False Equivalencies

So how do you push back against onerous publishing clauses that will probably never be deal-breakers for an author?

I'm pondering on that question a lot as I think about the ever worsening audit clauses which publishers are offering.

The audit clause is the one that says you've got the right to hire an accountant to go and look at the publisher's records for your book to be sure the royalty reporting is accurate.

I've never done an audit in the 27 years I've been in the business.  They're expensive.  An accountant might cost hundreds of dollars an hour, a single day of looking at the publisher's records and the prep work and reporting could easily cost a few thousand dollars, and a complicated situation might bring that cost up considerably.  You have to have a lot of money to do this, and you have to be pretty convinced that it's going to be worthwhile.

There have always been some restrictions on the author's right to audit.  It has to be done during business hours.  You can't do it six times a year.  You can't audit a royalty statement from 39 years ago.

While there have always been restrictions, there's also been an understanding that if you find the publisher's screwing up, the publisher will have to pay costs of the audit, kind of like the "loser pays" for attorney fees that are found in certain types of civil court actions.

But over the years, the publishers have tried to make it more and more restrictive.

They'll start out saying a statement is binding after just one year.  This is ridiculous.  The publishers have to keep records for the IRS for a lot longer than that.  But the shorter that time period, the harder it might be to find a cumulative pattern of errors, or become aware of some sub-licensed edition the publisher never told you about.

They'll pay for the audit only if mistakes are above a certain amount.   The publishers now start out suggesting this might be 10% of the lifetime earnings on a book.  So let's say you are one of our successful clients making a lot of money. You might think it's significant if you find out the publisher's made a $25,000 error in its favor.  But if you're talking about a book like The Firm by John Grisham or a Harry Potter novel or Dead Until Dark -- well, if hypothetically that book has the 10% of lifetime language, the publisher won't pay a dime toward the cost of you discovering a $25K error if the earnings on the book are above $250,000 over its entire existence.

We try and bargain these things to our clients' betterment.  But rarely will the publisher give us as long to audit as the several years they may need to retain records to make the IRS happy.  Getting 10% of lifetime down to 5% of lifetime is better but still not good.  Let's say you find there's a particular royalty period when the publisher paid you $2500 and should have paid you $5000.  You might think that's a 100% error, but the publisher will look not at that one period but the entire lifetime earnings.

So now the new wrinkle is to say that the publisher will pay for the audit only up to the size of the error.  Let's say you spend $5250 to find that $2500 error, and that you're lucky enough that this is more than 5% of the total earnings for your book.  Well, the rich publishing conglomerate that is responsible for rendering correct royalty statements will pay only $2500 of the $5250 you spent to find out that they made a $2500 boo-boo in their favor, which means you've just spent $2750 in order to get back $2500.

This sucks!

The publisher has the responsibility to account correctly.  They shouldn't be able to layer on fine print restriction after fine print restriction that makes it very likely that there is never going to be any way to rigorously check that they are fulfilling their obligation.

But how can I recommend an author walk away from a deal over this when I've never actually done an audit in 27 years, even on older contracts that predate many of these most onerous provisions?

And if an author will never walk away from a deal because of the bad audit language, what is the ultimate leverage to keep the language from getting worse and worse and worse?

It might seem reasonable that the publisher shouldn't be responsible for all the costs of a $12,398 audit that ends up finding a $298 error in the publisher's favor.  In fact, it is unreasonable to expect the publisher to do that.  Nonetheless, it's a false equivalency.  The publisher has deeper pockets.  The publisher has a responsibility to get it right in the first place.

There's another clause where similar language is starting to show up.  It seems very reasonable to say that in the event of a lawsuit regarding the work, which could be someone suing you for libel or you suing the publisher for violating the contract, that the liability of each party will be limited to the size of your advance.  Isn't that great!  You get a $5K advance, you get sued for libel, you only have to pay $5K to the publisher if there's a settlement or you're found guilty.  But it isn't so great.  Let's say the publisher forgets to pay you royalties or has this nasty habit of selling translation rights it doesn't own or puts cover copy on the book that is libelous where your book itself is not.  They get to walk away after paying you only $5K in damages.

False equivalency.

