PG’s Thoughts

Problems with the TPV site

8 February 2015

PG was having some problems with one of his security plugins on February 6. He went through the process of deactivating the plugin.

After doing so, he checked out the site using his default browser – Chrome – and it worked fine.

It did not occur to him that he might have broken the site for some others. He discovered today that when he used IE or Firefox to load the site, all he saw was two-day-old posts.

He thinks he’s fixed it now. He’s sorry for concerns or inconvenience he caused. He’s been traveling and dealing with very slow to non-existent internet connections.

If you or someone you know isn’t seeing the latest posts – February 8 – send PG a note via the Contact page.

Server Problems

30 January 2015

Due to hosting problems, The Passive Voice was down for an hour last night. A runaway program not associated with TPV ran amok, filled up the hard drive and crashed the server.

This morning, PG was locked out of any administrative functions for the blog due to issues arising from the server crash last night. He is now an expert on all the various methods of resetting an administrator’s password on WordPress.

Fortunately, all the nooks and crannies of TPV are once more available to PG and he will add some additional blog posts shortly.

One of the many reasons for today’s frustrations is that a lot of people have sent good tips this morning.

Suggestions for TPV Posts

28 January 2015

As you can ascertain by looking at the last lines of many of the posts that appear on TPV, PG receives a lot of tips for interesting posts.

This is great because (a) PG can’t find everything interesting and (b) it speeds up the process of keeping the blog fresh.

So keep the tips coming.

On occasion, PG receives a tip from an author about a post the author has written and published on his/her own blog or elsewhere. Sometimes authors are a little uncertain about whether this is kosher.

It is.

On one condition.

That the author doesn’t get upset with PG if he doesn’t use the tip.

Some days, PG receives more tips than he can use and on other days (often on weekends), PG receives few tips. In some cases, a tip that would be included on TPV on Saturday isn’t included on Tuesday because the post queue is already full.

Additionally, TPV isn’t a book blog so book reviews, announcements of new books, etc., are not items that PG includes. PG is married to an author and understands that authors need to publicize their books. However, TPV is not one of the many excellent book blogs. PG doesn’t think visitors come here to see book reviews.

Thank you very much for sending tips (and please keep doing so), but don’t get mad or quit sending them if they don’t all show up in the beigeish-brownish environs of The Passive Voice.

You can send tips through the Contact Page.

American Liar

21 January 2015

From Salon:

Chris Kyle, author of the runaway best-seller American Sniper, was a military hero who killed 160 people during his four tours of duty in Iraq and is now the subject of an Oscar-nominated blockbuster. He was also a fabulist. Before his tragic murder in 2013, Kyle told a number of extremely dubious stories.

. . . .

But it wasn’t these fantastical tales of vigilante justice that got Kyle into legal trouble. It was another, much less exciting story—one that wasn’t just unverifiable, but verifiably false. That tale, conveyed in a mere three pages of American Sniper, has put Kyle’s widow on the hook for $1.845 million in damages. And it may soon make Kyle’s publishers wish they approached the veteran’s claims with great deal of skepticism.

Kyle’s legal difficulties emerged from a subchapter of American Sniper titled “Punching Out Scruff Face.” In it, Kyle describes beating up a former Navy SEAL (“Scruff Face”) after the SEAL claims American soldiers deserved to die in Iraq. Early drafts of the book identified the SEAL as Jesse Ventura, former governor of Minnesota and famed professional wrestler, but Kyle’s publishers removed the name for fear of a lawsuit. Nonetheless, in a radio interview following the book’s release, Kyle admitted that “Scruff Face” was Ventura, and he repeated the claim soon after on The O’Reilly Factor.American Sniper shot to the top of Amazon’s best-seller list, becoming a smash hit for its publisher, HarperCollins, selling more than 1.5 million copies by July of 2014.

