Legal Stuff

Delaware Passes Law Which Makes eBooks and Other Digital Content Inheritable

19 August 2014

From The Digital Reader:

Do you know that clause in the TOS for the Kindle Store and many other digital content stores which says that the content is licensed to you and is nontransferable?

The state of Delaware just negated that clause (in part). Last week Governor Jack Markell signed House Bill (HB) 345, “Fiduciary Access to Digital Assets and Digital Accounts Act”, giving heirs and the executors to estates the same rights over digital content which they would have over physical property.

. . . .

Delaware is the first state to follow the latest suggestion from the Uniform Law Commission, a non-profit group that crafts model legislation and lobbies to enact it across all jurisdictions in the United States. Last month the ULC adopted a new legal standard, the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which laid out what rights heirs should have over digital content belonging to the deceased.

. . . .

The new law in Delaware only affects Delaware residents and will being probated there. It does not affect the tech companies registered in the state, according to one spokesperson. “If a California resident dies and his will is governed by California law, the representative of his estate would not have access to his Twitter account under HB 345,” Kelly Bachman, a spokesperson for the Delaware governor’s office, said by email.

Link to the rest at The Digital Reader and thanks to SFR for the tip.

PG did a quick scan of the Delaware law and is skeptical that it permits ebooks to be inherited.

Instead, it appears to be designed to permit an executor or designated agent access to electronic accounts for things like ID’s/passwords, email, financial services, social media, domain registration, online store accounts, health insurance, etc.

The powers of the executor or agent are specifically limited to the relevant EULA’s which, in the case of ebooks, place limits on ability to transfer ebooks.

As mentioned, these conclusions are based upon a fast skimming of the legislation and PG could be wrong about his conclusions.

As Kris Rusch has mentioned, authors should pay attention to what’s going to happen to their literary properties after they die and make appropriate arrangements to avoid lots of expense and hassle after their death.

PG is not an estate planning lawyer and the laws of inheritance are state-based in the United States so they will vary from state to state.

Trusts are commonly used planning tools. The author’s assets, including copyrights and publishing contracts, are transferred to a trust, which can be created either while the author is alive or upon the death of the author, and the trustee – someone the author designates – manages those assets for the benefit of the beneficiaries of the trust – the author’s surviving spouse, children, etc.

If the author creates a corporation or limited-liability company (LLC) to operate the author’s self-publishing business, transfer of the author’s shares in the corporation to the author’s heirs will transfer all assets in the corporation and the business will continue without interruption upon the author’s death.

There are tax implications for various estate planning tools and, while there is a federal estate tax, many states also have state inheritance taxes, so estate planning also includes tax planning which will vary from state to state.

When to Attack Another Writer

12 August 2014

From NYT bestseller and former writing professor Dave Farland:

I’ve been noticing a lot of bad behavior on the part of new writers—minor squabbles motivating petty deeds. So I’ve been thinking that perhaps I should write a little guide called “How to Play Nice with Your Fellow Authors.” In fact, I was going to write the article this morning, when I heard about perhaps the single most disgusting incident that I’ve seen in thirty years as a writer.

It happened last week to a longtime acquaintance of mine, Rachel Ann Nunes. Now, I have to admit here that I know Rachel. I’ve met her at conventions for years, and my daughter happens to be one of her fans. So I’ve probably known her for a good fifteen years, and I like her.

. . . .

Last week, Rachel discovered that another author had plagiarized her book. It was one that was published fifteen years ago as a clean romance. The other “author,” writing under the pseudonym Sam Taylor Mullins, made some revisions to the published text, adding some erotica, and tried to pass it off as her own. (I’m assuming that it’s a female author, although we don’t know at this point for sure, since she won’t reveal her true name, and her accounts keep changing)

While the plagiarized book hadn’t yet been published, copies of it were sent out to reviewers. When one reviewer recognized what was going on and notified Rachel, Rachel tried unsuccessfully to get a copy of the book to see for herself. She then sent emails to six reviewers. Four of them looked at Rachel’s book and said “Yes, you’ve been plagiarized,” and then declined to review the plagiarized novel.

. . . .

This is the kind of case where it is in the best interest of all writers to see this criminal—and her cohorts, brought to justice. So I’d like to do just that.

. . . .

