Contracts

Joshua A.T. Fairfield’s ‘Owned’ examines the ‘feudal system’ of digital property rights

18 September 2017

From Talking New Media:

The issue of digital property ownership recently, and surprisingly, came to the forefront during Hurricane Irma. Select Florida Tesla car owners received a notice that there was a software update available for their vehicles. The update, once applied, suddenly allowed gave their vehicles about a 30 mile increase in range. The idea was to help Floridians get out of harm’s way. But what it really did was remind the Tesla owners just who owns the software in their cars. It turns out that the only thing that had separated out two different models of Tesla — one that offered more range between charges, and one that didn’t — was the software in the vehicle, something that Tesla could change at any time.

In a way, this is the issue at the heart of Joshua A.T. Fairfield’s book Owned: Property, Privacy, and the New Digital Serfdom, from Cambridge University Press.

. . . .

“We own and control fewer and fewer of the products that we must use to function in modern society,” Fairfield writes. “Many computing devices (iPads, for instance) run only those programs approved by the device seller. We cannot even tell our devices not to reveal our personal data.”

“This is an untenable position in an information-age society,” Fairfield believes, and so he urges readers to promote changes in the laws governing such things, believing that right now we are living in a digital rights environment closer to feudalism than freedom.

. . . .

“First, internet technologies created an unprecedented ability to copy intellectual property — file sharing services spread pirated music like wildfire and fueled the music industry’s fears for its own future — before they created the ability to track and verify individual copies of electronic information,” Fairfield writes.

Then, the rise of free content created a situation were “software providers needed a revenue model that circumvented internet users’ refusal to pay for content that they could obtain — usually illegally, but with some degree of safety — for nothing. So software providers monetized information about their customers by surreptitiously monitoring everything their users typed, clicked or did, and selling that information to advertisers who could use it to extract more and often costlier deals from their customers.”

Fairfield’s observations are somewhat self-evident, we see examples of them every day, but the author gives the readers the background information, the cause and effect, and then lays out what needs to be done about, best summed up in the line “ordinary property ownership should apply to digital and smart property.”

Link to the rest at Talking New Media

PG suggests there are a lot of click-to-accept terms of use that might not hold up to well-lawyered litigation based on fraud, intentional misrepresentation, various consumer protection statutes and the like. He further suggests that smart lawyers will rein in their corporate clients’ overreach when establishing their legal relationship with their customers/users based on a mouse click instead of a signature at the bottom of several pieces of paper.

In PG’s litigating days, he observed that if, during the course of a trial, the judge decided one party or the other was a bad guy/gal, things didn’t go well for that party in the courtroom or in the judge’s decision.

Of course, a losing party can always appeal the trial court’s adverse decision. However, PG once heard an experienced trial judge say, “I know how to write an opinion that will never be reversed by an appellate court.” Knowing that judge, PG was inclined to believe him.

In PG’s experience, trial judges overwhelmingly want to do the right thing regardless of the legal arguments of the parties. Most good judges ascended to the bench because of a desire to do the right thing and could have earned more money by staying in their former practices. At the end of the trial, they want to walk out of the courthouse feeling like they helped make the world a little fairer with their decision.

In a fight between a giant corporation and the little people, most judges tend to identify with the little people.

De Gruyter Will Digitize the Entirety of its Backlist. All the Way Back to 1749.

5 September 2017
Comments Off on De Gruyter Will Digitize the Entirety of its Backlist. All the Way Back to 1749.

From No Shelf Required:

De Gruyter has taken the decision to digitize the entirety of its backlist all the way back to 1749. The decision to make this significant investment to complete the prestigious archive was taken earlier this year and the digitization process will begin shortly.

Many treasures are among works to be digitized, including Noam Chomsky’s “Syntactic Structures” as well as versions of “Grimm’s Fairy Tales” to name but two. The project is expected to conclude in 2020 with 3,000 additional titles to be available by the end of 2017. Of those titles digitized during the rest of this year, up to one hundred of the most important series will have priority, to allow librarians to complete their holdings.

