Monday, September 28, 2009

Victoria Strauss -- Google Book Search Settlement Fairness Hearing Adjourned

I'm a bit tardy on reporting this, but what can I say--I was on vacation last week, and didn't bring my laptop. What's more, I didn't miss it a bit. No email, no blogging, no Twitter--bliss! Which just goes to prove that I'm not an Internet addict. No, not me. I can quit any...time...I...want...to.

Anyway.

Last week, the U.S. Justice Department's anti-trust division urged the court to reject the Google Book Search Settlement, citing "concerns of the United States regarding class action, copyright and antitrust law." (The full text of the DOJ's brief can be seen here.) However, it urged the parties to continue discussion, since "a properly structured settlement agreement in this case offers the potential for important societal benefits, [and] the United States does not want the opportunity or momentum to be lost."

As a result, the Authors Guild and the Association of American Publishers petitioned the court to adjourn the Fairness Hearing scheduled for 10/7, arguing that negotiations with the DOJ would substantially change the provisions of the Settlement and that, under those circumstances, it made no sense to seek approval of the current Settlement. On 9/24, Judge Denny Chin granted the petition. However, parties to the Settlement will still have to appear on 10/7, as Judge Chin has scheduled a status conference for that date.

In his adjournment order, Judge Chin noted that "the current settlement agreement raises significant issues, demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors." However, "the proposed settlement would offer many benefits to society, as recognized by supporters of the settlement as well as DOJ...if a fair and reasonable settlement can be struck, the public would benefit."

So...it's back to the negotiating table. Meanwhile, Google faces a challenge in France, as the AFP (France's publishers' association) and Society of Authors contest Google's digitization project in a court case that opened on 9/24.

I'll be following these stories as they unfold.

I chose to opt out of the Settlement (for my reasons for doing so, see below). Now that the Settlement is off the table as it currently stands, that choice may be moot. Given my concerns about copyright, as well as the ways in which Google seems poised to monetize its vast digital library and the impact that may have on authors' rights, I think there's a good chance I won't change my mind--but in light of what are likely to be substantial changes, it seems only fair that authors be given the opportunity to reconsider their decisions. It will be interesting to see if, in fact, we get that chance.

For reference, my previous posts on the Google Book Settlement:

4/28/09: Judge Extends Google Book Search Settlement Deadline

7/3/09: DOJ Investigates Google Book Search Settlement

8/14/09: SFWA's Statement on Google Book Search Settlement

9/1/09: Google Book Search Settlement Deadline Looming

9/4/09: Why I Opted Out

Friday, September 18, 2009

Victoria Strauss -- Airleaf: Coda

In May 2008, the Indiana Attorney General filed suit against vanity publisher Airleaf and its owner, Carl Lau for taking authors' money without providing services in return. Additionally, Lau was accused of violating Indiana's Deceptive Consumer Sales Act, of using company assets to cover expenses not related to the business, and of continuing to solicit authors, promise services, and accept payment for months after Airleaf became insolvent. The suit sought restitution for Airleaf authors, civil penalties of up to $5,500 per violation, and reimbursement for the cost of the investigation.

A Consent Judgment between the AG and Airleaf/Lau was entered on June 30, 2008. There was a provision for restitution--but for just two of the 120 authors named in the suit.

On August 21, those authors received the following email from the Attorney General's Office:

Dear Consumer,

As most of you know, on June 30, 2008 the Office of the Indiana Attorney General entered into a Consent Judgment with Airleaf and its owner, Carl Lau. Among other things, the judgment contained a provision regarding restitution for your particular loss. For those of you who do not already have a copy of the judgment, please feel free to access a PDF version via www.IndianaConsumer.com. Our ongoing investigation since that filing was made revealed that Airleaf and its owner are insolvent and any attempt at formal collection activity would therefore be fruitless.

On August 3, 2009 Carl Lau and his wife filed a join ‘no asset’ Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Southern District of Indiana, under Case Number 09-11308-AJM-7. The filing again confirms our conclusion that further attempts to secure restitution are inadvisable.

Enclosed you will find a Notice of Bankruptcy Filing the Bankruptcy Court recently sent to my Office. Please note that the due date for “objections to discharge” is November 20, 2009. Bankruptcy law allows creditors (which you are by virtue of the Consent Judgment) to file a lawsuit within the bankruptcy proceeding to prevent discharge of the debt at issued if the creditor can prove fraud.