You write one book a year.  Your livelihood depends on that one book.  You have to pay $5K, it's a very very big deal for you.

Your publisher might publish dozens of books a month, hundreds of books a year, take in hundreds of millions of dollars in revenue and earn tens of millions in profit.

$5K is a big deal to you.  $5K is nothing to your publisher.  This very fair-sounding language that puts this nice equal limit on everyone's obligations is a lot nicer to your publisher than it is to you.

And, again, how many authors are going to walk away from a deal over this contract language?  How many instances can I even recommend that they do so?

What's sauce for the goose isn't always sauce for the gander.

Guns & Butter

After the gun shootings at the theatre in Aurora or the school in Connecticut, those of us who favor gun control were told that the problem was, in fact, gun control.  If there had been people in the theatre or teachers/security guards in the school who had guns, then somebody would have stopped the shooter and it would have been so much better for everyone.

This week's shooting took place on a government military installation, and 12 people died.

It might have been worse.  The gunman had to "settle" for buying a handgun when Virginia state law didn't allow him to buy something more powerful.

From what I've read, the shooting spree might have been extended when the gunman was able to take a gun from one of his victims.

I'm not sure how to square this with the whole idea that gun control costs lives, and that having more people with more guns saves them.

I will certainly be told that the problem isn't with gun laws or the lack of gun laws.  The problem will be the lack of enforcement, or that this guy was a bad apple and nobody connected the dots, and he never should have had a security clearance and never should have been allowed on base.

All of these things are true.

But if all of those things had been equally true, and it had been harder for him to buy a gun...

Everything else which we consider to be a bad thing, we make it harder to do.  If we want less gun violence, we should make guns harder to have.

The Ghost of WorldCon Past

As I get ready to head down to San Antonio for LoneStarCon 3, the World Science Fiction Convention, some reminiscences of LoneStarCon 2 in 1997...

First and foremost, having WorldCons in Texas is good!  Both times in the life of JABberwocky that I've gone to San Antonio for a WorldCon, I have had a Hugo nominee on the ballot.  In 1997, it was Elizabeth Moon's Remnant Population for Best Novel, and this year Brandon Sanderson's The Emperor's Soul for Best Novella.  I have to confess I wasn't expecting a win in 1997.  The competition was amazing, with Kim Stanley Robinson winning and novels by Lois McMaster Bujold and Robert J. Sawyer as well as Bruce Sterling to split the Texas vote.  (Several years later when Elizabeth was a Nebula finalist for Speed of Dark, I was rather more optimistic and told her at breakfast the morning of that I felt she has as good a chance as anyone and better have a speech ready, which was good advice!)  I'm not as up on short fiction as I used to be and can't handicap the field as easily this year, but I feel Brandon Sanderson has a good shot at winning for Emperor's Soul.

JABberwocky was very different in 1997.  It was just me.  In the early years of JABberwocky, I made just enough to get by and to have a little bit above break-even that I could afford to go to a WorldCon.  Now, there are six people at the agency, and I won't have to watch my pennies on the trip quite the same way.

A good example:  in 1997, I walked to LaGuardia to catch my flight, a little over four miles.  I also stumbled in the median crossing Astoria Blvd., broke my glasses and had to spend my earliest hours in San Antonio going to get them fixed.  And then continued for many years to walk to LaGuardia, without incident.  This year, I will take a car service.  In part because I now live a mile further away, in part because I will have a heavier bag since I will be gone longer.  But in no small part, because my time is now as valuable to me as my money, and it's a lot harder to justify walking to the airport.

There are some drawbacks, however.  In 1997, I didn't have a lot of clients at the convention.  I was able to take some time to sightsee, such as the sightseeing is in San Antonio.  I absconded to the movie theatre in the RiverCenter mall to see GI Jane.  This year, anything that I do like that, I'm going to have to do on the days before or after the convention gets underway.  I've got many clients to meet.  I've got a group of 20 for the JABberwocky dinner, which is the kind of event I never could have afforded in 1997.  I have an Important Dinner with an Important Client, his Brilliant Editor & Major Publisher.  Back in 1997, I wasn't Important Enough for such things.

