Big Name Authors Realize Their Old Contracts Don't Cover eBooks; Route Around Old Publishers To Release New Versions

from the there's-a-legal-fight-coming... dept

Mon, Jul 26th 2010 2:05am — Mike Masnick

Late last year, we wrote about a legal fight, where Random House was fighting some of its authors who claimed that their old publishing contracts did not cover ebooks. Those authors wanted to go off and publish ebooks via other partners (or even directly themselves). Random House tried to claim that even though the contracts didn't specifically cover ebooks, that it was more or less implied. The problem, of course, was that Random House had already lost a case about this very issue years back. So, this April, the company was forced to concede with the one author they were fighting -- though it claimed this was an "exception."

Except some other big name, old time authors know better. They've been realizing that they could be free to take their ebook versions elsewhere, and now they're doing exactly that. A bunch of really well known authors, working via their agents, have decided to route around their publishers and offer some of the most popular books of all time as ebooks directly on Amazon's Kindle, without going through a publishing house. Among the books released through this effort are works from Philip Roth, Martin Amis, Vladimir Nabokov, Hunter S Thompson, John Updike, William Burroughs and Saul Bellow along with many others. Basically, some of the biggest names in literature from the 20th century.

Of course, more recent authors won't have this luxury directly, since new publishing contracts for books cover ebooks as well, but it will be interesting to see how well these new ebooks do for authors -- and if it leads to more authors realizing they can just self-publish outside of the traditional publisher system. I'm still not sure that makes as much sense, say, as going "indie" from a music standpoint, as publishers still offer a tremendous amount of value that's hard to recreate, but at the very least, it could open the door to more specialized "indie" publishers, who are more author-friendly.

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Filed Under: contracts, ebooks

27 Comments

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Richard (profile), 26 Jul 2010 @ 2:54am

I'm sorry, I could be misreading you...
But it looks like you're almost saying that having literature locked into a single proprietary format, protected (in the US at least) by the force of criminal law, is a good thing?
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Mike Masnick (profile), 26 Jul 2010 @ 3:09am

Re: I'm sorry, I could be misreading you...
But it looks like you're almost saying that having literature locked into a single proprietary format, protected (in the US at least) by the force of criminal law, is a good thing?

Hmm? No, I said no such thing. I'm just noting that these authors are using a quirk in their contracts to offer ebooks on their own.
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NAMELESS.ONE, 26 Jul 2010 @ 3:29am

so is the price cheaper
it costs 4.375cents to download a 1gig file
you can download 2000 500Kbyte pdfs ibn a gigabyte

so what cost is the author going to sell me the work?
20$? 10$? 5$?

All the above are too much price compared to the distribution and what a regular author gets.
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Crosbie Fitch (profile), 26 Jul 2010 @ 3:55am

Re: so is the price cheaper
The funny thing is the publishers of this eBook: Privilege and Property – Essays on the History of Copyright have prohibited me from selling it at a price greater than zero (per CC-NC). So I can't just undercut them by a penny, I have to undercut them by the full eBook retail price of £4.95. If I could undercut them by 5p, I'd be incentivised to sell copies at £4.90, but no, I have to sell it at £0.00. Very strange. Presumably they expect to sell more copies if they oblige their competitors to give them away rather than sell them.

I guess it has something to do with the stats, e.g. "We sold more copies than anyone else - if you accept our definition of 'sold' as being for a price greater than zero".

Who'd have thought that a quirk of the English language (sale @ 1p vs gift @ 0p) would blind people to maths?

I blame Lawrence Lessig for either or both of the following:
a) not understanding the commerce of cultural exchange.
b) understanding that the vast majority of people are easily fooled ("NC means no-one else can sell copies of your work - and you'll be the only one who can sell copies, so will be rich!").

And yes, I am selling copies of the eBook at the bargain price of £0.00 - here: http://www.digitalproductions.co.uk/index.php?id=250 (and it doesn't even have DRM, so it's even more useful/valuable!).
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Bill Jackson (profile), 26 Jul 2010 @ 5:21am

The end digital slavery?
The hand that holds the whip has now changed.
New authors will now have the ability to self publish, and will not ever be slaves - except on their own terms.
Old scribes with no digital rights clause covering their work will jump ship in droves.
What about those recent writers who are trapped with a digital clause??
There will be a war of sorts, the brick and mortar crowd will cling to their bread and butter. These digital slaves will rebel and how will peace ever emerge from these intractable foes?
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Crosbie Fitch (profile), 26 Jul 2010 @ 5:37am

Re: The end digital slavery?
Glyn Moody only recently revealed that he too was legally unable to self-publish eBook versions of his ironically entitled 'Rebel Code'.

