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May 20, 2007

Your Book In Print — Forever
Posted by Jim Macdonald at 11:45 AM * 64 comments

Before we begin, let me explicitly say that Making Light is not a Tor publication. Some people have been confused by this in the past. Don’t be confused now. Yes, I’ve been published by Tor. My most recent book is from Avon. (Making Light isn’t an Avon publication either.)

Next, I don’t know my co-bloggers’ opinions on this subject.

Now here’s the dirt:

Simon & Schuster has decided that they’re going to hold onto the rights to their books for the life of copyright. As long as a book is available via POD (i.e. Print-on-Demand/Publish-on-Demand), it won’t revert.

Here’s my opinion: This is a terrible idea, for authors. It may work well for publishers, but it’s terrible for authors. Tiny sales from a huge number of books is equivalent to huge sales from a tiny number of books. All the costs of acquiring and editing the book are already sunk costs. Nothing more need be spent on publicity and marketing; the book hangs out as a digital file costing next-to-nothing; if someone, fifty years from now, decides to buy a copy for some reason, hey! That’s income you didn’t have to work for.

But authors don’t have a huge number of books in them. The number of books they have is finite, and a small finite number at that. The ability to take back a book, to say to the publisher “Sell it or lose it,” is one of the few bits of leverage that authors have.

Here’s the Authors Guild notice on the subject:

Simon & Schuster Reacts; Agents Angry
Text of e-mail to Guild Members, May 18, 2007:

A quick update on Simon & Schuster’s rights grab: S&S has fallen back some, now saying they’ll negotiate regarding the reversion of rights clause “on a book-by-book basis.” They also accuse us of an “overreaction.” Their official statement follows.

Agents are angered by Simon & Schuster’s gambit, according to this piece in Publishers Weekly.

Here are links to other stories that have run:

1. AP (via Herald Tribune)
2. New York Times
3. Publishers Weekly (the other PW story on S&S)

We’ll keep you posted on further developments. Have a good weekend.

Feel free to forward and post this message in its entirety. The Authors Guild (www.authorsguild.org) is the nation’s oldest and largest organization of published book authors.

*************************************************************

Simon & Schuster’s official reaction, from Adam Rothberg, VP for Corporate Communications:

We are surprised at the overreaction of the Authors Guild to Simon & Schuster’s contract. We believe that our contract appropriately addresses the improved technology, increased availability, and higher quality of print on demand books, and reflects the fact that print on demand titles may now be readily purchased by consumers at both online and brick and mortar stores. We are embracing print on demand technology as an unprecedented opportunity for authors and publishers to keep their books alive and available and selling in the marketplace in a way that may not have been previously possible for many authors, and are confident in the long term it that will be a benefit for all concerned. We would also like the author and agent community to know that, when necessary, we have always had good faith negotiations on the subject of reversions, and will continue to on a book-by-book basis.

SFWA will apparently be supporting the Authors Guild in this.

Here’s what Writer Beware has to say about that:

What’s the purpose behind S&S’s new policy? I’m guessing that S&S is gambling that electronic rights will become hugely valuable at some point in the future. Right now they aren’t, and I don’t believe that anyone, even the most vigorous prognosticators, knows how or in what ways they may become so. But with its rights grab, S&S is hedging its bets, retaining control of books it may be able to exploit in new ways as times change and new technology becomes available. In this situation, authors are double losers—first, because they lose control of their rights forever, and second, because if S&S does exploit the rights at some future point, it will be doing so under old contracts. As the development of the ebook market has made clear, new technologies demand new terms and new negotiations.

Just a little bit more commentary:

1. No one wants to wake up to discover that they’ve gone out of business.
2. No one wants to be the first bastard. It draws negative commentary.
3. S&S apparently decided to be the first bastard anyway. Notice the negative commentary. The second publisher to follow suit won’t get anywhere near as bad a rap. By the time the third one flips, it’ll be the standard business practice.
4. The first-tier authors will have to lead the charge to stop this change, because the second-tier authors and all the newbies will get screwed if they don’t.

Comments on Your Book In Print -- Forever:
#1 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 20, 2007, 12:18 PM:

As you say, no publisher wants to wake up five or ten years from now to discover that their business model is kaput and they're out of business.

Just as truly, holding on to All Rights Forever is pretty obviously a non-functional idea, and won't last in a world in which publishers compete to publish name-brand authors.

To the extent that digital distribution supplants traditional "print some copies and get retailers to order them" book publishing--and we don't know the extent to which this supplanting will actually happen--publishers and authors are going to need to hammer out a new model for when authors can get their rights back. My guess is that S&S is taking the maximalist position simply as an opening strategy.

("Digital distribution", here, meaning not just selling e-texts, but also the kind of print-on-demand where a customer orders a hardcopy from a web site, and the hardcopy is then printed and mailed to them. As opposed to POD as a technology for "short runs" of a few hundred copies. "POD" gets used to cover both models, which confuses discussions of this sort no end.)

#2 ::: Patrick Nielsen Hayden ::: (view all by) ::: May 20, 2007, 12:23 PM:

As to "first-tier" authors needing to "lead the charge," allow me to observe that one can make a lot of money cluefully publishing "second-tier" authors. I'm sure that I could rather quickly put together a list of "second-tier" S&S authors whose bottom line would be quite attractive to any publisher willing to offer them a more author-friendly reversion clause.