But I’m hoping that some of you will recognize that what is good for one writer is normally good for all. It is in your enlightened self-interest to help Rachel in this case. This particular plagiarist exhibits many of the behaviors of a sociopath, and she will just as gladly steal from you and ruin your career as she will Rachel’s.

You can help by going to GoFundMe, donating to the cause, and sharing it with others. Even if you can only donate $5, if enough people do that, we can make a difference.

Link to the rest at David Farland

Another Legal Victory Keeps Sherlock Holmes In The Public Domain

5 August 2014

From io9:

Last year, a federal judge ruled that Sherlock Holmes and Dr. Watson are no longer covered by U.S. copyright law. But, the Conan Doyle Estate continued its litigation — and today, another federal judge issued a blistering statement, saying that the estate might also be violating anti-trust laws.

“The Case of the Greedy Estate” is a story in three parts. First, in 2013, editor Leslie Klinger filed a complaint against the Conan Doyle Estate regarding an anthology of new Sherlock Holmes stories. The estate had threatened to block sales of the anthology unless it received a licensing fee for the use of elements of Sir Arthur Conan Doyle’s original stories.

. . . .

Then, in Part II of our saga, 7th Circuit Judge Richard Posner rejected an appeal made by the estate, concluding in June 2014 that, “The spectre of perpetual, or at least nearly perpetual, copyright … looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.”

. . . .

And then came the real zinger: that the Doyle estate could be in violation of U.S. anti-trust laws:

We note finally that the estate was playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger. For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the anti-trust laws. The usual boycott is of a purchaser by his suppliers, induced by a competitor of the purchaser in order to eliminate competition from that purchaser…..This case is different, in its facts but not in economic substance or legal relevance, because the boycotters enlisted by the Doyle estate were buyers from the victim, rather than sellers to it. But functionally they were suppliers—suppliers of essential distribution services to Klinger.

“It’s time the estate, in its own self-interest, changed its business model,” concluded Posner.

Link to the rest at io9 and thanks to Scott for the tip.

Jesse Ventura Successfully Sues ‘American Sniper’ Author for $1.8 Million

31 July 2014

From Time:

Jesse Ventura, the wrestler, politician, and television host won $1.8 million Tuesday in a defamation lawsuit against the estate of Chris Kyle for including an inflammatory anecdote in his book “American Sniper,” prompting publisher HarperCollins to announce it will remove the passage from the book.

A federal jury ruled that Kyle, a former Navy SEAL who was shot dead at a Texas gun range last year, defamed Ventura for including a passage in his bestselling autobiography that described a man saying the Navy SEALs “deserve to lose a few.” In interviews at the time of the book’s release, Kyle identified the man as Ventura.

. . . .

“I was really backed into a corner,” Ventura said, who served in the Navy during the Vietnam War. “I was left with no choice but to continue the litigation to clear my name, because the story is fabricated. It never occurred, and it accuses me of committing treason. Treason against my own. I am part of the UDT (underwater demolition team) SEAL Community. These are my brothers. We’re a fraternity.”

Legal experts had said that Ventura’s case had to meet a high bar and prove both that Kyle intended “actual malice” toward Ventura, and that he knew that he wrote was untrue.

Link to the rest at Time

Sherlock Holmes and the mystery of copyright

21 July 2014

From SCOTUSblog:

Are Sherlock Holmes and Dr. Watson still under a legal cloak (or cape, if you will) of copyright law?  The Supreme Court may have to solve that mystery, to decide a new legal plea filed Tuesday by the estate of Sir Arthur Conan Doyle, the Scottish creator of that fictional detective and his far less colorful companion.

The estate has been attempting to block a California lawyer and Holmes fancier, Leslie S. Klinger, from publishing a new book about the two characters unless he is willing to get a license from the estate and pay a fee.  The U.S. Court of Appeals for the Seventh Circuit rejected the estate’s copyright claim, calling it “quixotic.”

. . . .

At this point, the Doyle estate is only seeking a delay of the Seventh Circuit’s ruling, until it can file a petition for review of the decision itself.  The Seventh Circuit refused a stay on July 9.  But to deal with the application, the Court will have to decide whether the legal claim has any chance of ultimately succeeding and decide who might be hurt if a stay is, or is not, issued..

