The most recent 20 comments posted to Making Light by C.E. Petit:

Mark, there's a dark and dangerous third instance in which publishers try to force restitution of the advance: The publisher exercises its discretion to reject the manuscript for a previously contracted book. This is dark and dangerous because the publisher all too often (admittedly, that would be once… but I've got documentation of a lot more than that, just in speculative fiction, and TNH and PNH can probably guess one of them) won't say that the real reason it's rejecting the the manuscript is that the publisher now thinks it seriously overpaid on the advance and is trying to cut its losses. In this instance, an (often inexperienced) editor might be directed to write a memo pointing out several ways the book isn't perfect, then point to late delivery of the manuscript and say "It's your fault, author, now pay up!" It's sort of curious that this most often seems to happen to manuscripts delivered just a few days after the delivery date...

At which point the author and his agent are left trying to sell the book elsewhere for essentially nothing, because there's no way that they'll get more than 50-60% of the advance they had gotten the first time around. (Or, at least, I've never seen an instance of more than 60%.)

All of that said, I suspect that most, and perhaps even the vast majority, of rejections of contracted manuscripts are objectively valid, between "the manuscript is years late" and "the manuscript isn't as attractive as a pile of iguana poop." My point is just that there are other reasons than those that Mark mentioned that might require return of the advance.

And that's before getting into the murky field of preferential payments in bankruptcy...

At least in part, the WSJ's—and, for that matter, most of the "news sources" on the publishing industry—misimpression on "profitability" comes from two things:

(1) Too many believe the old canard that a book isn't showing a profit until it earns out its advance. That's simply not true; for trade nonfiction, the true profit point is usually with sales generating royalties of around 75% of the advance. Different categories have differing profitability points; for example, although I don't have a big enough sample to be statistically valid, celebrity autobiographies and memoirs seem to have a true breakeven at around 60% of the advance. Thus, many "disappointments" are nonetheless profitable for the publisher, regardless of the whinging (which seems calculated more to keep authors from demanding a bigger share and keep antitrust regulators from caring about industry consolidation than anything else).

(2) The rest of the problem is the magic of accounting. (Dark magic, worthy of Sauron, but that's for another time.) For example, most cost/sales (too often called "profit/loss") projections actually count a lot of overhead expenses twice, and allocate overhead on a per capita and not a pro rata basis. That is, the overhead gets allocated equally to Stephen King's novel and Joe Neopro's novel. This figure then becomes psychologically set in stone, and used both internally and (when revealed) externally as truth… when, under Generally Accepted Accounting Principles, that calculation can be made accurately only retrospectively.

And there's my problem. I'm expecting GAAP to apply to an industry that refuses to follow it. How silly of me.

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Statistically, startup publishers fail at approximately the same rate as any other startup business, measured over a five-year period. (Admittedly, there is a statistically significant difference, but it's quite small in actual terms.) That tells me that things can't be quite as dire as the publishing-oriented press would have us believe.

Fairly urgent correction:

CathyC noted at 1625/25 May 2006 that:

I think an awful lot of internet providers don't really understand much about the DMCA. They probably heard about the Ellison v. Robertson lawsuit (189 F.Supp.2d 1051, 2002 Copr.L.Dec. P28,420, 62 U.S.P.Q.2d 1170) back several years ago, and panic when the Act is invoked. Anyone interested in the actual case can use the cite here to find it.

Umm, no. That citation is no longer good law. The correct citation is:
Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Cal. 2002), rev'd, 357 F.3d 1072 (9th Cir. 2004).
I was lead counsel for Mr Ellison, and keep a webpage with a summary of the case and copies of the critical materials. (PS We won.)

<soapbox>Don't cite cases that have been overturned. It can actually get a judge to issue sanctions against you. I see this far too often on the 'net: it's easy enough to find a case that seems to support your position, but you also have to ensure that that case remains good law.</soapbox>

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A short primer on § 512 (the part of the DMCA dealing with ISP liability):

An ISP can claim a limited safe harbor for certain varieties of copyright infringements that appear on or through its services through the acts of third parties. The ISP remains liable (if liability would otherwise be established); the remedy available to the copyright holder is extremely restricted (see §§ 512(j)-(l)), but the DMCA is emphatically not immunity. Critical prerequisites include:
* Registering a DMCA agent with the Copyright Office under § 512(c)(2)
* Complying with the notice and policy requirements of § 512(i)
* Complying with the counter-notification requirements of § 512(f), available to parties who contest the designation of their material as infringing

The key distinction in practice is among three of the five categories of infringing communication channels: stored (§ 512(c)), indices (§ 512(d)), and transient (§ 512(a)). A provider's duties, safe harbor, and privileges are slightly different for each channel.

I've been in contact with the webhost, and I've been assured that the underlying data will be available by FTP within the next hour or so. I've had some behind-the-scenes discussions; I can't disclose anything, so don't ask.

I have a couple of other favorite sources of trailers, although they're not nearly as unselfrighteous as the recut examples noted by Uncle Jim.

UltimateDVD.org, which is updated quite frequently; the collection of materials on Serenity, for example, has been updated at least a dozen times since March, adding outtakes, etc. UltimateDVD also often has the European versions of trailers; the difference between the European and US trailers for HPGF is rather interesting.

Jurassic Punk isn't updated as often as is UltimateDVD, but it's a bit more stable and has a higher proportion of downloadable (as opposed to streaming) trailers.

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