The "Catch" in Author's Monopoly

Cory Doctorow's March LOCUS column asserts, "A Lever Without a Fulcrum Is Just a Stick":

Lever Without a Fulcrum

The "lever" here is copyright law, the "author's monopoly." The article focuses on some ways the common practices of major publishers can use this "lever" as a "stick" to beat creators. According to Doctorow, broad copyright protections designed in theory to safeguard the rights of authors often don't accomplish that goal in practice if publishers' contracts demand control over the exercise of those provisions. Authors, particularly novice writers, usually can't negotiate changes in standard publishing deals; they face "take it or leave it" offers. E-book and audio rights, for example, are seldom left under the creator's control. This situation effectively strips the "author's monopoly" of much of its power. "The fact that the company can’t reproduce your book without your permission doesn’t mean much if the only way to get your book into the public’s hands is through that company, or one of a small handful of companies with identical negotiating positions."

Doctorow analyzes phenomena such as music sampling, record contracts, Audible (the audiobook provider), video streaming, and DRM in relation to the general problem that, "Market concentration at every part of the supply chain is conspiring to make life harder for artists." His proposed solutions involve rights reversion clauses, changes in licensing rules, and unionization, among other possibilities.

I might suggest that authors deal with small presses (both print and e-book) rather than the Big Five. Small publishers can provide a personal touch and, often, more flexible contractual terms. But, of course, the mammoth corporations offer bookstore exposure and high-volume sales; the latter are almost impossible to achieve online without strong marketing skills. Also, an author who feels she lacks the expertise, resources, or time to exploit subsidiary rights effectively might prefer to leave those outlets in the hands of a publisher with the connections and experience to do so for her. It's a puzzlement.

Margaret L. Carter

Carter's Crypt

When Publishers Fold

Recently, author Delilah Devlin hosted me on her blog, where I wrote about what to do with books and stories "orphaned" by the closing of a publisher:

Rescuing Orphaned Works

In re-releasing the fiction mentioned in this post, I had the advantage that those novels, novellas, and short stories had been thoroughly edited before their original publication. Therefore, I could have confidence that professional editors had already deemed them to be publishable. Still, I welcomed the opportunity to comb through them again. It's a rare piece of writing that gets into print with no typos, not to mention examples of minor stylistic awkwardness that need a bit of polishing. Also, one of the publishers that closed, Ellora's Cave, seemed to have an irrational aversion to commas. I'm delighted to be able to put the punctuation in those stories back where it belongs. As an English degree holder and former professional proofreader, I cringed to imagine that some readers would think I didn't know the right way to punctuate a sentence.

As you may know, the Marion Zimmer Bradley Literary Works Trust is publishing its final installments of the Darkover and "Sword and Sorceress" anthologies this year. I'm sure lots of other readers and writers will miss those books as much as I will. The Trust has also decided to let many earlier volumes go out of print. That was disappointing news, because I'd expected my stories in the older anthologies to remain available in perpetuity. Thanks to the Internet, e-books, and self-publishing, I was able to collect my "Sword and Sorceress" contributions in a Kindle collection. (The MZB estate gave Darkover contributors permission to reprint those out-of-print stories, too, but unfortunately I didn't realize until too late that the files were no longer on my hard drive. Luckily, Amazon has many used copies of the Darkover volumes for sale, so the books and their contents haven't faded into nonexistence.)

In addition to minor edits and corrections, another decision to face in re-issuing older works is whether to update the settings into the contemporary era. With my first vampire novel, DARK CHANGELING, I had a definite in-universe reason for the year of its action, because of when it made sense for the protagonist to have been born. Therefore, I didn't change the time period, with the result that the date of the direct sequel, CHILD OF TWILIGHT, explicitly set thirteen to fourteen years later, couldn't change either. That's one difficulty I could avoid with several of my fantasy stories; the culture of "fairy-tale realm" or "vaguely Dark Ages England" remains unaffected by advances in computer or cell-phone technology.

In a way, it's a pleasure to have control over the presentation of some of my older fiction. On the down side, a self-published author also bears the full burden of marketing and promotion. How does one stimulate fresh interest in books and stories that readers have already been exposed to in earlier releases?

Margaret L. Carter

Carter's Crypt

Dear DOJ For The Last Time

Several of my correspondents asked me where they could find the Complaint and Request For Relief upon which the public has until June 25th to mail or email comments.

I am transcribing from pages 34 and 35 of the .pdf "e-books_complaint.pdf (49 pages)"

VIII. REQUEST FOR RELIEF

104. To remedy these illegal acts, the United States requests that the Court:

a.     Adjudge and decree that Defendants entered into an unlawful contract, combination, or conspiracy in unreasonable restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act, 15 U.S.C.  (squiggle that I don't have on my keyboard) 1;

b.     Enjoin the Defendants, their officers, agents, servants, employees and attorneys and their successors and all other persons acting or claiming to act in active concert or participation with one of more of them, from continuing, maintaining, or renewing in any manner, directly or indirectly, the conduct alleged herein or from engaging in any other conduct, combination, conspiracy, agreement, understanding, plan, program, or other arrangement having the same effect as the alleged violation or that otherwise violates Section 1 of the Sherman Act, 15 U.S.C. (squiggle that I don't have on my keyboard) 1, through fixing the method and manner in with they sell e-books, or otherwise agreeing to set the price or release date for e-books, or collective negotiation of e-book agreements, or otherwise collectively restraining retail price competition for e-books;

c.      Prohibit the collusive setting of price tiers that can de facto fix prices;

d.      Declare null and void the Apple Agency Agreements and any agreement between a Publisher Defendant and an e-book retailer that restricts, limits, or impedes the e-book retailer's ability to set, alter, or reduce the retail price of any e-book or to offer price or other promotions to encourage consumers to purchase any e-book, or contains a retail price MFB;

e.       Reform the agreements between Apple and Publisher Defendants to strike the retail price MFN clauses as void and unenforceable; and

f.        Award to Plaintiff its costs of this action and such other and further relief as may be appropriate and as the Court may deem just and proper.

In my opinion, every author in America ought to peruse this "Request" and ask himself/herself whether this "relief" punishes the CEOs, or whether it punishes authors.... including authors who were not in a position to benefit from the Agency Pricing during the period covered by the Complaint.

Moreover, authors should ask themselves whether the DOJ is setting a precedent that undermines any copyright owner's right to set the price for their work, and also to exercise or refrain from exercising any aspect of their copyright.

If any aspect of this "REQUEST FOR RELIEF" troubles you, you have until June 25th to write to:

John.Read@usdoj.gov

John Read

Chief Litigation III Section

Antitrust Division

US Department of Justice

450 5^th Street, NW

Suite 4000

Washington DC 20530

http://en.wikipedia.org/wiki/Copyright#Exclusive_rights
The rights of the copyright holder also permit him/her to not use or exploit their copyright, for some or all of the term."

Extremely interesting old piece about the precedent for copyright that would be set with the Google Book Settlement.

http://james.grimmelmann.net/essays/UnprecedentedPrecedent