Thursday, November 29, 2012

Simon & Schuster Steps Into Self-Publishing.

November 27, 2012

Simon & Schuster is testing the water in the booming self-publishing market.

The publishing company announced Tuesday that it was teaming up with Author Solutions, based in Bloomington, Ind., to create a separate house called Archway Publishing, which would be available for authors wanting to self-publish fiction, nonfiction, business or children’s books.

Self-publishing is a rapidly growing sector of the book industry, but big publishers have been tentative about entering the market, partly for fear of tarnishing their brand by allowing content they have not reviewed to be published under their name.

Simon & Schuster believes it has gotten around that problem by teaming with Author Solutions, which already has a robust self-publishing business, including partnerships with Harlequin, which specializes in romance books, and Thomas Nelson, which focuses on Christian books.

Simon & Schuster hopes to distinguish Archway from other self-publishing options by positioning it as a premium service, at a premium cost to the authors. In addition to the standard editorial, design and distribution services normally offered by Author Solutions, Archway will offer a new options created in consultation with Simon.

Authors can buy packages ranging from $1,599 for the least expensive children’s package, to $24,999 for the most expensive business book package.

In return, authors will get a range of services, like having access to a speaker’s bureau that will help find speaking opportunities and a video production department that creates and distributes book trailers.

Kevin Weiss, the chief executive of Author Solutions, hailed the deal as a step forward for self-publishing markets. “This is the largest non-niche publisher that we have established a partnership with to date,” he said in an interview. While the venture offers the expertise of a major publishing house, it will be operated and staffed by Author Solutions. With no Simon & Schuster personnel involved, and without the Simon & Schuster name attached in any way to the final product, Archway’s prices — significantly higher than the competition — could be a hard sell.

But Adam Rothberg, vice president of corporate communication for Simon & Schuster, said that another attraction of Archway was that Simon & Schuster would be carefully monitoring sales of books completed through the new venture and would use it as a way to spot authors it might want to sign to a contract.

One odd twist of the deal is that Author Solutions was purchased by the British publishing giant Pearson in July. Pearson has made Author Solutions part of Penguin, a Simon & Schuster competitor. But since Simon & Schuster was already far along in the planning with Author Solutions for the new brand, it decided to go forward anyway, Mr. Rothberg said.

A version of this article appeared in print on 11/28/2012, on page B7 of the NewYork edition with the headline: Simon & Schuster Steps Into Self-Publishing.