The State has concluded that such a lawsuit, even if prosecuted successfully, will not be collectable. Therefore, we will be unable to obtain restitution for your loss. If you believe you might wish to pursue such a lawsuit on your own, please consult a private attorney.

Sincerely,

Tom Irons, Deputy Attorney General, Consumer Protection Division


It's disappointing, but not surprising. Cases of this type tend to be mainly moral victories; there's rarely any money left for restitution.

Details of Lau's bankruptcy filing (which suggest that he has at least some assets) can be seen in a news article reproduced at Airleaf victim advocate Bonnie Kaye's blog.

On an unrelated note, Writer Beware is about to go on vacation, so no blog posts for the coming week. See you when I return!

Monday, September 14, 2009

Victoria Strauss -- VDM Verlag Dr. Mueller

For some time, I've been receiving questions about VDM Verlag Dr Mueller, a German academic publisher. VDM describes its business thus:

VDM publishes academic research worldwide - at no cost to our authors. Annually, we publish more than 10,000 new titles and are thus one of the leading publishing houses of academic research. We specialize in publishing theses, dissertations, and research projects.

VDM uses digital technology (which it dubs "print-to-order [PTO], a further development of the print-on-demand [POD] procedure") to make its books and monographs "available" (which just means they can be special-ordered) through online and physical booksellers. There's no cost to authors, who receive a "fee" plus "up to" 20 free copies of their book. There's also no editing or proofreading: what you turn in is what's printed, and the process for doing so, in which authors essentially create their own books and covers, is very similiar to uploading content to a self-publishing service. Retail prices are absurdly inflated, even for a digitally-based publisher. As for marketing, "data is optimized by the publishing house and entered in all relevant catalogues worldwide. The book is offered to the leading international book distributors." Put another way: there isn't any.

VDM, in other words, is an academic author mill.

Author mills, which must maintain an enormous volume of authors in order to make money, have a voracious appetite. Those that feed on book writers need only lie in wait on the Internet, since book writers are actively seeking publication--but students and professors may not be, or may be looking only in specialized areas, so rather than wait for them to come to it, an academic author mill must go to them. VDM (and its clones--see the last paragraph) do a lot of cold call solicitation.

If you receive one of VDM's emails, and you've got an old dissertation sitting around, you may think you have nothing to lose, and might even get a little exposure and a bit of money. Be warned, though: the terms of VDM's contract (which Writer Beware has seen) are not author-friendly.

- The contract requires an exclusive life-of-copyright rights transfer, without any provision for releasing those rights other than VDM failing to publish or deciding to discontinue publication. The author's only possible recourse would appear to be Article 41 of the German Copyright Act, which allows writers to revoke licenses "[i]f the holder of an exclusive exploitation right does not exercise such right or exercises it insufficiently." VDM doesn't allow the author to exercise this entitlement until five years have passed, however--and good luck proving "insufficiently."

- The contract allows VDM to transfer the licenses you've granted to third parties without your permission (though if it's paid for those uses, you get 50%).

- In the contract I saw (as well as in this archived VDM author information sheet from mid-2008), ebook royalties were 40%, and print royalties 12%--both paid on net revenue. This may be a relatively recent policy for the company, however. My research turned up discussion from 2007 suggesting that VDM was paying print authors just 3% of net.

- Royalties are scheduled to be paid just once a year.

- Or possibly never. "In order to cover the administration expense and the data management," VDM is not obliged to pay you anything if your royalties average 10 euros or less per month. With a print-on-demand academic book, this is entirely possible--indeed, it's quite likely, especially given VDM's eye-popping cover prices. Moreover, if royalties average 50 euros or less per month, you'll receive book vouchers instead of money. I would guess that VDM rarely has to write a royalty check.

VDM also does business as VDM Publishing House, LAP Lambert Academic Publishing, Südwestdeutsche Verlag für Hochschulschriften, Verlag Classic Edition (VCE), and Alphascript Publishing--which appears to specialize in cobbling free Wikipedia entries into expensive books, (VDM's defense of this policy can be seen here).

I've blogged about a number of VDM's "imprints," including:

Thursday, September 10, 2009

Victoria Strauss -- Writers' Myth: "You Have To Know Someone"

We've punctured a number of writers' myths on this blog, including the notion that commercially-published writers must give back their advances if their books don't earn out, the fear that agents and editors will blacklist writers who displease them, the conviction that "just getting it out there" (via self-publishing, for instance) is enough to jump-start a career, the idea that getting published is some kind of crapshoot, and the "everyone has to start somewhere" excuse that throws so many writers into the arms of amateur agents and publishers.