Doyle has been dead for eighty-four years, but because of extensions of copyright terms, ten of his fifty-six short stories continue to be protected from copying.

. . . .

The Doyle estate, though, is pressing a quite unusual copyright theory.  It contends that, since Doyle continued to develop the characters of Holmes and Watson throughout all of the stories, the characters themselves cannot be copied even for what Doyle wrote about them in the works that are now part of the public domain and thus ordinarily would be fair game for use by others.

. . . .

After the estate said that it would use its connections with Amazon.com and others to see that the new book did not get distributed, and added that it might sue for copyright violation, Klinger sued the estate in federal court to get the copyright issue settled.

In its ruling in mid-June, the Seventh Circuit found that nothing in the planned new volume will touch upon what Doyle wrote about his characters in the final ten stories that remain protected.  With its focus on those characters in the earlier, and no longer protected works, the new volume did not violate any of the estate’s copyrights, the court of appeals decided.

. . . .

That is the ruling that the estate is planning to appeal to the Supreme Court.   Its main argument is that, if other authors may exploit the Holmes and Dr. Watson characters, that “will stifle the estate’s ability to manage the Sherlock Holmes character’s further promotion and development through licensing agreements at a time when Sherlock Holmes movies and television shows are more popular than ever.”

Link to the rest at SCOTUSblog

Amazon’s E-Books Antitrust Clash in Germany on EU Radar

16 July 2014
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From Bloomberg:

Amazon.com Inc.’s e-books clash with a publisher is on the European Union’s radar after EU officials said they’re seeking to understand the dispute, which also spurred a German antitrust complaint by booksellers.

Germany’s association of booksellers said they were told of the EU’s interest by Germany’s Federal Cartel Office.

. . . .

Book retailers already sought a German probe of Amazon’s negotiation practices for buying rights to e-books in a dispute with Amazon over delays for deliveries of Bonnier AB physical books to force it to accept lower prices, according to a complaint filed last month.

The European Commission is “trying to understand the issues involved,” said Antoine Colombani, a spokesman for the commission, in an e-mailed statement.

Link to the rest at Bloomberg

Enhanced editions!

8 July 2014

From author Courtney Milan:

Hi everyone! The enhanced editions of my first five books–Unveiled, Unclaimed, This Wicked Gift, Proof by Seduction, and Trial by Desire, are now available–and they’re only 99 cents each through July 25th.

. . . .

Q. Why are you releasing enhanced editions?

A. Because I can. I know that sounds a little bit ridiculous, but let me put it to you this way–if you had a contract with a publisher for print-only releases, and the contract specifically stated that you reserved digital rights, would you put that book up as a digital edition? Of course you would.

That’s what my contract looks like with regards to enhanced editions. They specifically reserve the right to make enhanced ebooks to me. I had that right, and so I am now exercising it.

Releasing enhanced editions gives me control over pricing, covers, branding, promotion, and back matter. It also makes me more money.

. . . .

Q. Specifically what in your contract allows you to do this? Can I do this, too?

A. There are two parts to my contracts that allow me to do this. The first is the following statement in the Grant of Rights section of my contract:

(d) electronic use of the non-dramatic unenhanced verbatim text of the Work, excluding video use (whether in a now known form or hereafter discovered) … Notwithstanding anything to the contrary in this Agreement, electronic rights shall be limited to the display of the text in the Work and shall not include any moving images, sound or any interactive or multimedia elements.

Incidentally, give my agent, Kristin Nelson, a hand for drafting an extremely clear statement. If she’d just left it as “unenhanced verbatim text” or even limited it to “multimedia elements” we might have had to argue about what “multimedia” and “enhanced” meant. As it is, the line about “sound” gave me a really, really clear out: As long as I included audio, I was outside the rights I had granted to my publisher.

The second is something that is not in my contracts, and that is a noncompete provision of any kind.

I don’t know if you can do this. You’ll have to look at your contract. I’ve mentioned here the two things you’ll need to look at–the grant of rights section and…uh, the rest of the contract. In the grant of rights section, you need to look and see if you are only granting rights to the “unenhanced” text, or if you reserve “multimedia” rights or something along those lines. There are probably a thousand different ways to word the reservation, and so there’s no magic language I can tell you to look for.

