PG’s Thoughts

TPV Outage

20 April 2015

Earlier today, PG decided to look at some new mobile-friendly themes to replace the not-entirely-satisfactory mobile plugin he’s been using off and on.

The combination of a trial theme and two of the plugins sucked up a huge amount of memory and locked the blog’s backstage door for PG.

Things are happier now and PG has been receiving some tech suggestions to avoid these problems in the future. He apologizes for the outage.

Showrooming is like shoplifting

13 April 2015

From The Bookseller:

Showrooming is just a “genteel form of shoplifting” author David Nicholls told an audience at the London Book Fair Digital Minds Conference this morning (13th April).

Giving a keynote speech at the digital event ahead of the fair’s official start tomorrow (14th April), Nicholls spoke of the importance of physical bookshops, and criticized the practice of discovering a title in a bookshop only to buy it online instead, known as showrooming.

He said: “For all the ease and convenience of online shopping or the digital download, I still feel a town without a bookshop is missing something…For much of the early nineties I worked in bookshops myself, running the children’s section in Waterstones Notting Hill with a rod of iron and believing, like all booksellers, that books are somehow special, that the expertise and enthusiasm of booksellers is vital, that if you love bookshops you should spend money there, and that to discover a book on display in a well-staffed, lovingly-maintained shop, to hold it in your hand then to sneak off and buy the same book online is really just a genteel form of shoplifting.”

. . . .

Nicholls spoke of the beneficial insights e-book data could give an author. He said that from New York he travelled to Toronto, where he “visited the offices of an e-book retailer,”  assumed to be Kobo since the company’s head offices are based there. Nicholls said the staff were “without exception, smart, well-read, youthful, enthusiastic, they reminded me of the people I used to work with in bookshops years ago.” He added that someone asked if he’d be interested in knowing at what point people stopped reading his novel, because if he knew what readers didn’t like, “maybe I could fix it and make it better.”

Nicholls said: “When I wrote my first novel this would have seemed fantastical, but now I can reach into my pocket, take out my phone, open up the text and find out which passages have been underlined, shared and annotated, and I’m always just a few clicks away from several thousand reviews, constructive or otherwise. Why shouldn’t I toughen-up and learn from the data and feedback? More to the point, why shouldn’t I correct those mistakes?”

He concluded the anecdote by telling the staff: “I’ll give it some thought.”

Link to the rest at The Bookseller

PG wonders, if there is only a single bookstore in town, is that a genteel form of monopoly? Or if the bookstores all charge the same price for a book, is that a genteel form of price-fixing? Or if a bookstore refuses to stock Christian literature or certain types of romances, is that a genteel form of censorship?

Here’s an even better idea. If someone comes into your bookstore and reads a few pages in a book, then begins to walk out without purchasing, why not charge that person a reading fee (because it sounds more polite than a shoplifting fee)?

To protect his gentility, perhaps PG shouldn’t go into bookshops at all.

Who’s afraid of self-publishing?

13 March 2015

From FutureBook:

My favourite line in my good colleague Philip Jones’ early look at traditionally publishing authors’ responses to the ongoing survey was just that:

When asked about the possibility of self-publishing, only a minority of authors were excited at the prospect, with the majority (75%), either neutral or horrified at the thought of taking control.

#AuthorSay is the hashtag associated with the “Do You Love Your Publisher?” survey of traditionally publishing authors mounted by UK-based author Harry Bingham and US-based publishing analystJane Friedman.

Whatever we learn about how much authors may or may not love their publishers, it seems a good bet that they’re fond of this survey.

. . . .

Some early glimpses, courtesy of Jones, of input from traditionally publishing writers completing the survey:

  • 75 percent: “either neutral or horrified at the thought of taking control’ by self-publishing
  • 33 percent: published by a Big Five publisher
  • 20 percent: published by a “large trade publisher”
  • A majority of early respondents: “had published six or more titles”
  • 50 percent: “had self-published at least one title”
  • 25 percent: “reported that they had ‘seriously considered’ self-publishing
  • 80 percent: “happy with their cover design”
  • 70 percent: “happy with the copyediting received”
  • 39 percent: “said they would move” to another publisher “if a similar house came along with the same deal”
  • 31 percent: indicated that they would stay with their current publisher if that similar deal were offered by another
  • 45 percent: said they would stay with their current agents if offered a chance to move to another

. . . .

