The Energizer Guild

The Author's Guild just doesn't know when to stop, pursuing its quixotic quest against Google for scanning books.

I blogged about this over four years ago, here...

And per the letter I just sent to Paul Aiken today, which I paste below, I wish the Guild would finally get over it, and realize they're wrong.  The Author's Guild could have helped JABberwocky clients, saved them thousands of dollars and had many of them selling e-books years and years ago if they had listened to my advice.

December 30, 2013

Mr. Paul Aiken
The Author’s Guild
31 E. 32nd St. 7th fl.
New York, NY  10016

Dear Mr. Aiken:

You are colossally wrong on Google, and should stop wasting your organization’s money.

You can read my full blog post from 2009 on this subject here
http://brilligblogger.blogspot.com/2009/04/google-settlement.html

But in essence, I advocated at that time that we force Google to give us a copy of our scanned books so that we could do with them as we please.  This was and is the best settlement and resolution to this, and it is in fact what the publishers ended up accepting.

If the Author’s Guild had obtained for authors what the publishers ended up obtaining for themselves, my author clients could have saved cumulatively tens of thousands of dollars that we have ended up spending to scan their works in order to publish them as e-books, and we might have been able to sell those e-book several years sooner than was otherwise the case.

You’ve ended up costing my authors far more than your “advocacy” will ever be able to gain for them in exchange, should some court end up agreeing with you on this new appeal when everyone else so far hasn’t.

Sincerely,



JOSHUA BILMES
President
joshua@awfulagent.com

Richard T. Gallen

So I popped over to the Baen twitter feed today, and was saddened to see a little tiny tweet:

In memoriam: Richard T. Gallen, one of the original founders of Baen Books.

Which says something, but maybe not enough.

He wasn't just a founder of Baen.

He was some of the money behind Tor Books.  As mentioned in this article in the NY Times from 30+ years ago.

He was some of the money behind Carroll & Graf, which published actively in sf/fantasy/horror/mystery, including things like the Mammoth Book series, or David Pringle's 100 Best SF Novels, which C&G and other publishers used as a road map for bringing a lot of deserving books and authors back into print and to a new generation of readers.

We'd have science fiction and fantasy today without Richard T. Gallen, but it's safe to say it would be different somehow.  His being around or not being around, it's one of those things like "Hitler Wins World War II" or "Lincoln Survives" that alternate history novels are written about.

My first job was in a little aerie on W. 36th St. in Manhattan in a small crowded space where Tor and Baen and Bluejay and perhaps other companies as well were all clustered being fed start-up money by the Richard T. Gallen mother bird.  I believe it might even have been Richard T. Gallen's signature that was on my first paychecks from Baen.  A little later Baen and Richard T. Gallen decamped a few blocks down 5th Avenue to nicer bigger space.

I can't really say I knew the man.  Tom Doherty at Tor would probably be the person from sf/f that could give a good speech at a memorial service.

But essentially, any of who work in sf/fantasy or who read in sf/fantasy -- we know Richard T. Gallen. He's the guy who made the guys who made the books happen.  If we don't do what we do because of him, we do it how we do it because he was willing to make publishing fantasies become real, for people who knew how to take advantage of the opportunities he provided.

Racing Downhill

More bad news for most of us this week, with a federal judge ruling that Detroit can go into bankruptcy and cut pensions, Illinois legislators voting on a bill to cut pensions there, another judge ruling that employers can force employees to arbitrate and not have an option of class action suits.

I have a deeply ambivalent relationship to public employee unions.  While I believe very strongly in the right to form a union and collectively bargain, public employee unions have much better luck gaming the system by making contributions to the politicians who then determine how much money to give the union workers.  In the private sector, an independent labor union can't game the system, at least not this way.  In the private sector too often the interests of my representative are more aligned with the unions than the public purse.

But that said, the attack on benefits that were won in negotiations reflects a distressing tendency in public life these days, which is to solve your problems by making everyone else as miserable as you are.  Your employer's dumped your pension in favor of some 401-K?  Well, you can't get your 401-K back but you can cheer on as someone else's pension gets dumped too!  Yay!  Win!