Monday, November 26, 2012

Authors vs. Google

The Google Appeal: Is There a Class? James Grimmelmann -- November 23rd, 2012 The Google Books lawsuit—seven years old and counting—grinds on. In May, Judge Denny Chin certified it as a class action, with three individual authors representing all authors with books scanned by Google. This Summer, Google appealed Chin’s decision, and that appeal is now being considered. On November 9, Google filed its opening brief, and it was supported by a group of library associations and by well over a hundred academics led by Berkeley’s tireless Pamela Samuelson. Electronic Arts, Pinterest, and Yahoo! also indicated they would like to file a brief, but didn’t get their act together in time and have asked for an extension. Looking down the road, the issue of class certification is a procedural sideshow. The question everyone cares about—is it legal to scan books en masse?—almost certainly won’t be settled this year, and quite possibly not in 2013 either. Meanwhile, as the Google lawsuit plods along, the book industry bounds into digital. Google Books has gone from front-of-store to the backlist, and the publishers have already remaindered their own suit against Google. And, the Guild was soundly trounced in the parallel HathiTrust suit against Google’s library partners. Unless that resounding holding in favor of fair use is reversed on appeal, it may not much matter what happens to the original class action against Google. Still, it’s worth unpacking the issues now before the Second Circuit in the Google Appeal. So, what exactly is at stake in Google’s current appeal? Google’s first and most fundamental objection to the class action is that the central legal issue—fair use—is simply too book-specific to be resolved in one fell swoop. A three-line snippet is a much larger fraction of a 50-page children’s book than a 500-page memoir; a snippet of a mathematical table may not show any original expression whatsoever. Popular biographies, medical textbooks, scholarly monographs, science fiction novellas, joke books, and teen paranormal romances are all printed on paper and bound, but the similarities stop there. On the other hand, judges intent on making sense out of fair use have been able to draw reasonably clear lines in a reasonably honest way. The judge in the Georgia State e-reserves lawsuit, for example, came up with some straightforward tests: is the book being licensed digitally, did the library make more than one chapter available, and so on. (Of course, that verdict is also being appealed). Google points to the Supreme Court’s recent decision in Wal-Mart Stores v. Dukes in arguing that it’s entitled to present individual fair use defenses. In the WalMart case, statistical studies showed that female Wal-Mart employees earned less and were promoted less often than male ones. Wal-Mart had no uniform national policy on pay and promotions, so the plaintiffs wanted to argue that the lack of an official policy was itself a de facto policy of allowing local managers to discriminate against women. No dice, said the Supreme Court: those individual decisions by individual managers need to be litigated individually. But Google—unlike Wal-Mart—does have a uniform policy. It scans books, and it does essentially the same thing with each book it scans. It seems highly unlikely that Google itself considered fair use individually for each book it chose to scan; it seems anomalous to say that wholesale scanning can only be challenged on a retail basis. A second set of objections to the class action focuses on ownership. Only the “legal or beneficial owner” of a copyright can sue for infringement. For authors of books, this language typically means either that the rights have reverted to the author (legal ownership) or that the author receives royalties (beneficial ownership). In Google’s eyes, proving ownership will require a mini-trial for each book: checking how it was written and what the publishing contract says about digital uses, if anything. The factually ugly issue of who actually owns which rights in which books has been a storm cloud hanging over the publishing industry’s digital transition. Judge Chin’s opinion on the point was cursory; other courts who have faced the issue have found it to be anything but simple. But matters may not be quite so dire here. The reason is that ownership is a binary threshold issue: either an author is a copyright owner in a book (and thus a class member) or she isn’t. It’s not as though Google has treated authors differently based on what their publishing contracts say. Thus, rather than first compiling a list of all book copyright owners and then asking whether Google has infringed their rights, it would be feasible to flip the order. First ask whether Google has infringed the copyrights of those authors who own their books’ copyrights (we know that there are some); if it has, then figure out which authors are and are not copyright holders. But courts do that all the time in class actions: it’s called a claims process. If you’re part of a class that was injured because you were exposed to a toxic substance, you’ll need medical documentation before they cut you a check. It seems plausible that the court here could make some simplifying presumptions that are generally likely to be true—such as that a book’s author really is the person named in its copyright registration—while still allowing Google to object to claims where it has specific evidence that the presumptions are wrong. Google’s argument is that even this kind of streamlined process would quickly degenerate into a welter of ambiguous contract terms. A class action simply may not be capable of cleaning up the mess that decades of deal-making have created. A third set of objections challenge the right of the three named author-plaintiffs—Betty Miles, Joseph Goulden, and Jim Bouton—to represent all authors. In theory, representativeness objections are fixable: just name a more diverse set of lead plaintiffs. But in practice, the Authors Guild has gone to war with the plaintiffs it had. It is not at this late date about to invite Pamela Samuelson to sit down and join the lets-all-sue-Google party. If the class action goes down because the lead plaintiffs aren’t adequate representatives, it’s unlikely to rise again. Google’s version of this objection is to argue that many authors support Google Books: it helps them with their research, and it helps them market their books. The academic authors’ version is even sharper: academics benefit from having their books widely findable and accessible, wholly independently of whether those books sell more copies. Google has a survey showing that 58% of authors approve of having their books in snippet view; the academics’ brief is signed by dozens and dozens of book authors who would prefer Google to win on the merits. The question here is simple but profound: who speaks for authors? In one sense, the answer is easy: every author who speaks up speaks for herself. Tell Google to take your book out of Google Books and it will (or so it promises); tell Google to include your book and it will. Neither group needs the clanking machinery of a class action to make itself heard. It’s the great middle—those authors who have neither opted-in nor opted-out—for whom the class action really matters. All of which means, therefore, that the struggle over class certification is a struggle about defaults. Should J. Random Author be presumed to approve of Google Books or to disapprove of it? If the ayes have it, the class should be de-certified, and those exceptional authors who dislike Google Books should be required to bring suit on their own. If the nays have it, then the class should be certified, and those exceptional authors who like Google Books should be required to tell Google to please use their books. There is another reason that this conflict within the class matters: crafting remedies. That so many authors (heart) Google Books is a powerful reason for the court to steer clear of an injunction that would have the effect of shutting the whole thing down. Copyright generally recognizes that different authors prioritize different goals: some want artistic control, some want sales, and some want their ideas to be heard. The academics have a point when they argue that the class as currently constituted threatens their interests as authors.

Friday, November 16, 2012

I haven't posted anything here for a while, but I received the most remarkable letter recently, and just got permission to share it. The letter is from Bel Kaufman, perhaps best known as the author of "Up the Down Staircase," but she is also the granddaughter of Sholem Aleichem, a "leading Yiddish author and playwright" (Wikipedia), one of whose stories was adapted into "Fiddler on the Roof." He was widely celebrated for writing about Eastern European shtetl life (with which most of us are familiar only through "Fiddler on the Roof") and his sense of humor, which led him to be compared with Mark Twain.
Several months ago, while visiting my mother in L.A., I was going through some of the old Jewish books that my father collected -- not for the purpose of making money on them, but because when he saw Jewish books in a second-hand store, whether in Germany before the war or in the U.S., he always bought them, just to make sure that the books weren't destroyed. One of the books I came across was a 1927 Yiddish comic dictionary by Sholem Aleichem (who had passed away before that date). Knowing who his granddaughter was, I wrote to her and told her about the book, which I couldn't translate, though my brother could translate enough of it to let me know what it was. We began a correspondence, and I told her about my book, which I sent her. Here is an excerpt from her thank you note for the book: "[I] was about to write you a thank you note, then decided to wait until I head rread a few pages. A few pages? It immediately swallowed me up, sucked me in, so that I could not stop reading it until 4:30 in the morning. Up at 8 AM, I skipped brushing my teeth, skipped breakfast, grabbed your book, and continued to read without a stop: I could, simply couldn't put it down." "In my 101 years of age I have read countless books. But I do not remember ever before being so inside a book, living the story. It's a remarkable story of a remarkable character by a remarkable writer." It gets a little more personal from there, and almost makes me cry when I read it, knowing that the book connected with her in such a strong way. She invited me to lunch in NY, and I'll have to schedule a trip to take her up on it.