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June 13, 2012

Keyboard solo by a gigging editor
Posted by Abi Sutherland at 01:47 PM * 61 comments

Over on Scalzi’s Whatever, much fun has been being had in the aftermath of the release of Redshirts. (An excellent book, by the way).

But there’s been some rumbling, because not everyone in the world has been able to buy it yet. And, as usual, there’s a good deal of confusion about precisely why.

So Patrick has been explaining in the comment thread.

The entity that published REDSHIRTS last week, Tor Books, has the exclusive right to sell the book in the English language in the US, Canada, and the Philippines, and a non-exclusive right to sell it in English in all other countries of the world-_excluding_ the UK and a long list of Commonwealth and former-Commonwealth countries. A list which includes South Africa.

John and his agent could have sold us the “World English” package of rights, which would entitle us to publish the book in English everywhere-we would certainly have been willing to offer for that-but instead they opted to take the slightly riskier path of selling us rights only in our core market, reserving the “UK-and-a-bunch-of-Commonwealth-and-former-Commonwealth-countries” package to themselves, in order to try to sell it separately to a British publisher. (This is a slightly riskier path for most genre writers who aren’t top-level New York Times bestsellers, because British publishers don’t really buy very much SF and fantasy from the US below that sales level. This wasn’t always the case but it certainly is now.) After a period during which I imagine John’s agent shopped the book around to various British publishers (I don’t know the details because it’s, literally, not my business), they accepted an offer from Gollancz. However, that deal was concluded just a month or two ago, so it was vanishingly unlikely that Gollancz was going to get their edition out simultaneously with ours. I believe their edition is scheduled for November.

(Footnote here: An exact inverse of this situation is why Tor’s edition of Hannu Rajaniemi’s debut novel THE QUANTUM THIEF appeared in May 2011, several months after Gollancz’s edition in September 2010.)

The more interesting question you ask is: Why can you, in South Africa, buy a copy of the US REDSHIRTS hardcover from (for instance) bn.com in the US, but you can’t buy the US e-book edition? Why do online retailers pay attention to your address and credit card when assessing your eligibility to buy an e-book, while being willing to ship any edition of any print book anywhere?

The answer is a little arcane, but bear with me. The fact of the matter is that, when it comes to traditional printed books, neither the retail booksellers nor their customers (that’s you) are party to the contracts between John and his various publishers. Our contract with John says that _we_ won’t sell our editions of his book outside the territories in which John grants us exclusive and non-exclusive rights. Gollancz’s contract with John says that _they_ won’t sell their editions of his book outside the territories in which John grants them exclusive and non-exclusive rights. But if Amazon buys a bunch of copies in the US and someone in South Africa says “Hi, here’s my credit card, send me one,” no contractual agreement has been violated. Amazon owns those books, not us. They can do what they want with them, including selling them to people in South Africa, Shropshire, or the moons of Jupiter. Amazon is not John Scalzi, Tor, or Gollancz. You are not John Scalzi, Tor, or Gollancz.

(Another footnote: It has been perfectly possible and legal for regular people in the US to buy British editions for decades longer than the Internet has existed. For years one of the absolutely standard ads in the back pages of the NEW YORKER was a little panel ad offering “BRITISH BOOKS BY PHONE.” There’s nothing new about this.)

But the agreements under which online retailers sell our e-books include restrictions, imposed by us, which require them to keep track of where orders are coming from, and require them to refuse to sell to individuals who seem to be trying to purchase from outside the areas in which we have the right to sell. Effectively, in this case, Amazon (or bn.com, or Apple, or Kobo, or whoever) _is_ a party to our agreement which John. So they can’t sell you that e-book, because we don’t have the right to sell copies in South Africa.

(Two footnotes. First, yes, everyone knows that there’s a limit to how thoroughly anyone can police these restrictions. Get a VPN connection that makes you look like you’re online from a country where we have the rights, and a credit card with a US or Canadian address, and you can probably buy the ebook with no problem. Second, the agreements I referred to concerning ebook sales, between us and the online ebook retailers, have nothing in particular to do with any current arguments over “agency models” versus other models of ebook retailing. These restrictions were in place before the “agency model” and they’re in place now.)

Does this sound like a lot of bullshit gobbledegook? Probably. Is it true? Absolutely. Did it happen because everyone rolled out of bed one morning and said “Let’s make global ebook retailing baroquely complicated, because annoying our customers is fun”? No. Does the book industry need to be rethinking how it handles this stuff? Yep. Is it? I think it’s starting to. Meanwhile, you wanted to know why-and that long explanation is the “why.”

The conversation continues in the thread, with a much lower level of entitled anti-Big Publishing aggression than many of these discussions contain. As a result, actual information is being conveyed, and people are coming to understand the book industry better. Worth a read.

Comments on Keyboard solo by a gigging editor:
#1 ::: praisegod barebones ::: (view all by) ::: June 13, 2012, 03:14 PM:

As someone who can't, legally, buy a whole bunch of e-books that I'd like to, for reasons like this, its nice to know the 'why', even if I'm still frustrated by the 'that'.

Thanks, Patrick, for explaining, and thanks abi, for the pointer.

