#publishing law

[charlie-leau]

To all my American followers, does any of you know what American Law says about children's books? Like, in France, the law stipulates we can't write things that would paint violence or hatred or any kind of crimes / felonies (among other things), in a good light. Does the same thing exist in America? If so, could you please tell me / orientate me towards official sources that explain how the law works?

(I’m asking because I’m currently working on my master’s dissertation and I’m studying French & American books.)

[tunaforbernadette]

Strauss' blog presents often hilarious takedowns of the fraudulent providers of marketing services polluting the author-ecosystem. Read it to be well armed against these hucksters’ often inept solicitations, or read simply for a laugh.

[tunaforbernadette]

Spann, author of mystery novels set in feudal Japan, blogs on a variety of topics of interest to writers: character development, copyright law, and publishing scams that target the inexperienced.

[justkerryesq]

Going Up or Going Down: Understanding Escalator Clauses in Publishing Agreements

To understand the economics of an escalator clause, you really need to understand how publishing works. You see, the cost of producing books includes both fixed and nominal costs - that is, there are things that cost so much no matter how many copies are printed (editorial work, design, marketing) and things that cost so much per book that is printed (paper and printing costs, shipping, warehousing). Assuming that the cost per book is constant, printing and selling more books will continue to reduce the cost the publisher must recoup from each copy it sells.

The reality, however, is a little different - printers charge less as the number of copies increases (to a certain point) and both shipping and warehousing increase at intervals rather than with each book. Put simply, even the nominal costs shrink as the size of the production run increases (though this still assumes that all copies are sold).

What this means is that authors who sell above certain numbers of books actually reduce the overhead that publishers face in printing and distributing the books. On the other hand, authors who move fewer books are increasing the overhead of each book sold. It makes sense, then, that publishers would want to hedge their bets by taking a little more of the lower-tier sales and giving up a little more of the upper-tier sales; it helps to redistribute the royalties to account for the cost of the books.

What does not make sense - and I have actually seen at least one clause written like this, so it is not fictional - is an escalator clause that goes down. The more books an author moves, the lower the overhead and other costs each copy will need to recoup in order for the publisher to reap a profit. Why, then, would the publisher need to take more of those sales than it would if the work had been a more sluggish performer? Downward escalator clauses feel like a punishment or exploitation; either the publisher is recouping from successful books to cover for unsuccessful ones, or it is merely maximizing the profit it makes at the expense of the author.

As I said before, escalator clauses are not unusual in publishing agreements today; make sure, though, that your royalty rate goes up with the number of books rather than down. There is no justification for giving the author less because he or she was too successful.

[justkerryesq]

Understanding Kirstaeng v. John Wiley

BACKGROUND

So, Kirstaeng noticed that some books he had to buy for school were way, way cheaper back in Thailand (from whence he hails) than here in America. He had some friends and family members back home buy a bunch of these books and ship them to him in the States, where he sold them on EBay for a pretty solid profit.

Enter John Wiley, the publishing house responsible for the books in question. Now, Wiley has divided the world up in licensing agreements so that distributors in one area are allowed to sell books only in that area. This is so that they don't compete with one another, driving down prices and destroying Wiley's profits.

Understandably, Wiley is not happy about what Kirstaeng is doing. This is causing serious profit margin issues, because Kirstaeng is selling Wiley's books more cheaply than Wiley's distributors and is making money by buying the books from yet another Wiley distributor in another part of the world.

Wiley sues for copyright infringement, arguing that Kirstaeng is violating a part of the Copyright Act that permits Wiley to limit where and how distributors of its work are allowed to sell said works. Kirstaeng argues in rebuttal that, having lawfully bought these books from a distributor, the First Sale Doctrine should apply to prevent Wiley from having any control over Kirstaeng's actions.

Kirstaeng lost and Wiley was awarded damages of more than 15 times what Kirstaeng made from sales of the books. Now, the case is going before the Supreme Court to determine what the boundary of the First Sale Doctrine is.

WHY WE WANT WILEY TO WIN

It's hard to feel bad for Kirstaeng, who was basically taking advantage of Thailand's economy being weaker than America's to make a quick buck off of someone else's products. He may not be a rogue seller, himself, and he may not be violating any agreement he actually made with Wiley, but the Supreme Court justices heavily implied that what he is doing just feels wrong.

We want Wiley to win so that unscrupulous actors from foreign countries can't take advantage of differences in currency values or other economic factors to force companies to compete with their own products being shipped back from foreign countries at lower prices.

WHY WE WANT KIRSTAENG TO WIN

Kirstaeng bought the books. He paid good money for them, just as Wiley's distributor asked. While Wiley had a contract with the distributor limited where it could sell the books, it has no such agreement with Kirstaeng. Arguing that one should be implied would gut the First Sale Doctrine, allowing publishers to control downstream sales indefinitely and destroying secondary markets.

Among the parade of horribles that Kirstaeng posits is the fact that this would force anyone attempting to sell their foreign car - or car with foreign components - to obtain permission or a license from the holder of every copyright in that vehicle in order to sell it. By making things overseas, companies could destroy secondary markets by refusing to grant permission for resale. They could stop us from reselling anything we have bought, eliminating second-hand bookstores, companies like Gamestop, and used car dealerships.

WHAT I THINK SHOULD HAPPEN

I think Kirstaeng should win. There is a way to prevent this sort of business practice from being profitable, and it is not by reading broad post-sale powers for copyright holders into the Copyright Act. It's by re-instituting import tariffs. Import tariffs are meant to balance the different economic conditions in other countries in order to prevent products made abroad from gaining too heavy an advantage over those created locally.

Our supply-side economics has destroyed these to enable American corporations to take manufacturing jobs overseas for cheaper labor and to then ship the products back here for sale without losing profit. That's good for companies in the short term, but we're now seeing some of the negative effects: if there are no import tariffs, importers can bring the same product bought more cheaply abroad into the country and scoop profit while still underselling the original producer.

What Kirstaeng did does not violate the Copyright Act. It is something that we should prevent from happening, but not by destroying secondary markets and giving companies total control over what we can do with the things we buy from them. Once we've paid for a product, we should have the right to do with it as we please.