Surreality Check

I've just spent much of the last couple of days converting websites from GeoCities to my new web host, Crosswinds. The customer service agreement for Crosswinds is so superior to that for Yahoo/GeoCities that I should have switched long ago.

Yahoo/GeoCities did change the "rights grab" paragraph—at least a little bit. However, contrary to the assertions of a couple of intellectual property law professors who have been quoted in the popular electronic media (and who should know better), the change is mostly cosmetic. And there was no change at all to the unethical, completely unacceptable indemnity clause.

Of course, I've had to change a bunch of my clients' pages, too. And I've added my own intellectual property rights clause at the bottom of the relevant pages to make it very clear that I do not acquiese in any seizure of intellectual property rights.

Of more than passing interest to writers, the House is currently debating two different, incompatible "database protection" bills. The bill that originated in the Judiciary Committee is an unfair rights grab by certain large database providers, such as West Publishing Group. Basically, this bill (H.R. 354) would enable a publisher to add minimal content to a database and then copyright the underlying data. It's an end-run around Feist, which eliminated copyright protection for "sweat of the brow" by requiring at least a minimum level of "originality." The danger for writers is that this may allow a database publisher to take items for which copyright either has lapsed or was voided through improper marking prior to 1976, package up an anthology, and put the publisher's copyright on the anthology without compensating the authors.

The bill originating in Commerce, however, is both much clearer (it's written in something pretty close to English, for starters) and much fairer to everyone involved. Instead of stretching copyright, as defined in Feist, to an untenable extreme, H.R. 1858 invokes appropriate trademark-like protection. This makes perfect sense. The Copyright Clause (Article I, Section 8, Clause 8) of the Constitution refers to "Authors and Inventors," not to "scriveners," "compilers," or "encyclopedists"—all terms that were in use in the 1780s. The concept of a "database" isn't new; neither should it be copyrighted.

I don't buy the "information wants to be free" argument, though. Databases deserve some protection, but not copyright. Speed of access, thoroughness of coverage, and accuracy of the data are three reasons that a user might pay for a database rather than use a "free" version. For example, if one out of every ten telephone numbers listed in the phone book was incorrect, would you pay for an accurate telephone listing? (Yes, I know that we pay for the phone book; however, it's a profit-making activity for most telephone companies.) How about if your job depends upon making telephone calls?

If you care about writers' rights, contact your Senator or Representative and ask that he, she, or it support H.R. 1858. It's a better deal for writers and readers.

A Few Words About Lawyers, Insurance, and Ethics

Lawyers? Insurance? Ethics? How the hell do those things go together? The recent GeoCities/Yahoo nonsense and last summer's controversy over the vampire anthology show how they're supposed to go together.

The critical clause isn't the rights grab, as distasteful as that is. (I'll have more comments on that down the road.) No, it's the indemnity clause, which reads something like this:

You agree to indemnify and hold [publisher/provider], and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your [work or webpage], [your use of the Service, your connection to the Service, your violation of the TOS], or your violation of any rights of another.

This clause is unacceptable and unethical. It's bad for writers (in writing contracts) and webpage owners (at Yahoo/GeoCities or elsewhere) because it does several things:

• It allows the provider (publisher, ISP, whatever) to settle or forfeit away the writer's rights and liability without any recourse by the writer. For example, let's assume that I state that Famous Person is a scum-sucking bottom-dweller who preys on widows and orphans. We'll further assume that I've got proof sufficient to beat summary judgment in a libel suit. Famous Person, who doesn't like the truth, sues the provider for libel. The provider can choose to settle without even consulting me—even though I would win a libel suit if I defended it. Provider then turns around and sticks me with not just the amount for which it settled, but its own attorneys' fees for not defending the suit!
• It shifts the risk from the Provider to the writer without limitation. Basically, it doesn't matter what level of culpability (negligence, etc.) any party has. We'll extend that hypothetical a bit more. Let's assume that I followed posted guidelines on "fair comment" exactly. I'm still stuck.
• It shifts the burden without any knowledge by the writer. Let's take the case of innocent trademark infringement. On my webpage, I post a short story that involves Ersatz cars; they're real pieces of junk in the story. Unknown to me and to the provider, Ersatz turns out to be a trademark for motor vehicles that is properly registered in Lower Slobbovia. Ersatz's lawyers then file a multi-million-dollar trademark disparagement claim in Lower Slobbovia's courts. Guess who's stuck?