Which is why I doubt that the maximalist position will actually last.

#3 ::: James D. Macdonald ::: (view all by) ::: May 20, 2007, 12:23 PM:

I suppose I should mention that Print-On-Demand (the business model) is incompatible with bookstore shelving.

#4 ::: josh jasper ::: (view all by) ::: May 20, 2007, 12:31 PM:


4. The first-tier authors will have to lead the charge to stop this change, because the second-tier authors and all the newbies will get screwed if they don’t.

There are currently other publishing houses out there who'd be happy to take up authors who jump ship and go with fair contracts. If we wait, they too will go the route of S&S

And hopefully, sensible authors and agents *will* refuse to be a part of S&S as long as they abuse rights.

Authors, do *not* let yourself be treated by publishers the way the Music industry treats musicians. Right now, there's some bargaining power, and if enough people (big names) protest S&S by dropping out, the rest of the industry will (hopefully) have to change.

There are no signs that I know of that point to S&S or other publishers going out of business if they don't take this step, or even take a loss. If there are, S&S is obligated to point them out, not t just claim that they exist and say "trust us" as to what they are.

This is (as far as I can tell) a means to extract more money form the business, at the expense of the authors. If I'm mistaken, and if the guild is mistaken, S&S has to show *how* we're mistaken.

#5 ::: abi ::: (view all by) ::: May 20, 2007, 12:50 PM:

The quote that raises my hackles is on the second page of the AP story:

"They're talking about the worst possible result," [Rothberg] said. "This (the new contract) is about embracing a new opportunity."

Surely the purpose of a contract is to address the worst possible results? Otherwise we'd all just smile and trust each other as we rode our personal ponies into sparkly fairlyand.

#6 ::: josh jasper ::: (view all by) ::: May 20, 2007, 12:59 PM:

Like I said, it's the "just trust us" contract. Did someone working there take negotiating lessons from the Bush administration? Because this sounds awful familiar.

#7 ::: Julia Jones ::: (view all by) ::: May 20, 2007, 12:59 PM:

I was forwarded a quite fascinating missive from a small press (not mine, I hasten to add) which was all shiny-eyed about how the move by S&S was a wonderful opportunity for small press authors, because it would show everyone the power of POD. I think I shall forward it to Writer Beware for their collection.

#8 ::: James D. Macdonald ::: (view all by) ::: May 20, 2007, 01:08 PM:

You want a scary quote? There's this one from the Times article:

Mr. Rothberg said that Simon & Schuster would continue to talk to authors who wanted their rights back, regardless of changes in contract language. “We’ve always been willing to have the discussions with agents and authors if there comes a time when they feel they need to have a book reverted to them and they can make a compelling case to us that it should be so,” he said.

"If they can make a compelling case"? Yeah, right. Hard to make a compelling case if they won't even take your calls, and under this contract they don't need to.

Is the music industry such a paragon of well-run profitability for all that publishing needs to emulate it?

#9 ::: Tatemae ::: (view all by) ::: May 20, 2007, 01:13 PM:

Simon & Schuster are also listed as partners for the FanLib thing, which is essentially a corporate-sponsered fanfic archive, heavy on the ads, that is ruffling a lot of feathers in the fandoms on LJ. (A quick browse through recent Metafandom posts has a good round-up of the kerfuffle; it got even more interesting when the CEO of FanLib started showing up in comments and objecting to the fan criticism.)

I suppose that doesn't have much to do with the POD topic at hand, but it does make me wonder what's going on over at S&S right now.

#10 ::: Serge ::: (view all by) ::: May 20, 2007, 01:13 PM:

abi @ 5... And, as we all well know, the Devil is not in the details.

#11 ::: abi ::: (view all by) ::: May 20, 2007, 01:16 PM:

James D. Macdonald @8:
You want a scary quote?

If I said no, would it go away?

#12 ::: j h woodyatt ::: (view all by) ::: May 20, 2007, 01:21 PM:

You know, if copyright weren't, for all practical purposes, eternal, I don't think this would have to be a deal-breaker. But given that they are, that makes the math for valuing a deal pretty difficult to do. My rough calculation is that perpetual electronic rights ought to be worth a multiplier of about, oh, say, aleph null. Of course, I could be horribly naïve— it might a higher order of infinity.

#13 ::: janra ::: (view all by) ::: May 20, 2007, 01:25 PM:

Is the music industry such a paragon of well-run profitability for all that publishing needs to emulate it?

Well, it's profitable for the music publishers and distributors...

#14 ::: James D. Macdonald ::: (view all by) ::: May 20, 2007, 01:26 PM:

Let's not forget S&S's sponsorship of the misguided gather.com "First Chapters" contest, which replaced their sponsorship of the Sobol fiasco.

I wonder what's going on over there?

#15 ::: Charlie Stross ::: (view all by) ::: May 20, 2007, 01:39 PM:

There are other ways of dealing with the new technologies, of course.

