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01 December 2000
Vivisection

And now for something completely different: proof that sharks should be insulted by any comparison to lawyers.

For the next several entries, we'll be looking at a draft contract proposed by a wannabe 400kg gorilla in the electronic publishing arena. (Ironically, this is the draft contract being offered to supposedly "favored" new authors—probably with the expectation that they won't know any better.) Rather than follow the unjustifiably diffuse organization of the draft contract, we'll work our way through in approximately the order that an author should consider the various issues. Analyzing this particular contract is made more difficult by the contract's appendix: "definitions" that seldom match standard industry practice. In itself, this makes the contract that much more problematic—when discussing yesterday's catch, one does not expect "fish" to mean "bicycle."

Before considering money, or the ultimate form of publication, or who owns foreign rights, and author must consider the grant of rights to the publisher. not surprisingly, given the poor draftsmanship of the remainder of the contract, a grant of rights is divided into two paragraphs—one of which does not bear a heading that indicates it concerns the grant of rights; ¶¶ 2–3 read as follows:

Grant of Rights. Author grants Company exclusive rights to "Publish" the Work throughout the world in all languages in any "Digital Media." The rights to the Work granted in this agreement apply to the Work as a whole, as well as to portions of the Work and all elements and components of the Work.

Publication. You agree not to submit the Work to any other publisher for six months after you submit it to Company. If during those six months, Company notifies you that the Work is accepted for "Publication", it will be Published in accordance with the terms of this agreement. The Work may be Published in whole or in part, alone or in conjunction with other written or illustrative materials. The Work will be Published initially by Company, which may subsequently authorize Publication by third parties.

Reserving the appended definitions—and that's a fairly significant reservation—this roughly means:

• The publisher has exclusive world electronic rights of unlimited duration, in all languages.
• The publisher has exclusive world serialization and anthology rights of unlimited duration, in all languages.
• The work may not be submitted in any form to any other publisher for a sixth month exclusive period after submission to the publisher. If the work is accepted for publication, there will be no further negotiation over terms (which is emphasized in the submission guidelines).
• The author has no apparent input, let alone approval, concerning illustrations and/or other textual materials published along with the work.
• Publications of the work by third parties—reprint rights—are in the publisher's discretion. It is not clear whether this is exclusive.

By themselves, these terms are draconian. The publisher's explicit refusal to negotiate makes them worse; the redefinition of terms—which we will consider in the next entry—makes them worse still.

05 December 2000
Glory

   "I don't know what you mean by 'glory,'" Alice said.
   Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!'"
   "But 'glory' doesn't mean 'a nice knock-down argument,'" Alice objected.
   "When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."

—Lewis Carroll, Through the Looking Glass (1872)

Let's take a look at some of the mischief caused by nonstandard definitions. The two paragraphs quoted above include several terms inside quotation marks, evidently referring to the annexed definitions. These are (my emphasis):

• Publish means to encode, encrypt, reproduce, display, publish, sell, market, license, serialize, promote, adapt, arrange, generally use or exploit, distribute and/or transmit the Work, alone or in conjunction with other works or Ancillary Materials. The Work may be Published individually or as part of a package, bundle, subscription, serialization or otherwise. A Publication means any Published form of the Work. Works posted by individuals on Company's website (or other Digital Media) are not Published until this agreement is consented to and Author is notified in writing that Company has accepted the Work for Publication.
  Analysis: Turning first to "publish," the concepts of marketing, creating or exploiting derivative properties, and licensing properties to third parties are not part of "publishing" in any real sense. For example, consider plastic figurines. Under this definition, creation of a plastic figurine from a story constitutes "publishing" the story, and the figurine itself is a "publication." Perhaps that example is a bit extreme; consider radio adaptations, abridgements, novelizations, etc.—all of which fall within this definition.
• Digital Media means any digital format or distribution technology, including but not limited to the internet, world wide web, electronic download, disc, electronic book, magnetic, optical or other storage media, satellite, cable, wireless distribution, digitally printed or published "on demand" format, audiobook (that is, book-on-tape sound recording), flash memory, CD, CD-ROM, DVD, and any other method, means, process or technology for distributing or delivering digital content, whether now known or later developed.
  Analysis: This definition of "digital media" is even more invidious. First, it redefines as "digital" several types of material that are inherently not digital, such as POD books (which appear on paper, and hence are not digital, whatever their preprinting representation) and audiobooks (on analog magnetic tape). The definition becomes infinitely recursive in the last clause. A plain reading of this "future methods" clause would also include digital reproductions of dramatic adaptations, and a variety of more subtle problems. For example, several of these formats have explicitly different treatment in the Copyright Act (consider the compulsory license provisions that would apply to song lyrics published under this contract).