(I don't suppose anyone's ever going to want to buy or sell the rights to distribute Scalzi's works in English in Turkey, because a) why would they want to? and b) how on earth would you figure how much they were likely to be worth? Though it's perhaps worth mentioning that since a lot of Higher Education in Turkey is English-medium, and a lot of the best students either jump or are pushed into engineering type degrees, so there might be a non-negligible audience for it.)

#2 ::: Emily H. ::: (view all by) ::: June 13, 2012, 03:17 PM:

I am very interested in seeing how this sort of thing plays out over the coming years.

I regularly buy Japanese books. Right now, I'm lucky enough to live in one of the few US cities with a large Japanese bookstore, but even so, shipping fees close to double the price of the books.

Right now, Amazon is trying to make inroads into the ebook market in Japan. I hope that they succeed (Evil Empire-ness of Amazon nonwithstanding), but I'm still waiting hopefully to find out whether I'll be able to buy Japanese ebooks with a US address and credit card.

Expats and second-language-learners don't amount to a hill of beans in this crazy world, but it's been my long-held dream to have a copy of a Haruki Murakami novel that I could tap to pull up dictionary definitions.

#3 ::: abi ::: (view all by) ::: June 13, 2012, 03:24 PM:

Emily H @2:
...it's been my long-held dream to have a copy of a Haruki Murakami novel that I could tap to pull up dictionary definitions.

I have a couple of Dutch-language books on my (UK) Kindle. That took some shoogling about—the only Dutch eBook vendor I could find sells DRM'd books, Very Much Not in Kindle format. I'd love a Dutch-English dictionary on the device as well, but I can't find anything, either official or not.

Of course, I'm buying them in-country with an in-country credit card, so that's one less layer of complexity than you face.

#4 ::: Xopher HalfTongue ::: (view all by) ::: June 13, 2012, 03:25 PM:

pgb, here's the Turkish cover for Old Man's War, and the one for The Ghost Brigades. So it's happening.

But you said in English, I now reread. (I duhh myself appropriately; I stupidly read that as his English(-language) works, though he has no others, whereas you clearly referred to the language of publication. Leaving the above because the covers are so cool.) You can buy them from UK or US sources, yes? In DTE, anyway. Or are you saying not?

#5 ::: Xopher HalfTongue ::: (view all by) ::: June 13, 2012, 03:37 PM:

Also, I first read this post title as "...giggling editor." I've heard PNH laugh, but I don't think I've ever heard him giggle. The mental image was surreal and hilarious.

#6 ::: STK ::: (view all by) ::: June 13, 2012, 03:55 PM:

I really hope that the publishing industry will rethink regional restrictions for ebooks. The whole beauty of ebooks is that theoretically I can buy them in whatever language and wherever and whenever I choose. As it is, to get the ebooks I want, I often have to jump through a number of hoops. And sometimes it's simply impossible to get the ebooks I would like to buy legally.

I'd also appreciate if online book shops would stop to try to tell me I want to buy books only in my native language. That's so annoying. Just because someone's IP is from a certain country doesn't necessarily mean they are interested in books in that country's language!

#7 ::: abi ::: (view all by) ::: June 13, 2012, 04:02 PM:

STK @6:

I presume by "the publishing industry" you are referring to the authors as well as the publishers since, as Patrick explains above, regional rights derive from a set of contractual relationships that involve more than just publishers.

I ask because it's a common refrain in these discussions that The Evil Publishers are Inflicting this stuff on readers. And then we're into the Shouting Past Each Other game, which is rather dull.

I think this conversation will go much better with some clarity that we, having read the original post, are not falling into that trap. Some care in vocabulary will go a long way toward ensuring that.

#8 ::: SamChevre ::: (view all by) ::: June 13, 2012, 04:07 PM:

But the agreements under which online retailers sell our e-books include restrictions, imposed by us, which require them to keep track of where orders are coming from, and require them to refuse to sell to individuals who seem to be trying to purchase from outside the areas in which we have the right to sell.

Am I reading this correctly as stating that the limitations on e-book sales are a matter of the agreement between the publishers and the retailers, and not a matter of the agreement between the publisher and the authors?

#9 ::: Jon R ::: (view all by) ::: June 13, 2012, 04:09 PM:

abi @ 7:

Well, the bit that seemed weird to me was this:

But the agreements under which online retailers sell our e-books include restrictions, imposed by us, which require them to keep track of where orders are coming from, and require them to refuse to sell to individuals who seem to be trying to purchase from outside the areas in which we have the right to sell.
(boldface mine)

Tor has the rights to sell physical books in certain countries, and they have the rights to sell e-books in certain countries. But only for e-books does this restriction carry over to the end customer, and the words "imposed by us" would certainly seem to imply it's the "Evil Publisher" at work there.

I guess personally my perspective is, I would like the publisher to explain all restrictions on me buying the books, either by pointing to restrictions imposed by the author, or by explaining how they arise from the status quo in the industry. To pick a not-at-all-arbitrary example, the DRM restrictions on e-books (which Tor are moving away from, thankfully) are rarely justified in this or any other manner.