Here's another one: "You have to know someone in order to get published."

Agents and editors simply aren't interested in work by unknown writers, this myth goes, because unknowns are too risky. In order to get attention for your debut manuscript, you need to be famous, have a friend or relative in the publishing biz, be referred by a client, or already possess a publishing track record (hence a popular variant of the myth, "You can't get published without an agent, but you can't get an agent unless you're published"). Without these connections, your chances of selling your first book are practically nil.

Of course, having connections doesn't hurt. But trust me, they aren't a pre-requisite for publication. If they were, very few debuts would ever reach the market.

Along with the "everyone has to start somewhere" fallacy, the "you have to know someone" myth is one of the most pernicious, because it convinces many writers that it's not even worth trying for commercial publication. Instead of boldly querying the top agents who can get their manuscripts onto the desks of editors at big publishing houses, or going direct to the reputable independent publishers that accept unagented submissions, many writers who buy into this myth confine their queries to amateur or track-recordless agents, or decide to self-publish, or approach only micro-presses. Of course, while hooking up with an amateur agent is never a good move, self- or micro-press publication can be entirely appropriate in the right circumstances. But if you have commercial ambitions, it's probably not the best place to start--especially if you haven't even given the commercial route a chance. You'll never know whether you could have succeeded if you don't try.

We've actually touched on this myth before. Then, we had only anecdotal evidence with which to debunk it. Now there's something a bit more solid.

A few weeks back, YA author Megan Crewe decided to conduct an inquiry into the publishing connections myth. She recently published the results of her poll--and they're very interesting.

270 writers participated, representing a variety of genres: children's picture books, middle grade, YA, adult genre, and adult literary/mainstream. Although "[o]nly 55% of the respondents had an agent when they sold their first book,"

[t]he majority of the authors who had an agent, got that agent with no prior connection (62%). They simply cold-queried the agent, submitted their book or proposal, and were offered representation...

Authors were even less likely to have a connection to the editor who bought their first book. 72% sold to an editor they had no connection to (28% cold-queried or submitted on their own, 44% had their agent submit to an editor the author didn't know).


Megan's conclusion:

The poll wasn't perfect, but it seems pretty clear to me that having connections in the publishing industry is far from necessary when it comes to both getting an agent and getting an editor to buy your book. So if you have connections, sure, go ahead and use them. Certainly can't hurt. But if you don't have any, if you can't afford to go to conferences to meet agents and editors, don't despair. Cold querying works just fine!

There you have it--persuasive proof that you do not, in fact, need to know anyone in order to sell your first book.

(A note on the respondents who sold their first books without an agent: Given the reluctance of the larger houses to deal with unagented authors, the fact that nearly half the respondents had no agent surprises me. However, many respondents appear to have been children's picture book writers, which is one of the markets in which it's more feasible to go agentless, even with the bigger publishers. Also, the numbers may be skewed by when the writers sold their books--before the 1990's, the big houses were still relatively open to unagented writers--or to whom, since smaller publishers are more likely to be willing to work directly with authors.)

(And another note, on why, rather than triggering publishers' and agents' risk-averseness, new writers can actually be more attractive than established ones: A new writer is an unknown quantity. He or she could fail--but s/he could also break big. J.K. Rowling and Stephenie Meyer are extreme examples, but there are many more modest ones. An established writer, on the other hand, is a known quantity, since publishers and agents always have access to his or her Bookscan numbers--and this is not always a good thing, especially if the writer's sales have been flat over a couple of books, or if they're actually shrinking. In those circumstances, the publisher may well well feel that the untapped potential of the brand-new writer is a better investment than the lackluster track record of the established author, who may have proven his/her talent and professionalism, but has also demonstrated that s/he is not going to break out. This is why I'm always saying that while the difficulty of first publication hasn't changed greatly over the past few decades, sustaining a career has become enormously more challenging.)

Friday, September 04, 2009

Victoria Strauss -- Google Book Search Settlement: Opting Out

This morning, I opted out of the Google Book Search Settlement.

For several months, I've had no question that I did NOT want my books included in Google's database. It's not the display of bibliographic information, or even snippets, that I object to--it's the possible uses the settlement empowers Google to make of my work down the road (including selling my books in electronic and POD form). If those uses were limited and clearly defined, I might not have a problem--but they aren't, and I just can't see allowing such a sweeping license to my work, where the implications of granting that license are so unclear.