I just sold a book to Orbit UK. There's a rather different contract from previous ones -- not surprising, as they're now part of Hachette -- and among other things, there's a provision for what amounts to POD printing, in short runs of up to 500 copies. However, they're only allowed to do this twice per year, and if the book goes out of print, the usual rights reversion boilerplate kicks in. This seems to me to contain the seeds of a more reasonable compromise on the whole long tail thing, insofar as the spin it puts on reversion is that the rights revert if the publisher is unable to meet demand through POD and unwilling to reprint by traditional means. (Which is exactly the situation under which I'd want my rights back, thank you very much.)

#16 ::: JESR ::: (view all by) ::: May 20, 2007, 02:16 PM:

Janra @ post 13, the structure of the music industry is what's led concert tickets to three-figure prices; so few musicians realize much income through sale of recordings that concert income and sale of licensed objects ( for some with contracts old enough that the recording companies haven't also tied up Tshirt sales) is the primary way to make money in popular music.

Somehow I find it hard to imagine a significant number of authors filling arenas at $125 a ticket.

#17 ::: Wim L ::: (view all by) ::: May 20, 2007, 03:11 PM:

j h woodyatt @ 12: Actually it's still finite. Imagine I offer you a magic device that spits out $1 every day (and this is somehow legal). How much should you rationally be willing to pay for this device, which will give you an infinite amount of money (if you wait long enough)? Turns out the answer is surprisingly small, in the neighborhood of $6000. That's how much you would need to put into a good investment to be able to withdraw $1 daily without using up the principal. If I asked $12k for the magic device, you'd be better off turning me down and investing the money elsewhere.

People make this calculation all the time, substituting "stock in a company" for "magic money-producing device", and the number is the (stock)-price-to-(yearly)-earnings ratio.

Of course, as with a company, you don't really know how much money those electronic rights will be producing in some future year, which means you can't reliably figure their present value...

#18 ::: jamiehall ::: (view all by) ::: May 20, 2007, 03:15 PM:

Go get them! By the time I become a real author, I do not want selling my copyright to be part of the standard contract.

#19 ::: Michael ::: (view all by) ::: May 20, 2007, 04:05 PM:

Not to throw a bucket of clear liquid on the fires of righteous indignation, but I've always wanted OOP books to be available via some sort of digital or POD delivery system. I want the same for music, which has a much shorter shelf-life.

I'm all for authors and creators bargaining hard with the marketers and distributors of their creative product, but long-term digital availability of works is a good thing. Don't lose sight of the advantages to your customers just because S&S said "and of course it's ours!"

#20 ::: Clifton Royston ::: (view all by) ::: May 20, 2007, 04:29 PM:

Michael @ #19: That's not the issue here. It is becoming trivial for the author to put the book in print himself or herself via download or POD. The issue is who gets (most of) the money for it, the publisher or the author?

The division of proceeds in current contracts presumes that the publisher should get the majority of the sale price, because they are assuming the costs of book marketing and promotion, of doing big print runs and maintaining a large inventory, of lobbying bookstores to keep it on their shelves, and everything else a publisher does or should do. If the publisher is not doing any of that, but only printing one-offs or tiny runs of the book when someone tracks it down and orders it, why should they continue to collect most of the price?

#21 ::: Clifton Royston ::: (view all by) ::: May 20, 2007, 04:38 PM:

Following on my previous comment - this might actually be a fairly reasonable thing for a publisher like S & S to do - for both parties - if and only if the author's royalties on these forever-in-print-on-demand books scaled up proportionately to the reduction in real costs to the publisher. If the author is selling a smaller stream of copies - but still some - and has to assume promotion costs himself/herself, that still might be end up being fair if he or she is getting (random number) 4 or 5 times the per-copy royalties.

#22 ::: Dave Kuzminski ::: (view all by) ::: May 20, 2007, 05:28 PM:

I just hope S&S isn't channeling or possessed by Falwell.

#23 ::: Jon Evans ::: (view all by) ::: May 20, 2007, 05:30 PM:

Clifton @ #20 and #21 - It's really not just about royalty rates. Perpetual in-print means that authors will never be able to resell rights to other and more enthusastic publishers, or, if the publisher also retains ebook rights, publish their work online in order to attract more readers.

My first two novels are essentially "in print but unavailable in bookstores" in the USA, but HarperCollins has shown inclination to do any of a) reissue them, b) release the rights, c) support a Creative Commons release. At least I can wait for them to go officially OOP - but if it weren't for the reversion-of-rights clause in my contract, which states that fewer than 250 POD sales/year counts as out-of-print, they'd likely languish with HarperCollins forever.

#24 ::: Jon Evans ::: (view all by) ::: May 20, 2007, 05:35 PM:

D'oh.
s/enthusastic/enthusiastic
and
s/inclination/no inclination
on #23.

#25 ::: Michael ::: (view all by) ::: May 20, 2007, 05:53 PM:

Clifton:

That's what I thought, I was just concerned that the advantages to writers and readers weren't discounted because of the publisher's stance.

So, my real creative/publishing experience is in the indie music field. Pardon me if the below gets a bit long (or if someone who has a lot more real experience like Eric shows up and tells me I'm full of it...).