There was, however, a problem: The Ventura story wasn’t true, and Ventura meant to prove it. So he took Kyle to trial, suing him—and, after he died, his estate—for defamation and unjust enrichment. In the United States, defamation cases are extremely difficult to win, thanks to the First Amendment. When allegedly defamatory statements pertain to a public figure, the plaintiff mustn’t just prove those statements were false. He has to prove the defendant made those statements with “actual malice”—that is, knowledge that they were false—or with “reckless disregard” for their falsity. Very few defamation plaintiffs can make it over the high bar of actual malice.

Ventura made it. On July 29, 2014, a federal jury returned from six days of deliberations to award Ventura $1.845 million in damages—specifically, $500,000 for defamation and about $1.345 million for unjust enrichment. (In other words, Kyle unjustly profited from defaming Ventura, and so his estate must give Ventura some of that money.)

. . . .

For the Kyle family, then, the legal tribulations surrounding American Sniper are probably wrapping up, and Taya Kyle will likely pay some damages but walk away from the affair with many millions of dollars left to her name. ​(HarperCollins’ libel insurance, in fact, will cover her defamation damages.) But for Kyle’s publisher, HarperCollins, the nightmare is just beginning. Several months after the verdict against the Kyle estate, Ventura brought another lawsuit for unjust enrichment, this time against HarperCollins.

. . . .

During the first trial, Ventura’s attorneys uncovered records of HarperCollins’ negligence in fact-checking Kyle’s book, as well as evidence that HarperCollins specifically touted the Ventura story to drum up publicity. Kyle’s ghostwriters spoke with only one person who claimed to have witnessed the fight, a friend of Kyle’s who told a different version of the story that lacked Ventura’s offensive remarks. No one from HarperCollins contacted Ventura or his representatives to verify the story. And though Kyle claimed Ventura appeared at a SEAL graduation afterward with a black eye—where “everybody was laughing” and asking “Who beat the shit out of him?”—HarperCollins never asked a member of the graduating class whether they saw Ventura’s injury. (A photograph from the event shows a clear image of Ventura—with no black eye.)

It gets worse for HarperCollins. Despite the tenuous source of the Ventura story, HarperCollins quickly saw it as a publicity gold mine. After Kyle identified “Scruff Face” as Ventura in a radio interview on The Opie & Anthony Show, HarperCollins editor Peter Hubbard wrote in an email that the publicity from the story was “priceless.” HarperCollins publicist Sharon Rosenblum described the Ventura kerfuffle as “hot hot hot,” immediately arranging for Kyle to retell the tale on The O’Reilly Factor. Sales of American Sniper—which, up to that point, were fairly modest—spiked dramatically, apparently in conjunction with interest in the Ventura story. After theO’Reilly appearance, Ventura publicly denied Kyle’s accusations. Yet Rosenblum arranged for Kyle to tell the story again on The Opie & Anthony Show, and HarperCollins printed several new editions of the book that still featured the “Scruff Face” section. (It was finally removed after Ventura won his suit.)

Link to the rest at Salon and thanks to Matthew for the tip.

A few points:

  1. Under standard Big Publishing contracts, Kyle would be responsible for paying any and all expenses of HarperCollins in the Ventura suit, including any damages HC pays to Ventura.
  2. If the article is true, it appears that Kyle’s attorney had HC add a provision to the contract that named Kyle as an additional insured under HC’s publisher’s liability insurance policy. This is always a good idea, but something most publishers won’t do without being asked.
  3. Even with the liability insurance policy in place, most such policies include a large deductible – $500,000 – $1,000,000 deductibles are typical. Under a standard Big Publishing contract, Kyle would be responsible for paying the deductible.
  4. Boilerplate in most Big Publishing contracts gives the publisher the right to have an attorney conduct a pre-publication legal review. The author is required to change anything the lawyer finds problematical. PG hasn’t read whether or not such a review was conducted in this case. Given that the book referenced living persons and their behavior, it would be an extraordinarily bad decision for HC not to have conducted such a review. If anyone sees a news account that mentions whether a legal review was conducted or not, please send a link to PG via the Contact Page.
  5. The publishing contract provisions PG mentioned are typically contained in a section called something like Warranties or Warranties and Indemnities. Most authors tend to breeze through such provisions (in part because they’re really boring), but this story demonstrates that every part of a publishing contract has consequences.
  6. In PG’s prodigiously humble opinion, the warranties required of authors in most publishing contracts are among the most unfair provisions in those contracts.