As a matter of ethics, it is inappropriate to attempt to place liability upon an individual or entity unless:

• There is a preexisting statutory or judicial strict liability for the act or omission; or
• The culpability of the individual or entity arguably rises to at least the level of negligence

The indemnity clause in question meets neither requirement.

Over the next few days, I'll discuss some alternatives that protect writers' and webowners' interests while still providing strong protection for the publishers and providers. I'll also mention why I put the term "insurance" in this heading.

An acceptable indemnity clause can still protect the publisher from author misconduct. (OK, I know, none of my readers would ever do anything like that, but please bear with me.) However, it limits itself in two respects:

• The author's warranties and representations are to the best of the author's knowledge, after reasonable inquiry. This means that willful, knowing, or reckless violations by the author are the author's responsibility. Frankly, this is as it should be.
• Nothing kicks in until validated by a court of law or arbitral panel, and all appeals and other avenues for relief have been exhausted. This forces the author and the publisher to cooperate to defend against nuisance and SLAPP suits, while allowing the publisher to leave the final decision on fighting to the author and the author's wallet. Although far from ideal—in an ideal world, the publisher's insurance picks up the tab for everything, since that's what insurance is for—this is as far as things will bend.

This last statement shows exactly why the warranties and representations clause needs to be limited. Publishers have insurance for things like this! Commonly called "E&O" (errors and omissions) coverage, it does not cover willful, knowing, or reckless acts. It does, however, cover negligence. Insurance law generally requires the insurer to pay for defending a claim, once a defense is "tendered" by the insured (in this case, the publisher).

The astute reader—and I have only astute readers, I assure you—will by now have picked up on the problem. The publisher is not at risk for negligence anyway—it has paid the insurance bill. The insurance company is at risk, and has been compensated handsomely for that risk. (Last time I checked, there weren't any nonprofits underwriting publishing E&O policies.) So why should the publisher be allowed to pass the buck again? It is not at risk, so it can't pass the risk on to the author.

IMNSHO, this attempt to pass on a nonexistent risk is unethical, and comes perilously close to fraud. You have been warned. (All of this reasoning applies to web providers, too.)

But what about the publisher that doesn't have E&O insurance? There are a few small presses out there that ride bareback. Frankly, that is the risk they take. It's just like a doctor—or lawyer, for that matter—choosing to do without malpractice insurance. Ya pays ya money (or not), and ya takes ya chances. But it's still unethical to pass that risk on to the author for less than reckless conduct.

I'll wrap up the discussion of the warranties and representations clause with a few odd thoughts that just won't fit elsewhere. I'm going to be away from the journal until July 12th.

• Can this kind of clause even be imposed on an author who has no reason to know of a violation, such as the Ersatz example? That, unfortunately, is a matter of state law. Some publishing contracts do not have a choice of law clause in them; some states will not recognize a choice of law clause anyway. So, then, what difference does that make? With the publishing industry centered in New York, it's a fair assumption that New York law will apply. However, some prominent publishers are not in New York. Under Illinois law, for example, the risk-shifting that is described may be treated as the business of insurance, which is void as against the public policy of the state unless properly registered as insurance. (The three cases that I'm aware of in Illinois that have tested this issue settled without a judicial opinion.)
• What about foreign libel? For example, let's assume that an American publisher prints a book that accuses a former member of the British government of official misconduct in his attempts to suppress terrorism in Northern Ireland. Given the different law of defamation in England, who is stuck with defense costs and potential liability here? Does the fact that, for a US edition, the publisher wouldn't ordinarily expect to be hauled into court in England make a difference? Does the fact that the book is available to English customers through Amazon.com change the answer?
• Given that the publisher and the author are supposed to be professionals, why is an indemnification clause even necessary? If the publisher loses a case, why can't the publisher request an accounting or implead the author as a potential joint tortfeasor in any action against it? (Answer: It can, and it can.) Is there something a little more cynical going on here? (Yes.)

By now, I think you will have figured out that I don't like limitless indemnification. (I'm not certain that it's valid under the UCC anyway.) However, if authors do not fight this clause, there is a very real risk that it could become "standard industry practice"—a way of bootstrapping around UCC 2-207, 2-208, and a variety of provisions in the Restatement. In other words, if it's not rejected now, it's going to be much more difficult to reject later.

An author who gives [a producer] or a publisher any rights in his work except those immediately and specifically required for its publication or performance is for business purposes an imbecile. As 99 per cent of English authors and 100 per cent of American ones are just such imbeciles, [producers] and publishers make a practice of asking for every right the author possesses.

