When Publishers Fold

Recently, author Delilah Devlin hosted me on her blog, where I wrote about what to do with books and stories "orphaned" by the closing of a publisher:

Rescuing Orphaned Works

In re-releasing the fiction mentioned in this post, I had the advantage that those novels, novellas, and short stories had been thoroughly edited before their original publication. Therefore, I could have confidence that professional editors had already deemed them to be publishable. Still, I welcomed the opportunity to comb through them again. It's a rare piece of writing that gets into print with no typos, not to mention examples of minor stylistic awkwardness that need a bit of polishing. Also, one of the publishers that closed, Ellora's Cave, seemed to have an irrational aversion to commas. I'm delighted to be able to put the punctuation in those stories back where it belongs. As an English degree holder and former professional proofreader, I cringed to imagine that some readers would think I didn't know the right way to punctuate a sentence.

As you may know, the Marion Zimmer Bradley Literary Works Trust is publishing its final installments of the Darkover and "Sword and Sorceress" anthologies this year. I'm sure lots of other readers and writers will miss those books as much as I will. The Trust has also decided to let many earlier volumes go out of print. That was disappointing news, because I'd expected my stories in the older anthologies to remain available in perpetuity. Thanks to the Internet, e-books, and self-publishing, I was able to collect my "Sword and Sorceress" contributions in a Kindle collection. (The MZB estate gave Darkover contributors permission to reprint those out-of-print stories, too, but unfortunately I didn't realize until too late that the files were no longer on my hard drive. Luckily, Amazon has many used copies of the Darkover volumes for sale, so the books and their contents haven't faded into nonexistence.)

In addition to minor edits and corrections, another decision to face in re-issuing older works is whether to update the settings into the contemporary era. With my first vampire novel, DARK CHANGELING, I had a definite in-universe reason for the year of its action, because of when it made sense for the protagonist to have been born. Therefore, I didn't change the time period, with the result that the date of the direct sequel, CHILD OF TWILIGHT, explicitly set thirteen to fourteen years later, couldn't change either. That's one difficulty I could avoid with several of my fantasy stories; the culture of "fairy-tale realm" or "vaguely Dark Ages England" remains unaffected by advances in computer or cell-phone technology.

In a way, it's a pleasure to have control over the presentation of some of my older fiction. On the down side, a self-published author also bears the full burden of marketing and promotion. How does one stimulate fresh interest in books and stories that readers have already been exposed to in earlier releases?

Margaret L. Carter

Carter's Crypt

Misunderstood Orphans

Perhaps the pirating world misunderstands "Fair Use", and what constitutes a work that can be freely exploited.  

Or, perhaps EBay is still allowing massive collections of pirated ebooks to be sold in auctions too quick to catch, as "in the public domain".

Orphan works:

"An orphan work is a copyright protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes the names of the originators or rightsholders are known, yet it is impossible to contact them because additional details cannot be found."

Orphan works are a problem for persons who intend to act in good faith. 

https://www.copyright.gov/orphan/

Sometimes, as in the Hathi Trust case, a good faith search for a living author is about as sketchy as Amazon as or Spotify music streaming services' searches for living songwriters (such as Steven Tyler of Aerosmith),
https://musictechpolicy.com/2018/03/28/you-cant-find-what-you-dont-look-for-spotify-google-pandora-cant-find-aerosmiths-steven-tyler-and-joe-perry-but-what-about-martha-stewart/

There is good news for writers of songs, who have been legally baffled by the NOI system http://music3point0.com/2018/02/02/noi-lookup/

And then, there is the question of orphan authors.  What are they? Orphan authors are defined by Library Thing as authors without works. 

https://www.librarything.com/topic/55359  

In other words, orphan authors are authors whose names have been so badly misspelled by whoever added their name to a reading list that they cannot be combined with the proper spelling of their name.

The trick, perhaps, is for authors to make sure they can be located and contacted. That would apply doubly so to authors who were once able to be contacted through a publishing house that is now defunct.