Two Photos

14 January 2015

Casa PG is experiencing winter. Some time ago, PG spent most of winter in Florida.

A couple of contrasting photos seem in order. One was taken yesterday at Casa PG. The other wasn’t.

Up the hill


Sunset with Blue Variation-Unsharp

Holiday Shopping on Amazon

8 December 2014

PG doesn’t like to badger visitors to TPV with constant reminders that he has an Amazon affiliate account.

However, he will make one reminder this holiday season that if you click on the link near the top of the right column (or This Link) to go purchase something on Amazon, PG receives a small commission from Amazon on your purchases.

In Amazon/Hachette deal, ebook agency pricing is a winner

17 November 2014

From GigaOm:

In the deal that Amazon and Hachette Book Group finally reached Thursday after months of bitter negotiations, we don’t really know which side “won,” if one side did. But one survivor — perhaps surprisingly — was agency pricing for ebooks, the practice through which the publisher sets an ebook’s price and the retailer takes a commission.

Hachette said in a letter to authors and agents:

The new agreement delivers considerable benefits. It gives us full responsibility for the consumer prices of our ebooks. This approach, known as the Agency model, protects the value of our authors’ content, while allowing the publisher to change ebook prices dynamically to maximize sales.

That wasn’t a foregone conclusion. In 2010, Amazonwas vehemently opposed to agency pricing, though it ultimately capitulated. Agency pricing was at the heart of the of the Department of Justice’s lawsuit against Apple and book publishers in 2012, in which the DOJ accused Apple and the publishers of colluding to set ebook prices.

The DOJ never actually said that agency pricing was illegal; rather, it alleged that Apple and the publishers illegally conspired to adopt the model at the launch of the iBookstore in 2010.

. . . .

While we obviously don’t know all of the details that Amazon and Hachette agreed on, here are the things that Amazon publicly said about ebook pricing at various times during the negotiations:

  • “A key objective is lower e-book prices. Many e-books are being released at $14.99 and even $19.99. That is unjustifiably high for an e-book.” [Kindle Forums post attributed to “The Amazon Books team,” July 29, 2014]
  • “This discussion is all about e-book pricing. The terms under which we trade will determine how good the prices are that we can offer consumers.” [Amazon exec Russ Grandinetti to the Wall Street Journal, July 1, 2014]
  • At an ebook price of $9.99, “we believe 35% should go to the author, 35% to the publisher and 30% to Amazon. Is 30% reasonable? Yes. In fact, the 30% share of total revenue is what Hachette forced us to take in 2010 when they illegally colluded with their competitors to raise e-book prices. We had no problem with the 30% — we did have a big problem with the price increases.” [Kindle Forums post, July 29, 2014]
  • “While we believe 35% should go to the author and 35% to Hachette, the way this would actually work is that we would send 70% of the total revenue to Hachette, and they would decide how much to share with the author.” [Kindle Forums post, July 29, 2014]

Here is what we know about the deal announced Thursday:

  • “We are pleased with this new agreement as it includes specific financial incentives for Hachette to deliver lower prices.” [Amazon’s David Naggar, press release] (This is the same thing that Amazon said about the deal itreached with Simon & Schuster in October.
  • “Importantly, the percent of revenue on which Hachette authors’ ebook royalties are based will not decrease under this agreement.” [Hachette CEO Michael Pietsch, press release]

. . . .