—George Bernard Shaw

This is the crux of the problem for a professional author. Getting that acceptance letter from Stupendous Science Stories after hundreds of rejections is a heady experience. In some ways, though, it's just like getting your first driver's license—all it does is get you on the road; there are a lot of accidents waiting to happen.

Before dissecting this, though, one must wonder why I'm doing this. Isn't this like publishing my stories on the internet for free, giving away all rights? (First of all, that assumes that anyone is actually reading this journal.) This is not legal advice intended for your situation. Instead, it is an attempt to reduce the amount of business I have by reducing the amount of business that the rip-off artists—which include at least one Big New York Publisher—can do. I would rather practice preventive law than try to pick up the pieces later (and there are, after all, competent attorneys on the other side who may well make that impossible). Since nobody gets paid all that well for preventive law, I'm not losing anything!

We'll start the dissection of rights with the next journal entry. That leaves one major issue for discussion: Agents. A bad (or mismatched) agent can, and undoubtedly will, hurt you more than having no agent at all.

Sadly enough, there's a rule of thumb that you should follow. Repeat after me:

If the agent advertises for clients in any publication or form that includes a significant proportion of potential clients in its target audience, that agent is not appropriate for non-established writers.

Some agents—and one or two good ones—do advertise. The few that are neither out-and-out crooks or grossly incompetent specialize in areas that are not appropriate for non-established writers. I won't bore you with the details; suffice it to say that non-established writers have no business trying to sell feature-length screenplays without any writing credits at all.

Next time: The necessary rights.

Understanding the rights to be sold depends upon the kind of piece in question, and whether it has been previously published. If it has not been previously published at all, one can sell "first" rights. Similarly, if it has not been published in the form proposed, one can still sell "first" rights. For example, a novella could be sold to a magazine, and published there ("first serial"), and later published in a stand-alone edition ("first bound" or "first book," although these terms are going out of style). Later uses are called "reprint," not "second," "third," etc.

Next, we consider the form. "Serial" and "anthology" are pretty obvious. A work that stands between covers by itself usually isn't named at all in the rights clause. But what about the Internet? Unfortunately, too many authors and publications have just assumed that this means "electronic." The law isn't quite so clear as to what "electronic rights" are. They may, or may not, reach to include a CD-ROM, ebook, posting in electronic mail messages, or whatever.

Next, there's the language issue. For fiction (and my readers, anyway), that will almost always be "English-language." Fiction writers should never sell rights in more than one language at a time. Aside from the problems of losing control over translations, there are some issues of what that does to the copyright of the derivatives with which I won't bore you.

Finally, we consider the "territory." Traditionally—and not, as a general rule, to authors' advantage—the world has been divided roughly as follows:

• North American (United States and Canada)
• United Kingdom (England, Scotland, Wales, Northern Ireland)
• Commonwealth (the British Empire; the SFWA "model contract" still refers to "Rhodesian" rights as I write this)
• World (tougher than it looks, this really means "all signatories to the Berne Convention on Copyright, which is just about everybody)

Thus, we end up with constructions like these:

• First North American serial (assumes English-language)
• First world English-language
• North American, all languages
• World English-language

We'll look a little more closely at "territory" next time.

So, is anybody actually reading these things?

The novella is about halfway done. So far, it's not bad, even in the first draft. I'm kind of a "polish as you go along" writer in early drafts. That's not to say that I don't do rewrites; far from it. But my theories about fiction require maintaining a consistent style (well, except when I'm breaking the rules), and the best way for me to do so is to do a very light revision of the current segment (up to 5,000 words or so) at the beginning of each writing session. Not only does this refresh my memory of who said what to whom, when, in what tone of voice; it sharpens my focus for new writing.

With only minor exceptions, territorial rights are bad for writers. (This is not at all the same as language rights.) There are, as usual, several interlocking reasons for this.

• Multiple editions in the same language create a nightmare for proofreaders, and would create a nightmare for authors if they were paying attention.
• Advertising campaigns don't get pointed at one of the largest markets: the international traveller.
• Authors get paid less.

Most of you probably woke up with the third point. Remember that, even under Hollywood's screwy accounting system, most US releases do not make money—it takes the worldwide market to turn a profit, even on Hollywood's "blunders." Only the true big hit turns a profit on US ticket sales.

Unfortunately, it's much the same with the "mid-list" writer. Until Amazon.com started shipping books to anywhere with a valid address, only a small minority of American fiction books ever sold outside of North America, and (with the exception of a few bestsellers) for very little money. To add insult to injury, foreign rights have all too often been a flat fee, split with the American publisher.

Mid-listers who insist on world rights, and a world marketing effort justified by the bigger advance that should follow for world rights, will (as a group) be better off. I will leave the mathematical proof as an exercise for the reader.