It used to be in the 1950s (that's not perfect as a date, but it'll do) that the music industry had four things to offer to the performers: infrastructure, expertise, manufacturing/distribution, and publicity. Since then, these pillars have crumbled. What used to take a million dollar tracking room can now mostly be done in a $100K room, and can almost be done in with a sub-$10K system or a personal computer.

As cost dropped as a barrier to entry, the expertise grew in proportion to it. In any case most bands were having to either create their production expertise themselves or contract for it: the producer stopped being part of the package and started being something the band paid for. The number of self-produced albums is very high, and some of them are of very good quality.

Manufacturing and Distribution no longer has to be the hurdle it is for "brick and mortar" retail. Both physical CDs in sub-1000 quantities and digital distribution are undercutting the need for the mass marketing and distribution channels the big 4 have. POD for music is technically trivial.

That leaves marketing, which is a lot to hang the labels' profits on. A growing number of small acts are finding that they can do better selling a fifth the number of CDs at ten times the return per disc. For some, it's not that the label is the enemy, it's that it's irrelevant. You can't sell a million copies this way, but you can make a living making music that you own.

Which brings us back to books. The circumstances are different, to some degree, and in others are very similar. The role of the publishing house's editorial staff as contributors to the artistic product has no current parallel in music, so the label's envisioned irrelevance and the near-panic that creates aren't part of traditional publishing's worries at this point. The audience has also not expressed the preference for digital that they have in music.

But this does seem to be born out of concern on S&S's that the future will change the publishing balance between consumer, author and middleman. I happen to think they're right, and that Patrick is, too. Don't take their first offer and don't let them frame the debate by being the only ones with a model on how to handle digital reprint rights.

#26 ::: Chris ::: (view all by) ::: May 20, 2007, 06:01 PM:
The issue is who gets (most of) the money for it, the publisher or the author?
Intending no personal enmity to any publishers who might happen to read this (ha), I'd say that's pretty clear. I don't know what precisely makes the difference between a book nobody wants to look at again in 10 years and one with enduring value and interest for decades or centuries, but it seems to me that difference is unlikely to be provided by the publisher.

Anyone who disagrees is of course invited to name the publishers whose hard work gave the works of Chaucer, Shakespeare, Austen and Dickens their enduring value. Until then I'll continue to believe that it was, well, Chaucer, Shakespeare, Austen and Dickens who were largely or entirely responsible for the fact that I still want to read them after this long.

If the long tail isn't going to be put in the public domain as a matter of public policy - and I think there's a pretty strong argument that it should, but that's probably an issue for another thread - then it seems clear to me that it should primarily benefit the author.


Copyright is intended to promote the public welfare by encouraging books to be written and published in the first place; says so right in the Constitution. (For non-US readers, I guess a similar principle justifies the existence of copyright in your own countries?) How many fewer books would the typical publisher publish if their rights were absolutely cut off, by law, after 10 years (whether they reverted to the author or to the public domain)? I.e. how often do you think "This book might lose money for the first 10 years, but after that we'll make it back and then some, so we'll publish it anyway"? I have a guess, but since there are actual publishers present, I'll let them answer.

#27 ::: James D. Macdonald ::: (view all by) ::: May 20, 2007, 06:31 PM:

Used to be that you wanted your book to stay in print forever, since that meant it was selling in commercial quantities. If the book stopped selling it would go out of print.

This new in print is just technically "in print." The books aren't selling in commercial quantities.

If I wanted to merely make the book technically available, that's in my power, as an individual. I've even done it. (Both for myself and for John Heywood.)

I don't need a publisher to do it. And I would prefer to have the rights myself, to make the works available myself.

The question is one of choice. Who decides what to do with the book? The author or the publisher?

#28 ::: Clark E. Myers ::: (view all by) ::: May 20, 2007, 06:41 PM:

On the one hand this looks like a clever reaction to Thor in which the backlist has no physical existence and so no inventory tax, written down or otherwise. There has certainly been lots of agonizing by all, publishers, authors, guitar players and heavy smokers, and readers over Thor. Perhaps some mechanism for taxing intellectual property rights assigned at a higher rate than intellectual property rights retained/reverted will emerge.

In that light I can see some reason for an original publisher to have ongoing electronic/POD rights.

The issue of ongoing rights was recently fought over with respect to electronic archives and even electronic anthologies superseding the need for a reader to handle previous first sale paper copies. One resolution there was close to unjust enrichment theories - it's unjust to enrich the republisher, beyond the original contemplation of the parties, at the expense of the creator so share the wealth by paying a little more ongoing to the writer.

On the other hand - just as I think copyright itself should be of some limited term with a use it or lose it provision (cf the current NYT for an opposing view) - it seems reasonable to me that the entity retaining rights as against the creator be expected to make ongoing merchandising efforts or pass on the rights. Life of copyright rights in the first assignee surely aggravates all the evils attributed to longer and longer copyrights in which the writing disappears from the market but is not public domain. Still publishers can be more easily located than some other heirs and assigns.

On the gripping hand I expect POD technology and indeed reading technology to change in the near future - within the period of founder's copyright to say nothing of current (Berne et.al.) copyright. The meaning (and cost) of merchandizing is likely to change. I'd hate to see long term solutions here to short term problems. I'd bet money, given a stakeholder, that there will be very real contract inequities during the process of working things out.

