Monday, January 20, 2014

THE PUBLISHING GAME: 2013 – The Year of the Gavel

Please welcome a new columnist to this blog, Lise Horton.  She will be bringing us monthly updates on the world of publishing.  Game on!

2013 – The Year of the Gavel
by Lise Horton

In a recent issue of Publishers Marketplace they ran the following headline: “2013: The Year We Gaveled On.” And while some of the suits and legal wrangling were higher profile than others, there were many spreading across a variety of issues and they will all, ultimately, have an impact on us as au­thors specifically, but as members of a volatile industry in general. So here, in the interest of attempting to get a handle on the legal lay of the land, is a bit of a recap of this year’s litigious fun & games:

The massive cases that came to a close were the nearly decade-long Google book-scanning case, with Judge Denny Chin lowering the gavel on the last hold-out, The Authors Guild, following the “secret” settlements a year ago between Google and the original publisher plaintiffs. Because no details were given as to how the AUTHORS would fare in that settlement, the AG doggedly held on. And lost. But they vow to appeal the deci­sion. Google’s altruistic intent to make the books available to everyone seems lofty – but the indirect benefit to having these books in their sole hands provides them the KNOWLEDGE base present in those books. And could that be why they are solidifying their place as the pre-eminent source for on-line searches – a monopoly on information?

The #2 legal behemoth was the Department of Justice case against Apple and the publishers who had “colluded” to fix pricing vis a vis the agency model that was promulgated. And on the heels of the DOJ came numerous State suits as well on the same matter. The publishers all settled, as Macmillon admitted that the legal cost to fight would be more than their net worth. Apple hung in but lost big – though the initial penalties were ulti­mately watered down a bit. But the case has many ramifications as digital pricing is so in flux. The line about just how creative publishers and on-line providers of digital books can be may harden. Immediately thereafter Amazon began playing with pricing. Clearly this case was huge. Otherwise, would we REALLY be seeing this presiding judge among the Publishers Weekly Notable People of 2013?

Of tremendous concern to authors is the issue of piracy. Clearly it is a protean evil that will never die, but 2013 saw some positive legal challenges. Early in the year, 2 New Yorkers were successfully sued for their pirating efforts by John Wiley, and will be forced to ante up $7,000 in penalties. What was important was these individu­als were offering up these titles via BitTorrent and the case was the first of its kind to find the uploaders guilty.

But there were numerous other cases and causes that added to law firm coffers in 2013.

There were cases by famous authors like Harper Lee against their agents and managers for mismanagement of funds. There were settlements in the case brought against a number of their authors by a big 5 publisher seek­ing return of their advances. There was the class action suit brought against Authors House (and its new big 5 owner, Penguin) by self-pubbed authors over royalty shenanigans. A collection of independent booksellers – including NYC’s Posman Books - sued over Amazon and the big 6 over DRM damages to competitive purchas­ing, a case that was just dismissed a few days ago. The Wiley suit over pricing of foreign editions of textbooks was a bust and immediately the first sale doctrine became a front and center concept: Especially as the ques­tion of whether or not First Sale can EVER apply to digital material is going to be a huge legal quagmire for all concerned. CAVEAT (figured a legal term was apropos) - A bright light in this area was the court decision that ReDigi’s sale of “used” music (iTunes) was clear copyright infringement. Will that stand? Only time – and lawsuits – will tell.

Of personal interest to me as a Harlequin author was the 2013 decision in the 2012 suit filed by authors pub­lished in the 90’s and early 2000’s, that claimed “intercompany licenses” were permitting HQ to cheat authors of royalties. The judge found against the authors though they have appealed.

And of interest to all authors was the quiet resolution of the 2012 case initially filed by Penguin seeking return of advances from authors who they claimed missed deadlines. It “went away” without fanfare, but showed the willingness of a big house to seek redress when authors – and not necessarily the “big names” - don’t adhere to contractual requirements. Given that this case came on the heels of last year’s Sourcebooks suit against an author for breach of contract, it should speak loudly to the importance of understanding what you are signing, and how NOT understanding, or breaching your contract, can come back to bite you. Big time. Just ask actor Stephen Baldwin, who was sued by Hachette over the $110,000 advance he received when he failed to deliver his book on time.

Other suits included public domain wrangles (Conan Doyle Estate), continued battles of digital rights by 3rd parties objected to by original publishers, Amazon’s NY State sales tax fight defeat went to the Supreme Court – who declined to hear the case. Publishers breathed a sigh of relief when 2 cases found that their standard pro­cesses for vetting books (i.e. – and reliance upon an author’s warranties about the writing and material) should stand. For an author? That means understanding WHAT you are repping and warranting in your contracts is paramount because you’ll be on the hook in the event of any problems.

Outside the courtrooms, a recent issue in the arena of contract law which has come to folks’ attentions, is the issue of the big houses’ contracts with authors some of which, it seems, are being revamped to effectively allow them to pussy-foot away from what had previously been clear and distinct promises of publication in certain formats. Now they can hedge their bets and opt NOT to issue a title in the print format originally intended, but say, rather in digital. Should it suit their purpose.

Other non-court legal matters were legion as well. We had the “disclosure” that the sneaky dude who leaked the truth that Cukoo’s Calling author Robert Galbraith was JK Rowling WAS – her lawyer! Even more salacious was the accusation against Larry Kirshenbaum – no LONGER the head of the Amazon publishing operation – of sexual harassment. The massive merger of Random House – Penguin (which was vet­ted worldwide) dominated publishing news. Barnes & Noble’s plan to hive-off of the tablet division to a separate entity waxes and wanes. Amazon’s rights-holder sanctioned fan-fic publishing arm came into being blurring lines further on the subject of copyright.

But from a legal perspective the most important conversation dominating the publishing industry might well be copyright. I have heard one intellectual property specialist proclaim “Copyright is dead”, and in nearly every corner the groundswell promoting a new copyright act that can address the myriad aspects of digital and elec­tronic material that was never anticipated, is getting louder and louder. It’s turning out to be a whole new ball game.

So how’s YOUR fielding?♥

ABOUT THE AUTHOR:  Lise Horton’s debut novel WORDS OF LUST launched in September 2013 and she is finalizing book 2 of the Stellato Siblings series for submission. You can read more about Lise, her books, and her blogs, by visiting her website, www. and to join her in the madcap whirl of social media!

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