. . . .

De Gruyter’s desire to secure its backlist for generations to come stems from the publishing house’s long tradition as a family-owned company which not only has a commitment to the past, but also a keen interest in shaping the future.

Link to the rest at No Shelf Required

PG sometimes tells his author clients before they sign typical legacy publishing contracts that those contracts will effectively last forever if the publisher wants them to do so.

Writers, Scam Artists, Agents, And More (Sigh)

29 April 2017

From Kristine Kathryn Rusch:

Just when I thought it was safe to get back into the water…

I’m editing a lot these days. I only edit short fiction projects. Anthologies, anthology series (Fiction River), the occasional nonfiction book, and some magazines. I’m also consulting with the fine folks at WMG Publishing, because they’ll be handling the contracts for the revival of Pulphouse next year. Dean’s vision for Pulphouse includes reprinting some of the older stories, which means we have to deal with estates.

Too often, estates mean agents.

But even some lazy-ass living writers give their agents control of everything. It took me one year—one year—to get my hands on a non-fiction reprint that I wanted for a project of mine. The centerpiece for that project was an editorial written more than 20 years ago by a writer who had forgotten they had even written it. This writer, a friend of mine, doesn’t do email, and mostly stays off-line. (I know, I know.) I didn’t know about their tech phobia when I started into this, and had sent five different emails before I asked another editor friend how to reach this writer.

The editor advised snail mail.

Before I resorted to that, though, I called. The author and I are friends, after all. On the phone, the author told me that their agent handles everything. I do mean everything. The author—one smart cookie otherwise—can’t be bothered to concern themselves with touching anything to do with business. I had no idea this author was an Artiste, but I guess I know that now.

I also know why most anthologists refuse to reprint this author’s work.

I was pretty excited about this non-fiction project when I started it. I missed the publication window because of this agent and this writer. Fortunately, my publisher pushed the deadline back. We’ve pushed it back again, and again, and again. And frankly, I’m not feeling it any more. I have completely soured on the project.

The big bad agent, by the way, negotiated a horseshit deal for the writer that essentially gave me more rights than I would ever need. I offered the usual fee, which the agent did not negotiate up (although he could have). By that point, I was too pissed to give a break to these people. The amount of money—on publication, if there’s a publication—to the agent and the author will be negligible.

. . . .

Who the hell gives over control of everything, I mean everything, to an agent?

Oh, most writers. Never mind.

Still, I expect better. And if a writer is going to give control of the business side of her work to an “expert” then the expert better be damn good at negotiating and taking care of the writer’s interests.

So far, all of the agents I’ve encountered who handle everything are the worst negotiators in the business. They let things slide, they don’t care about being paid, they don’t ask for the right kind of language in a contract, they license the wrong rights or sell those rights outright.

. . . .

On one of the many projects I worked on recently, I contacted a writer to reprint one of their stories. I wrote a standard email letter, requesting permission to reprint, and the writer wrote back that they had no idea if the rights were available. The writer said I should contact the editor who originally published the story and ask.

I was taken aback. I had never had a writer say such a thing before in all of my years of editing. I knew the editor in question, and had worked with him many times. Never once did that editor, in all his various projects, try to control all the rights to a project. It wasn’t in his standard contract, the one he used for his anthology projects. It wasn’t in his special contracts, for other projects. It hadn’t ever happened, not in years of dealing with this man.

Honestly, this is where Writer Me and Editor Me had a conflict. Writer Me decided that Editor Me should get clarification from that writer before going to the writer’s editor. You see, Writer Me figured the editor in question would be confused at best or insulted at worst by the suggestion that he controlled the rights.

I did not want to offend him—as a person, not as an editor I might work with.

