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

On 7/24/09, Kent S. Larsen II <kent-bvea5+VdNl1Wk0Htik3J/[email protected]> wrote:
> 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
>
>  Not true. Anyone can set themselves up as a retailer, and purchase from Ingram, Baker & Taylor, etc.,

Is Ingram, Baker & Taylor a person who walks in and says, "I want you
to sell these books I wrote?" I don't know of any brick-and-mortar
bookstores that allows private individuals to bring a case of books in
to sell, which is what Amazon is doing.

>  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).

Do you think you could approach Random House and say, "I have the
rights to Ayn Rand's Atlas Shrugged, and I'd like you to publish it
for me?"

These weren't cases of authors grabbing someone else's works and
claiming it as their own; these were well-known books that Amazon's
automated process allowed to be sold without confirming that whoever
offered them had any right to do so.

>  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.

B&N doesn't have a process for me to offer the e-version of a book for
sale. I'm not sure any other bookstore online has an option for "if
you're the rights holder of this book, click here to submit it to us
for publication."

> 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.

Bookstores don't produce the books. Amazon.com does.
Bookstores are responsible if they're selling illegal content. They
are, however, permitted to point out when they didn't know the content
was illegal.

Obscenity is a weird legal category... it's not illegal until after
it's been ruled so by a court. The bookstore isn't selling "obscene
material" until after a judge says so, so there's no crime unless they
refuse to remove it after that point.

Amazon claiming they didn't realize that the recently-pulled books
(1984, Atlas Shrugged) and older pulled books (Harry Potter) were
illegal, seems a bit specious... these aren't obscure books with their
copyrights tangled up in unclear inheritance laws. Two minutes of
research can uncover who owns the rights to these books, and another
two minutes can demand an ID check of the person offering them.

Of course, claiming they should've done that, implies they should
spend that two minutes for every single ebook they offer, which is
quite a bit of time... which I am indeed implying. Amazon should be
noting the name of the copyright holder of every single ebook they
sell, and should have a process that confirms that that name granted
permission for Amazon to make the sale.

>  >2) Contracts. Notarized contracts with real identification info, not
>
>  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.

Were those multi-million dollar contracts conducted by email (or
worse, web forms), with parties who'd never met each other in person?
I'll easily grant that notarization isn't necessary if both parties
have the opportunity to confirm each others' legal identities.

>  >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
>
>  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).

Yes, it'd take many hours of marketing research. Maybe as many as 100 hours.
Amazon is not a small company, and does have a marketing department.

Or they could throw it open to their users... "here's a poll: tell us
what 10 classic books you'd like us to offer for the Kindle." They'd
get a lot of useless dreck responses, but they'd  get a lot of
well-considered answers from teachers and college students as well.

>  >Not "retailers." Publishers. Amazon is acting as a publishing house,
>
>  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.

They don't have the option of doing the formatting themselves. Only
Amazon has the software for Kindlebook creation (although it's just
Mobipocket software with Kindle's DRM on top); the original publisher
*cannot* send Amazon a Kindlebook. They can send in an HTML or Word
Doc that they hope will transfer well to the Kindle, but Amazon
controls the final format.

And the Topaz format is entirely Amazon's; rightsholders have no
ability to format for that at all.

>  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.

Amazon does plenty of marketing; that's what it's search rankings are
for. Editing & selecting what's worth publishing are only necessary if
your publication resources are limited; if it costs pennies or less to
produce a book, you don't need to select what's worth publishing
(although they certainly do select what's worth *promoting*, based on
past sales and reviews), and how much editing a publisher does is up
to the publisher.

>  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?

For the same reason that paper publishers started asking writers to
submit Word docs instead of typed sheets of paper... the more work
they can convince someone else to do, the less there is for them. That
doesn't make them not a publisher.

>  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.

I'd say they're doing *EXACTLY* the "most basic" of publishing
functions: taking raw content and converting it to ready-to-sell book
format.

Working with the author is what *good* publishers do, and I didn't
claim Amazon was a "good" publisher.

>  Nonsense. Amazon is NOT the publisher of Kindle ebooks.

I'm willing to consider you might be right. Is there a legal
definition of "publisher?" One that separates it from "company that
formats the book for sale?"

-- 
"I follow Eris blindly in all things. That She is the Goddess of Chaos
simplifies this immensely."  -- Christian the Pagan


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