This is a serious problem. Structuring a contract in this manner—one that attempts to rewrite terms of art in the Copyright Act, to the detriment of the author—would be considered a violation of § 5 of the Federal Trade Commission Act (15 U.S.C. § 45), if it was a consumer contract. But it is not. Technically, this is a business-to-business contract, even if the author (in reality) is in the position of a consumer; thus, § 5 has only limited application. Whether the drafter complied with minimum requirements of legal ethics is another, more difficult, question; that it is a question at all should send you screaming away from this deceptive bullshit.

Yup. Sounds like a nice knock-down argument to me. But it gets worse…

08 December 2000
The Future Is Now

Yes, it gets worse. As awful as this rights grab is, you didn't really think it would be limited to this one submission did you? Nope. There are several option clauses which—surprise, surprise, surprise—are unusually unfavorable.

[7(a)(ii)] Option on Next Two Works Included. Company's print publishing agreement for the Work will also include an exclusive option to acquire full publication rights (that is, both Digital Media and Print Publication rights) to Author's next two literary works in the same genre as the Work ("Works 2 and 3"), on the same terms as contained in this agreement, except that Company will pay Author an Advance for each of Works 2 and 3 as follows:

(1) The Advance for Work 2. This will be equal to the sum of all Author Earnings from the Work in Digital Media plus all royalty earnings from Print Publication of the Work. The Advance will be calculated and payable at the time Company exercises the option to acquire the rights to Work 2; however, if this occurs before the Work has been on sale in both Digital Media and Print Publication formats for at least six months, then Company will review sales at the end of those six months and pay any increase to the Advance for Work 2 as is indicated at that time.
(2) The Advance for Work 3. This will be equal to the sum of all Author Earnings from Work 2 in Digital Media plus all royalty earnings from Print Publication of Work 2. This Advance will be calculated and payable at the time Company exercises the option to acquire the rights to Work 3; however, if this occurs before Work 2 has been on sale in both Digital Media and Print Publication formats for at least six months, then Company will review sales at the end of those six months and pay any increase to the Advance for Work 3 as is indicated at that time.
…

[7(b)] Digital Publication of Next Work. Company will have the exclusive right to review Author's next literary work in the same genre as the Work, and to acquire all Digital Media rights to such subsequent work ("Work 2") on the same terms as those set forth in this agreement, except that Company will also pay an Advance equal to the total of all Author Earnings from the Work during the Term paid through such time as Company notifies Author that it will acquire rights to Work 2. Company will have 30 days to decide on Work 2 and although Author may submit the manuscript of Work 2 as soon as it is written, Company need not decide make its decision until the Work has been Published for at least six months. (If Company acquires Print Publication rights in the Work, it will hold an option on Works 2 and 3, and this clause will not apply.)

Given this <SARCASM>crystal-clear prose</SARCASM>, is it any wonder that the real "thrill" of most lawyer-penned "legal thrillers" is finding a simple declarative sentence that remains unqualified? The lack of proofreading ("need not decide make its decision"????) further undermines confidence. To save you some extra trips to a good book on parsing formal grammars (let alone contract interpretation), what this means is:

• If the publisher chooses to acquire "print publication" rights—which are defined in a distinctly nonstandard manner—¶ 7(a)(ii) is triggered, giving the publisher a locking one-way complete option on the next two works. The compensation offered to the author for those works will have nothing to do with the inherent value of those works; instead, it will depend only upon the author's prior track record with the publisher, even if the new works are in no way comparable to the first one. One must wonder aloud just how this will affect the publisher's motivation to actively market works from apparently prolific authors, as it is to the publisher's distinct disadvantage to have the initial work's sales high (which would, in turn, require a substantially higher advance). Note also that this is an unlimited-time, unlimited-genre option.
• If the publisher does not choose to acquire "print publication" rights, ¶ 7(b) controls, which can prevent the author's works from appearing more closely together than six months apart. Again, as compensation is directly tied to the initial work… may I suggest looking up "conflict of interest" in Black's Law Dictionary?

Then there is the definition of "print publication". Needless to say, it is a rather twisted definition. It also contradicts the definition of "digital media" elsewhere in the contract, as paper books produced in a POD process are "digital media."

Print Publication means any Publication of the Work in whole or in part, in any traditional book or other paper format, and excludes Publication in any Digital Media format.

The Company is just getting started. Until next time, then.

This is your potential career as an author.

This is your career as an author after you've signed this contract.

Any questions?

