Saturday, May 19, 2007

Authors Guild and Simon & Schuster

I was out Thursday evening and got home late. I saw the emails about the Authors Guild press release and had an immediate negative response. I finished the post I had started in the morning and added a second one on the Authors Guild alert before going to bed around 1 AM.

Friday morning I awoke, refreshed, with that press release on my mind. I remembered how badly the Authors Guild mishandled the Google Book Search initative in 2005. On 9/5/05, they filed suit against Google, claiming copyright infringement. You can find an independent analysis of that lawsuit here.

The last I heard on that lawsuit, Authors Guild v. Google had been pushed back to January, 2008. I just checked with here and found this: "Motions for Summary Judgment, if any, shall be filed Tuesday, March 11, 2008. The pretrial conference previously scheduled for 3/12/07 is adjourned. (Signed by Judge John E. Sprizzo on 1/3/07)."

In the event you don't agree with that analysis and would prefer a viewpoint from a layman, take a look at this article dated 11/8/05 from USA Today here. Kevin Maney, the technology expert for USA Today , had this to say about the lawsuits brought against Google: "The misinformation and misguided attempts to stop these projects are mind-blowing. The Authors Guild and the Association of American Publishers (AAP) have sued to shut them down. Writers have been pounding out angry op-ed pieces."

Sound familiar?

I remembered all that Friday morning, and also remembered the posts I'd written in the two years since. I sat down at my laptop and wrote a short post at 7:30 AM, saying I needed more time to think about this whole matter.

Item: Up until very recently, books that were not bestsellers had a very short shelf life and, once they were removed from retailers' bookshelves, the only way to buy them was from used bookstores.

And, with the advent of the Internet, locating and buying used books got a whole lot easier. You can find a used book online and purchase it in less than five minutes without ever leaving your house.

The Book Industry Study Group (BISG) did an exhaustive study on used books about 18 months ago. They projected that, within five years, the number of used books sold will be one out of every eleven books sold.

As every writer knows, a used book purchase might eventually win you a new fan, but it doesn't put money in your pocket immediately.

Item: Then the Internet came along. Think of it as a virtual bookstore with unlimited shelf space. A book never needs to go out of print in this virtual store.

Item: Beside the Internet, another advance came along that offers to revolutionize publishing. Print-on-Demand, a digital printing technology, offers publishers an economic way to publish as few as one or two books at a time instead of having to invest in costly print runs.

Despite the vanity presses' attempts to co-op the term "Print-on-Demand" in an effort to make it synonomous with self-publishing, POD is simply a technology, not a business model. All publishers are waking up to the fact that POD can save them a LOT of money.

Not only were the old printing methods costly, there was the additional expense of warehousing the books and then dealing with all the returns when bookstores failed to sell them.

Of course, the Internet conglomerates were the first to realize the enormous potential the Worldwide Web and POD technology offered to the publishing industry. Google jumped to position itself with its Book Partners program. Read Google's invitation to publishers here.

Although some publishers screamed copyright infringement in a companion case to that of Authors Guild, a check on here indicates there hasn't been a filing in the case in more than six months.

And, more interesting to me, less than eighteen months after filing suit, all five of the publishers listed in that second lawsuit have given permission for books to be listed with the Google Book Partners program.

Business makes strange bedfellows.

In an aside, Publishers Lunch announced on Friday that Google now has over a million full-text searchable books on display. has also been positioning itself to make inroads on the publishing industry. Amazon purchased a POD company, BookSurge, in 2005. Exactly a year ago today Amazon began talking about a new service for publishers here. Amazon announced the program this way: "Books are printed as they are ordered, providing publishers an easy and economical way to bring back out-of-print titles and introduce new, lower-volume titles."

This is Chris Anderson's The Long Tail at work. Anderson argued that, over time, a mid-list book on the Internet could sell as many copies as a best seller does in a couple of weeks. To read more about Anderson, go here.

Amazon is saying, "List your book with us instead of doing a costly print run, having to warehouse the books, and then wait for bookstores to return half of them to you for disposal. We will only print and ship a book when an order comes in for it. You'll have a 100% sell-through."

And don't forget eBay. By its purchases of PayPal, Skype and a dozen auction sites, eBay has been very direct in describing its role in Internet commerce: "eBay CEO Meg Whitman told investors in a conference call that she hoped a power trio of eBay, Paypal and Skype would deliver an 'unparalleled e-commerce and communications engine'." (C/Net News)

Many readers now go to eBay first when seeking to buy a used book. eBay hasn't made the kind of direct approach to publishers that Google and Amazon have. Frankly, I suspect eBay could turn the self-publishing world on its ear by offering marketing services to self-pubbed writers.

Item: Although it took them a while to catch on, the seven largest publishers are quickly making up ground. Both Random House and HarperCollins have developed widgets to allow them to offer their own versions of the "Search Inside" program. Over the last year, I've reported on many other upgrades and plans to move into other forms of media by all the big publishing house.

Item: Friday's Publishers Lunch (PL) had an interesting statement in its post about the Author Guild/Simon & Schuster issue:

The practical question for agents and authors, yet to be given a thorough test from agents we spoke to, is whether this is a revision of starting contract language or a firm move towards a new policy. Indeed the standard S&S boilerplate agreement did not include minimum sales thresholds, though this clause was readily negotiated.

In other words, PL is saying the current S&S contract doesn't include the minimum sales language either. It's negotiated on a case-by-case basis as authors and authors' representatives are smart enough to bring it up.

I believe this because my contract also did not contain that language. My agent had it added.

I'm not an agent or an attorney, but it strikes me that, so far, this affair has been a tempest in a teapot. Sure, Simon & Schuster would be advantaged to keep control of your rights as long as possible. But that's why writers have agents. To negotiate these things.

I also think it's a great idea that authors are being warned about the need to read their contracts carefully--the whole contract. And to pay special care to the issue of reversion of rights. I've been saying the same thing for at least a year, most recently four days ago here.

I've spent twenty years reading contracts in a variety of jobs, but I still had an attorney vet my agent's contract, and I'm grateful to have my agent vetting my publisher's contract. No one should sign a contract without due diligence.

I'm going to stop here. I'll return to this subject tomorrow with why I believe publishers are going to have to start offering BETTER deals to writers, not worse ones.