#29 ::: j h woodyatt ::: (view all by) ::: May 20, 2007, 06:43 PM:

"Of course, as with a company, you don't really know how much money those electronic rights will be producing in some future year, which means you can't reliably figure their present value..."

This is precisely the dynamic I was thinking about. Hence, my sarcastic comment about the multiplier.

#30 ::: Chris ::: (view all by) ::: May 20, 2007, 06:47 PM:

Hmm. Looking at my above post (#26) again, it looks more hostile to publishers than I intended. I'm not denying that publishers have value - rather, I think that all the value a publisher is going to provide, they have probably already provided within the first 10 years (or even less). A publisher potentially makes the difference between a good book I've never heard of/can't find and a good book I can pick up and read; that's valuable and I'm willing to pay them for it.

But I think it's the author who makes the difference between a good book and a great book, and therefore if there is a long tail, the author should reap the rewards; the publisher's share should be limited to the time the publisher is actually promoting the book and pushing it onto shelves where people can see it and pick it up - which is probably much shorter than 10 years, really, in most cases.

However, if the publisher's primary roles are (a) turning a manuscript into boxes of dead trees which are delivered to bookstores everywhere and (b) publicity, then I can see where they would be worried by technological change. The author is indispensable; the editor is indispensable as long as the author is a human being capable of error; but the rest of the publishing company might not be.

#32 ::: janra ::: (view all by) ::: May 20, 2007, 07:47 PM:

JESR @ 16:

The structure of the music industry is what's led concert tickets to three-figure prices; so few musicians realize much income through sale of recordings that concert income and sale of licensed objects

That would be exactly my point. It's profitable for the music publishers and distributors.

#33 ::: Debbie ::: (view all by) ::: May 20, 2007, 09:12 PM:

Just a data point: I work for a nonfiction publisher (name not mentioned here to protect my job) of significant size and market importance. Most of you have heard of them. Our boilerplate contract has had this provision for about six years. (I was actually quite surprised to see the Authors Guild say that no other major publisher does it.) Cory Doctorow freely (and justifiably) calls our contract "a rights grab."

We do, however, provide a very easy fallback that I can't tell whether or not S&S will go for--on request, we'll add a sentence to any contract saying that if royalties fall below a certain level, reversion is automatic on request. This still is vastly unreasonable for authors who don't know they should make this request, of course.

I hope that people who are negotiating with S&S mention this alternative.

#34 ::: JESR ::: (view all by) ::: May 20, 2007, 11:43 PM:

Janra, sorry: was just expanding on your point and giving an illustration of its real-world consequences, not disagreeing.

#35 ::: James D. Macdonald ::: (view all by) ::: May 20, 2007, 11:50 PM:

Hiya, Nathan (#31). I didn't know you read here....

#36 ::: Dave Bell ::: (view all by) ::: May 21, 2007, 04:12 AM:

Elsenet I've seen a couple of points raised, already partially addressed in this thread.

1: This doesn't have to be in the contract. A smart agent can negotiate it away and, I understand, would do so. As Debbie has just pointed out, there are publishers who already have such clauses in their standard contract, and have a standard alternative, if you object.

But you have to know to object.

And this grab is so blatant that it seems excessive as a negotiating tactic. It screams out, "I'm a crook, can we do a deal!"

2: While it's not the same as archives on the Internet, there were perpetual rights grabs in some ISP and web-hosting contracts. I can see some explanation of these in the clash between new technology and old law.

Consider what a web-hosting services does, just like any other competent computer service. They take regular back-ups. So do smart domestic users. I haven't used computer-type tape drives, but I'be used cassette tape, floppy discs, CD-ROM, and now DVD. So there's the reason for the infamous Geocities "any technology" clause. Likewise, if your backup is a write-once medium, you can't easily delete one chunk of data.

You can expect any book today to exist as a computer file, somewhere between the publisher's mailroom and the printing press. You can expect backups.

What's important is the difference between a right to store the data, and a right to publish it. If the technical people and the lawyers had understood each other, these frightening contract terms could have been different.

This isn't all that close to what Simon and Schuster are doing, but I can imagine that they are trying not to leave any loopholes under which they can be sued. It's almost as if they don't trust lawyers and the courts. Is the idea of the reasonable man dead?

Having said all this, I also find the pattern--the extreme negotiating position and the blatant grab---feels like a part of the supposed physhopathic tendency of modern business. Isn't it treating people as things.

Meanwhile, in court somewhere not far away:

"Your Honour, I have evidence that my client has psychopathic tendencies, sufficient to show that he is not responsible in law for his actions."

"And what might this evidence be, Mr. Haddock?"

"Your Honour, this document is a Harvard MBA degree, summa cum laude, awarded to my client in 1997."

"Objection!"

"Yes, Mr. Wool, we know you're a Harvard graduate. Overruled."

#37 ::: Charlie Stross ::: (view all by) ::: May 21, 2007, 05:33 AM:

Dave Bell: This isn't all that close to what Simon and Schuster are doing, but I can imagine that they are trying not to leave any loopholes under which they can be sued. It's almost as if they don't trust lawyers and the courts. Is the idea of the reasonable man dead?