12 December 2000
A Pound of Flesh

Last installment, for now, on this horrid contract. There are lots of other things wrong with it, such as the wording of the marketing clause, the explicit refusal to negotiate, the abrogation of the publisher's obligation to register the copyright, and so on. But let's talk for a moment about money.

[¶ 6(a)] Author Earnings. In consideration of all rights granted and services performed by Author under this agreement, Company will pay Author, Author Earnings as follows:

(i) Individual Sales. This will be a royalty of 20% of "Net Sales" of the Work until such time as Author has earned the sum of $25,000, after which the royalty will be 25% of all further Net Sales for the Work.
(ii) Non-Individual Sales. In the event the Work is sold in conjunction with other works or as part of a package, bundle, subscription, serialization or other non-individual method, the above royalty will be multiplied by the Work's "Share Fraction."

(b) When Paid. Company will render semi-annual statements of account covering Author Earnings as of June 30 and December 31, and will mail such statements to Author no later than the following September 30 and March 31, together with the payment of amounts due thereon.

…

Net Sales means all monies actually received by Company from any sale or licenses of the Work to consumers in any Digital Media, less any applicable taxes, handling or processing fees (such as, credit card transactions charges), agent and distribution commissions, and customer refunds.

This makes Hollywood accounting look honest. First off, the "new" standard appears to be 50% of net-net, as Random House/Knopf has established as its policy. This publisher's corporate parent is of comparable size and influence in the media industry to that of Random House. The definition of "net sales" takes away even more. Commissions in real publishing are calculated on the author's share, not taken from the author's share initially. For example, let's say that my book had $400 in sales under this agreement. In the "real" publishing industry, my royalty would be based upon the cover price of the book. (That's 75 copies of a $12 trade paperback at the standard long discount, for comparison.) In any event, the royalty—typically 8% on a trade paperback—would come to $72; my net royalty would be $72 minus an agent's commission of 15%, leaving me with a check for $61. (Recall, also, that a real publishing agreement ordinarily includes an advance.) Under this system, though, that $400 in sales is then reduced by the commission, by taxes (what taxes is the author responsible for?), distribution commissions (whatever they are), and consumer refunds. Let's not forget those handling fees, either. Then the remaining figure is multiplied by 20% to determine the payment due the author. Of course, even an audit under traditional industry standards will not suffice to validate any of these calculations. (And since when has an author been responsible for refunds? Returns from the inept distribution system are not analogous.)

Let's not get into the timing issues, the odd break based on the author's earnings under the agreement instead of a given unit sales volume (yet another incentive to shady accounting), the incomprehensible definition of "share fraction" that leaves things up to someone's discretion and probably does not add up to 100% for any "non-individual sales" package…

There is a lot more in the contract to complain about. However, much of it is very abstract; I think this is enough to demonstrate just how bad it is. For the moment, the identity of the publisher in question will not be disclosed on this page; suffice it to say "bigger than a breadbasket" and "oligopolist." If, however, said publisher keeps up this bullshit, I will not remain so circumspect.

The one saving grace—and it's a minor one—is that the indemnity portion of the warranties and indemnities clause (¶ 10(b)) is on its face a bit fairer than some of the similar clauses that have been discussed previously on this site. The definition of "claims," however, takes away much of that benefit, although at least it gives something to fight over.

Were I still an in-house counsel, I would have to recommend termination of the attorney or law firm that produced this contract. Although it is intended to shaft authors, it actually exposes the publisher to substantial liability for unfair trade practices, and will create ill will if any of those nasty old plaintiffs' attorneys get their hands on the contract and bitch about it. Like, for example, me…

The Copyright Office just drove another nail into the publishers' position in Tasini in a matter that looks unrelated. Yesterday, the Office issued an interpretation of the Act as it relates to the required royalty payments for web simulcasts of music. The stations believed that the simulcast on the web was just a reuse of the material they already paid royalties upon for the privilege of broadcasting. The web-only and recording industries felt the opposite. The Copyright Office, in its capacity as the official interpreter of the Copyright Act, sided with the recording industry, holding that it is clearly a different use.

This should sound familiar. Change it to print from music and one has Tasini. As the language of the corresponding sections is virtually identical, that bodes ill for the publishers, as the courts must give Chevron deference to the administrative agency's interpretation of the statute. That means that the agency's interpretation of an ambiguous statutory provision is definitive unless the statute is not in fact ambiguous, or the interpretation is irrational, or the factual basis for the interpretation was based upon an arbitrary and capricious proceeding. None of those three items seems reasonable possible in this matter, particularly the ambiguity argument. By definition, an unconsidered eventuality creates statutory ambiguity.