There are also a lot of authors out there who don’t have an enhanced reservation at all. I’m pretty sure that Harlequin series boilerplate, for instance, will not allow this.

Whether you can do this will depend entirely on what you and/or your agent negotiated.

Link to the rest at Courtney Milan and thanks to Amy for the tip.

From Google to Amazon: EU goes to war against power of US digital giants

6 July 2014

From The Guardian:

Within the salons of the Elysée Palace, along the corridors of the European parliament and under the glass dome of the Reichstag, Old Europe is preparing for a new war. This is not a battle over religion or politics, over land or natural resources. The raw material that Paris, Brussels and Berlin are mobilising to defend is the digital environment of Europe’s inhabitants; their enemies are the Silicon Valley corporations that seek to dominate it.

Coal, gas and oil powered the industrial revolution, but in the digital era, data is replacing fossil fuels as the most valuable resource on Earth, and the ability to collect and interrogate it has created organisations with a power that can at times seem beyond the control of nation states. Amazon, Apple, Facebook and Google represent, in the words of Germany’s economy minister Sigmar Gabriel, “brutal information capitalism”, and Europe must act now to protect itself.

“Either we defend our freedom and change our policies, or we become digitally hypnotised subjects of a digital rulership,” Gabriel warned in apassionate call to action published by the Frankfurter Allgemeine. “It is the future of democracy in the digital age, and nothing less, that is at stake here, and with it, the freedom, emancipation, participation and self-determination of 500 million people in Europe.”

In France, economy minister Arnaud Montebourg believes Europe risks becoming a “digital colony of the global internet giants”, and ministers have called for Google to contribute to the cost of upgrading the country’s broadband infrastructure. Gabriel says Germany’s cartel office is currently examining whether Google should be regulated as a utility, like a telecoms supplier – the group has 91.2% market share of search in Germany.

. . . .

“In the current context of tight public budgets, it is particularly important that large multinationals pay their fair share of taxes,” Almunia said. His intervention was widely interpreted as a politically motivated act. It almost certainly was.

There are those who believe that Jean-Claude Juncker, the former Luxembourg prime minister who has just been elected as the next president of the European commission – despite vocal opposition from David Cameron – is out to get Google.

Its corporate motto is still “don’t be evil”, but Google seems to have replaced Microsoft – which was embroiled for years with regulators over monopolistic practices – as the bête noire of Brussels.

. . . .

Google has a friendly face, but its creeping power is causing alarm. The company controls two of the world’s biggest search engines: Google itself and its video site YouTube, which ranks alongside Microsoft’s Bing! and China’s Baidu. The company’s own web browser, Chrome, has overtaken Firefox and Microsoft’s Explorer as the most popular browser, its Gmail is the largest email service, and its Android software controls more mobile phones than any other operating system.

Now Google is moving into the home, buying cloud-connected thermostat maker Nest and home security camera operator Dropcam. It wants to drive our smart cars and build humanoid robots, and it is funding a network of satellites to beam internet connections from space.

In an extraordinary metaphor, the boss of German media group Axel Springer has compared Google to the dragon Fáfnir, from the Norse myth that inspired Tolkien to write The Hobbit and Wagner to compose the Ring Cycle. Fáfnir was the son of a dwarf king, who became so jealous of the family’s vast store of gold and gems that he killed his father to take sole possession of the treasure. Greed turned Fáfnir into a dragon, who guarded his hoard with fire and poison.

“Google is sitting on the entire current data trove of humanity like the giant Fáfner in The Ring of the Nibelung,” Axel Springer boss Mathias Döpfner wrote in an open letter to the firm’s chairman, Eric Schmidt, in April.

. . . .

Amazon is under fire for tax avoidance and strong-arming publishers and traders. In Europe, it has been banned from telling companies that sell on its German website that they can’t offer their goods at cheaper prices elsewhere. The online retailer shelters profits by funnelling most of its European revenues through Luxembourg. The European commission is considering whether to investigate as part of a potentially wide-ranging tax probe which began in June.

Link to the rest at The Guardian

Start Media Buys Whiskey Creek Press, Imposes New Contract Terms

28 June 2014

From Writer Beware:

In early June, Debra Womack, owner of Whiskey Creek Press, announced in a letter to authors that the publisher was in the process of being acquired by Start Media (a company that has recently acquired two other small presses, Night Shade Books and Salvo Press).