What you may have missed sight of is that while a typical midlist novel doesn't have a whole lot of money at stake, a tiny fraction will inexplicably explode all over the market like, oh, Terry Pratchett. This is, after all, the Bingo model of mass market publishing -- throw a lot of stuff at the wall, and see what sticks.

However, if the publisher hasn't bulletproofed the contract for what turns out to be an unexpected best-seller, well, people get very funny when significant amounts of money are at stake. So all real publishers -- who aren't suicidal -- draft all their book contracts as if Fergus McTwaddle's handbook of Outer Hebridean seabirds is going to be the next Harry Potter. Just in case.

#38 ::: Alex ::: (view all by) ::: May 21, 2007, 05:50 AM:

Business model - go round buying the rights to out-of-print books and POD them, selling over teh intuhwebs. I'm astonished Amazon.com hasn't done it already.

#39 ::: Charlie Stross ::: (view all by) ::: May 21, 2007, 06:29 AM:

Alex: it's been done, for about the past ten years. See also: Wildside Press.

#40 ::: Heresiarch ::: (view all by) ::: May 21, 2007, 07:58 AM:

Michael @ 25: "The role of the publishing house's editorial staff as contributors to the artistic product has no current parallel in music, so the label's envisioned irrelevance and the near-panic that creates aren't part of traditional publishing's worries at this point."

I wouldn't be too sure. The fanfic community has created a remarkably successful open-source analogue of an editorial staff with nothing more than rigorous peer-editing. Online communities can even replicate the, IMHO, most vital function of mainstream publishers: reading through the slush pile.

In fact, it's hard to imagine what part of the book publishing industry is truly irreplacable, other than the marketing element. Sounds a lot like the music industry, actually. The big differences between the two, I'd say, lie on the other end. Book readers are much more attached to the physical experience of books than music-listeners are attached to, say, CDs. (Vinyl-lovers are the exception, rather than the rule.) They are also far more idiosyncratic--at least in sf/fantasy. There are a lot more midlist authors with their own loyal following and a lot fewer huge stars. Kind of like the music industry is becoming, now that I think about it.

#41 ::: Debbie ::: (view all by) ::: May 21, 2007, 08:44 AM:

Charlie Stross, that's the best description of publishers' contract philosophy that I've seen. I can get giggly when we even discuss the stage dramatic and musical rights to a public health textbook, but it happens all the time in my job. (No, my company does not try to hold on to them if asked; yes, we take them as a matter of policy if not questioned.)

#42 ::: Steve Buchheit ::: (view all by) ::: May 21, 2007, 08:53 AM:

in post #37 Charlie Stross said "So all real publishers draft all their book contracts as if Fergus McTwaddle's handbook of Outer Hebridean seabirds is going to be the next Harry Potter. Just in case."

I've been trying to reverse engineer the business logic of S&S contract change and all I can come up with (other than control issues, and this business wouldn't have any people like that in it) S&S is grabbing these rights not to ensure that the "Outer Hebridean Seasbirds" book is the next HP, but in case Fergus' third book down the line (The Blue Footed Boobies in Their Habitat) is the next HP which then means our man Fergus' backlist becomes very valuable and can be reissued at low-cost.

#43 ::: Steve Buchheit ::: (view all by) ::: May 21, 2007, 08:54 AM:

in post #37 Charlie Stross said "So all real publishers draft all their book contracts as if Fergus McTwaddle's handbook of Outer Hebridean seabirds is going to be the next Harry Potter. Just in case."

I've been trying to reverse engineer the business logic of S&S contract change and all I can come up with (other than control issues, and this business wouldn't have any people like that in it) S&S is grabbing these rights not to ensure that the "Outer Hebridean Seasbirds" book is the next HP, but in case Fergus' third book down the line (The Blue Footed Boobies in Their Habitat) is the next HP which then means our man Fergus' backlist becomes very valuable and can be reissued at low-cost.

#44 ::: Bruce Cohen (SpeakerToManagers) ::: (view all by) ::: May 21, 2007, 09:36 AM:

Debbie @ 41

"I am the very model of a modern major publisher ..."

#45 ::: Kate Nepveu ::: (view all by) ::: May 21, 2007, 10:05 AM:

Heresiarch @ #40, as has been observed many times, fanfic communities read slush piles _because they have no other choice_.

This is not generalizable to categories of works that can be published commercially.

#46 ::: Dave Bell ::: (view all by) ::: May 21, 2007, 10:33 AM:

Steve, I think you might have a point. It makes more sense than Charlie's original; thought. Current reversion clauses set a time limit, and it seems a bit far-fetched that a new book isn't going to be a big success within that period, if it is going to be one at all.

I suggest that the correct free market response to this contract is to tell Simony and Shyster that if they want more than other publishers, they should pay more than other publishers.