So I asked for clarification from the writer on the problem and added, as I do with many writers—bestsellers and nonbestsellers alike—that I would be happy to look at the clauses or contract in question (with the pertinent information like SSN and payment blacked out) to see what rights the author had actually sold. After all, the author clearly had no idea. Frankly, I figured the author didn’t know how to read a contract, and certainly didn’t know copyright law. I’ve seen that dozens of times before.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

Actor recites all 9 hours of Amazon Kindle T&Cs

16 March 2017

From CNet:

Do you read the terms of service for every service you sign up for? Stop lying, you don’t. But you have a very good reason. They’re very long and very boring, and you just want to get stuck into whatever you’re signing up for.

. . . .

To highlight just how ridiculous it is, Choice hired an actor named Laurence to read aloud all 73,198 words of Amazon’s Kindle terms and conditions.

Based on the estimation that 500 words is one A4 page, that’s 146 pages, and it took poor Laurence nine hours to slog through the whole thing.

Link to the rest at CNet and thanks to G.P. for the tip.

.

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Having written, rewritten and read more Terms of Use than he cares to remember, PG says such “Agreements” always begin as shorter documents, then grow over time. They never seem to shrink.

Unless a provision is determined by a court or government agency to be illegal or unenforceable, it stays in the Terms of Service (or Terms of Use or Terms and Conditions) forever. These three titles (abbreviated as ToS, TOU or T’s & C’s when lawyers communicate with one another) tend to be used interchangeably to refer to the same type of document embedded somewhere on a corporate website or printed in tiny, tiny type on a much-folded piece of paper inserted into product packaging.

On occasion, stories arise about someone who inserts a provision at about the 80% point in a corporate TOU that offers to pay whomever reads the provision a reward of $100 with an email address to claim the reward. Months pass, then years, and the reward is never claimed.

While PG would never recommend treating the contractual provisions included in a TOU lightly, as a general proposition, most large organizations with lengthy TOU’s threaten violators with great vigor, but seldom seem to take enforcement actions to trial before a judge or (heaven forefend!) a jury.

In PG’s experience, TOU’s tend to be much, much longer than agreements on similar subjects that are negotiated between two parties who are each represented by counsel.

PG stumbled across an article in The Telegraph which indicates the islands from which the foundations of American law originated may have a more sensible view of TOU’s than the US does. It’s official: you don’t have to read the Ts & Cs

How a PR man became a giant of children’s literature

3 March 2017

From The Christian Science Monitor:

Two decades before The Cat ever donned a hat, Theodor Seuss Geisel was an oil industry ad man who was also the architect of a wacky navy, named for himself – a sort of PokemonGo of the late 1930s.

On March 2nd, fans will celebrate the 113th birthday of Dr. Seuss, as Geisel is now known, but precious few will recall the Seuss Navy, Geisel’s biggest success as an ad man and the tipping point of his life as he moved from illustrator to children’s author.

It was all about drumming up publicity for a client. “Back in 1935, while working in the ad department of the Standard Oil Company, Geisel was tasked with creating a campaign to launch Esso Marine Lube for the New York International Boat Show that was coming up in 1936,” Bruce Wells, curator for the Oil and Gas Historical Society in Washington, D.C., said in an interview, ” Esso (which still exists in Europe today) was part of Standard Oil which today is part of Exxon Mobil.

Geisel and his colleagues created an interactive campaign that engaged adults in boat races, games, contests, and an annual “Seuss Navy Luncheon and Frolic.” All manner of merchandise and prizes were created by Esso, some of which still haunt eBay today.

. . . .

The pivotal point of Geisel’s PR career came with his decision to generate three, 30-page, Seuss Navy story booklets with rhyming text and his crew of characters, says collector and Seuss expert Gregg Philipson of Austin, Texas, in a phone interview. Geisel later said his experience working at Standard Oil “taught me conciseness and how to marry pictures with words.”

. . . .

So how did Seuss move from doing PR for an oil company to becoming an icon in the field of children’s books? “I would like to say I went into children’s-book work because of my great understanding of children,” Seuss quipped in the Dartmouth interview. But actually, he continued, “I went in because it wasn’t excluded by my Standard Oil contract.”

Link to the rest at The Christian Science Monitor

PG says that far too many of today’s employment contracts would have precluded Geisel from writing or publishing anything derived from his work as an employee.