Slavery is not an inappropriate term, differing only in scale.

Both copyright and slavery represent legal suspensions of the individual's natural right to liberty.
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Anonymous Coward, 26 Jul 2010 @ 5:41am

Seems to me to be a somewhat risky strategy for authors to take, given publishers can essentially blacklist them for future paper publishing.
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Evostick, 26 Jul 2010 @ 5:48am

Ouija yes?
"A bunch of really well known authors, working via their agents, have decided to route around their publishers"

How are Hunter S Thompson, Vladimir Nabokov, John Updike, William Burroughs and Saul Bellow communicating with their agents?
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Crosbie Fitch (profile), 26 Jul 2010 @ 5:50am

Re:
ROTFLMAO :)

You think (traditional) publishers are still going to be around for 'future paper publishing'?

"Oooh. I'm blacklisted. How will I get my writing out to my readers when no-one will print it on paper for me?"

Try http://Lulu.com for them quaint old folk who can't use these new fangled webtablet thingies. You bung the PDF on your own site and the readers download it, and give it to Lulu to get it printed on paper.
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Owen Lock, 26 Jul 2010 @ 6:26am

Re: The End of Digital Slavery
The end has come too late for most of these authors; they are dead (save only Amis?). And, because they are dead, the listed authors have little to fear from a publishing black list. And, because they are dead, they probably do not realize that their publishing contracts don't cover ebooks.

I think it would have been better for Mr. Masnick to say that an agent, Andrew Wylie, "knows better" than those big time authors. I assume that Wylie was dealing, primarily, on behalf of himself and the estates of those authors, and the interests of those estates may be very different from those the authors considered important while alive (though at least one of those listed was alive recently enough to protest Random House's stance IIRC). This is not to argue the validity of the point: the courts have, I believe rightly, held that the publishers do not hold the electronic publishing rights. Random House's insisting that it holds them will merely continue its record of unfortunate precedent-making in publishing law.

As to Mr. Fitch's "Slavery['s] not [being] an inappropriate term," in my 30 years in publishing, I only rarely saw an author dragged to a table and forced to sign a contract or accept an advance. And several of those featured here were signatories of 7-figure advances. Poor, stupid, deluded, creatures that they were, most authors actually fought hard to gain their involuntary servitude, gleefully signing away their children's patrimony. And, for now, I believe a good many authors would be well advised to continue to do so. There has always been a place for "self-publishing", but for authors with immediately recognizable talent or audience, the big publishers and their horrid contracts will probably be the best bet for, say, 2 or 3 years. The answer to involuntary servitude for one's early books is to write more books, later, freer. And to negotiate one's contracts intelligently.
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BSmith, 26 Jul 2010 @ 6:41am

Re: Ouija yes?
My reaction, too, when I read the list of authors!
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Hephaestus (profile), 26 Jul 2010 @ 6:44am

Re:
"given publishers can essentially blacklist them for future paper publishing."

hmmm ... there is this thing called competition. If 95% of publishers blacklist an author, what about the 5% that will jump through hoops to get the author. Blacklist for media are pretty unworkable in this day and age.
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Crosbie Fitch (profile), 26 Jul 2010 @ 6:53am

Re: Re: The End of Digital Slavery
I suggest it would help authors more, if it were properly recognised that no author should, through an 18th century privilege, be effectively able to alienate themselves from what should be their inalienable right to liberty - to freely share and build upon all published writings - including their own (qv Glyn Moody above).

Why even now, we have the WIPO perversely attempting to 'protect' folklore from the depredations of the very privilege that threatens it: http://www.ip-watch.org/weblog/2010/07/26/wipo-sees-first-real-progress-on-text-for-protection-of-fo lklore-in-10-years-2

When WIPO attempts to protect folklore you should have a clue that something somewhere has gone terribly wrong...
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Bill Jackson (profile), 26 Jul 2010 @ 6:58am

Slavery for the willing
What about for the unwilling? Publishers who embed all rights in their boilerplate!
How can a nascent writer retain the digital rights if the publisher refuses? How can he get a differing royalty structure and sales price for the hard cover, mass media and digital editions, with their wildly divergent burdens?
I have long felt that the bricks and mortar publishers have stood in
the way of e-books, which they probably failed to understand and saw
as parasitic to their main industry.

They did this by maintaining an onerous price on the e-book.
If you look at the traditional book at $25 it is sold to amazon at 55%
off list ($13.75, more or less), and the author will get a royalty of,
say 5-10% of sales price, more or less.
In this there is all the paper handling, waste, remainders etc, so at
the end of the day the publishers end up with a business that makes
7-8% on sales.