Here is a public Facebook group, newly started, that might be helpful for the purpose.  I hope it is not reinventing the proverbial wheel.
https://www.facebook.com/groups/1712118795542116/about/

All the best,

Rowena Cherry

"Exploit The Work Of Others And Don't Pay Them"

This author does not recommend it... but it is, arguably, why the "P.F.A G.S." companies are making a financial killing... and Wall Street rewards them.

Will politicians continue to reward, encourage, and protect the "permissionless innovators", too?  HR 1695 passed in the House of Representatives, but passage in the Senate may not be easy.

HR 1695 addresses the question, "Should the Librarian of Congress (whose job description does not include a requirement for any kind of sympathy for copyright owners or any experience with copyright law) be the boss of the Register of Copyrights and The Copyright Office?"

Maybe about as much as a bean counter should be in charge of quality... or a proverbial fox should be in charge of the hen house.

Music Tech Policy's Chris Castle opines on the politics of librarians.
https://musictechpolicy.com/2017/04/28/the-politics-of-librarians/

So does The Trichordist, with comments
https://thetrichordist.com/2017/04/28/the-politics-of-librarians/

As the Authors Guild points out in a recent article, the interests of Librarians and Copyright Owners are not the same. Librarians wish to disseminate as much information and entertainment as possible to the maximum audience, at the least possible cost.  OTOH, Copyright owners are enormously encouraged and incentivized if they are paid.

To digress on the topic of being paid, or of being *not paid*, read the Eccentric Eclectic, who quotes Karen Springen's estimate that in 2014, over $80,000,000 per year is lost to ebook piracy (and illegal file sharing)
https://eccentriceclectic.wordpress.com/2015/05/17/e-book-piracy-can-i-make-it-stop/

For a balanced view on *not being paid* check out the vigorous debate in the comments section of:
http://the-digital-reader.com/2017/03/01/new-pirate-site-focuses-audiobooks/

(This author uses "balanced" with tongue in cheek.)

In case you are wondering, "P.F.A.G.S." are Pandora, Facebook, Amazon, Google, Spotify. The order of their initials is dicated entirely by a requirement that the acronym can be pronounced.

Chris Castle explains the abuse of "address unknown" compulsory license filings, what the loophole is, and five ways it could be plugged:  (Initially, I used "scandal" but changed it to "abuse", because something is only a scandal if a lot of people are talking about it.)

https://musictech.solutions/2017/04/27/five-things-congress-can-do-to-stop-tens-of-millions-of-address-unknown-nois/

These companies are allegedly exploiting a loophole in the law (I assume with a nod and a wink if not active collusion from the current Librarian of Congress) to avoid paying musicians and songwriters any royalties at all... for older releases, and also for the newest releases.

According to Tech Music Policy, Congress could put a stop to this rank injustice. One would think that the Librarian of Congress could put a stop to it without waiting for Congress. But, the interests of Librarians are not congruent with the interests of artists and writers and creators.

For authors, this "address unknown" exploitation has echoes of "orphan works" (remember the "Hathi Trust" case, where libraries and a search engine alleged that they could not locate eminently locatable authors of works they wanted to exploit?)

As for compulsory licenses, there are few authors who refuse to create and sell ebook versions of their own print works, but there is an audience that believes that owners of Kindles or computers or smart phones have an absolute right to an ebook version of any work they wish to read.

Finally, for authors newly discovering that they may be pirated, perhaps by online so-called libraries, Robert Stanek provides advice and a good template of a DMCA notice:

http://readindies.blogspot.com/2014/12/what-to-do-if-your-ebook-is-pirated.html

All the best,
Rowena Cherry

Fake News? Fake History! (About Copyright)

My copyright enthusiasm has led me to take a free online course: Constitution 101 offered by Hillsdale College.
https://online.hillsdale.edu/course/con101/part02/lecture

Copyright is mentioned in the Constitution (Article 1, Section 8, Clause 8)  but in my opinion, copyright is also an Intellectual Property right, and the constitution upholds the right to own property. 