Of course, that gets around another problem: the often-collusive nature of foreign rights auctions. But that's for another time.

Our Clarion friends should be clawing their way through the drywall in their rooms by now. The end is in sight. Best of luck readapting to the mundane world!

I've just had the icky experience of peer-reviewing a law article printed on an inkjet printer. Writers, think of your manuscripts as your résumés. Would you hand a prospective employer a résumé that smeared easily? Of course not. So don't hand in manuscripts the same way. Yes, those bundled inkjets are cheap up front. However, the operating costs (ink cartridges and paper) of an inkjet for even a modestly prolific writer will make an inexpensive laser—of the current crop, I recommend the Brother HL-1040 and the Xerox P8—pay for itself inside eighteen months. And those address labels that you slaved over putting into your database won't smear, either, so your manuscript stands a chance of getting to the right address.

A Writing Exercise

This requires help from a friend, but not necessarily one to read your work. Go to a mall, or anywhere else that hosts a large variety of moving people. Stand just to one side of the "traffic pattern" and close your eyes for a minute or so—long enough that someone standing directly in front of you will have been outside your peripheral vision. Your friend should be standing with you.

Open your eyes. Choose an "interesting" person from the crowd, and immediately turn your back. (This should take only a couple of seconds.) Immediately describe the "interesting" person to your friend until he or she tells you that he or she has spotted the "interesting" person. You're not allowed to use any descriptions of gender or ethnicity. For even more fun, don't describe clothing.

Lather, rinse, repeat.

The point of this exercise is the essential details that actually distinguish an individual. You'll find that different crowds, different times of the year, etc. all influence the details. Keep in mind that these details are what fiction readers need to keep track of characters. Yet another "beautiful high Elf" doesn't say squat. What makes that Elf stand out as an individual? Is it the small diamond nose piercing—and could your friend spot it? Does one notice the grace with which the Elf cuts through an oblivious crowd toward the pay phone?

This isn't to say that only large characteristics are worth description. However, readers keep different characters straight through fairly broad descriptions, and we're going to have to do better than "the third Elf from the left—no, the one with the ivory-inlaid dagger hilt."

I don't remember John-John's salute at his father's grave, although I've certainly seen the picture. I do remember Bobby and MLK, though. Another link to the 1960s is gone.

Just a short entry here, as I'm in the middle of an appellate brief that must be filed Friday. My worthy opponents have run on a bit at the mouth, and I'm struggling to keep within the length limit in my response. On that subject, I found this tidbit blaming Microsoft for making bad software:

De Silva v. DiLeonardi, No. 99-1754a (7th Cir. Jul. 21, 1999)

Go on, follow the link. It's one of the clearest explanations of a software bug that I've come across in a long time. It's not in legalese, and all of the legal technicalities get clear explanations.

Not to say "I told you so," Bill, but I've been recommending WordPerfect over Word for over 10 years—precisely because WordPerfect's workings are more apparent, and thus one can diagnose problems. Now you've had a panel of three respected Federal judges criticize you when they didn't have to, and specifically compare your baby to WordPerfect. Got the hint?

It's a bug, not a feature.

Of course, the particular feature in question is one that freelance writers are vitally interested in—the word count. Microsoft doesn't get it right. Pardon me, guys, but an editor or reader really does care about the length of footnotes and endnotes, since the editor has to print them, and the reader just might read them. Lawyers are not exactly a tiny user group themselves; length limitations that include footnotes and endnotes been in effect for a couple of decades.

Back to writing contracts for a moment. (I'm a little burned out after filing that brief.) So, then, what are the other rights that a publisher might try to grab?

The most obvious answer is, "all of them." This can be through either a claim of copyright or a simple "all rights sale." They're both bad. In both cases, the writer surrenders essentially all control over his or her work.

The more common method is to simply grab rights with legalisms. This is usually divided into five kinds of grabs:

• Foreign rights that the publisher has no intention of exploiting itself (i.e., with an edition it publishes itself)
• Republication, whether in the same or another medium (e.g., Penguin-Putnam's insistance on obtaining "electronic rights")
• Editional rights—the right to publish "revised" or "corrected" editions without approval by the author (this is quite common in educational and academic markets, and actually makes sense in some circumstances)
• Derivative rights (which make the "derivatives" on the futures and options exchanges look downright simple)
• Marketing rights, such as the sales of t-shirts, plastic communicators, toy phasers, and anything else we can think of

This gets back to Mr. Shaw's comment above. Ground rule:

Unless paid an insane amount of money, never give up any right not necessary for the immediate publication of the work.