My only question was whether my desire not to participate in the Settlement would be best accomplished by opting out--in which case Google would "voluntarily" honor my request not to digitize or display my books, but not be barred from changing its mind at some point in the future; the advantage is that I would retain my right to sue Google for infringement--or by opting in and directing Google to remove my books from its database, in which case I would waive forever my right to legal action against Google for any use of my work. Either option presents the risk that Google might at some future point renege, and I might find my work used anyway.

Two things convinced me that opting out was not only the best, but also the most morally acceptable, decision. The first was reading Scott E. Gant's objection to the Settlement, which provides a blistering analysis of the Settlement's raid upon the very ground of copyright, and also of the inadequacy of Google's efforts to notify copyright holders. It convinced me that I couldn't accept the Settlement, even to the degree of opting in solely to prevent Google from using my work.

The second was my conviction that the Settlement will not be approved at the Fairness Hearing on October 7. The flaws are just too glaring, the objections are just too persuasive--and then there's the Dept. of Justice's antitrust investigation. There could be years of litigation ahead. For writers who've opted into the Settlement--or who've done nothing and have been opted in by default--what will the rights implications be? I don't want to be a party to that either.

In an article from the Guardian that I read this morning, an advocate of the Settlement is quoted:

"The obvious social justice and social utility impact that the book project is going to have ... are getting lost in the discussion," said Professor Lateef Mtima, director of the Institute of Intellectual Property & Social Justice at Howard University, a pioneering black college in Washington.

He suggested it would help "so many segments of our society today who for decades have been left out of the communication exchange, who have been on the wrong side of the digital divide".


I don't disagree. In fact, I think it's a compelling argument. The article continues:

However, critics of the deal said that this does not address their concerns with the settlement - which are not about whether digitising books is useful, but whether the specific terms of the deal will hamper innovation and damage authors.

For me, this is exactly the issue. As alluring as is the prospect of a universal, digital world library, I don't believe that the Settlement, fatally flawed as it is, is the way to establish that.

If you decide you want to opt out, there's still time--you have till the end of today. See my previous post on opting out for links and information.

Thursday, September 03, 2009

Victoria Strauss -- Florida Attorney General Files Suit Against Robert Fletcher / Writers' Literary Agency

As many readers of this blog know, Robert Fletcher, purported literary agent and publisher, from whom Writer Beware recently won court costs after he filed a frivolous defamation lawsuit against us, has been the subject of an ongoing investigation by the Florida Attorney General's Office.

Today, the Attorney General, Bill McCollum, announced that his office has filed suit against Fletcher. Here's the official press release:

Attorney General Bill McCollum today announced that his office filed a lawsuit against a Boca Raton company that allegedly preyed on aspiring authors. According to the Attorney General’s lawsuit, Writer’s Literary Agency and owner Robert Fletcher used more than 20 websites and related companies to collect funds from potential authors, but misled victims about fees, costs, and promised results.

The Attorney General’s Economic Crimes Division received more than 175 complaints from around the world claiming Fletcher and his associates, who claimed to act as literary agents and publishers, allegedly collected money from victims anxious to see their work published. Potential writers paid anywhere from $89 for an initial critique to over $600 for various services including editing and marketing of a manuscript to publishers. Allegedly, Fletcher also told potential writers that fees were paid from book sales when in fact all costs of publishing were paid by the authors. According to the lawsuit, few books were ever sold as a result of the efforts of Fletcher’s companies.

Investigators determined Fletcher expanded into the field of publishing within the past year. Fletcher admitted to having no background as a literary agent and to using at least 10 aliases in his businesses.

The lawsuit seeks injunctive relief against Robert Fletcher and his associates, as well as his many businesses, prohibiting further business activities in the field of literary agencies or publishers. The Attorney General is also seeking full restitution on behalf of all victimized consumers, civil penalties of $10,000 for each violation of the Florida Unfair and Deceptive Trade Practices Act, and reimbursement for fees and costs related to the investigation.


As is often the case in these situations, the info in the press release only skims the surface. Just 175 complaints are mentioned, but over the years (Fletcher started his business, a single fee-charging "literary agency" known as Sydra-Techniques, in 2001), Writer Beware has received hundreds, possibly well over a thousand, complaints about Fletcher and his companies. And although many of his victims did pay just a few hundred dollars, many others were relieved of several thousand for agenting, editing, and publishing "services."