Certain opponents of copyright are alleged to have written such statements as: "We Jeffersonians know better. Copyright is not a natural right, entitled to protection at the expense of the public good."
Source:
https://thetrichordist.com/2016/12/08/academic-copyleftists-unintentionally-bolster-constructive-termination-charge-in-firing-of-register-of-copyrights/

The above link is exceptionally interesting. It is about how some academics who are hostile to the rights of musicians and songwriters especially (but, weakening of copyright for one group of creators opens the door to weaking copyright for all creators) rationalize the allegedly so-called retaliatory constructive termination of the recent Register of Copyrights, Maria Pallante.

"The public good" seems to be the excessive profitability of billion-dollar tech giants that stream or otherwise distribute music and other entertainment, and the "right" of members of the public to enjoy creative works as a perquisite that follows the subscription to- or purchase of certain apps or hardware or software.

Concerns have been expressed about the Library of Congress.
https://thetrichordist.com/2016/12/11/dr-haydens-library-of-congress-is-already-helping-big-tech-rip-off-creators-part-1-the-mass-noi-scam/

I would describe the Notice of Intent (NOI) Loophole as a variation on "orphan works". Remember the Hathi Trust project? The trick is that a big tech company that wishes to exploit ebooks or music without paying the author or songwriter simply "pretends" that they cannot locate the copyright owner or author. Therefore, under the "permissionless innovation" theory, they exploit the work and pay no one unless or until the copyright owner finds out about it on their own.

This is not the only problem.  Allegedly, "...some in the anti-copyright crowd...are promoting the Library's recent deal with the Berkman Center's Digital Public Library of America to turn a digitized Library of Congress into a kind of feeder to Kickass Torrents with sovereign immunity..."

Given digitization, and the fact that it is mandatory for every copyright owner to donate 2 copies of the best of the best of their works, to the Library of Congress, that quote about feeding torrents is not so implausible. The Library of Congress appears keen to monetize and distribute what's in their collection, if one can extrapolate from what Maria Pallante was ordered to do.
https://thetrichordist.com/2016/10/25/arrogant-new-librarian-of-congress-told-register-of-copyrights-pallante-go-sell-t-shirts/

I appear to be the only skeptic about the USPTO push to discuss the Digital Marketplace. For those who wish to view videos of the entire day of events at the USPTO conference on on Friday, Dec 9th, 2016, follow this link:
https://livestream.com/uspto/DigitalMarketplace16?origin=digest&mixpanel_id=13d46f86c4b46-0398ebf1b7d5ac8-3d246e3a-1d4c00-13d46f86c4c1de&acc_id=8385860&medium=email

For those who merely want a book-related summary, there were relatively few mentions of books or ebooks during the day. Encouragingly, the focus seemed to be a genuine and positive concern for a system to ensure that "the internet" should know who owns rights to any type of intellectual property.

Speaker Trent McConaghy (of Blockchain) testified that he would like a Kayak-like (travel industry analogy, not watercraft) system presumably for finding the type of digital intellectual property that one desires at the best price.

Speaker Bill Rosenblatt (I think it was he who made this remark) bemoaned the fact that a Federal Judge (Denny Chin, as I recall) threw out the Google Book Settlement that would have established a Book Rights Registry. That Book Rights Registry would have been very helpful to authors and those who wished to exploit authors' books.

What worries me is, who would pay for any eventual registry? We know that it has been alleged that creative-works exploiters like Pandora and Spotify want music creators (songwriters and performers) to pay for their own music registry so the music services don't have to go to the trouble of locating rights owners in order to pay them. Would authors, musicians, photographers, models, etc have to subscribe in order to be in a registry?

And then, once one is in the registry (at least one could be found and paid), would authors be treated like The Turtles? Just as music that was written and originally performed before 1972 has been treated as if it was out of copyright, and is now being awarded lesser royalties than music written and performed since 1972, could something similar happen to book authors?