In 1997, I was excited that I would get to place a first-time visit to a Borders!  Now, I will reluctantly try and get to the local B&Ns, just kind of because, and am instead saving my excitement because I might be able to pay first-time visits to two Whole Foods Markets.

In 1997, Eos had a big soiree at some restaurant on the Riverwalk to celebrate the arrival of Eos.  Now, Eos is Voyager, and if they are having a party, no one told me.

In 1997, there was a Bantam Books party at a Country Club.  It was outside of town and they hired vans to take people there.  I was expecting it to be in the 18th Hole restaurant thing at a Country Club.  Instead, vanloads of New Yorkers got out of the bus and discovered to their surprise that the "Country" in this club was country music.  This year, Bantam Spectra Del Rey Ace Roc DAW are having a combined party, the first major joint event of all the newly merged sf/f imprints.

I met Adam-Troy Castro on the plane out.  We ultimately became author and agent.

Those are some of my major impressions of the 1997 trip.  It will be interesting to see in 16 years what lasting impressions and memories I have of LoneStarCon 3.

Surprise!

So the US Open has announced that the gates are going to open a half hour earlier.

Why?

Because, per my last post, their useless extra security procedures are almost certainly leading to much more than the "slight delays" predicted in the press release.

So much wasted money, so much wasted time, so much waste and stupidity in order to add absolutely nothing other than wasted money and wasted time to a procedure in which every bag was already opened and inspected on the way in to the tennis center.

The Never-Ending War

So New For 2013, as the main draw of the US Open tennis begins Monday, they have announced that this year everyone will get to be wanded and go through a magnetometer.

Why?

For the past ten years, you've only been able to bring in one small bag, and that one small bag has been hand-inspected as you go in.  There's no way that the Boston Marathon scenario could repeat at the US Open as it has been run, security wise, for the past decade.

Adding a magnetometer adds no additional security.

None.

Nada.

Zilch.

Of course, it is a nice make-work program, because now the company that provides the security forces for the US Open gets to hire more people!  Most of these people are temps of some or another sort, and I am sure the contractor that provides this service for the Open makes a nice additional profit.

Of course, it is a nice make-work program for the people who make wands and magnetometers.

Of course it makes everyone feel so much more secure.  Even though it doesn't add any actual security.

It does add nicely to the time people will spend queuing to get into the Open.  Let's be very conservative and say that it's just an extra two minutes.  That's very very conservative.  But there are 40,000 people a day going to the open, so that's 80,000 minutes, for 14 days.  That's over two years of lost time.

Just dandy.

And of course, there's no going backward on any of this.  The day will never come when the polie or anyone else will say that the world has gotten safer and we can go back and do less, spend less money and lose less time and less productivity and still be reasonably safe.  It will only get worse.  Because no matter what we do, we will never be 100% safe.  There is risk to everything we do every day, and some day some other bad thing will happen that will require us to come up with some other layer of security.

Happy happy joy joy.

Serving Out of Turn - US Open Edition

It's a really busy week, and I have started work on some detailed blog post about my annual (or as annual as I can make it) trek to the qualifying rounds for the US Open tennis tournament which begins on Monday.

However, since I'm not sure when I will finish those posts, I am going to jump the gun and offer now, before the tournament starts, some thoughts on how the 2013 Men's Qualifier crop might fare.  I'll be a little broad, looking at some players I've seen in years past as well as the ones who made it in this year.

And right at the top half of the draw, we have Ricardas Berankis from  Lithuania, who made it into the main draw this year but played disappointingly in the qualifying last year, playing Novak Djokovic, the #1 men's tennis player.  Um, if Berankis wins, that would qualify as an upset.

Donald Young had to make it through the qualifying this year.  He has had a long career that might be as interesting for things off the court as on.  It's hard to believe he's only 24 because he's been talked about in US tennis as a prodigy for close to ten years, and he had a decent year in 2012 rising to top 40, but then 2013 has been abysmal.  His relationship with the US Tennis Association over the years has been charged and awkward, with disagreements about coaching tactics.  I've been hearing about him so long that I've perhaps become a little too hard on the idea that he will ever amount to anything.  But on Friday, there were lines of people waiting to get in to the absolutely packed Court 11, one of the biggest typically used for qualifying rounds.  He has a winnable first round match, against Martin Klizan from Serbia, who is also 24 and currently in the Top 50, but nobody's idea currently of a major threat.  If he wins that, he has a potentially winnable 2nd round match.  But he could face Andy Murray in the third round.