That means a book makes the publisher about $1 and about the same for
the author, again, more or less. All the rest is wasted trees, oil
etc.
Of course this an average, some authors might get fatter royalties, as
they sell millions, and some books make nothing at all.

So along comes the e-book and it gets priced at ~$20. all of which
goes to the publisher, less his royalty, so on the face of it, they
appear highly profitable to the publisher.

I feel, that this is not quite the case and the reluctance of people
to pay such a high price will reduce the uptake, which means the sales
are a lot lower than they could be.

Stephen King tried and failed with an e-book where he gave away a few
free chapters and sold the balance. I think ths was killed by the same
greed.

In fact, I feel that the use of freelance authors, who are flat feed
and not royaltied, will enable people to self publish and sell their
book for $2 through self publish sites that provide the front end,
credit card fee collection and remittance to the author of these
fees. The use of a minimal digital rights protection plan will suffice
as a fee of $2 or so will not be a barrier to buyers in most cases.
Kindles will only view approved goods. Implicit in this is that kindle
needs to avoid getting a fee per book read = barrier. The kindle
should be a buy and use device. They might charge a minimal fee to
encode the text in kindle readable format, but this should be a low
cost, much like making a PDF file is quite low in cost.

If Kindle does not do this, others will, and an end run to an open
standard e-book mechanism will appear. The use of OLED screens will
enable color e-books and very low cost. They might not have the
battery life of black and white e-paper tablets, but color is a
seller.
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Mr. LemurBoy (profile), 26 Jul 2010 @ 7:18am

Whether the authors are dead or not, I still enjoy seeing things get shaken up like this.
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drew, 26 Jul 2010 @ 7:41am

Re: Ouija yes?
That was my question, too.
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Suzanne Lainson (profile), 26 Jul 2010 @ 7:56am

I've done both
The book publishing industry has been so much ahead of the music industry on terms of contracts. Most authors sign for one book at a time, which means they are free agents for each book they publish. And unlike record labels, book publishers don't bill the costs of making and marketing the book to the authors. Authors often pay for additional marketing costs themselves, but they determine if they want to do it.

I had a traditional book publishing deal, where I got an advance and the book came out, and was picked up by a book club, etc. The advance was fair and I was happy with the deal.

Then I started a book on sports marketing and management for athletes. It was a niche topic and I was primarily interested in getting the info out. I didn't want it to go out of print, so rather than shopping it around to a book publisher, I just broke up the sections and started to make them available for free as an email newsletter. It was well received and since I allowed people to use it for educational purposes, it was used as supplementary curriculum material in a number of sports marketing and management college courses.

I would still go back to a traditional publisher for some topics. If I felt it was a mass market book and I could get a good advance, I'd sign a contract. If I felt it was something I wanted to update frequently, I'd probably just do it as a self-published online book. Or, more likely, as a blog post. What I am writing about now, music-business related topics, are really in-depth explorations of various subjects and are comparable to what I might put together for a book. But by uploading them as I want, I'm not bound by a publishing deadline. On the other hand, there's no "event" to promote like releasing a book.

At any rate, book publishing has generally been good for authors. It's not been as good for publishers because a lot of the projects they fund haven't earned their money back. But that's a different story.
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drew (profile), 26 Jul 2010 @ 10:57am

This isn't the music business
and were most of these authors not already dead i feel this would be a bit like biting the hand that feeds you. As Mike points out, publishing houses do a very different job to record labels.
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DH's Love Child, 26 Jul 2010 @ 12:08pm

Re: Slavery for the willing
So along comes the e-book and it gets priced at ~$20. all of which goes to the publisher, less his royalty, so on the face of it, they appear highly profitable to the publisher.

This is my biggest gripe about ebooks. I feel they should be priced at ab out $5. That is, I think, a reasonable balance.

*DISCLAIMER* I am Kindle owner
"Kindles will only view approved goods."
No, Amazon will only sell approved goods. There is plenty of free software out there to convert etexts into Kindle format. Amazon will also convert any standard (non DRM) etext files, such as PDF, mobi, prc, epub, doc, etc into AZW format for a reasonable fee.
Most of the books on my Kindle are ones that I had in PDF, or epub, or some other open(ish) format and converted for my Kindle. It also will read most PDF files perfectly well without conversion.
I suspect the same can be said about the other popular readers (Nook, Sony, etc). They can all read some open formats perfectly well and probably have software to convert into their friendly formats as well.
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Anonymous Coward, 26 Jul 2010 @ 1:09pm

One possibility for a book business model could be to put advertisements in CC books. It's unlikely people will remove them upon copy distribution because that would negate the books originality.