What does this mean? That the Copyright Office believes that digital media are distinct uses from original publication formats. This is a threshhold issue in Tasini; if the uses are not distinct, then the publishers could legitimately claim that the electronic databases are inherently covered under the original publication agreements and win. (That the publishers lose this argument does not completely destroy their position, as there are revision privileges in some circumstances, but a win would completely destroy the plaintiff authors.)

What a tangled web we weave
When we venture to deceive…

15 December 2000
If I Wanted Your Advice, I Couldn't Get It

Delayed posting due to sheer laziness.

So, just why did the Supreme Court do what it did? Because nobody can ask its advice.

The "efficient" way to handle the Florida question would have been to jump immediately to the Court a couple of days after the election, once it became clear that the system was (to use the technical term) fucked up. In most countries, the leadership can, and routinely does, ask the senior judicial officers of the nation their advice on the legality of a proposed statute, or regulation, or course of action. Not here, though. Article III § 2 of the Constitution limits the powers of the Supreme Court (and, by implication, tradition, and statute, the subordinate federal courts) to "cases or controversies." This has been interpreted to mean that the Court will only decide matters in which there are two sides of truly opposed interests.

This has led to the "advisory opinion doctrine," named after a letter from the Court to President Washington politely refusing to advise the President on the legality of a proposed tax. In general, this is a wise policy. Advice on the legality of a proposed action is properly a matter for advisors, and should not be confused with the political advice offered by the executive's own lawyer, the Attorney General (who may be, and has for over 100 years always been, a lawyer, but is primarily a manager of the nation's biggest police force). But does that doctrine really apply to the election? By the time the Court could have been asked its opinion, there was clearly a live controversy (not a case, which has a special meaning). Further, the major issue was necessarily of constitutional, not statutory, dimension; I firmly believe that the Court's refusal to confront the constitutional issues presented by this election was at best cowardly, and certainly ill-advised.

And now, a random set of comments:

• Mechanical voting technologies are inherently less accurate (about 98%) than either hand-counting (99.8%) or optical and electronic methods (99.6%).
• Measured by the total cost amortized over the life of the equipment and facilities plus the cost of human intervention, mechanical voting technologies are substantially less expensive than either hand-counting or optical and electronic methods.
• The majority of the US population has its vote count method determined by county and local authorities with little or no subsidy from the state and federal governments.
• Counties whose median income and/or tax base fall below the 65th percentile almost invariably use mechanical counting methods.
• Nobody complains about the method used to count votes except in truly close elections. Not surprisingly, it is in precisely such contests that accuracy matters the most.
• It is not in the perceived self-interest of entrenched elites to foster voting practices that could conceivably erode the power bases of said elites.
• Although voter turnout tends to be lower, income cohorts below the 65th percentile tend disproportionately to favor the party or candidate perceived to be running against a power elite.

What does this mean? I'm not sure. As far as I'm concerned, all of the candidates, except perhaps Nader (and only perhaps), represent established power elites. It does mean, though, that the de facto disenfranchised tend to be of lower income. Conventional wisdom indicates that means "pro-Democrat," and disproportionately of ethnic and racial minorities. Then, "ethnic and racial minority" is also a good description of the despicable anti-Castro running dog capitalist imperialist power structure of the South Florida Cuban Mafia; as unrepentant a totalitarian as Castro is and always has been, his predecessors were on balance worse. Remember, these are the ones who held Elian Gonzalez hostage. And that, maybe just that, is what lost Gore the election. So many straws for one little camel, though.

I'm a liberal, not a Democrat. And, at the moment, I'm just disgusted.

21 December 2000
The Last Great Invention Left to Mankind

(One brownie point to the first person who emails me with the correct attribution of that phrase.) And now, another attack on ridiculous marketing bullshit. I received the DRIN (Del Rey Internet Newsletter) a couple of days ago, and it demonstrates that nobody there can fucking read. A few of the more salient points follow, with my usual barbed commentary thereafter.

All of us at Del Rey Books would like to wish you and your family Happy Holidays. And for you last minute shoppers, there are a number here at Del Rey, who need an idea or two to finish your list here are some suggestions. Might I suggest a copy of Strunk and White for your copywriters?

If they liked Star Wars: Rogue Planet (did anyone?) or good solid Science Science Fiction (Are These Capitals Really Necessary? Is "Science" there twice to reinforce that it's scientific?) we recommend Darwin's Radio by Greg Bear. This is the first bit of marketing I've actually seen for a fine novel. A bit puzzling that it's one of last year's, though.