Moving down a bit, we've got James Blake from the US playing qualifier Ivo Karlovic.  Blake was one of the top players in the US, is 33, is struggling to come back after injury and decline in the rankings, has to be playing now for real love of the game.  He'll be a clear favorite of the crowd.  But it's hard to root against Karlovic, who is 34, also struggling to come back after a lot of injuries, and has been in the top 10.  Karlovic is 6'8" and was one of the first really big tall giant types to come into the men's game. He has a huge serve.  But he's never had a truly great game outside of his ability to serve.  How do you pick this one?  

Marcos Baghdatis, whom I discovered in the qualifying many years ago when he beat Jeff Salzenstein on Court 7 in a match I wanted Salzenstein to win, goes up against a 2013 qualifier, Go Soeda.  I have to think Baghdatis will win, though the US Open has been his worst grand slam, never even into the 3rd round in spite of being a finalist, semi-finalist, and into the 4th round at the other three grand slams.

Also hanging around in the top half is Denis Kudla, whom I saw last year and believe has potential.  He has a winnable match against a Czech ranked #78.

There are only five qualifiers of 16 in the top half, though I've been going to the qualifying long enough that there are plenty of players, beginning with Andy Murray, whom I've watched in the qualifying in prior years.

Which means there are 11 qualifiers, plus a lucky loser, hanging out in the bottom half.

There is one Q/Q match, where two qualifiers are playing against one another.  The heavy-serving Albano Olivetti of France, whom I saw, certainly has a shot against fellow Frenchman Stephane Robert.  The winner will most likely face Richard Gasquet, the #8 seed and a fellow Frenchman and another player I've seen in qualifying, watching him get disqualified from a match for hitting a lines judge with his ball or racket (memory; the details fade with time!).

Phillip Petzschner has a definite chance against an up-and-coming American, Jack Sock, and most likely faces Jerzy Janowicz in the 2nd round.  Janowicz is the #14 seed, and a player I spotted in qualifying three years ago and predicted good things for.  He made his major breakthrough last fall.  So I like Janowicz, but I still don't think of him as a sure bet to win any/every given match he plays.  Should he be upset by another qualifier, Argentine Maximo Gonzalez, in the first round, then either Sock or Petzschner has quite the opportunity for advancement in this year's Open.

Nick Kyrgios, an Australian of Greek ancestry, and very highly touted, gets to face #4 seed David Ferrer.  I can't really see Ferrer losing that match.

Frank Dancevic has an opportunity.  The 26-year-old Dutchman Robin Haase is ranked in the 60s, peaked in the 30s.  Dancevic peaked in the 60s and is currently ranked in the 150s and is three years older.  I'll be pulling for Dancevic personally, just because I first spotted him in the qualifying years ago, and I have kind of a soft spot.  

Way down at the bottom half of the draw...

Ryan Harrison, whom I've seen play with guts, heart, skill, passion, in the qualifying in years past,  has shown other sides of his personality elsewhere.  Tantrums, petulance, etc.  He also has the absolute worst luck of any player I have ever followed.  He manages to draw Top 10 players as opponents in early rounds of even the most obscure tournaments way more than chance would have it.  So, of course, he gets to play Rafael Nadal in the first round.  All I can say, if Harrison pulls the upset, is that I'd say it's less unlikely than whomever it is Nadal lost to in Wimbledon.

Interestingly enough, Nadal can run through the entire section of his draw taking out players I've liked in qualifying over the years.  Harrison in the first round.  Then Canadian Vasek Pospisil, who had a breakthrough in this year's major men's tournament in Canada and will I hope prove to be "for real' outside of his home soil, and then possibly Rhyne Williams, who got a main draw wildcard this year but last year came through the qualifying, upsetting none other than Vasek Pospisil in the first round.  Won't that make for a strange year, if they have a rematch in this year's 3rd round.

So of the qualifiers I saw in 2013, I'd say that Phillip Petzschner and Alberto Olivetti have the best chance of making it to the 3rd round. 

