Who’s Supporting SOPA? Publishers.

Loads of people have published the list of organizations and businesses who are supporting SOPA.  But not everyone knows what these companies are or what they do.  And looking at that four page list is kind of overwhelming to say the least.  So I’ve put together a little pie chart to help you wrap your brain around where this is coming from.  Take a look.

This chart shows the raw number of supporters per industry type who are listed on the House Judiciary Committee list supporting SOPA*.  I’ve removed all the law firms because damn near every one of them bailed for being misrepresented as supporting the bill.  There were 19 of them in this list. I’ve also removed the Graphic Artists Guild who also dropped the bill.  But everyone else I’ve left in here.

It’s no surprise really that Music is the largest industry represented here.  Music was the first battleground in internet change in the early 2000’s (see Napster).  Similarly the Movies and Television categories are no surprise either.  Of course Law Enforcement advocacy groups are in favor, because increases in enforcement mean expanding budgets.  And it’s definitely a sign of the times that the second largest group in favor right now are publishing companies.  Further down the chain you start to get into some quirky political action committees and luxury brands who are probably looking to crack down on counterfeiting.

But as I’m a librarian, I’m going to focus on the publishers for now.  Here’s the list as I see it.

Association of American Publishers (AAP)
Cengage Learning
Disney Publishing Worldwide, Inc.
Elsevier
Hachette Book Group
HarperCollins Publishers Worldwide
Hyperion
Macmillan
Marvel Entertainment
McGraw-Hill Education
MPA – The Association of Magazine Media
News Corporation
Penguin Group (USA), Inc.
Random House
Scholastic, Inc.
The Perseus Books Groups
W.W. Norton & Company
Wolters Kluewer Health

A couple of things jump out at me looking at this list.

Academic Publishing

The first being the academic publishing powerhouses that are Elsevier, Gale (via Cengage), W.W. Norton and Wolters Kluewer.  Elsevier owns nearly every academic journal that is published in the world, and they charge a bloody fortune for access to those journals.  Gale/Cengage provide a number of research databases, as does Wolters Kluewer.  And Norton is a publisher of many things, but primarily academic textbooks, as is McGraw Hill.

Publishers with eBook Axes to Grind

Harper Collins was noted earlier this year for changing their eBook access privileges to library eBook vendor Overdrive, where their eBooks will self destruct after 26 checkouts.  Penguin also got into some drama with Overdrive access privileges this November, when, during a dispute with Amazon.com, they chose to pull all of their eBooks from Overdrive.  Access was restored fairly swiftly as negotiations resumed, but that spectre of loss is still kind of looming. Similarly, Hachette Book Group pulled all of its titles from all of the eBook distribution channels in 2009 and even up to August of this year was still trying to sort out what to do with library access.

Hot Properties

Marvel and Disney (though Disney owns Marvel) own a lot of tradmarked characters, and they enforce the shit out of those trademarks.  I remember going to the ICv2 Graphic Novel Conference at New York Comic Con a few years ago.  There was a panel discussion on fan fiction and they had folks from Dark Horse, Marvel and Nickelodeon.  I remember vividly that the folks from Dark Horse were all about fan fiction, and that they mine sites like Deviant Art to scout new talent.  Similarly the guy who produces Avatar: the Last Airbender was really supportive of fan fiction as a way of encouraging children to be creative and tell new stories.  The guy from Marvel, sue the shit out of those fan fiction people (paraphrasing).  The look of aghast horror on the faces of the other panel members was priceless.  But it definitely made the point, and its the point that comic book companies and the Disney corporation have been making for decades.  These properties belong to us, and you can not use them for any reason.  As for Scholastic, I’m sure you’ve heard of Harry Potter.

Now, all of the groups that I’ve listed here are pretty strictly print/ebook publishers or advocacy groups that focus on publishing rights.  There are plenty of other crossover companies like Time Warner, which I classed as a television company, but also produces books and films.  So if you want to quibble with my numbers you can find them here.  Sorry that this is kind of sucky looking, but Scribd kind of breaks the formatting a LOT.


* In my original analysis I had tagged Pearson Education as a publisher, and its identified as such in the Scribd document, but looking closer into them they are more of a web education portal developer, kind of like Blackboard. I’ve removed them from the table on this article, but the number is still in the pie chart. So the pie chart number of publishers should be reduced to 17. Which is still the second largest industry involved in this piece of legislation.

Bloggers, TOS and IP

The other day a friend of mine said that she was quitting Blogger because she was livid over their terms of service agreement.  She is a writer and has been burned by ebook piracy in the past and found pieces she had written in their entirety on other websites around the internet.  The crux of her outrage came down to this particular section within the broader Google terms of service agreement.