….
Terry Brook's (one would hope that a publisher might spell its own author's name correctly…) Ilse Witch is a great addition to your favorite Brook's (at least once) fans (did I miss some punctuation?) library and it is also a great jumping off point for new readers for the Shannara Series.

For your Harry Potter fan, we recommend Philip Pullman's The Golden Compass. Really? Have you idiots actually read Pullman's book? It's an excellent book, but it's not for kids, will scare the living daylights out of a careful youth reading it, and will be burned by a careless fundamentalist reading it.

….
We have a new really cool retro trade paperback edition of Fahrenheit 451 by Ray Bradbury. "Retro trade paperback"?

Beam me up, Scotty. There is no intelligent life in Manhattan. Or at least not at Bertelsmann/Bantam/Del Rey/Doubleday/Dell/Random House/Rumplestiltskin.

29 December 2000
Ghosts of Christmas Past

Hauntings are not exclusively for Halloween. Some years back, while I was stationed in England, we had a moderately severe—office crisis, let's say. One of my subordinates had the knowledge and clearances to deal with the problem, so I ordered a two-day delay in his trip back to the States for Christmas leave. His family was a little perturbed, but I was also able to arrange for an upgrade to business class.

So, on a cold, wet December morning, Sgt "Smith" and I went into the vault at work to straighten out our little problem. This was the day Sgt "Smith" and his family were to have flown back, so he was naturally somewhat grumpy (not unreasonable, just grumpy). It took us about seven hours to reconcile the data and formulate a response. We emerged to something horrible.

Sgt "Smith's" plane tickets had been on a Pan Am flight to JFK. Flight 103. Yes, that Flight 103. Ordinarily, one would expect relief at avoiding a disaster. Except for the subject matter of what we had been working on, and the unit's mission, which were uncomfortably closely related to everyone's immediate assumption that the aircraft had been destroyed in a terrorist act.

And so I do not have the ghosts of Sgt "Smith" and his family to deal with. But the others are there. They don't blame me; they aren't much more than an unpleasant reminder of the past—no worse than seeing news of the trial in the Netherlands on the news.

Of course, nobody would believe this if I wrote it in a story.

Thus ends the second millenium—at least according to those who, in the face of all archeological and documentary evidence otherwise, pinpoint 25 December of 1 BCE as the critical date in the history of mankind. I suppose that's consistent with the history of human attempts to set measurement standards. The meter is a failed French attempt to divide the distance between the equator and the north pole by a large enough number to create a useful unit of measure; human body temperature was supposed to be 100 degrees, but Fahrenheit either had a fever himself or miscalculated; I won't even try to figure out exactly where the standard yearly calendar has gone wrong.

31 December 2000
NWO

Earlier this year, I complained about the appearance of prejudice, perhaps nigh unto bigotry, apparent in SFWA's Stinkin' Grandmasters. There are rumblings from some of the SFWA membership that there's no need for the Grandmaster awards any more, since the Nebulas are fairly well established. The most-recent elevation of Brian Aldiss—not a bad writer himself, but not in the league of many on the outside looking in—is merely another symptom of the problems with the constipated old white men who make up the ranks of the Grandmasters.

Thus, the following list, perhaps the New Writers' Order. The list was arrived at by analyzing the final ballots since 1971 (when SFWA began consideration for its Grandmaster awards) for the Nebulas, World Fantasy Awards, British Science Fiction Awards, Arthur C. Clarke Awards, and the Hugos, and adding an adjustment based on critical reputation and production of seminal works. With only three exceptions, these are pretty senior authors who are still writing at this date.

Gregory Benford
Michael Bishop
Orson Scott Card
John Crowley
Samuel R. Delany
Philip K. Dick
Harlan Ellison
William Gibson
Charles L. Grant
Ursula K. Le Guin
George R.R. Martin
Tim Powers
Kim Stanley Robinson
Lucius Shepard
Robert Silverberg
Michael Swanwick
James Tiptree, Jr.
Kate Wilhelm
Connie Willis
Gene Wolfe

Some surprises missing from the list include Vonda N. McIntyre, Octavia E. Butler, and the Old School masters (Asimov, Clarke, et al.). Some might express surprise at a couple of the names on the list, particularly Gibson and Benford. But that's not the point. Allowing the history of nominations to tell us who has produced an excellent body of work (keeping in mind that, as flawed as the nomination processes for the various awards are, they are less so than relying on final voting and avoid the problem of multiple landmark works appearing in the same eligibility window) tells a completely different story from the group of what I can only call "guilty pleasures" that makes up the SFWA list (and continues to do so).

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