After years of embittered, counter-productive divisions in the author corps, there seem to be signs of hostilities easing. Perhaps the angrier authors see less threat in the “other pathway to publishing” from their own, now that the two modes have coexisted for a time. Or maybe the screamers have just worn themselves out — along with those of us who had to listen to them.

One thing we know is that we’ve never heard as much from the traditionally publishing side of the author camp as we have from the insurgency, the self-publishing sector.

Link to the rest at FutureBook and thanks to Rebecca for the tip.

PG will note that surveys involving self-selected participants are useful for generating raw material for online stories, but are not reflective of the population as a whole. We’ve talked about the Digital Book World survey of “self-published” authors before which, among other things, counts the “self-publishing” income of people who have never sold a book.

People who (a) find out about an online survey and (b) take the time to answer a survey may or (more likely) may not have the same experiences or opinions as the much larger group who who don’t fall into the (a) or (b) groups.

Excel makes it easy to generate lots and lots of percentages, but it doesn’t mean they represent reality.

To be clear, PG has no animus toward any of those who are conducting or promoting the survey. And a headline in his inbox did cause him to click through and read the article, so the survey did help generate a reader for the story.

However, in the largely innumerate world of traditional publishing (see Bookscan and AAP sales figures), PG is certain that some will take these numbers as more than story fodder. He expects to see all sorts of stories about how happy 75.4% of all tradpub authors are.

One apartment complex’s rule: You write a bad review, we fine you $10k

12 March 2015

From Ars Technica:

Trying to control customer opinions online is nearly always a losing game for a business, and there’s now a long line of cases where it has backfired on companies. We uncovered a new example this month, when a reader contacted Ars Technica to show us the “Social Media Addendum” that his Florida apartment complex, called Windermere Cay, included in his lease.

The Social Media Addendum, published here, is a triple-whammy. First, it explicitly bans all “negative commentary and reviews on Yelp! [sic], Apartment Ratings, Facebook, or any other website or Internet-based publication or blog.” It also says any “breach” of the Social Media Addendum will result in a $10,000 fine, to be paid within ten business days. Finally, it assigns the renters’ copyrights to the owner—not just the copyright on the negative review, but “any and all written or photographic works regarding the Owner, the Unit, the property, or the apartments.” Snap a few shots of friends who come over for a dinner party? The photos are owned by your landlord.

. . . .

Not only is such a contract unenforceable, but it could expose anyone promulgating it to legal repercussions, Santa Clara University Law Professor Eric Goldman explained.

“It would be a terrible idea to enforce this in court. A judge is going to shred it,” Goldman said in an interview. “If a person posts an Instragram photo of them having a party in their apartment, the landlord is saying they own that as well. The overreach reinforces that this clause is bad news, and it may be actionable just to ask.”

. . . .

 It’s been clear that such contracts are legally questionable since at least 2003, when the New York v. Network Associates decision came out. In that case, a judge found that telling customers they couldn’t publish reviews of software “without prior consent” violated New York’s unfair competition law. In Goldman’s opinion, “no review” contracts like the one pushed by Windermere could also lead to legal trouble under federal law, since the FTC Act bars “unfair and deceptive” business practices.

Goldman has written about some of the most notable attempts by businesses to squelch customer reviews, although he said the Windermere Cay Social Media Addendum is the first time he has seen such an attempt in the landlord-tenant context.

Link to the rest at Ars Technica

PG hadn’t heard about New York’s Unfair Competition law, so he did a little research (a little research can be a dangerous thing for a lawyer assisting a client, not so much for a blogger).

From The New York Litigation Guide:

We have long recognized two theories of common-law unfair competition: palming off and misappropriation.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 476 (2007).