Sorry, it's not.

If you think it is, you might enjoy reading this Rolling Stone article about how we're "saving" pensions by giving money to Wall Street.

So in Detroit, a lot of not very rich people, many of whom are still living in Detroit, are going to see their retirement income cut, which will reduce what they can spend, which will reduce the economy in Detroit, which is going to save Detroit.  For the most part, these people aren't the people who made any of the decisions on what contract terms to agree to, on how to fund pensions, they're innocent bystanders who are going to be hurt.

While states and localities across the country are cutting back pensions left and right, they are engaged in madcap competitions to give Boeing hundreds of millions of dollars in tax breaks and other incentives to encourage them to locate an assembly line for a new version of the 777 in their state.  Boeing makes billions of dollars, and it wasn't enough to have the State of Washington give billions of dollars in tax breaks if the unions for the skilled workers who build the planes didn't agree to share in the "sacrifice" of these billions of dollars in profits and tax breaks for the company by agreeing to givebacks.

Hunger Games: Catching Fire has taken in hundreds of millions of dollars in global box office and will make huge profits for Lionsgate.  It filmed in Georgia to take advantage of tax breaks, and again, states and localities across the country are engaged in this race to give huge film companies that are part of major media conglomerates tax breaks to entice productions from one state to another.

Can people see the problem here?  Even as we silently cheer or to too little to protest attacks on the working men and women of this country, we also cheer when our states take the money they're saving and give it to very rich companies in pursuit of a zero sum game of taking business from one state or locality to another.

I'm not even sure, at the end of the day, that these kinds of tax breaks do very much for the states and localities that give them.  Oh, they can find statistics that say that the film tax breaks are worth their weight in gold, but you know what they say about statistics.  Against that, there's this icky feeling that the only way you can get business is to bribe it to come your way.  There's this icky feeling, or at least there should be, in supporting companies that don't really support you, that feel they're entitled to take government money, screw workers as much as they can, in pursuit of the almighty buck.

And as with too many policies supported by corporations, it's kind of short-sighted.  Take Walmart.  Walmart is kind of getting creamed by a lot of government policies.  Food stamp cuts take money out of the hands of Walmart shoppers, and thus out of the hands of Walmart.  If Walmart paid its employees more, a lot of money would come right back into Walmart stores.  If this were to happen as a result of an increase in the minimum wage that would force Walmart competitors to pay more as well, it wouldn't disadvantage Walmart, because Target and even Amazon which still needs warehouse workers would face the same labor cost pressures as Walmart.  But Walmart does everything it can to keep downtrodden employees downtrodden.  It threatens to pick up its toys if cities talk about raising their minimum wage or passing living wage laws (some of those do target Walmart, but if Walmart would advocate for a global increase in the minimum wage it would face less targeted living wage legislation).  Even as it downgrades its earnings forecast because people don't have money to spend, it won't help give people more spending money.

For a competing perspective, enjoy this article somebody tweeted out to us several weeks ago from investors.com, which rails against how we are becoming dependent on government largesse.  108M+ people on means-tested government welfare programs, 101M+ people with full-time jobs.

It ignores a few basic facts.  Minimum wage is under $8.  8x35x52 -- that's under $15K for a full-time employee.  When I grew up and looked behind the counter at Burger King, I saw a lot of people my age.  That was over 30 years ago.  Now, the people at Burger King and Walmart aren't teenagers working for gas money.  They're people trying to support a family on $15K a year, unless they have two jobs or have two incomes or something like that.  How can you possibly do that?  How are you going to help these people by cutting food stamps?  And did you know that over half of personal bankruptcies are caused by medical expenses?  Most jobs that pay $8 an hour don't, pre Obama-care, come with good health insurance.  You can't buy your own when you're making $15K a year.   I'm lucky; I make enough money that I'm now seeing my take-home take a four-figure annual drop because of Affordable Care Act taxes.  Unlike most people, I don't think my income benefits by making life worse for other people.  My income benefits when people have money to buy books, when they have money to go to college and get educated because educated people buy more books, when they have time to spend with their kids talking to them and working with them on homework and reading too them rather than rushing from one bad job to another because a single minimum wage job isn't enough, not able to afford good child care and hoping the car doesn't break down and that everyone in the family stays super healthy.