#10 ::: praisegod barebones ::: (view all by) ::: June 13, 2012, 04:10 PM:

Xopher @ 4: Thanks! I knew that OMW was available in Turkish, both because I saw the post about it on Whatever a few months back, and because I saw it in my local bookshop a few weeks later (geek moment - I'd just been to see John Carter of Mars with my daughter, and we'd looked in to see if any of the books were on sale). But my Turkish isn't nearly good enough for me to be able to read novels in Turkish for pleasure; and in any case I prefer to read things in the original when that's feasible.

As you say, I should be able to get a printed copy of Redshirts from the UK (or even, conceivably, in an English language bookshop in Turkey), as I did with OMW and The Android's Dream. But, on the other hand, I've got a shiny new e-reader, and I'm trying to get out of the habit of carrying a backpack full of books with me wherever I go, especially since I walk or take public transport most places, and it's just no fun carrying that kind of weight in 38 degree heat. So I'd quite like to be in a position to give money to people in exchange for the right to read their work electronically. But only in the same kind of way that I'd like to have a slightly larger flat for the same rent, or longer holidays and the same salary.

#11 ::: abi ::: (view all by) ::: June 13, 2012, 04:18 PM:

My perception—and I could be wrong—is that the publishers, having the geographical rights and restrictions (in all cases), have also the ability to enforce those rights more strictly in the case of eBooks. New distribution mechanisms permitted it, and I suspect that their legal departments insisted that those mechanisms, being possible, be used.

So perhaps they're blameworthy for not turning the same kind of blind eye to electronic border-crossing that they do to paper border-crossing. But it all stems from contractual relationships with the authors, who have sold them those rights in those given configurations.

#12 ::: Lawrence ::: (view all by) ::: June 13, 2012, 04:18 PM:

#8, #9: As I understand it, Tor is imposing those e-book sales restrictions on retailers because their contract with the author imposed restrictions on them -- they agreed not to sell Redshirts in the UK, so they tell e-book distributors, "Don't sell it in the UK."

It all traces back to the original division of rights.

#13 ::: jim ::: (view all by) ::: June 13, 2012, 04:22 PM:

I had thought that the two sets of rights -- roughly North American and roughly the British Empire minus Canada -- were an anachronism (like the British Empire itself) that had lapsed: that, essentially, all publishers these days offered only for World English.

But I suppose that agents look for whatever edge they can get for their clients and even if the split rights are an anachronism, if they can sell them separately for more than they can get for selling them together, they will.

#14 ::: geekosaur ::: (view all by) ::: June 13, 2012, 04:28 PM:

Jon R @9:
And the end of that quote says why; they are implementing, to the best of their understanding and ability, the contractual restrictions they are operating under.

I think "imposed by us" is somewhat misleading, although strictly speaking it is accurate; they are imposing the restriction because that restriction otherwise does not automatically apply on the next level down. Practically the imposition originated elsewhere, but contractually it did not.

#15 ::: Joris M ::: (view all by) ::: June 13, 2012, 04:37 PM:

Jim @ 13, Elizabeth Moon has a nice explanation over in the thread at Scalzi's why publishers attuned to the local markets still have a place in this time.

#16 ::: Janet Brennan Croft ::: (view all by) ::: June 13, 2012, 05:43 PM:

One way to think about this is that there's a Right of First Sale for the physical books. Once you have sold the physical books to Amazon.us, they can sell them anywhere in the world they want -- just as when you sell the physical book to a library, they can loan it to anyone in the world they want. There basically IS no right of first sale for e-books because e-book "sales" are really more like rental contracts, and governed by contract law, not copyright law. (This is why it's so much harder for your local library to handle lending e-books, and why we are so exercised over database contracts. Not outright OWNING an item makes us antsy.)

#17 ::: Mary Aileen suspects spam ::: (view all by) ::: June 13, 2012, 06:00 PM:

golf dvd, are you real?

(Very generic comment, first time poster, suspiciously non-human name)

#18 ::: Fragano Ledgister ::: (view all by) ::: June 13, 2012, 06:02 PM:

abi #7: There are also the issues of national law (or municipal law as the IR/IL folks like to call it), national taxation regimes, and good, old fashioned inertia (wouldn't ert a fly, it wouldn't).

#19 ::: Jacque ::: (view all by) ::: June 13, 2012, 06:17 PM:

Speaking as a grumpy customer (who nevertheless understands that there are actual practical reasons for the restrictions as they stand, but is nevertheless grumpy), could y'all just work it out so I can buy the stuff I want to buy? /grump

:)

(Why, yes, the world does revolve around me. Why do you ask?)

#20 ::: IreneD ::: (view all by) ::: June 13, 2012, 06:27 PM:

"As someone who can't, legally, buy a whole bunch of e-books that I'd like to, for reasons like this, its nice to know the 'why', even if I'm still frustrated by the 'that'."

Ditto.

By the way, I understand that it's frustrating for PNH to have people respond "well, this still sucks and publishers should do something about it" when he takes the time to explain that people like him are doing what they can. It's human also that he lashes out at the complainers a little. The sad thing is, the complainers complain because they are human too, and have even less say than him or anyone at Tor in the whole situation.

#21 ::: John Mark Ockerbloom ::: (view all by) ::: June 13, 2012, 07:04 PM:

"There basically IS no right of first sale for e-books because e-book "sales" are really more like rental contracts, and governed by contract law, not copyright law."