Here's how royalties could get reduced without copyright owners getting a voice.
https://thetrichordist.com/2016/12/02/good-news-sirius-xm-settles-pre-1972-with-turtles-bad-news-settlement-slashes-sound-recording-royalty-50/

But... the good news is, we can have a voice.  Check out who is on the House Subcommittee on Intellectual Property, and drop them a line. Maybe an anticipatory thank-you note for looking out for authors. :-)

All the best,

Rowena Cherry

Privacy, Paranoia, and Protection

In an earlier post, probably back around January 2016, this author discussed jury service and social media... and whether or not trial lawyers may stalk jurors' social media revelations. What you post on Twitter or Facebook etc is never truly private, no matter your choice of settings.

Here is another post by Morrison & Foerster LLP about when lawyers may look at your (or my) Facebook activity in connection with civil litigation:
http://www.lexology.com/library/detail.aspx?g=b27b39b1-3d9b-4798-bcc5-995746f9bd06

When one is a published author and is obliged to promote ones' books, one has to make an informed decision how much privacy to surrender. For instance, I see no reason to give any social network one's true birthday. Be like the Queen of England. Have a real one for the IRS, the banks, and one's doctor and an "official" one for folks who want to sell advertising and for the back matter of your novels.

In the wake of the Yahoo hack of over 500,000,000 users' information, and the recent revelations that Yahoo created specific software to enable the government to search every email sent or received by every Yahoo mail user, privacy is even more of a concern for authors. We could be flagged for special interest based on research we might do in the course of writing a novel!

Paranoia aside, this author would like to suggest to all readers that all too many of the sites that use secondary verification use all too easily discovered questions such as phone numbers, birth dates, distaff-side names. Protest. If someone is pretending to be you and calling your bank or stock broker, they've probably gleaned that info from the Dark Web or from Yahoo or Facebook.  Ask them to ask something else!

Also, hope that the number changing credit card will soon be for real. See ZDNet!
http://www.zdnet.com/article/this-number-changing-credit-card-may-help-eliminate-fraud/?ftag=TRE17cfd61&bhid=24357684409836269984444908372715

Angela Hoy of Bootlocker has some fascinating links and writings on her website concerning bloggers' and journalists' rights, responsibilities and protections, or lack thereof; also on European Union restrictions on the use of descriptive terms when reporting on current events; and

http://writersweekly.com/uncategorized/whispers-and-warnings-for-10062016

I admire and respect the Writers Weekly posts greatly because Angela Hoy stands up vigorously for her own copyrights and those of others.

A favorite blog specializing in musicians and especially songwriters' rights and copyrights has been running a series on how two major sources of subscription, downloading and streaming music are allegedly exploiting a loohole in the Copyright Act in order to avoid paying royalties at all to musicians.
https://thetrichordist.com

See also https://musictech.solutions/2016/10/03/big-techs-latest-artist-relations-debacle-mass-filings-of-nois-to-avoid-paying-statutory-royalties-part-3/

Authors should watch this, because it may indicate what could happen with "orphan works" in the future, or what could even already be happening since both the allegedly-bad actors also distribute books.

All the best,


Rowena Cherry

Some useful links from this week

The USPTO has been discussing "orphan" works, or “Facilitating the Development of the Online Licensing Environment for Copyrighted Works.” 

There are already ways for would-be exploiters of copyrighted works to locate and seek permission from rights holders, but Google and others would rather enjoy an "opt-out" system where authors' and songwriters' must proactively search out every would-be exploiter and actively opt out of being exploited.

http://accrispin.blogspot.com/2015/04/finding-authors-importance-of.html

I resorted to Wikipedia for this (below), having seen a news item about a new interactive gaming app that appears to exploit the likeness and final hours of a young man who died in a manner that made national headlines.

The discussion by Cyberguy did not clarify whether the bereaved family sold the rights, or whether they are being ripped off. 

Wikipedia:

The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).

Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.

A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).

IMHO, Science Fiction, Horror, Romance, and other genre authors should beware of assuming that just because a game app developer does something, it is safe and above board to emulate. It may not be. Rights may be involved. Permissions and contracts may be necessary.

On the other hand, there was an interesting article in an Authors Guild newsletter last year about the difficulties in copyrighting aspects of historical fiction where different authors relied on the documented life of a real historical person, that is, when one accuses the other of plagiarism for using identical historical details and events.