Quick Cuts

I haven't done a lot of blogging recently.  To make up for it, I'm going to try and do quick capsule reviews of some movies that are in theatres now and/or not in so many theatres but in the buzz for awards season.

Thor: The Dark World
I didn't care for this at all.  The first movie with a very odd superhero movie choice in Kenneth Branagh directing was a little off the superhero movie tracks, as interested in showing Chris Hemsworth in a tight tee-shirt as in endless superhero battles.  Not this movie,  As is so often the case, I tuned out and went to sleep when we got to the last half hour, because I knew it was just going to be another long, dull, over-CGIs, boring, been-there done-that fight scene.  That said, I saw it with a client who enjoyed it quite a bit, as have most of the other people I know who saw it.  Really?

Last Vegas
If you think you might like this, you probably will like it.  It's not good by many objective critical standards, but it has amiability to excess and delivers perfectly on its promise and premise.  I rarely laughed out loud, but I certainly had a smile on my face.

Dallas Buyers Club
This movie, which is getting great reviews, was the second half of a self-made double-feature for me with Last Vegas.  I enjoyed the "worse" movie a lot more, and didn't care so much for this critical darling.  Yes, Matthew McConaughey gives an amazingly great performance in the movie, and in that sense and maybe in that sense alone, the movie is worth seeing.  He acts up a storm, captivates the screen.  But there's no dramatic structure to the movie.  If I can make a comparison that not too many people are making, this is kind of like Catch Me If You can.  It's a lovable bad guy being chased after by the feds.  But in Catch Me If You Can, the stakes heighten as the movie goes along.  Leonardo DiCaprio's character goes from doing small things to doing bigger and bigger and more outlandish things.  There's also all the studio veneer in the casting, with Tom Hanks and Christopher Walken providing star level support, and Hanks in particular investing us in the movie's Javert character.  But here, it's the same scene over and over again.  The movie doesn't heighten as it goes along.  In spite of the madcap energy of the lead performance, the movie itself sags.  So maybe I was dozing during the portion of the movie where Jared Leto is engaged in some amazing sure-to-be-an-Oscar-finalist supporting turn.  Honest!  This guy's in all the awards buzz, and I can't remember a thing about him in this movie.  The Javert character is incredibly dull and uninteresting, but Michael O'Neill made more of an impression on me for his "oh God, not this same FDA guy again" role than the guy who's going to get a Supporting Actor nomination.

Ender's Game
Saw this with two clients and two other people from the office.  Reactions were motley, from entirely satisfied (not more than that) to outright dislike.  I was entirely satisfied.  Nothing new.  It's a bootcamp/biopic movie and you get a lot of the same notes.  Training camp sequences and conflicts you can predict.  But it was well-acted, never sagged.  For some perspective, I read the original 1977 "Ender's Game" novella in 1981's Analog Anthology #2: Reader's Choice at the dawn of my sf-nal experience.  I'm not sure if I ever read the novel-length version of the story, and no I never read any of the sequels.  I don't know if my feelings about the movie would be different if I had more recent or adult memories of the underlying story.  Insofar as the novella goes, I do think the movie does, at the end, get across the knife-twisting truth of Ender's final test, as I remember if from 32 years ago.  And just to say -- I wasn't in favor of the boycott calls for the movie.  That's a double-edged sword, for how many gay advocacy organizations would be super-duper thrilled if we decided to boycott gays?  They could say correctly from our current perspective that the difference here is that Card was on the losing side of the historical trend, but nonetheless I think it's a very dangerous thing to start boycotting or ignoring artists -- and for the past 40 years Card has been an important and significant one -- on account of their political beliefs.

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.