It's not governed by contract law unless there's a contract.

And the contract seems to be largely up to the ebook retailers. Go to different sites, and you'll see different terms of use. Many of the major retailers do include terms that appear to take away at least some first-sale rights. But the exact terms are different in different cases, and some retailers don't seem to do this.

Unfortunately, I've only found one retailer carrying Redshirts that makes it clear what DRM (if any) applies, and doesn't appear to pre-emptively claim first sale rights-- and that retailer is only carrying a DRM'd version of the book at present. I've written to their customer service, though, in the hopes that they'll update to the DRM-free version soon. Failing that, I'll probably break down and buy in print-- but I'd been hoping that this would be the major-publisher release that would finally let me *buy* an ebook for a change. Though perhaps Tor's own store will allow that when it opens.

#22 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 13, 2012, 09:05 PM:

John Mark Ockerbloom: "and that retailer is only carrying a DRM'd version of the book at present"

Who is this, and why are you not naming them? For pity's sake, tell us. To the best of my knowledge everyone except Sony is supposed to be either selling it in non-DRM form by now, or about to. (Sony, evidently, is incapable of selling non-DRM'd files, or for that matter feeding itself without a minder.)

#23 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 13, 2012, 09:07 PM:

Abi, #11: "perhaps they're blameworthy for not turning the same kind of blind eye to electronic border-crossing that they do to paper border-crossing"

I must not have explained this clearly enough. The situation with paper books has nothing to do with anyone "turning a blind eye." Nothing.

#24 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 13, 2012, 09:17 PM:

Lawrence, #12: "As I understand it, Tor is imposing those e-book sales restrictions on retailers because their contract with the author imposed restrictions on them -- they agreed not to sell Redshirts in the UK, so they tell e-book distributors, "Don't sell it in the UK."

Yes, this is basically the case.

A real lawyer would dismiss this explanation as oversimple, but basically, to a reasonable order of approximation, print books are covered by first-sale doctrine, so once (say) Amazon US buys them from us, we have no say in who they sell them to. But e-books aren't, so (whether OR NOT the famous "agency model" is in effect), we have to hammer out agreements with retailers about how they sell our e-books, and practically speaking, we have to require them to honor the territorial commitments we've made to authors and their agents.

Yes, I know this leads to a lot of perverse moral outcomes. And a lot of people being baffled by a system that was built to deal with 19th- and 20th-century realities. I don't need the lecture; I deliver it every few days to someone at Macmillan.

(A _different_ person at Macmillan, I hasten to say. Being suddenly reminded of the old comedy skit: "In New York City, a man is mugged every 37 minutes. We interviewed that man.")

#25 ::: Caroline ::: (view all by) ::: June 13, 2012, 09:35 PM:

PNH @ 23, it wasn't clear to me, at least. (I may be very stupid.)

Your original explanation says (I think) that once Amazon (for example) buys a bunch of printed copies of Redshirts from Tor Books, it then owns those copies. While Tor Books has agreed with John Scalzi not to sell those copies outside of certain territories, Amazon has not made any such agreement, with Scalzi or anyone else. Since Amazon owns the copies it has bought, Amazon can sell them to whoever it likes, anywhere in the world.

However, in the case of e-books, Tor agrees with John Scalzi not to sell the e-book of Redshirts outside certain territories. Then Tor Books asks Amazon to agree not to sell the e-book of Redshirts outside those territories either, as a condition of selling the e-book at all (I think). The reason for this difference isn't clear to me. Why ask Amazon to make that agreement in the case of e-books, but not in the case of printed books?

Is it because the ownership of e-books doesn't transfer in the same way as the ownership of printed books? Is Amazon selling an e-book published by Tor Books legally the same as Tor Books selling that e-book, for purposes of contract agreements about what territories Tor has the rights to sell the book in? Or is it something entirely different?

(Please note, this is emphatically not me leading up to an EVIL FATCAT PUBLISHERS COPYRIGHT SUCKS rant. I'm genuinely curious.)

#26 ::: Caroline ::: (view all by) ::: June 13, 2012, 09:36 PM:

Derp, cross-posted with PNH @ 24 in which he explains concisely and precisely the answer to my question @ 25.

#27 ::: Xopher HalfTongue ::: (view all by) ::: June 13, 2012, 09:37 PM:

PNH, would this be accurate?

When you buy a dead-tree-edition book, you're buying the object. Copyright law means you can't copy it at will, and some other restrictions apply, but you can sell the object, lend it etc. at will because you own it.

When you "buy" an e-book, you're buying a license to have a copy and read it. While you can copy it to other readers, you can't sell it to someone else because the license is not transferable under the EULA.

Publishers sell the DTE books to retailers, and the retailers have no restrictions on where they sell those books, because the location restrictions are only on the publisher's sale, not the retailers'.

The e-books are licensed, and the licenses ARE restricted through the "retailers." So the retailers aren't authorized to sell licenses except in particular areas.

I think this is just what you've been saying, repeatedly. I'm just hoping that if I've got it right, saying it in yet another form of words may allow a few of the people who still haven't got it to get it.