#47 ::: Kellie Hazell ::: (view all by) ::: May 21, 2007, 11:48 AM:

This eternal rights grab is also standard at Ellora's Cave, but they are a specific genre and primarily electronic publisher. I know of a couple of authors who have left EC over this issue and gone to the other electronic publishers that are direct competitors of EC. An eternal rights grab may make more sense for a dedicated epublisher that may do more than, say, S&S, to keep interest in the book beyond a specific amount of time, but it still doesn't make a lot of sense for an author. I don't know that EC's acquisitions have been lacking in any way as a result of their rights grab, though. They're too large (for their niche of the market) and deal primarily in unrepresented authors who may not understand what they're giving up. Also, I don't think their rights grab got a whole lot of attention, and I'm not sure what the actual contract language looks like (but I'm pretty sure it's non-negotiable).

#48 ::: Charlie Stross ::: (view all by) ::: May 21, 2007, 12:58 PM:

Dave & Steve: most publishers will not touch installment #n in an on-going series unless they have the right to publish #1 - #(n -1). This is doubly true if the earlier installments are owned by a rival publisher. (Nothing can strangle the sales potential of the third volume of a trilogy quite like some other guy remaindering the first.)

There are notable exceptions. IIRC, Kage Baker's Company series moved publisher. So did Pat Hodgell's Kencyrath saga (although sadly their most recent publisher, Meisha Merlin, has just closed its doors). Nevertheless, it's generally hard to move a serial that's in print from one publisher to another, especially between major publishers who will do a mass market print run. It's also hard to convince a publisher to re-issue early works in a series if someone else has already gobbled up all the low-hanging sales.

If you're writing a series for a mass-market publisher, you will almost never want to reclaim the rights to earlier titles while your publisher is still buying new ones. (The time to claw those rights back is when they've stopped buying sequels. Then you go looking for a small hardcover specialist to roll the limited edition omnibus ...) So I have a hard time believing that S&S are willing to make themselves look evil just to prevent authors from doing something that they don't want to do in the first place.

Let me advance an alternative hypothesis based on Cock-Up Theory rather than Conspiracy Theory:

Imagine that the high-ups in a large publishing behemoth that's been in medium to serious financial trouble in the past couple of years (see also Earthlight: RIP) has told everybody to figure out new ways to squeeze blood from old stones. In the fullness of time, everybody comes back with their ideas. Some bright spark in Legal (who wouldn't know an author if they tripped over one) has come up with a corker: "why don't we try and hang onto republication rights in perpetuity? We can sneak it out in the legal boilerplate, disguised as a new POD clause, and nobody will notice." This goes to the usual committee meetings, where by the usual pathological logic of the committee process, nobody dares criticise it: because if it works, lo, fresh blood will be squeezed forth from old stones, just like the CEO said -- and if you criticise it, you're committing that heinous offense against corporatism, Being Negative. In any case, the editors figure the agents will gut the clause on sight; and nobody else is willing to put their neck on the line and make an enemy out of Legal by pointing out just how unpopular this will make them when word gets out. So the Bad Idea slouches into the light despite nobody (except the bright spark in Legal) really having their heart in it.

In other words, it's the corporate equivalent of a brain fart.

Make sense?

#49 ::: Brooks Moses ::: (view all by) ::: May 21, 2007, 01:01 PM:

It seems to me that, if S&S is so certain that this clause is in the best interests of the author, then they should be perfectly happy to include a clause stating that in the usual "out of print" circumstances the rights will revert to the author upon the author's request.

That leaves them free to keep printing POD onesies and twosies as long as they want, so long as it stays a good deal for the author (which they seem to be saying they're certain it will), without being a rights grab.

On the other hand -- isn't this the way things go already? Or, at least, it certainly could be even if the rights automatically revert; if this really is a good deal for the author, there's nothing stopping them from saying at the "out-of-print" point, "We'd like to keep printing your book on a POD basis and give you royalties. Is that okay with you?" And, if the author feels that's the best thing they can do with the book at that point, they say, "Yes," and so it goes.

#50 ::: Steve Buchheit ::: (view all by) ::: May 21, 2007, 02:51 PM:

#48 Charlie Stross, the brain fart theory does make sense. I usually codify those apparitions as "Conference Room Think" (i.e. it sounded good in the conference room presentation, who knew porcupines were allergic to peanut butter).

I guess I wasn't thinking of a series or sequels. I was thinking more of our man Fergus' Book One, in "Which Doris Gets Her Oats" sells reasonably well, but not enough to make it to mass-market. Two years later Fergus' second novel, about covert whale-sharks in pinstripe suits dealing meth doesn't sell as well. But Fergus' third novel, now seven years down the time stream, a rip-roaring Pirate Bodice-stitcher Space Opera breaks out and catches fire spinning off whole new subgenres and Fergus-wannabees, touting a BNA blurb syaing, "You really got to be reading Fergus." Suddenly, Books I and II become viable in reprint. Even if our man Fergus has stayed with the same publisher, for fictional purposes let us make up a publisher and call them Shyster and Swindle, those books are at least luke warm properties with some life left in them.

Here's where my ignorance of publishing will shine like the carbon form it is.

In this case, let's say Shyster and Swindle don't have this contract paragraph of continuous grant of copyright. More than likely at least "Doris" is OOP. Our publisher would have to repurchase the rights (i.e. at least a new advance), or Fergus could auction it.

Now, if Shyster and Swindle have this paragraph in the original contract, I believe they could then reprint Fergus' first two books while only restarting royalty payments when all the shouting is done (probably a year down the road).