Hachette said in its letter to authors that the percentage of revenue on which they take a cut won’t change. But since we know that Amazon is giving Hachette financial incentives to keep its ebook prices low, perhaps Hachette will be penalized with a smaller cut of the sale if it prices ebooks above that previously set ceiling, even if it passes on the same amount to authors that they would have gotten previously.

Link to the rest at GigaOm

Nobody who really knows is talking about the Amazon/Hachette deal, but it appears that Hachette will have the ability to prevent Amazon from doing at least some of the discounting of Hachette’s books that it does now.

Since Big Publishing has attempted to use ebook pricing to protect the sales of physical books in physical bookstores in the past, PG suspects it will continue to do so in the future. If this is the case, Hachette ebook prices on Amazon will be higher than Amazon would set those prices if the folks in Seattle had unfettered pricing discretion.

If PG’s suspicions are anywhere close to correct, it appears that indie authors will continue to be able to undercut the price of ebooks from Hachette while earning royalties from KDP that are much higher than Hachette authors receive.

PG says that indie authors are much smarter about pricing ebooks on Amazon that Big Publishing is, if for no other reason than indie authors are not concerned about anything other than selling the most ebooks possible. Like Amazon, indie authors don’t have any legacy sales channels to distract them from setting an optimum price for ebooks.

Trying to protect a legacy business with legacy margins is a classic mistake that established business organizations make when faced with a technology disruption that allows lower-priced competitors into a marketplace. Doing so allows the lower-priced competitors to survive and thrive. And eventually put the legacy model out of business.

Vook continues ebook publishing consolidation with Coliloquy acquisition

15 November 2014

From TeleRead:

Ebook production and publishing platform Vook has continued its rollup of competitors and complementary ebook players with the acquisition of Coliloquy, the Palo Alto-based “digital publisher of enhanced and interactive ebooks and apps,” which has apparently specialized in interactive and rich media publications on the Kindle and other ebook platforms, currently boasting some 30 titles under its own imprint.

. . . .

Vook is not slow to put forward expansive claims for its own efforts, describing its acquisition of epublishing company Byliner, as “its first step in using technology to rebuild the publishing industry from the ground up – this time, putting authors first.” It was founded in 2009 by Bradley Inman, a West Coast serial entrepreneur with several internet companies in his resume prior to Vook, and appears to be following a classic aggregation strategy of consolidating other businesses around its own platform.

Link to the rest at TeleRead

PG says that, in all likelihood, the authors who had contracts with Coliloquy will now find that Vook owns those contracts.

Vook can be expected to enforce those contracts according to their written terms. Any promises that Coliloquy made to authors that are not included in the contracts will go out the window. At least some of the people who made those promises will probably not be working for Vook any more.

A common response to a request for making a contract change is something like, “We would never do that. That’s not the way we operate.” PG’s standard reply is something like, “Great. Let’s change the contract to fit how you do operate.”

One of the problems with life-of-the-copyright terms in a publishing contract, especially for younger authors, is that in future years all the people who attract an author to sign with a particular publisher will be dead, yet the contract will continue.

Many older authors who signed publishing contracts twenty or thirty years ago find that the publishers they signed with are long gone, sucked into a big media conglomerate, and the values which governed their old publishers have disappeared.

Value in the media industry is moving to the edges, and publishers are in the middle

30 October 2014

From GigaOm:

There’s been a lot of discussion recently about Facebook’s increasing role in how people get their news, and whether or not that is a good thing and/or what to do about it. But one of the smartest things I’ve read on the topic comes from freelance tech analyst Ben Thompson, who writes a blog called Stratechery — and who put Facebook’s dominance into context with a post about how value in the media industry is moving to the edges, and publishers are stuck in the middle.

. . . .