  1. Defendant misappropriated the fruits of Plaintiff’s labor by obtaining access to plaintiff’s ideas through fraud or deception, or the abuse of a fiduciary or confidential relationship; and
  2. “(1) that the defendant’s activities have caused confusion with, or have been mistaken for, the plaintiff’s activities in the mind of the public, or are likely to cause such confusion or mistake; or (2) that the defendant has acted unfairly in some manner.”

KG2, LLC v. Weller, 105 A.D.3d 1414, 1415 (4th Dep’t 2013).

. . . .

Misappropriation is “[t]he principle that one may not misappropriate the results of the skill, expenditures and labors of a competitor has . . . often been implemented in [New York] courts.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 477 (2007).

“‘While [t]here is no complete list of the activities which constitute unfair competition, [t]he general principle . . . is that commercial unfairness will be restrained when it appears that there has been a misappropriation, for the commercial advantage of one person, of a benefit or property right belonging to another.’” IDG USA, LLC v. Schupp, No. 10-CV-76S(F), 2012 U.S. Dist. LEXIS 151554, at *31-32 (W.D.N.Y. Oct. 21, 2012).

Link to the rest at The New York Litigation Guide

PG did a little research because he immediately thought about the non-compete clauses included in the contracts of every large New York publisher. Basically, these clauses say something like “author shall not publish any book that might compete with (the books subject to the contract).” These same contracts also specify that New York law will apply to them.

Since the non-compete clauses are included in contracts that last for the full term of the copyright – the rest of the author’s life plus 70 years in the US – PG wonders if such non-compete clauses represent “a misappropriation, for the commercial advantage of one person, of a benefit or property right belonging to another” or that the publishers have “acted unfairly” under the relevant law and cases.

PG will warn all and sundry visitors that this isn’t a legal opinion or even a legal speculation, just a blog post.

Harper Lee’s Condition Debated by Friends, Fans and Now State of Alabama

12 March 2015

From The New York Times:

The doubts arose almost immediately when HarperCollins announced last month that it would release a rediscovered book by Harper Lee: Did Ms. Lee — 88, publicity-shy and famously resistant to producing a follow-up to her masterpiece, “To Kill a Mockingbird” — really want to publish a second novel that she wrote and set aside more than a half-century ago?

Weeks later, that question remains a matter of passionate debate. Despite reassurances from her publisher, lawyer and literary agent that Ms. Lee has enthusiastically endorsed the publication, the controversy over the new book, “Go Set a Watchman,” has divided some residents of her hometown here, as well as longtime friends who live elsewhere. One faction argues that Ms. Lee’s mental health is too shaky for her to have knowingly authorized the new book, while the other just as vigorously affirms her competence.

Now the State of Alabama has been drawn into the debate. Responding to at least one complaint of potential elder abuse related to the publication of “Watchman,” investigators interviewed Ms. Lee last month at the assisted living facility where she resides. They have also interviewed employees at the facility, called the Meadows, as well as several friends and acquaintances.

It remains unclear what, if anything, will come out of the investigation, now more than a month old. One person informed of the substance of the interviews, who did not want to speak for attribution because the inquiry was ongoing, said Ms. Lee appeared capable of understanding questions and provided cogent answers to investigators.

The fact that the state has undertaken an inquiry highlights the scrutiny that Ms. Lee’s publisher and lawyer are facing as they prepare to release one of the most hotly anticipated titles in decades. And the spectacle of a very public debate about Ms. Lee’s mental condition and true intentions has added an operatic blemish to what should have been a triumphant moment for HarperCollins and the millions of fans who have clamored for decades for Ms. Lee to produce another book.

Link to the rest at The New York Times and thanks to Tom for the tip.

PG says the topic of what happens if an individual with significant business or financial interests becomes incompetent or is suspected of being incompetent is one that sometimes is omitted from estate plans, which may focus solely upon what happens after an individual dies.

This is one area where a properly-drafted trust naming a reliable trustee can be valuable. (No, PG doesn’t do trusts any more, but competent estate planning attorneys are not difficult to locate.)

Still think Amazon’s not a gate-keeper?