I should fill this post with wonderful links to all of the earlier posts I've done dating back to 2008 that talk about some of these players, but I just don't have the hours in the day. 

But this here -- yes, HERE, is a link to all of my posts that have a Tennis label, and you can scroll down quickly enough to check for my insights from years past.

I've seen at least 30 of the players in this year's main draw playing in qualifying.

Securely Ranting -- For the World to See

Just to get on my high horse again about the ludicrousness of our allowing our government to waste so much money spying on us, bringing it back a little to the business of JABberwocky...

We at JABberwocky believe in information.  We rigorously spreadsheet pretty much every piece of royalty statement paperwork that comes our way, in varying detail.

Just like the NSA wants to vacuum up information because it may not know until after the fact which e-mails or which phone call metadata it may need at some future point, we can't predict exactly which information we might need at some future point.  Since modern spreadsheets allow information to flow upwards very easily, it just seems better to start out having everything in a nice spreadsheet that can flow up.  The first statement for your hardcover will flow upwards into a summary for the hardcover.  The paperback and e-book will flow upward.  They will merge with the hardcover information to give you the total sales for your book, and from there to your series, and from there to your work with a particular publisher and then a particular territory. We do that in all major territories for your work, we try and have basic information in smaller territories in spreadsheets.  If your career takes off after your fifth book, or Hollywood decides to take an option on your eighth book and some hotshot writer needs information on your sales to help get financing for the movie, we have your global sales information ready at hand.  If we need to gather that information after your eighth book is published when that call from Hollywood calls, it is a lot harder to gather all the information retrospectively.

Sounds great, doesn't it!

Who wouldn't want the government to do just that, so if in two years or four years some evildoer is involved in some terrorist plot, we've got all the data to find him, and find his co-conspirators, and save us all!!

However, we face real world constraints which apparently our government doesn't feel it needs to confront on our behalf.

Simply put, as our business grows and we have more clients selling more books in more places in more formats, the information we have to process keeps growing and growing.

We must make compromises.

We sold 200 books to Audible last year and are starting to get audio royalty statements for some of those.  Some of those books are titles that haven't been in print since ten years ago or more.  Suffice to say the spreadsheets we put together for those titles cannot and should not be as detailed as when we had only 30 books with Audible to keep track of.

As more information floods in, we have a harder time prioritizing it.  Do we do the big pile of Audible statements first because those still come in on paper and make a visible dent on the desk, while we delay processing Random House royalty statements for major agency clients like Peter Brett and Elizabeth Moon that have come in as PDFs?  Well, it is tempting to deal with the visible pile of paper first.

We also have a harder time doing all of it correctly.  Who is going to look over the person who does the basic entry work as we have more and more clients taking up more and more of our time?  Two years ago I could do that and it wasn't too big a hassle, but now it's kind of impossible for me to give the same quality time to absolutely everything.

I am running a business.  I have to justify expenses.  I can't just hire more and more and more people to deal with every last bit of data that can theoretically be processed.

Maybe you can see where this is going.

The NSA isn't worried about money.  It isn't worried about cost-benefit analysis.  Its budget is secret.  We don't debate it.  If we did, we'd be told that we should never for a moment think that our security can be valued that way.

Which is balderdash.

The NSA is no different from JABberwocky.  The more information it decides it must have, the less good it can be at dealing with all of that information, even with the ability to hire infinitely, and build office space and server farms and everything else infinitely.  And when it makes mistakes, those have serious consequences, way more than if JABberwocky screws something up.

It's not just wrong constitutionally and morally for the government to collect all of this information on us, but it's a bad investment for our country.

And just to make clear:

Yes, your information is being collected.

If you write "hey, what about Bad Guy X" in an email and the government is interested in Bad Guy X, it will start digging deeper in what you say and do just because you put the words "Bad Guy X" into your e-mail.

Oh, sure, there are procedures in place to be sure that they don't go too far, that they dig just deep enough to determine that you are a US citizen, or that you didn't actually conspire with Bad Guy X but really did just say "hey, what about Bad Guy X" in an innocent way in an e-mail.

But of course those procedures don't work perfectly.  The government admits to thousands of times when its procedures don't work.

No, thank you!  I'd rather you not be spending my money on this.