I am willing to be better educated on the publishing business if I am wrong about this.

#51 ::: Bruce Cohen, SpeakerToManagers ::: (view all by) ::: May 21, 2007, 03:41 PM:

Charlie Stross @ 48

Makes a lot of sense to me. I've seen this happen in other industries: software and electronic instrumentation in particular. Someone asks for permission from Legal, instead of begging for forgiveness as the proverb tells us to, and before you can say "precedent of contract law" a totally nonsensical decision is made, and can't be unmade, because, of course, that's The Best Legal Advice.

Sometime's it isn't Legal's fault, but that of some manager who sees a way to gain advantage by jamming one of his competitors up. Of course, that manager has had the shrewdness to have legal vet the ploy, so we get back to "Sound Legal Advice".

#52 ::: --E ::: (view all by) ::: May 21, 2007, 04:11 PM:

Steve Buchheit @ #50:

I see nothing wrong with the publishers having to pay all over again to get rights to a book published ten years ago that went OOP eight years ago. Lucky Fergus for pulling the publishing brass ring!

For every "Doris" that Shyster and Swindle have to buy back, there will be a thousand books by authors who don't hit it big further down the road. Somebody has to play the odds up front, and it shouldn't be the author. Authors odds are already poorly stacked.

#53 ::: ppint. ::: (view all by) ::: May 21, 2007, 05:29 PM:

maybe it's been taken for granted, or perhaps i've just missed it, but a significant part of an sf/fantasy author's income over their career used to come from advances upon reselling licenses to their reverted books:

it strikes me that s&s's proposed new standard contract would eliminate this.

can any author afford to sign such a contract?

#54 ::: Teresa Nielsen Hayden ::: (view all by) ::: May 21, 2007, 05:35 PM:

If by "afford" you mean "not take a financial hit from it," I'm sure some can. But this is not the situation the author or the publisher envisioned when they signed the original contract.

#55 ::: Steve Buchheit ::: (view all by) ::: May 21, 2007, 08:27 PM:

#52 --E, well the publishers in my scenario will be paying Fergus in both cases. With the second case, though, our man Fergus will be payed royalties based on being a first time author with the math including deductions for promotion of the book. In the first case the contract will be renegotiated with Fergus, now an established quantity, and the book requiring less marketing and promotion with some money up front.

#56 ::: Kevin Marks ::: (view all by) ::: May 21, 2007, 09:20 PM:

I wrote on a variant of this scam regarding music rights in the UK.
If their POD is such a wonderful thing for authors and themselves, with tiny marginal costs, then they should concede a non-exclusive right to it, as in #49 above.

#57 ::: Julia Jones ::: (view all by) ::: May 21, 2007, 10:35 PM:

Kellie #47: In the comments at Dear Author's post on the S&S rights grab, Ellora's Cave said that they do have an OOP reversion clause that covers both them ceasing to offer the book for sale and the sales numbers dropping below a certain number per year. Whether the number is set at a level that from an author's point of view has any practical effect, I wouldn't know.

#58 ::: Kellie Hazell ::: (view all by) ::: May 22, 2007, 11:09 AM:

Julia @57: Thanks for the update. I was sure the EC situation had to be discussed somewhere, especially in relation to the S&S grab. Just hadn't flexed my search engine skills appropriately...

#59 ::: Julia Jones ::: (view all by) ::: May 22, 2007, 12:02 PM:

Dear Author's got another post up this morning, this time about why *readers* should care about the S&S rights grab.

#60 ::: bryan ::: (view all by) ::: May 23, 2007, 03:45 PM:

What happens if a non-clued in author signs this and their book becomes Harold Potter style bíg and they want to make it a series. Because if it did I would assume the author with an agent and all at that point would tell them to fuck themselves.

#61 ::: James D. Macdonald ::: (view all by) ::: May 24, 2007, 03:14 PM:

Yet more wackiness from Simon & Schuster:

Project Publish

Looks like they ought to start random drug tests over there -- someone's been hitting their stash kinda hard before coming to work.

Or perhaps this is just a way to get a bunch of writers who don't know any better to sign their new no-reversion contract in order to create a precedent. "See, those guys didn't object!"

Or maybe they're looking to a future in which no one with half a brain submits to them, and getting their source of manuscripts lined up in advance.

#62 ::: JC ::: (view all by) ::: May 24, 2007, 03:44 PM:

You know, I misread it at first and thought that the program was called "Project Rubbish."

It looks like they're trying everything to see what sticks. (The problem is that the stuff I hear about is all stuff that would make me very depressed if they stuck.)

#63 ::: Tristan ::: (view all by) ::: May 24, 2007, 08:13 PM:

Here is Simon & Schuster's corporate address, taken from their website.

It's a simple matter to drop them a note, identifying yourself as an avid reader and book-consumer, and state that unless contracts revert to their former state, you will never buy another Simon & Schuster book.

Simon & Schuster, Inc.
1230 Avenue of the Americas
New York, NY 10020

#64 ::: mythago ::: (view all by) ::: May 27, 2007, 01:56 AM:

"A CBS Company". Well, that explains much.

bryan, "My agent says to get bent" is not a strong or even particularly successful defense to a breach-of-contract lawsuit.

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