As part of the acquisition process, Start is asking all current WCP authors to agree to and sign an offer of new terms as follows on page two below. We are offering you the non-refundable sum of $1 and other good and valuable consideration, payable to you if and when the sale of the company to Start is completed (expected to be by the end of June 2014). Upon closing you will also receive a payment from WCP of current royalties and/or advances or any other sums owing to you by WCP for sales up through and including April 30, 2014.

. . . .

WCP’s contract includes this clause:

If the Publisher sells its assets to another publisher who does or plans to market and promote books of the type and genre of the Work, the successor publisher will be bound, as a minimum, to the same terms delineated in this agreement.

In direct contradiction to this, however, the letter of agreement Start Media is asking authors to sign imposes some substantially different terms. WCP’s contract term is 3 years from publication; Start Media’s is life-of-copyright. WCP’s ebook royalties are 35% of the net download price; Start Media’s are 25% of net (“all monies actually received”). There’s also a troubling gap between April 30, when WCP ceases to pay royalties, and July 1, when Start Media’s new royalty rate kicks in. What happens to books sold in May and June?

Understandably, WCP authors are upset and angry. Many are refusing to sign–despite the fact that no explanation has been provided, either by Womack/WCP or Start Media, of what will happen to their rights if they don’t.

Link to the rest at Writer Beware

The moral of this cautionary tail is that authors can’t assume the publisher they sign with (and who gives them all sorts of promises that aren’t written into the contract) will be the same publisher they’ll be dealing with for the entire term of their contract.

Indeed, in a life-of-the-copyright agreement, it is virtually certain the existing publisher will disappear before the contract ends. At a bare minimum, all the people working for the existing publisher will be long gone before the contract is done.

Writer Beware is an excellent site and provides insightful analysis and warnings concerning publishers and their contracts. However, PG disagrees with WB’s defense of life-of-the-copyright contract terms. Ultimately, it’s the worst sort of rights grab and, in PG’s unceasingly humble opinion, is always unreasonable.

Additionally, as they are typically written, out-of-print clauses are seldom a reasonable solution to the problem of ridiculously long publishing contracts.

First, the typical OOP clause is extremely complex and difficult for an author to navigate. Having to pay an attorney to help figure out whether a book is out of print and work through the OOP administrative process is ridiculous.

Second, the typical OOP clause gives the publisher all sorts of ways to avoid reverting the title with no material benefit to the author.

Third the typical OOP clause is set to such a low trigger point – WB mentions 50 copies per year or 25 copies per year – that the author has probably experienced years of absurdly small royalties before the OOP clause can be triggered.

A long time ago (as measured in Internet time), PG suggested an improvement to OOP clauses – A Mimimum Wage for Authors. Basically, it’s tied to royalties paid by the publisher to the author, not the number of copies the publisher sells. The author cares about dollars (or euros, etc.), not how many ebooks were sold at 99 cents each.

In a nutshell, the Minimum Wage for Authors OOP clause says if the author doesn’t receive a certain minimum royalty payment for a book, the book reverts. In a life-of-the-copyright contract, PG recommends that an inflation adjustment provision be applied to the minimum royalty payment as well because $100 will be worth a lot less fifty years from now than it is today.

The best solution is, of course, a publishing contract that ends within a specific number of years which is the way contracts operate in the reality-based business world.

Amazon Faces German Booksellers’ Antitrust Complaint on E-Books

24 June 2014

From Bloomberg:

Amazon.com Inc., the world’s largest online retailer, faces a complaint filed at Germany’s antitrust regulator claiming it’s unfairly wielding its market power against publishers.

The Boersenverein des Deutschen Buchhandels, the country’s association of booksellers, asked the Federal Cartel Office to probe Amazon’s negotiation practices when buying rights for e-books. Since March, Amazon has delayed deliveries of Bonnier Media’s physical books to force it to accept lower prices, the association said in an e-mailed statement today.

“With this extortive action toward publishers, Amazon violates antitrust laws,” said Alexander Skipis, managing director of the association. “The action has not only consequences for the publishing house, but is a threat for all e-book sellers and distributors in Germany.”

Link to the rest at Bloomberg

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