#28 ::: Steve C. ::: (view all by) ::: June 13, 2012, 09:53 PM:

A while back, Megan Mcardle had a blog post on the Atlantic site that said something like this: if you're walking across an empty field on a path and come across a door, your first response might be, "What a crazy place to put a door! It doesn't belong here. Someone should tear it down."

That response could very well be wrong. Until you know why that door was constructed, tearing it down could have unforeseen results. Someone went to no small measure of effort to put up that door, and while the reasons might escape you, there were reasons.

Perhaps the door should be destroyed. Perhaps it no longer serves a useful purpose. But until you know why that door was erected, there are risks in tearing it down.

Every new thing that comes along, like e-books or Amazon, builds upon what has come along before. That's inescapable. What eventually is modified or removed will leave a mark.

#29 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 13, 2012, 10:03 PM:

The deal with all those old contracts? They're binding.

#30 ::: Janet Brennan Croft ::: (view all by) ::: June 13, 2012, 10:09 PM:

Xopher @27, from a librarian's perspective at least, that's accurate. With a physical object (this includes microfilm, DVDs, and all the other odd little categories like kits and maps and realia) what we do with them after we purchase them is up to each individual library, with certain limitations on copying. With an electronic item (electronic book, item in a database, born-digital items) we are subject to different rules about lending in-house and through ILL, putting on reserve, etc. Your local skill in negotiating each contract dictates what you get to do, so it can vary from library to library (and consortium to consortium for group contracts) -- just like it varies depending on where an individual consumer obtains their ebooks.

#31 ::: John Mark Ockerbloom ::: (view all by) ::: June 13, 2012, 10:42 PM:

"Who is this, and why are you not naming them? For pity's sake, tell us."

Sorry, didn't mean to be coy; since I hadn't been through the complete purchase process, I couldn't be positive I'd seen all their terms. The ones I *have* seen seem reasonable, basically "don't mess with our site", "keep your account credentials secure" and "don't violate copyright" (including "don't break any DRM on the product", which is already stipulated by the DMCA provisions of copyright law). Beyond that, I don't recall seeing any farther-reaching claims against the usual rights of individual book buyers and readers.

I was looking at the Diesel Ebooks listing, which is still marked "encrypted (DRM)" at the time I write this. They also sell DRM-free versions of other titles, and I'd imagine would be glad to sell the DRM-free version of Redshirts too.

#32 ::: John Mark Ockerbloom has been silenced by gnomes ::: (view all by) ::: June 13, 2012, 10:49 PM:

Maybe they'll let me say it if I use my library voice.

#33 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 13, 2012, 11:19 PM:

JMO: Thanks. Have forwarded the link to our digital folks, who will look into it.

#34 ::: abi ::: (view all by) ::: June 14, 2012, 02:38 AM:

PNH @23:

I was being excessively telegraphic and fairly unclear. Which isn't really that useful.

What I was getting at is more that, because physical book terms and conditions were created when place-of-first-sale was a pretty good approximation on place-of-distribution, the form of geographical restrictions imposed on them elides the two.

So it's not that legal departments that choose whether to turn a blind eye to instances of border-crossing. It's more that the terms and conditions of one format are inherently blind to the behavior, because it was negligible when they became standard.

Which was not really possible to unpack from what I said. I apologize to anyone I confused or misled.

#35 ::: Dave Bell ::: (view all by) ::: June 14, 2012, 05:20 AM:

Abi, isn't some of all this related to some pretty basic economic theory about the classes of goods? Physical books and ebooks are always going to be different because of those rather fundamental differences, and it is not just custom and habit.

#36 ::: Jack V ::: (view all by) ::: June 14, 2012, 06:37 AM:

So, what do you think SHOULD happen? It seems like:

* Authors want as many people as possible to buy their book
* Publishers want to be able to specialise in their usual region (arranging translation or localisation, promotion, logistics, etc) but where no local publisher is covering a region, for one of the original publishers to sell to "all the rest".
* But to avoid having two publishers competing over the same region, because that's wasteful for them, and hence, for the author and readers too
* Readers like having local editions where possible, but want as much choice as possible, and if they already know they want something, want to be able to buy it as soon as possible

Is that a fair summary?

And so:

* Divvying the rights up by region is problematic, because different publishers probably won't be able to release simultaneously. And in the past, everyone has just put up with that, and readers have usually had the choice to pay for shipping or to wait, which is fair enough. But that doesn't really work for ebooks, since LOTS of people will probably defect to a foreign market.
* Selling worldwide rights to one publisher works if the author is happy to do it, but SOME regions are likely to be under-served in that case, and the author naturally wants to arrange sales in those areas if they can, and also benefits from not relying exclusively on one publisher, however nicce.
* Selling physical and e-book rights separately in a region doesn't usually work at all, since then the two editions can be competing directly against each other.

So, is there anything that the people who know about publishing think WOULD be better?

I have no idea, I want my convenience satisfied, but preferably in a way that satisfies everyone else as well.