Logan Composer Is Getting Sued Over Allegedly Stolen Lucifer Theme Song

13 February 2017

From i09:

Warner Bros. has a hell of a problem on its hands. A pair of musicians are suing the company and Logan composer Marco E. Beltrami for using the theme song they helped create for the show without giving them money or credit.

 Robert and Aron Marderosian, known collectively as The Mardos and Heavy Young Heathens, filed the suit in California last week. It claims that Beltrami, who did the Academy Award-winning scores for 3:10 to Yuma and The Hurt Locker, reached out to the brothers for help in creating a theme song for the show. According to the lawsuit, Beltrami “was not able to capture the essence of what Warner Bros. and NS Pictures were looking for,” and that Warner Bros. had rejected all of Beltrami’s submissions.

The Mardos agreed to create a theme song for the show in exchange for co-writer credit, as well as retention of all publishing rights if the show went to series. However, according to the lawsuit, Beltrami passed off the composition as his own and didn’t tell Warner Bros. about his agreement with the brothers after they chose the six-second excerpt that was ultimately used in Lucifer.

Link to the rest at i09

Working for free (but working for yourself)

7 February 2017

From Seth Godin:

Freelancers, writers, designers, photographers–there’s always an opportunity to work for free.

There are countless websites and causes and clients that will happily take your work in exchange for exposure.

And in some settings, this makes perfect sense. You might be making a contribution to a cause you care about.

. . . .

But just because you’re working for free doesn’t mean you should give away all your upsides.

Consider the major publishing platforms that are happy to host your work, but you need to sign away your copyright.

. . . .

Now, more than ever, you have the power to say “no” to that.

Because they can’t publish you better than you can publish yourself.

It doesn’t matter if these are their standard clauses. They might be standard for them, but they don’t have to be standard for you and for your career.

Link to the rest at Seth Godin

PG says “This is our standard contract” may be the oldest con known to humankind to persuade someone (including an author) to sign a terrible contract.

The “standard contract”, “standard clause” or “standard language” designation is designed to make the author think that everyone agrees to those terms. Who is an author, particularly a new author, to dare to ask for something different than all the established authors accept?

This is baloney. Publishing contracts are changed all the time.

Publishing contracts of a certain era were formatted so the changes in “standard” language were shown in a different font or otherwise highlighted. PG has seen such contracts that included dozens of changes for authors who were not best-sellers. Many agents have a set of standard changes they always make to the “standard contract” from a particular publisher.

Most publishers no longer use stone tablets for their contracts. Microsoft Word can change a “standard contract” to a fairer contract in an eyeblink.

PG says, “Ask and ye shall receive.” And if you don’t receive, you can walk away and get a better deal from someone else. The Amazon or Draft2Digital or Smashwords, etc., options are always open.

Another negotiating tip – Always have an alternative planned before you begin a business negotiation. Negotiation theorists call this a BATNA – Best Alternative To a Negotiated Agreement. Part of the psychology of the “standard contract” ploy is the assumption that the author is mentally and emotionally committed to having a book published by a particular publisher, working with a famous editor, seeing big stacks of books in Barnes & Noble, etc.

Prior to sending the contract to the author, many publishers encourage an author, particularly a first-time author, to think everything will be sunshine and lollipops. The author has told all of her relatives and friends that Big Time Publishing has accepted her book, imagined what it will be like to fly on a private jet to Paris for a book signing, what she will say during her Nobel Prize acceptance speech, etc., etc., etc.

These sorts of things put immense pressure on an author to not walk away from a bad deal. PG suggests that an author may want to defer any announcement until after a fair contract is negotiated and signed. However, he knows this can be a very difficult thing to do, so perhaps a cautionary element should be added to any pre-contract announcements, “But I’m going to make sure the contract and all the details are right before this is official.”

Major Record Labels Under The Gun In Sales v. Licensing, Carpenters Case

1 February 2017

From Forbes blogs:

The dispute between artists and labels over the income earned from digital downloads continues to rage.

