Who Checks to See that the Publisher Has Rights (was Re: Amazon remotely deletes 1984)

At 10:18 PM -0700 7/22/09, Erica Frank wrote:
>
>Brick-and-mortar stores don't allow random people to walk in off the
>street and sell books on their shelves, either. They work through
>distributors connected to publishers, and there are legal
>contracts--with real, legal signatures--involved.


Not true. Anyone can set themselves up as a retailer, and purchase from Ingram, Baker & Taylor, etc., without having to sign any agreement that says that either party is checking (there may be some agreements, but I've never seen one that says that either side is checking.

Likewise, when I sell books to Baker & Taylor and Ingram, they don't do anything to check that I have the rights to the books I'm selling.



>
>Amazon should be requiring the same level of confirmation that any
>paper publisher uses: a notarized signature on a contract, not a
>click-though contract.


But that's exactly what I'm saying. There ISN'T any such check!

Why do you think that there is? I've worked in book publishing for more than 20 years. I've never seen any serious check by anyone to make sure that the publisher has the rights (outside of publisher contracts with authors, and, occasionally, warrants in contracts with distributors (not retailers).

It doesn't happen. Retailers know that they aren't responsible if the publisher produces something they don't have the right to publish.



>
>> Why are we assuming that Amazon should check ebook publishers for the right to
>> publish? And if they do have this responsibility, how does a publisher reassure Amazon
>> that it has the rights? File documentation? A contract? What?
>
>1) Because Amazon is making a serious profit on those publications; if
>they're selling illegal content, they're liable for damages to both
>the original copyright holder, and the customers to whom they promised
>content that's not available. It's fraud to offer items for sale that
>don't actually exist.

Again, if this were true, other retailers (such as Barnes & Noble) would have been sued for making the same kind of profit on pirated books. I haven't seen this happening.

Look through P&W's online news archive and show us an example of where the kind of thing you are talking about has actually happened, AND the retailer has lost.

IIRC, there is legal precedent (I remember reading about this years ago) on this issue. Similar, I assume, to the attempts back in the 1950s to prosecute bookstores for carrying books that were called pornographic or obscene. Bookstores aren't responsible for the content of the books. [Same kind of thing happens with telephone companies -- they aren't responsible for what you say on the phone.



>
>2) Contracts. Notarized contracts with real identification info, not
>forms that can be filled out anonymously with fake bank/credit card
>info.


I've been involved with multi-million dollar contracts where there the signature wasn't notarized. The impression I have is that its not really that common to notarize contracts any more.


>
>3) They could also keep a database of 3-10k books that are not in the
>public domain, for which there is serious ebook demand, that they
>should watch for. This would work two ways--both as security for them,
>and as marketing data; Amazon could seek out legit copies to sell.


I suspect that identifying which are the 3-10k books would be quite difficult -- requiring going through the 5 million books now in Amazon's database, and then going through the new titles each year to see what matches, AND see what new titles need to be added to the database (of 3-10k books you are talking about).

The problem is that there simply isn't a list of problem titles as you suggest, and compiling the list would be a bit of work (and I don't think it would solve the problem, to be honest).


>
>> It is certainly possible that the ebook environment will make it so easy to sell illicit
>> copies of ebook titles that retailers will have this responsibility foisted upon them --
>
>Not "retailers." Publishers. Amazon is acting as a publishing house,
>not a reseller. Amazon is taking raw content, formatting it for
>publication, and offering it in a closed setting (can only buy Kindle
>books if you own a Kindle or iPhone).


HUH? I completely disagree. While I understand your point that Amazon controls a lot of the formatting (although any real publisher will go through and do the formatting themselves instead of simply throwing the content at Amazon's automated formatting system, which doesn't work all that well) and distribution.

But publishing has to be a lot more than just formatting and distributing. Remember editing? selecting what is worth publication? Marketing? Amazon does none of these. I'm sure that some of the other publishers here will also agree that, while Amazon is getting closer to becoming the publisher, it isn't doing the same things that publisher's do.

If Amazon was trying to become a publisher, why would it bey trying to get publishers to format their books for the Kindle and market those books as available on the Kindle?

I can't quite consider Amazon as the publisher in this case. If nothing else, they aren't doing the most basic of publishing functions -- working with the author to edit the book.

>
>> essentially raising a barrier to entry for new retailers (not what the ebook market needs,
>> IMO). But until this happens, I don't think that Amazon or anyone else has a
>> responsibility to check that the publisher has the rights it needs to publish any particular
>> ebook.
>
>Amazon *is* the publisher of these ebooks. Nobody else can create
>Kindle-DRM'd ebooks. And the publisher certainly does have the
>obligation to confirm that the books they create are legal to sell.
>

Nonsense. Amazon is NOT the publisher of Kindle ebooks.

Kent



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