As a bit of a copyright enthusiast (you noticed?) I am silently cheering The Turtles for their sterling work in going after exploiters of their copyrighted musical works. 

http://www.lexology.com/library/detail.aspx?g=bbe7f946-023f-4249-8609-400add5aaf2e&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-04-22&utm_term=

What I do not understand is why there isn't a class action suit involving all my favorite musicians and bands (living and deceased) from the 1950's, 1960's, and early 1970's who have not been paid any royalties at all by various subscription services. 

Big tech has taught us all to call copyrighted works "content"....  as www.TheTrichordist.com puts it, it is not so much "the internet of things" as "the internet of other people's things."

Excellent quote from The Trichordist on copyright (where the British Green Party allegedly proposes to cut copyright protection to just 14 years, and redistribute authors', musicians', movie makers', photographers' and others' rights to Google:

Ask yourself this: Exactly how does technology make it any less expensive to write a novel?   Writing a novel is purely a work of intellectual labor.  I suppose it’s easier to spell check…,  the backspace key is more convenient than White-out™ and a brush…  But I’m not seeing any evidence it’s less expensive.   In fact I would argue that since the modern English author lives in a much richer society than Dickens, that the relative cost of his labor is much much higher. 

All the best,

Rowena Cherry

Copyright Grab by the French

Since works by American authors who write science fiction and fantasy are alleged to have been mistakenly categorized as orphan works, and put into the public domain in France, I am sharing this letter from Science Fiction Writers Of America .... although it is not my day to post.

Rowena
SPACE SNARK™ http://www.spacesnark.com/ 

Dear SFWA Members,
As many of you already know, the ReLire program currently underway in France has scanned many books it considers to be "orphan works" in order to make them available through a public database. This database has already been found to contain many titles that are clearly not orphan works or in the public domain, including a number by prominent SF and fantasy authors. A more detailed explanation of the program is available here: http://blog.authorsrights.org.uk/2013/04/26/french-copyright-grab-the-machine-creaks-into-action/
As this is a program of the Bibliotheque Nationale Francaise (French National Library), the Board is currently discussing options for applying pressure to the French government to prevent further works by SFWA members from being scanned and made available through this program, and we invite any members who have connections with the United States Trade Representative or any relevant branch of the U.S. Government to contact us. For the moment, however, we are informing all members of the issue and making them aware of the process involved in finding out whether a work is included and how to request that it be removed from the database.
All parts of the ReLire website and database are available only in French. The Society of Authors has produced translations of four key pages, the ReLire home page (http://www.societyofauthors.org/sites/default/files/ReLIRE%20home%20page.pdf), the Your Rights page (http://www.societyofauthors.org/sites/default/files/ReLIRE_authors_rights%20(3).pdf), the Search page (http://www.societyofauthors.org/sites/default/files/ReLire_search%20(2).pdf) and the FAQ (http://www.societyofauthors.net/soa-news/relire-project-note-members).
Here is a direct link to the advanced search page: http://relire.bnf.fr/recherche-avancee. The search fields are Titre (Title), Auteur (Author), Editeur (Editor) and Date d'edition (Publication date). If you are aware of any works of yours that have ever been published in French, you are strongly advised to search under all of the first three fields, as the entries in the database have been found to have many typos. Please notify SFWA of any of your works that are found in the database, as that will be valuable information in our efforts to protest the program.
If you do find any novels, stories or any other works belonging to you in the database you may request to have them removed. Please note that at this time it appears as though you will need either a French identification card (only available to residents of France) or a valid passport to make the application. We are awaiting clarification on the question of whether any other forms of identification will be accepted. For detailed information on how to apply to have work removed, see this thread on the Discussion Forums: http://www.sfwa.org/forum/index.php?/topic/4875-instructions-for-opting-out-of-the-french-relire-program/  Questions may be posted on that thread or addressed to Canadian Regional Representative Matthew Johnson (cr@sfwa.org).
Thanks to Aliette de Bodard, Lawrence Schimel, Michael Capobianco and Jim Fiscus for their help in researching and co-ordinating SFWA's response.