Yes, we all have our price. But make sure that you know what your price is, what you're selling, and that there's nothing hidden.

Not much to report here. I've been busy building bookshelves and a new desk, and suffering in the heat wave. The heat and humidity don't help me healthwise. (Yeah. No writing, but I'll use power tools. I must be a guy.)

Miriam Santos, the former Chicago treasurer, got 40 months for getting caught shaking down a finance company for campaign contributions and having City workers do campaign work on the City's time. Well, duuuuuuuuh. This is the city in which a death certificate is merely an alternate form of voter registration. Is anybody really surprised? What would surprise me is a set of six elected officials from within the confines of Cook County who are completely "honest," in the sense that they had never taken advantage of, well, Chicago politics.

That, by the way, is a nonpartisan observation. I practiced law in Chicago for long enough to see everything in action. The Republicans are just as corrupt as the Democrats, and the remnants of the Harold Washington Party are no better.

What bothers me is that Santos' sentence for corrupting public office (OK, you can't get more corrupt than Chicago politics, but you know what I mean) is so much less than that for an uneducated street punk who got caught selling half a gram of crack. I'm no fan of drug dealers; I just wish that we'd treat white collar criminals with some seriousness. Judge Norgle's sentence was at the top of the United States Sentencing Guidelines range, and included consideration of perjury by Santos.

Congratulations, Citizen Vera! Now you, too, can sit on the OJ jury and be an "ugly American." Well, maybe not; you're bilingual.

Which leads to some speculations on foreign, especially alien, languages in speculative fiction. If you want to see how to do it right, read Tolkien and Mary Doria Russell. Both of them treat language as a living, growing part of culture that infuses the entire culture with assumptions different from our own. If you want to see it done incorrectly, try Babylon 5—or the US government.

True story, drawn from public sources:

The Japanese attempted to surrender after the first bomb was dropped on Hiroshima. However, their attempt was rather badly translated into overformal diplomatic English, and didn't reach the right people in the US government until the Nagasaki mission was less than an hour from target. Even then, they didn't understand it. It wasn't what we would call an unconditional surrender. However, it was as close as a native Japanese speaker could come to "unconditional" surrender.

At the time of Pearl Harbor, the entire US government (including the intelligence community, such as it was) included fewer than 30 speakers of Japanese. Things weren't much better when we went into Vietnam.

So, in how many stories do the aliens have to learn good American English simply because Captain Napalm has never learned how to learn a foreign language? And what does that tell us about the probable results of first contact?

Rosebud.

Another day, another slaughter. All, apparently, over a reversal in the market for tulip bulbs.

I'm going to say something heretical here, though. I'm not sure that, on a statistical basis, this kind of thing is any more common than it was in Medieval Europe. The limitation to personal arms made it harder to kill large numbers of people at once. However, we just don't have much more than anecdotal evidence of actual behavior, particularly among the "poor nobility." The societies certainly enjoyed blood sports enough (or at least admitted to it) to create some problems when behavior got out of bounds.

Our top story this evening is the horrific carnage in Haymarket Lane. Six freemen were slashed and stabbed when Tom Bedlam, a 27-year-old journeyman carpenter, ran screaming about with his adze near the horse market. All six victims are expected to die from infection. Bedlam was later apprehended near Epping Forest, but managed to throw himself from a tower window before he could be questioned. Although no official herald has commented, it is understood that Bedlam had recently been made redundant for his maintenance job at the horse market.

In sporting news, Sir Richard Turpin was transferred to the Yorkists for two hundred shillings. Yorkist manager Richard Neville proclaimed that adding Turpin to the side would certainly improve the Yorkist strike rate. Turpin quickly agreed personal terms, and is expected to take his place in this weekend's European Cup match with Bordeaux.

Of course, it's likely to get worse as weaponry gets more advanced and easier to use. It takes one hell of a lot less strength and skill to hurt someone with a modern handgun than with a gladius. And with a phaser . . .

Just a random thought: Do sexually predatory female vampires drag teeth?

I suppose this entry goes along with the one for June 6th. There is a fairly famous contest in Britain for the worst description of sex itself. I'd like to see honorable mention categories added for:

• Most inappropriate location for a tryst
• Most inappropriate participants in a tryst
• The Chance Gardener Award

Other than that, my nonfiction book proposal finally got rejected. Time for the next market. One scholarly law article will see print this fall, and one in February of 2000 or so. There's fiction making the rounds, but no—ahem—bites yet.

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