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

I looked at that and didn’t see what exactly she was objecting to, but in speaking with her further, her objection seemed to hover around an interpretation of reproducing and “royalty-free.”  So, as a curious person I decided to look into the Terms of Service for Blogger itself, as well as the WordPress TOS, TypePad TOS, and the LiveJournal TOS, just to see what was going on out there. Being an absolute dork I actually sat down and parsed through the language from each of these five TOS agreements and made this handy chart.

It came as almost no surprise to me that much of the legal language concerning intellectual property rights and the ability of these blog services to reproduce your works royalty-free is pretty much across the board, though with some notable and glaring exceptions.

Disclaimer: I am not a lawyer!  I’m just a guy who reads a lot, and can analyze the hell out of something.  This is my interpretation of what these things mean, and as a nice guy I may have a rosy colored look about things.  If you are a lawyer, or you are one of the legal counsels for these companies I wholly recommend that you correct anything you see wrong in here in the comments below.

The Google TOS agreement, which is kind of the parent of the Blogger TOS agreement includes much more comprehensive language about the perpetuity of the content.  This is no real shock, since Google as a company is in the business of caching pretty much everything in existence always.  However, they go to great pains in the Blogger TOS to explicitly state that they do not claim control over anything (Section 6, Paragraph 2, see the bold), and that the only reason why they include the agreement to the above rights is “for the purpose of displaying and distributing Google services” i.e. your blog.  Also, Blogger specifically mentions that you can also CC License your work and they’re totally cool with that.  Though it is forever, and you can’t back out of it, ever.  The only other unique thing about the Google TOS is that it includes “translate” which is a separate service that Google offers, and can be applied to your page should someone in a foreign country want to try to read your blog in their language.

Analysis of the WordPress TOS was a little more disconcerting, as it makes no mention that you as the writer retain the copyright to your work.  It talks a whole lot about not posting anything infringing, including if your employer retains the copyright on your work.  Seriously, does it say explicitly anywhere in there that you retain your copyright?  No, but I’m assuming that they’re assuming you don’t have to say that.  Though, given all the language about infringement, it seems an odd thing to have not explicitly enumerated in the TOS.  Don’t worry WordPress, I believe you are good at heart.

TypePad on the other hand does explicitly state that you retain the copyright to your work uploaded through their service.  However, they include some language that may be more troubling to certain folks.  For instance, with TypePad you give them the right to “use” your material as well as the right to “make derivative works.”  This is more worrysome because by allowing them to make derivative works it implies that TypePad is allowed to remix your content for their own purposes.  Now, I’m going to assume that by “derivative works” it doesn’t mean that they’re going go running out and publish your blog as a book or that they’re going to re-write your content and put words in your mouth.  What they’re probably going for, assuming the best of intentions, is that they might use your blog in a feed related to items that have recently come out from the universe of blogs within TypePad, i.e. highlighted awesomeness.  They’re in the blogging business, and their business is to get more bloggers, not to play mashup with your work and try to turn around and sell it.

Perhaps the most troubling, funny and sad of the blogging services listed here was LiveJournal.  I have a soft spot in my heart for LJ as I have been on there for nearly nine years now.  But oh, it’s so sad to look at their TOS.  The good news is that it says you explicitly retain your copyrights.  The only explicit thing that they reserve the right to do is serve up your content to various platforms.  The bad news is that the rest of the TOS is all about how they regulate adult content, what you get with paid services, and the myriad list of things that will get you banned.  It’s like the entire agreement was cobbled together from all of the pain and suffering that they’ve gone through as a company who probably started with no legal team and had to carve out legal language based on experience.  And they probably did.  Compared to the rest of these TOS agreements, it’s like looking at your little brother in a room full of wealthy corporate attorneys.

Comparisons aside, what are we to make of this language in these TOS agreements and what should authors truly be concerned about?  Why do these blogging companies require all these rights and permissions?  Let’s just look at the details and think about it for a minute.

World Wide

Well, duh, it’s the internet.  Of course they’re going to want permission to present it to the world as a whole, because that’s the plan with anything going onto the internet.

Royalty Free

This is the big sticking point for my friend.  I put it this way.  If you’re not monetizing your blog, then nobody else is going to monetize it for you.  You can get an adwords account and maybe get some cash on the side from click-throughs. But putting something on the internet, that is not behind a paywall, is free, and you had just better live with it.  They’re not going to give you money for your awesome blog, just because you get a million hits.  If you are getting a million hits, then sell your blog yourself.  Go publish in print form like Cake Wrecks or Cheezburger or Stuff White People Like or Julie and Julia, etc. etc. etc.  They’re just providing you the platform, do with it and profit from it as you will.