Thompson explains how companies like Largan have gained power, just as chip makers and software providers like Microsoft and Intel did during the rise of the personal computer — leaving the companies who actually assembled and sold computers in the middle, their profit margins dwindling as value moved to the ends: specialized manufacturers on one side, and services on the other.

. . . .

So for example, in the analog world in which newspapers, magazines and other forms of publishing controlled the distribution platform and therefore the channels through which content flowed, they also controlled much of the value. But new platforms have emerged — such as Facebook and Twitter and LinkedIn and dozens of others — and they have accumulated much of the value and market power that used to accrue to publishers and media companies. As Thompson puts it:

When people follow a link on Facebook (or Google or Twitter or even in an email), the page view that results is not generated because the viewer has any particular affinity for the publication that is hosting the link… if anything, the reader is likely to ascribe any positive feelings to the author. Over time, as this cycle repeats itself… value moves to the ends, just like it did in the IT manufacturing industry or smartphone industry.”

. . . .

In other words, Thompson believes that because of the disintermediating effect that the internet has on content, value is moving towards the individual creators of that content — writers, editors, artists, etc. — and towards the platforms that allow for discovery and/or distribution of that content (Facebook, etc.) and away from publishers and media companies of various kinds.

. . . .

So what does the future look like for those media companies in the middle of the “smiling curve?” Thompson doesn’t say, but it probably isn’t going to involve a lot of smiling — instead, it presumably involves trying to squeeze less and less revenue out of a market where they are rapidly losing control, and trying to form relationships with platforms like Facebook without losing even more.

Link to the rest at GigaOm and thanks to Matthew for the tip.

PG says this is one of the principal results of the disruption that ebooks and ecommerce have visited on traditional publishing.

In the old days, the author created the manuscript, the agent sold the manuscript to the publisher, the publisher took the manuscript and, with the help of a printer, turned it into a book, the distributor took a bunch of the books and put them in a warehouse from which smaller bunches were sent to bookstores/other retailers and the bookstores sold the book to readers.

Under this model, the manuscript was of no value to the bookstores and a lot of intermediate steps were necessary before the manuscript became salable to readers. Without the internet and in an era of mass broadcast and print media, an individual author had very few ways of affecting discovery of the book, which, for most books, happened primarily in bookstores and other B&M retailers.

Today, the author creates the manuscript and either converts it to an ebook or pays somebody to do so, Amazon takes the ebook and sells it to readers. Those are the only necessary parts of the ebook/ecommerce supply chain. Discovery of ebooks takes place online at Amazon, Facebook, Twitter, etc. The rest of the old supply chain is obsolete and an unnecessary expense.

The author and Amazon are the only places where significant value is created in the new supply chain.

The fight between Amazon and Hachette is about the dominant players in the middle of the obsolete supply chain trying to remain relevant and capture more of the value that they used to take for granted.

Hachette and Authors United are in a box

21 October 2014

PG is certain that someone has made the following observations, but he hasn’t seen them, so here they are.

The deal between Amazon and Simon & Schuster has put Hachette in a box.

The Amazon/Hachette agreement was critical to Big Publishing because Hachette’s was the first of the court-ordered Price-Fix Six contracts to expire. The new Hachette deal would set the pattern for the other miscreants when their Amazon contracts expired.

By making a deal with S&S two months before the S&S contract expired, the Amazon/S&S contract is the pattern contract for the other publishers. One does not assume that S&S has harmed its authors or itself with its Amazon contract.

Amazon has performed a switcheroo. Now the onus is on Hachette. What’s wrong with Hachette that it can’t get the same contract that S&S has?

Commentators not terminally afflicted with Amazon Derangement Syndrome must now surely conclude that Hachette’s intransigence is the cause of the loudly-trumpeted suffering of Hachette authors.

At some point, Hachette’s public problems with Amazon are going to influence authors’ and agents’ decisions when Hachette and S&S are bidding for the same book.

If another large publisher coming out of lockup signs a deal with Amazon, the game is completely over.

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