.

“At the moment, there’s no way to automate the process of getting products in there. It looks like Apple has put it out there quickly, probably as a defensive move. At the moment, my lab is looking at ways of getting products in through the back door.”

Link to the rest at Paid Content

From Litigation and Trial:

Apple’s new “free” iBooks Author program, which allows authors to create their own professional layouts while they write books, includes an astonishingly greedy and overbearing clause in its end-user license agreement (“EULA”):

B. Distribution of your Work. As a condition of this License and provided you are in compliance with its terms, your Work may be distributed as follows:

•  (i) if your Work is provided for free (at no charge), you may distribute the Work by any available means;
• (ii) if your Work is provided for a fee (including as part of any subscription-based product or
  service), you may only distribute the Work through Apple and such distribution is subject to the following limitations and conditions: (a) you will be required to enter into a separate written agreement with Apple (or an Apple affiliate or subsidiary) before any commercial distribution of your Work may take place; and (b) Apple may determine for any reason and in its sole discretion not to select your Work for distribution.

Apple will not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of your use of this Apple Software, including without limitation the fact that your Work may not be selected for distribution by Apple.

As Bott explains, “The nightmare scenario under this agreement? You create a great work of staggering literary genius that you think you can sell for 5 or 10 bucks per copy. You craft it carefully in iBooks Author. You submit it to Apple. They reject it. Under this license agreement, you are out of luck. They won’t sell it, and you can’t legally sell it elsewhere. You can give it away, but you can’t sell it.”

. . . .

There are two types of licenses under copyright law, an exclusive license and a nonexclusive license. Here’s how they differ:

In an exclusive license, the copyright holder permits the licensee to use the protected material for a specific use and further promises that the same permission will not be given to others. The licensee violates the copyright by exceeding the scope of this license. …

By contrast, in the case of an implied nonexclusive license, the licensor-creator of the work, by granting an implied nonexclusive license, does not transfer ownership of the copyright to the licensee. The copyright owner simply permits the use of a copyrighted work in a particular manner.

IAE, INC. v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996).

The iBooks Author EULA plainly tries to create an exclusive license: Apple claims, in essence, the copyright holder [that’s the author] permits the licensee [that’s Apple] to use the protected material for a specific use [the iBooks store] and further promises that the same permission will not be given to others [that’s the ‘you may only distribute the Work through Apple’ part].

Here’s the problem: under the Copyright Act, an exclusive license is defined by 17 U.S.C. § 101 as a “transfer of copyright ownership,” and under 17 U.S.C. § 204 such a transfer “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed.”

Of course, Apple doesn’t ask anyone to sign anything before using iBooks Author.

. . . .

Apple seems to have recognized that problem: the EULA demands “you will be required to enter into a separate written agreement with Apple (or an Apple affiliate or subsidiary) before any commercial distribution of your Work may take place.”

. . . .

Which means that, in the end, the iBooks Author EULA leaves both Apple and the author in a strange stand-off: Apple doesn’t actually have the right to tell the author not to take their work somewhere else, but the author can’t do that without breaching the EULA — even though they retain full rights in their copyright.

But Apple has been too clever by half here: if an author does breach the EULA (by not subsequently signing the written agreement after having used the “free” software) and distributes their iBooks-created-work elsewhere, what are Apple’s damages? Because Apple doesn’t have a copyright interest in the book (like an exclusive license), they can’t claim lost royalties as the damage. Instead, they have to claim that an author breached the EULA of a program that users did not have to pay for in money.

Link to the rest at Litigation and Trial and thanks to Tony for the tip.

The author of this blog post is an attorney and makes a good argument for Apple backing itself into a difficult legal corner. There are lots of legal arguments going back and forth in the comments at Litigation and Trial.

The bigger picture is that Apple made a serious unforced management error in going down this road in the first place.

It is the height of stupidity to put something in a EULA that is not reasonable on its face and clearly enforceable. If you get into a fight and a judge sees something unreasonable or overreaching, you never know how far the judge will go in dismantling the contract.

As Passive Guy mentioned earlier, Apple will have written agreements with the big textbook publishers covering their use of the iBooks Author program and the iBookstore. PG is not privy to those contracts, but he bets they are not onerous because Apple needed the textbook publishers lined up before launch to give its program credibility.

This whole mess turns on the provisions that Apple wants to apply to independent authors. The net effect of this is that Apple looks extremely overreaching toward the little guys while it’s in bed with the big guys.