Traditionally, record labels sold physical copies of music mediums, like CDs, and then would pay a royalty to the artist for each record sold. When iTunes came on the scene in 2001, the labels treated the sales of digital downloads the same as sales of physical CDs, and ever since have paid the artist a royalty on sales of those digital downloads. However, labels actually license the master recordings to digital distributors like iTunes and after a while artists began to make the argument that the income earned from digital downloads should be treated as licensing income and not sales income. The reason why artists want downloads to be treated as licensing income is because instead of getting a small percentage for a sales royalty (most commonly ranging from 11-20%, with an average of about 15% of the wholesale purchase price), licensing income is usually split 50-50 between the label and the artist. Therefore, artists stand to make a lot more money in royalties if a digital download is treated as a license rather than a sale.

This issue came to court starting in 2007 with the case FBT Productions v. Aftermath Records, a case involving royalties paid on Eminem recordings at the “sales” rate rather than the “licensing” rate. FBT won the lawsuit, establishing that income from digital downloads should be treated as licensing income rather than sales income, but Universal Music Group (owner of Aftermath Records) argued that this case should not set a precedent for all artist or record deals.

. . . .

The Carpenters. Surviving member Richard Carpenter (fighting on behalf of his sister Karen Carpenter’s estate, as well) audited the band’s label, A&M Records/Universal Music. Artists often audit record label books to make sure that they are getting paid the proper royalties. Richard Carpenter’s audit showed that the label was under-reporting the number of downloads sold, was calculating the royalty on those downloads at a lower base price than they were supposed to, and that the label was paying a royalty on digital downloads at the sales rate instead of the licensing rate. Apparently, attempts to resolve the issue amicably were unsuccessful, and thus Richard Carpenter sued.

The Carpenters’ suit cites the FBT case as a precedent, and if the court follows FBT’s ruling then Carpenter has a good chance of success.

Link to the rest at Forbes blogs

PG has written about the sales vs. licensing royalties issue several times. If you search TPV using the key word, Eminem, you’ll find several posts.

 

When your agent wants to charge you a fee

1 February 2017

From QueryTracker Blog:

There are two kinds of lousy agents. The first is the scammer, the kind who wants to get money from authors without in any way performing the services an actual agent ought to perform. When you know the basics about the business, you’ll recognize those. They ask you for money just to read your manuscript and refer you for “necessary” editing services to their friends, many of whom are actually themselves operating under a different business name.

The second kind of lousy agent is just…slippery. That agent is harder to recognize from the outside. While you know to run from agents who charge reading fees, for example, what do you do about one who brings up “administrative charges” after the contract is signed?

Today a writer sent me a copy of an email his agent had sent him. This agent is a legit agent at a legit agency. It’s just that….well, you’ll see.

The agent sent the writer an email about changes to their literary agency agreement, with the expectation that the writer would sign it and be thrilled. (Note: I’ve removed all references to The agency and rephrased in order to clarify in parts. The content is the same, and I verified on the agency’s website.)

In the current contract, the only charges are for any extraoridinary expenses that may occur (courier services, foreign exchange, etc.), $250.00 per year, and a $500.00 cancellation fee should the author wish to terminate the contract.

Please note: don’t sign a contract with that stipulation. Why should the author be charged a fee to break the contract? There’s no matching fee for the agent if the agent decides to fire the writer, after all. Usually an agented writer is pleased to stay onboard. When the writer wants to leave, often it’s because the writer has issues with the way the agent is representing the manuscript. By charging this ridiculous contract-breaking fee, the agent has stated that s/he would rather have a bitter, angry client than just part ways amicably.

. . . .

Then we get to the fun part, where the agency describes their new contract, introducing an administrative fee structure:

The first year we represent a manuscript we charge five hundred dollars ($500.00), then an additional two hundred fifty dollars $250.00 each year until we place it with a publisher. Upon securing a publishing contract, the agency receives 15% of net revenues.

On their website, they try to sweeten the deal: they explain that this fee helps them partner with writers who are serious and willing to invest in their careers.

. . . .