It seems like there's a body of people who already know they want to buy an author's book before a local publisher is agreed. And are they more the natural market of the author's main publisher, who did original editing, who did promotion which generally raised the profile of the book even outside their core region? Or more the natural market of the local publisher, who may have localised previous editions, promoted the book locally, etc, etc? In fact, it seems it may fall anywhere between the two. Originally, the assumption is that people will ONLY know about books from local publishers, but now that's a lot less true. In some cases it may not be true at ALL: if a book is published locally for the first time, the existing demand must have come entirely from abroad. But presumably the author doesn't want to cut the local pubisher entirely out of the loop, because if the local publisher can sell to local demand, there'll be more support for them to publish future books by that author.

So, um, I don't know. Could the rights to a region be sold at a variable discount if the author's first publisher can sell ebooks there until the book is published locally? Could there be some reciprocity agreement, where ebooks revenues are shared between a worldwide ebook publisher and a local publisher? Or something?

#37 ::: abi ::: (view all by) ::: June 14, 2012, 07:05 AM:

Dave Bell @35:
isn't some of all this related to some pretty basic economic theory about the classes of goods? Physical books and ebooks are always going to be different because of those rather fundamental differences, and it is not just custom and habit.

Sort of. In this case, that physical difference makes it technically possible to use another geographical enforcement mechanism for ebooks than is used for paper books. But custom and habit come from practices and usages, which in turn come from a geographic rights-and-contracts structure which has not, fundamentally, changed as the classes of goods have.

What I'm trying to say is that the different models and mechanisms hide an underlying similarity. In each case, we see an attempt, using the particular traits of the story delivery technology (paper, ebooks) and the current state of the art of logistics, to make the geographical distribution of goods map to the legal rights that the author has licensed to the publisher.

Both forms of technology (book and logistics) have changed over time. So the first stab at things (paper books and geographical restrictions on first sale) has become habitually circumvented as communication and shipping have become cheaper and easier. First it was books by phone; now the internet makes it trivial to order books from far-flung places to be shipped to my door.

So we now have a second stab at things with eBooks, which doesn't leave that loophole open any more. That grates at people not only because the mechanisms are expressing a different set of contractual relationships*, but also because we were used to that loophole and now it's gone.

But I don't think that loophole was, originally, a feature of the system. It was a bug. If that bug's been fixed to allow the geographical distribution to better match the rights distribution as the contracts currently set it out, that's not a failure on the part of the implementation.

I can't tell if I'm presenting a blinding glimpse of the obvious here, or arguing some obscure corner of the overlap between practice, custom and logistics that no one can understand. It's just something that I thought and expressed fairly poorly while watching the Netherlands entirely forget how to play football against Germany.

----
* there is a difference, because of the license-this-copy vs own-this-stack-of-paper model, but that's another story

#38 ::: SamChevre ::: (view all by) ::: June 14, 2012, 08:58 AM:

[pedant voice on]

Steve C @28

The "door in the field" analogy may have been used by Megan McArdle, but it was originally from Chesterton (in Why I Am a Catholic) and is quoted in full here
[/pedant voice off]

#39 ::: DBratman ::: (view all by) ::: June 14, 2012, 10:11 AM:

The conversation here has extensively addressed the question I had, which I did not see addressed at all in Scalzi's own thread, which was: why no restrictions on buyer location with physical books when there are such restrictions with e-books?

Thank you all for addressing that so extensively.

It seems to me, though, that there's room for further musings on this subject.

As has been noted, while it's long been possible to buy books from overseas retailers, it used to be a highly ornate process, involving (then-expensive) overseas phone calls or mail, and the hassles of currency exchange.

But the advent of online retailers and the wider spread of credit cards (still rare for European retailers in the early '90s, as I found at the time) has lowered the barriers considerably. The free-sale provision for physical books is a relic of a pre-Internet, pre-credit card time, and I wonder if, were the rules being written afresh now, that provision would not be allowed.

Conversely, if there were no Internet, and e-books had to be distributed by mail on disk, perhaps free sale of those too would be more likely, and only the greater ease of pirate copying of e-books over physical books would be responsible for a difference.

Just a musing on implications and hypotheticals.

#40 ::: Theophylact ::: (view all by) ::: June 14, 2012, 10:18 AM:

Steve C. @ #28, SamChevre @#38: On the other hand, you have every right in the world to walk around that door rather than, say, pay admission to pass through it.

#41 ::: heresiarch ::: (view all by) ::: June 14, 2012, 11:06 AM:

jim @ 13: "I had thought that the two sets of rights -- roughly North American and roughly the British Empire minus Canada -- were an anachronism (like the British Empire itself) that had lapsed: that, essentially, all publishers these days offered only for World English."

I expect this to occur roughly at the same point as all distribution networks are shared in common throughout the English-speaking world, all publishers are shared in common throughout the English-speaking world, and all laws are shared in common throughout the English-speaking world. The structure of the English language publishing market, I gather, is driven a great deal more by the shape of the economic and legal conditions under which it is conducted than by the language it is setting type in: legalities, distribution, and marketing are all intensely particular to local oddities, even if the words aren't. Thinking otherwise is reader-bias: the words are what matter to me, so they are what matter.

Dave Bell @ 35: "isn't some of all this related to some pretty basic economic theory about the classes of goods? Physical books and ebooks are always going to be different because of those rather fundamental differences, and it is not just custom and habit."