For famous authors companies may pay a decent amount of money to place their adds in a book. Of course you probably wouldn't put an Ad of Windows 7 in the book because Windows 7 will probably be obsolete in a few years. Instead, you would put an ad of Microsoft in general or you would try to place an ad that you can more permanently benefit from. Maybe an ad promoting an individual sponsor? Acknowledgments? The sponsors of this books are such and such. Perhaps the book can also reference other authors and books as well.

Perhaps for new authors releasing new books the book can be hosted at some site and the author can get paid a fixed amount from paid advertisers each time the book is downloaded. That way if the book becomes popular the author gets good money, if not the author doesn't. Later, if an author becomes more popular s/he can negotiate deals with advertisers who want their advertisements in a specific book.

I don't really see a workable business model but maybe someone can figure something out. People should experiment.
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Thomas, 26 Jul 2010 @ 1:22pm

I understand the whole controversy surrounding publishing companies right now, and it's a shame it has to be that way. Authors should have the right to offer their eBooks anywhere they please. I am a booksonboard fan, and I rarely go anywhere else for my eBooks, so it would be lovely to see more titles in addition to the numerous and great ones booksonboard already has.
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Bill Jackson (profile), 26 Jul 2010 @ 1:36pm

Yes, ads in books, been
there done that, now in e-books?

What about free readers that sense your eyeball position and can make sure you do not ignore the ads that leap to your fovea until they determine you have read enough...like those 30 seconds ads that tick down to zero on various news sites.

Arrow to the heart for that idea, but I suppose there needs to be a means to pay the writer.
Sell the book for $2, or even $1 and give the writer all but 25 cents, which will run the e-pay front end. If the writer wants to rent an editor to go over the text to hone it, let him pay the editor 10 cents a copy, or whatever they agree on.
A good editor can deal with many authors and in time might have 1000 books in his stable ticking over at 10 cents per sale. That could be a good living as long as you edit well and fast...the author thinks it is free editing. Commission editing has a very low burden.
I admit highly technical books with small numbers of buyers will require higher sales fees and edit costs, and may well need to be locked in some way.
Sales of a lot of engineering texts also need to be shaken up. They have a large client base, but are very costly due to the unholy alliance between school publishers and professors to bring out a new edition every year. Yes, I know all of science become obsolete annually, thus you need that rapid change....NOT
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teka, 26 Jul 2010 @ 8:12pm

Re: Re:
The important thing being overlooked here is distribution.

Sure, lulu will print your book for anyone who wants a copy, but will they put it on a physical shelf with the other new releases in hundreds if not thousands of locations across the state, across the world?

There is still a role for publishers.. they just have to find out that it is not as overlords of content but as partners of the author and asset to the reading public.
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Crosbie Fitch (profile), 27 Jul 2010 @ 1:07am

Re: Re: Re:
If your book is copyleft, then any book printer/distributor/retailer can print their own copies and sell them for whatever the market will bear. They'd be a bit silly to refuse to sell a popular work just because the author didn't play ball.

The traditional copyright/paper business model will be around for as long as authors and their readers consider it superior to the alternative.

When you add it up:
1) Free, instantaneous distribution (Internet)
2) Free, just-in-time printing (Lulu, etc.)
3) Free, viral/word-of-mouth promotion (copyleft)
4) Direct, disintermediated readers-to-author commissions for new work

The alternative is looking pretty tempting.
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Anonymouse, 27 Jul 2010 @ 1:07am

Keep more
Authors can publish direct on Amazon, distribute to all the major non-amazon retailers and mobile platforms via Smashwords, and their books never go out of print. The big surprise isn't that big authors are bolting for indie, the surprise is that it took them and their agents so long to realize this opportunity.

Mike, I have to disagree a tad on the value of publishers. Unless you're a big name, it's tough to get the support you once could. As ebooks rise in market share, the indie option becomes even more economically appealing.
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Chargone (profile), 27 Jul 2010 @ 6:17am

Re: Re: I'm sorry, I could be misreading you...
on the Kindle, which i think is where the issue arises.

not that it's much of an issue.
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tps, 30 Mar 2014 @ 8:40am

Re: Re: I'm sorry, I could be misreading you...
So as I read this, you are saying that in a traditional contract to publish before the advent of ebooks, and one that does not mention ebooks, the author did not give up those right and is free to publisher on his own, or with another company?

Can you also direct me to some case law on this?

Thanks,
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