Non-Exclusive

This is probably the best part of every one of these agreements.  It’s non-exclusive.  None of these sites cares if you repost this across every other blog platform imagineable, if you sell your content to the New York Times, or The Atlantic, if you go and get published by some big fancy publisher.  It’s all good, cause they don’t want to be your exclusive publisher.  That’s your call, and you can cross publish as much as you like.

Reproduce, Publish, Distribute

These all mean pretty much the same thing.  They’re making an infinite number of digital copies available to the world, ad infinitum.  It’s the internet, that’s what it does.

Adapt and Modify

One of the glorious things about the internet is that through the beauty of XML and CSS things can look different on different pages.  So, if someone imports your RSS feed into their LJ Friends page it’s going to show up in their cutesy homespun format.  If they import it to Google Reader it’s going to strip out any of your page background or color choices, etc.  If someone is looking at your content on a mobile site, it may give an abbreviated paragraph or only the title line from your post.  It’s fairly common for blog services to change the presentation of your content, but not actually change the content itself.

Publicly Perform, Publicly Display

It’s the internet.  It’s on public display.  If you didn’t give them the right to publicly display your blog, it would be like typing your blog in Google Docs and just saving it for yourself so no one else could see.  If you post a video, it’s a public performance.  If someone uses a speech translation device to read your content, that could be a public performance.  You’re trying to get out there, not hide.

Ultimately, there’s not a lot of difference between the terms of service between these companies (except Livejournal, but never mind that).  What you’re basically agreeing to do is to let any of these web companies make your content freely available to the public.  They don’t care what you write, so long as it’s not a copyright violation.  They don’t want to be the exclusive agent to you.  They just want to get it out there, in as many ways as possible, because having great content means more hits for them, and possibly more new accounts.  Hopefully paid accounts.  Blogging can be anything from a personal rant board to a highly monetized kickass website that earns you bank.  The blogs just give you the means, the ends are what you make of it.

Romance Novels and DRM

There is a kickass article in this month’s issue of Fast Company on Harlequin eBook impresario Angela James.  There are two things in this article that are awesome (apart from the fact that eBook romance is awesome anyway).  The first was the quote from Harlequin’s Executive Vice-President for digital books Brent Lewis.

It’s not surprising that Harlequin would get there first. After all, the company pioneered mail-order as well as drugstore and supermarket book distribution. “Wherever women are, however women want to read,” is how Brent Lewis, executive vice president for digital, puts it. Online and direct-to-consumer sales (to readers on Harlequin’s website) weren’t major jumps.

Emphasis mine.  This motto broadly applied to all readers is something that Libraries are just finally starting to understand.  With the Contra-Costa County Library and their book vending machines, libraries putting QR codes in the wild on city buses, and just generally making eBook downloads available via mobile apps and eReaders with Wi-Fi or 3-4G connections is just starting to get there.  This also speaks to the value of embedded librarians out in the world outside of the reference desk environment, connecting with users via social media and active chat clients and, being able to provide library service however it is our public needs it.

The second critical point here is regarding the sale of eBooks with DRM and without.

Carina’s biggest departure from other major publishers — including its owner — is that its books are sold without digital rights management, the technology embedded in many electronic media to thwart pirates. Spooked by what happened to the music industry, most book publishers have embraced this set of access controls, but readers chafe at it. On AllRomance.com, DRM titles comprise half of inventory but only 4% of sales in 2010, says chief operating officer Lori James. (All books purchased on the Nook have DRM, no matter the publisher’s policy.)

“Our theory is that it doesn’t prevent piracy because any pirate can strip DRM in about 30 seconds,” says James. “DRM instead inhibits casual sharing, an important part of the reading process — and the purchasing process.”

BAM!

Look at that.  Sales are showing, hands down that people are choosing non-DRM protected titles the vast majority of the time.  96% of sales.  How can you argue with numbers like that?  Seriously.  They also clearly understand how women read and share romance novels.  I can tell you from the days when I watched my mother, aunts and friends in their romance novel reading heydays, that they would get grocery bag loads full of books, swap them back and forth among each other and tell each other which ones were good and which ones were bad, which had steamy scenes and which were sweet.  It is a vigorously social reader behavior that DRM restricted eBooks would change, for the worse.  Also, these women who read Romance novels read them in volume, and the price point and publishing rate needs to support that.  And this woman is making it happen.  Kudos to you Angela James for understanding how romance novel readers read and share, and pushing a business model that supports that rather than hinders it.  Awesome.