The lawsuit can be seen here.

Tuesday, September 01, 2009

Victoria Strauss -- Google Book Search Settlement Deadline Looming

Writers: The deadline for deciding whether to opt out of the Google Book Search Settlement is September 4, 2009. That means you have just four days to decide.

If you want to opt out, you must do so by September 4, or lose your chance forever. Opting out must be done in writing. You may opt out online, or send a written notice by US mail, postmarked on or before September 4 (instructions and address are here).

If you don't opt out, you will automatically be included in the Settlement. You'll then have until January 2010 to log in to the Book Search website, set up an account, and claim your work.

(Note: many of the links below are from the FAQ on the Google Book Search Settlement website.)

The Book Search Settlement covers all works published on or before January 5, 2009 (so if your work was published after that date, or is yet to be published, you aren't affected), and anyone with a US copyright interest (don't assume, if you're not a US writer, that this doesn't mean you--if your book was published or distributed in the USA, you may be included). "Works" means both books and inserts (shorter pieces included in a longer work).

Google defines a book as "a written or printed work" that meets the following conditions:

- It was published or distributed to the public or made available for public access under the authorization of the work’s U.S. copyright owner or owners on sheets of paper bound together in hard copy form; and
- It was registered with the U.S. Copyright Office, UNLESS the work is not a "United States work" under the U.S. Copyright Act, in which case such registration is not required; and
- It is subject to a U.S. copyright interest (either through ownership, joint ownership, or an exclusive license) implicated by a use authorized by the Settlement.


Google defines inserts as:

...forewords, afterwords, prologues, epilogues, poems, quotations, letters; textual excerpts from other Books, periodicals or other works; song lyrics; musical notation; children’s Book illustrations; or tables, charts and graphs that are not pictorial works.

The Settlement also creates the Book Rights Registry, which "represents the interests of Rightsholders in connection with this Settlement with Google as well as potential licensing deals with other entities, subject to Rightsholders’ authorization."

What happens if you choose to remain in the Settlement? You'll be able to "claim" your books and inserts, and receive some compensation for the ones that Google has digitized without permission. You'll also be able to direct Google to remove one or more of your works from the Book Search database, request it not to digitize other works, and control whether and how it displays your digitized works (including whether they're offered by Google--now and in the future--for sale or download). In exchange, you give up the right to sue Google for copyright infringement--though you do retain the right to object to the terms of the Settlement.

What happens if you opt out? You'll lose the right to object to the terms of the Settlement, but retain the right to sue Google for copyright infringement. You can also request that Google not display any work of yours that it has digitized, and/or that it not digitize any further work. Google is currently "voluntarily" honoring these requests, though there's nothing in the Settlement to compel it to do so, or to prevent it from changing its mind.

The Google Book Search Settlement is a sweeping agreement that shifts the ground on copyright, and has far-reaching implications for the future of books. Whether to opt in or out is a complex, difficult decision. Authors should strive to inform themselves as fully as possible (a tour of the links below should help with that), and should not allow themselves to be swayed by the small amount of money they may receive from Google if they remain in the Settlement.

The Authors' Guild, one of the parties to the Settlement, provides an overview of the Settlement's possible benefits. However, resistance to the Settlement has been mounting, both in the USA and overseas, and many organizations and individuals have filed objections or issued statements of opposition, including SFWA, the National Writers' Union, the American Society of Journalists and Authors, and the Open Book Alliance (a coalition of organizations that includes some of Google's biggest rivals). And the US Department of Justice is conducting an antitrust investigation.

As of this date, a surprisingly small number of individuals and groups have opted out or filed objections, but likely this will grow in the coming days. The Public Index is keeping track, with links to the documents. They make for instructive reading.

For the record, I oppose the Settlement (SFWA's opposition statement pretty much sums up my reasons) and don't want my books to be part of it. But I haven't yet made up my mind whether to opt in and direct Google to remove my work from its database, or to opt out and risk that Google might decide to renege on its voluntary promise to exclude opt-outers. For me, opting out is morally preferable, but I fear that it is less real-life practical.

Edited to add: I should have noted that the Settlement has not yet been formally approved by the Court. This will happen (or not) as a result of a Fairness Hearing, which will be held October 7, 2009.

Whether the Settlement stands or not, the opt out decision must be made by September 4.