That misses, I think, the extent to which copyright was designed in the first instance to make intellectual property function as much as possible like physical property--the reason why physical books act more like TVs (capable of being resold, but not of being copied and sold en masse) than like ideas (infinitely reproducible) is already a legal fudge of the barriers between different classes of goods. The point here is that there's already a lot of legal modification of underlying "fundamental" differences going on: the differences between books physical and e- are due as much to different legal-fudging methods as to anything inherent to their being.

#42 ::: Jacque ::: (view all by) ::: June 14, 2012, 11:43 AM:

So, I'm curious: which pot do audiobooks fall into? Does it depend on whether they're on CD or downloadable? Does it vary by case?

#43 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 14, 2012, 11:56 AM:

#42, Jacque: I'm not sure what you're asking.

#44 ::: Jacque ::: (view all by) ::: June 14, 2012, 12:08 PM:

PNH: Well, the particular case I'm thinking of was when I wanted to buy an audiobook on CD, that was published in the UK. Couldn't do it through the original publisher. "You don't have a UK address."

Which puzzled me mightily: "Hello? Paying customer? You don't want my money?"

I did eventually score a downloadable version (from booksonboard.com, if memory serves. My presumption was that it was a legal version; I could have been wrong.). As it was explained to me in response to my initial rant, it had to do with geographical licensing.

My deduction from the above discussion would be that sounds-recorded-on-a-CD would be more paper-book-like, in that Retailer could sell to whomever could pony up the cash because it's a physical object. But a downloadable version would be subject to the "licensing" model, and therefore be constrained in who could buy the license. (Which seems to directly contradict the experience I had.)

Also another, unrelated question about paper books: do I vaguely recall that it wasn't always legal to re-sell paper books (or even, technically, to lend them unless you were a library)? I seem to remember a period back in the misty past (<'70s) when used book stores didn't exist, because it was illegal to re-sell a book. Then, suddenly, there were used book stores, because something had changed in the law, or in the interpretation of the law.

#45 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 14, 2012, 12:10 PM:

Abi, #37: I don't see the longtime state of affairs with regard to the retail selling of printed books as a "loophole" or a "bug." I see it as justice. Traditional trade-publishing contracts specify the territories into which the particular publisher may _distribute_. They say nothing about what private individuals may or may not seek out and purchase. They can't; those private individuals aren't party to those contracts. This means any restrictions on private individual purchases of books would have to be statutory or regulatory, and I'm pretty sure that a fairly large number of people in our culture--perhaps not always a majority, but a mobilizably-large fraction--would regard, and would have for a long time regarded, statutory or regulatory limits on which books a private individual may buy and own to be highly suspicious at best, and quite possibly monstrous. Indeed, the whole trend of 20th-century history was one of wearing away at such restrictions that existed -- Ulysses, Lady Chatterly's Lover, etc.

It is this gut sense of unfairness, of wrong--this sense that one is being denied and inconvenienced merely so that some corporation can squeeze out a few extra bucks--that we experience when we find that we can't buy a legal ebook of a title that half our friends on the internet are discussing. This gut sense of wrong is correct. And its effect is to train us to regard legality as no more than a racket. Because so often, in "intellectual property" matters, it is.

#46 ::: abi ::: (view all by) ::: June 14, 2012, 12:15 PM:

Fair enough.

#47 ::: Tom Whitmore ::: (view all by) ::: June 14, 2012, 12:22 PM:

Jacque @44 -- used book stores existed back into the early part of the 20th century -- at least according to some of their internal notes. I shopped at ones that I know were extant in the 50s.

Ben Stark (who co-chaired the 1968 Worldcon) made a business for many years of importing British paperbacks of books that weren't available in paperback in the US. Unfortunately, he was buying from the publishers and eventually (after many years) got slapped down around it (one major reason was McCaffrey's The White Dragon, which came out in UK pb well before the US). I know of this because I used to buy books from him.

#48 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 14, 2012, 12:22 PM:

#44, Jacque: I'm afraid I don't know enough about audiobooks to be able to guess at what happened to you. It does sound odd, though. Certainly I've personally bought dozens of British music CDs over the years from the web pages of UK retailers -- occasionally, even music CDs that also had American versions in "print."

I'm pretty certain there was never a time in the US when used-book selling was legally restricted.

#49 ::: jim ::: (view all by) ::: June 14, 2012, 12:26 PM:

Heresiarch @41: legalities, distribution, and marketing are all intensely particular to local oddities

Yes, but to a much lesser degree than before. Prior to, say, the Second World War, US Publishers had no salesforce in the UK and vice versa; UK publishers would have no mechanism to respond to an urgent US bookstore reorder and vice versa; British publishers had special rights in the Empire.

Today that's not true. British and American publishers have equal access to, say, the Australian market (and, as came up in the original thread, the South African). British publishers can and do have accounts with US distributors and vice versa. British publishers can arrange marketing deals with Barnes and Noble, American publishers with Waterstones. And e-book distribution and marketing is naturally global.

I grant Elizabeth Moon's point (in the other thread) that her UK publisher can use a cover that's more appealing to UK readers and her US publisher one that's more appealing to US readers. But the same thing would probably be true of West Coast and East Coast American readers. There's nothing particularly "local" about The US, Canada and the Philippines vs. the British Empire minus Canada.