This agent seriously wants you to fork over five hundred bucks before even starting the job, and that $500 won’t come out of the advance when the book sells. Then, if the agent fails to sell your book in one year, the agent gets rewarded with an additional $250.

Link to the rest at QueryTracker Blog and thanks to Deb for the tip.

Micro-Publishing: An Inside Look at Goosebottom Books

23 January 2017

From Digital Book World:

You’ve probably heard of indie publishers, but have you heard of micro-publishers? Author Shirin Bridges, owner of Goosebottom Books, calls her company a micro-publisher: a professional publishing organization that brings together a flexible workforce to produce a small number of highly targeted books.

Because of the nature of micro-publishers as small, custom organizations, no two are alike. This in-depth look at Goosebottom’s structure and goals can offer insights into the benefits of this new highly flexible option for energetic authors and entrepreneurs looking to reach niche audiences.

. . . .

Goosebottom was created with the goal of producing books for children about females who have found a way to effect change in their communities.

“We run Goosebottom like a co-op,” said Bridges.

The organization does not employ full-time staff members. Instead, trusted professional members come together on an as-needed basis. Bridges noted that she doesn’t pay herself, but the other members of the team receive standard compensation. Authors get advances and royalties, illustrators get either a flat fee or a royalty, and all copy editors and designers get a flat fee.

. . . .

“Micro-publishers can’t compete in the realm of general fiction.” said Bridges. “They have to know their narrow niche.”

Bridges defines the brand as the thinking girls’ series that boys are interested in, too.

The stories produced at Goosebottom Books span various times in history, and the stories come from all over the globe. For example, one series is about real-world princesses, including Hatshesput of Egypt and Sorghaghtani of Mongolia. Another series, called “Dastardly Dames,” includes biographies of iconic women such as Cleopatra and Njinga, “The Warrior Queen.”

. . . .

“There’s recognition out there,” said Bridges. “People see me at conferences and say they recognize the logo.”

. . . .

Goosebottom Books, like publishers of any size, is inundated with queries.

“We get two to three manuscripts a day,” said Bridges. “Though they’d be hard-pressed to know how to find us.”

Link to the rest at Digital Book World

PG knows nothing about Goosebottom Books, its personnel or financial backing.

However, the first thing that popped into his mind when he read the OP was All Romance E-Books.

Goosebottom struck PG (perhaps wrongly) as a hobby, albeit a serious hobby, for most of its participants. There is nothing inherently bad about that type of organization, but is Goosebottom and its books only a hobby for the authors it publishes?

PG quickly scanned the website and couldn’t find anything about the contracts Goosebottom wants authors to sign. He checked out the publisher’s Terms of Use and they were standard boilerplate legalese.

If the same attorneys who wrote the TOU wrote Goosebottom’s publishing contracts, PG would expect the usual (unfortunately) term-of-copyright, all ancillary rights language that most publishers include in their contracts.

This type of language is dangerous enough for authors publishing through well-established traditional publishers. In PG’s astonishingly humble opinion, such provisions definitely should not be in the publishing contracts of small publishers, some of whom will definitely go out of business in either an organized or unorganized fashion before their authors’ copyrights expire.

For small publishers who may read this, what are PG’s alternatives?

  1. The publishing contract lasts for a specified term – three years, five years, seven years, ten years max. At the end of the contract term, the parties can renew the agreement if everybody’s still happy.
  2. The publishing contract is for printed books and ebooks only.
  3. For any other rights associated with the book (games, toys, movies, etc.), the author agrees to negotiate with the publisher if the publisher wants to do something with those rights, but is not required to grant those rights to the publisher.
  4. If any payment of royalties and/or royalty statement is more than 30 days late, the author may immediately terminate the contract on written notice to the publisher and all rights to the author’s books immediately revert to the author.

If an author is writing as a hobby, perhaps he/she may knowingly take the risk of giving his/her stories to a publisher on a wing and a prayer. However, if an author is working towards a career in writing, the author and any publishers with which he/she associates should engage in sound business practices.

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