10 March 2015

From Bdaily:

Before I make my point, I want to stress this is not an ‘Amazon-bashing’ post. You could substitute Amazon for Apple, or a number of large modern-day conglomerates, and still see where I’m coming from. That while they break down traditional barriers at one end, they’re still upholding certain ‘hidden’ gate-keeping practices at the other. I’m going to use Amazon as my main example, however, as they sell, publish and distribute books, a practice I share.

We understand Amazon as the trail-blazer in the publishing industry, which it is, in some ways. Eradicating the slush-pile for authors to navigate, side-stepping agents to woo, anyone anywhere can upload their work – good or bad – to Amazon’s template-driven digital storage facility, to wait for readers to snap up their book. Whether those book-buyers think it’s a quality read is largely irrlevant from one aspect – at least no one’s told them this is the book they must read, that reader has discovered that on their own. With Amazon, there’s no gate-keeper filtering books on the public’s behalf, making their decisions for them: hurrah!

. . . .

Amazon were also early adopters of the ‘no upfront cost’, i.e. print on demand movement (relating to paperbacks/hardbacks, not eBooks). In this process, the digital file on Amazon’s Createspace system remains just a file until the moment it’s ordered. It costs the author nothing to keep it sat digitally on Amazon’s back-office platform, and the cost to Amazon for this service is practically negligible too. The customer then orders and pays and machines whirr into action: the book is no longer a digital file, it’s a physical, printed copy that, within minutes, is winging its way to said reader.

Of course, the author can order copies of their books from Amazon at ‘cost’. Copies they can take to speaking events, book signings, give in person to family, friends and associates…anyone they choose. But the cost of each copy remains the same, however many they order. Compare that to a small print run from an independent printer/publisher, consisting of as few as twenty-five copies, and you would start to see costs shift, and margins getting better and better the more you order. Once you’re a more established as an author, this gap in the printing cost margins starts to make a difference.

Yes, you could argue that Amazon plays a significant role in boosting the platform of a new author from the sheer amount of traffic to their site, in order that they get to be established, but given the size of Amazon’s platform, the amount of free content available on there that can never be consumed, and the sign-posting by the author to get readers to even ‘see’ their book on Amazon, I see their input bringing as many consequences as benefits.

. . . .

Now, before I get a deluge of angry comments from Amazon’s supporters, I accept that they’ve made self-publishing a wholly viable proposition for authors. They’ve offered writers a direct link to their readers with no tyranny from the publishing houses as to which book is accepted and which goes in the trash. From that aspect, the freedom they’ve brought is immeasurable and wonderful.

. . . .

Readers today want ‘access’ to the authors they follow and enjoy. Authors are encouraged, quite rightly, to have a relationship with those buying their books – but, if you sell your books through Amazon, who are these people? Yes, you can see how many books you’ve sold at the end of the month, and any sales spikes, via Nielsen book data, if you’ve successfully scooped some PR, for example, but what’s your demographic? How do you know if those ten books sales that day were from one new reader taking a chance on your whole back catalogue, or ten separate customers buying a cross-section of your books?

The truth is, you don’t know. And that’s where Amazon IS a gate-keeper – the wall between you and your readers. They keep your readers’ email addresses and details of their buying habits – both of which are crucial, and vital information you could use to bolster your writing career and your longevity as an author.

Link to the rest at Bdaily and thanks to SFR for the tip.

PG will point out that virtually all retailers regard data about their customers as one of their most valuable assets and are not inclined to share.

Do publishers give authors details about readers’ buying habits? Of course not because publishers don’t know.

Does Barnes & Noble give authors (or publishers) data about readers’ buying habits? Unless the reader is a member of Barnes & Noble’s buying club (unlikely), Barnes & Noble doesn’t know. It may sell email lists to third parties, but tying an email to the sale of a particular book is something that PG suspects (but doesn’t know) is beyond B&N’s technical capabilities

Even indie bookstores are unlikely to tie an email address to each customer’s purchases or to share that information if they do.

Unless an author is personally handling online sales through a system he/she controls, the retailer is always going to have information about customers that the author doesn’t have.

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.
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