The split is an anachronism. I don't actually expect it to go away. But it causes more problems than it nowadays solves.

#50 ::: geekosaur ::: (view all by) ::: June 14, 2012, 12:41 PM:

My recollection was that used bookstores were tiny family-owned shops and hard to find; then someone got the idea that there was serious money to be made in it, and they started springing up like weeds. No change in the law, just another spurious gold rush.

#51 ::: Carol Kimball ::: (view all by) ::: June 14, 2012, 01:30 PM:

I remember used book stores being around for at least 50 years.

Wasn't "no-resale" connected with unsold stock reported to distributors as destroyed (often, the covers were ripped off) in return for credit?

One DTE = one sale owed to publisher. No sale, copy reported destroyed, then sold anyway, = fraud.

#52 ::: praisegod barebones ::: (view all by) ::: June 14, 2012, 01:49 PM:

Patrick @ 45:


Traditional trade-publishing contracts specify the territories into which the particular publisher may _distribute_. They say nothing about what private individuals may or may not seek out and purchase. They can't; those private individuals aren't party to those contracts. This means any restrictions on private individual purchases of books would have to be statutory or regulatory

Isn't there a wrinkle here, though? Couldn't publishers, if they chose, sell dead tree books to bookstores with certain strings attached (and with one of the strings being 'no resale without imposing similar conditions on the purchaser)?

The reason I'm thinking this is that I'm under the impression that DVDs, for example, are sold for home use only, and specify lots of ways you can't use them - for example, not on an oilrig, I believe. And I think that in the UK, books were always sold subject to a rather odd 'no resale except in the same cover' clause. ( I always found this bizarre and frightening when I was a child, but I gather that the purposevwas to prevent the resale of remaindered books)

Or are these examples of statutory/regulatory conditions, rather than contractual ones?

#53 ::: geekosaur ::: (view all by) ::: June 14, 2012, 01:55 PM:

I think we need to refer back to the first sale doctrine at this point.

#54 ::: Mary Aileen ::: (view all by) ::: June 14, 2012, 01:58 PM:

praisegod barebones (52): I've seen the "not to be sold or lent except in the original cover" [slight paraphrase] on older books in the US, too. Libraries will* have books rebound and circulate them anyway, though. I'm not sure exactly what the legal situation is, or how/when it has changed.

*or would--it's less common nowadays

#55 ::: P J Evans sees probable spam ::: (view all by) ::: June 15, 2012, 10:22 PM:

Non sequitur comment and a name that looks like a collection of random letters.

#56 ::: aphrael ::: (view all by) ::: June 15, 2012, 10:49 PM:

Abi, at 3: a friend of mine fell in love with certain German writers when she was in Germany. She would love to be able to buy kindle editions of their works, because then she could use the German language dictionary on her kindle to look up words when she doesn't know them.

This cannot be done. Amazon.de won't sell them to her because she doesn't have a German billing address, and as far as she can tell (and unsurprisingly) nobody in the US carries German language ebooks. She *can* get a few of them in translaiton, but that's not what she wants. Alternately, she can get the physical books shipped to her, but that's not helpful.

So she's doing what many people of our generation do when our attempts to buy things legally fail: she's resorting to bitTorrent.

#57 ::: Alan Hamilton ::: (view all by) ::: June 18, 2012, 01:05 AM:

Although it would be legal (at least under US law, don't know about the UK) from someone in the UK to buy a copy of Redshirts on Amazon.com, the reverse is not true. Copyrighted items made outside the US are not subject to the first sale doctrine, and Tor could take action against anyone that imported non-US editions.

John Wiley & Sons did exactly that to someone that was importing authorized Thailand-made copies of their textbooks (Kirtsaeng v. John Wiley & Sons, Inc.).

Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501.

The case is at the Supreme Court, but given past rulings I doubt they'll overturn it.

So yes, the ability to buy a foreign edition (via phone, mail, or Amazon.co.uk) is a bug, or at least a cost/benefit calculation rather than something that's legal.

#58 ::: Stephen Frug ::: (view all by) ::: June 18, 2012, 04:45 PM:

...it's been my long-held dream to have a copy of a Haruki Murakami novel that I could tap to pull up dictionary definitions

Speaking of which, I have some books in French on iBooks (out of copyright stuff I pulled from gutenberg). The "tap and define" function gets to an English dictionary. But there are plenty of free English-French dictionaries (or, anyway, web sites) out there. Does anyone know if it's possible to change that (temporarily -- I also read stuff where I like having an English dictionary) so that we can tap and get an English translation of a French word?

#59 ::: David Harmon sees spam ::: (view all by) ::: July 22, 2012, 05:40 PM:

Russian text and Cyrillic URL to boot!

#60 ::: spam spam spam spam ::: (view all by) ::: August 01, 2012, 01:50 AM:

spam probe SPAAAAAAAAAM probe, spam spam spam spam spam.... yeah, that.

#61 ::: James V sees comment spam ::: (view all by) ::: November 24, 2013, 03:51 PM:

Either that or its orders from Thanagar. Someone hand me the codebreaker.

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