Kindle Bloggers Become Amazon’s Bitches
Written by Edward ChampionPosted on May 20, 2009
Filed Under Amazon, Blogging, Kindle
This blog will not be distributed through Kindle. I cannot possibly give away so many of my rights for a mere 30% of the cut. To put this into perspective, even the Scribd General Terms of Use limits what you give up to “solely in order to publish and promote such User Content in connection with services offered or to be offered by Scribd.”
Not so with Amazon. Here’s the relevant section of the Digital Publication Distribution Agreement:
7. Rights Granted. You grant to us, throughout the term of this Agreement, a nonexclusive, irrevocable, worldwide right and license to distribute Publications as described in this Agreement, such right to include, without limitation, the right to: (a) reproduce and store Publications on one or more computer facilities, and reformat, convert and encode Publications; (b) display, market, transmit, distribute, and otherwise digitally make available all or any portion of Publications through Amazon Properties (as defined below), for customers and prospective customers to download, access, copy and paste, print, annotate and/or view, including on any Portable Device (as defined below); (c) permit customers to “store” Publications that they have purchased from us on Amazon’s servers (“Virtual Storage”) and to re-download such Publications from Virtual Storage from time to time; (d) display and distribute (i) your trademarks and logos in the form you provide them to us, including within Publications (with such modifications as are necessary to optimize their viewing on Portable Devices), and (ii) other limited portions of Publications, in each case on and through any Amazon Properties and solely for the purposes of marketing, soliciting and selling Publications; (e) use, reproduce, adapt, modify, and create derivative works of any metadata that you submit to us for the purpose of improving categorization, recommendations, personalization features and other features of any Amazon Properties; and (f) transmit, reproduce and otherwise use (or cause the reformatting, transmission, reproduction, and/or other use of) Publications as mere technological incidents to and for the limited purpose of technically enabling the foregoing (e.g., caching to enable display). In addition, you agree that Amazon may permit its affiliates and independent contractors, and its affiliates’ independent contractors, to exercise the rights that you grant to us in this Agreement. “Amazon Properties” means the website with the primary home page identified by the URL http://www.amazon.com/, together with any successor or replacement thereto (the “Amazon Site”), any software application that is capable of supporting the electronic purchase, display and/or management of digital text, graphics, audio, video and/or other content, and any other web site or any web page widget or other web page real estate or online point of presence, on any platform, that is owned by us or operated under license by us (such as http://www.target.com/ ), branded or co-branded Amazon or with any brand we license for use, own or control, and any web site or online point of presence through which any Amazon sites or products available for sale thereon are syndicated, offered, merchandised, advertised or described. “Portable Device” means any device that is capable of supporting the electronic purchase, display and/or management of digital text, graphics, audio, video and/or other content via wireless telecommunications service, Wi-Fi, USB, or otherwise.
Not only do you give Amazon “a nonexclusive, irrevocable, worldwide right and license to distribute” your blogging, but you also give this up to affiliates and independent contractors. So let’s say a major publisher decides to “independently contract” with Amazon. And they see a blog that they like. Well, guess what? They can take your content, publish it as a book, and collect the revenue without paying you a dime. Because Section 4 (”Royalties”) specifies that the blogger only gets paid for “Subscription and Single Issue sales revenues,” meaning any of the 30% revenue that you’re going to get with the Kindle. And I particularly love how Section 5 gives the blogger a mere six months to file a legal claim, which is “limited to a determination of the amount of monies” and not operational practices. You know, trivial concerns such as Amazon distributing your content to affiliates and independent contractors without the blogger’s consent.
I am extremely saddened to see so many of my fellow bloggers betray their interests. They have happily become corporate slaves, granting “a nonexclusive, irrevocable, worldwide right and license” to their thoughtful essays and carefully written posts.
I sincerely hope that any authors (and the agents who represent them) who appear on blogs distributed through Kindle are fully aware of what they are giving up here. The rights for any writing you publish on a blog go to Amazon. That goes for guest blog posts, excerpts of chapters*, interview excerpts, you name it. Thanks to Section 7 of Kindle’s Digital Publication Distribution Agreement, you effectively become Amazon’s bitch.
Well, I’m sorry. But I can’t do that for the authors who have been kind enough to take the time out of their schedules to express their thoughts and feelings in both text and radio form on these pages. In addition to the reasons eloquently provided by Kat Meyer and Megan Sullivan
I cannot in good conscience sell us out.
All this could have been prevented had the bloggers who signed up for this taken the time to read and study Amazon’s draconian language. Presumably, they thought Amazon would play nice.
But if you think that Amazon is benevolent, consider my investigations from November 2007, which demonstrated that Amazon was placing blogs onto its Kindle Store without obtaining permission. Consider also Techcrunch’s recent investigation, in which Amazon can steal any blog without the blogger’s consent. Yet many people continue to place their faith in Amazon. Even after Amazon’s poor response in last month’s Amazonfail scandal.
* — There’s some additional discussion about this aspect of the DPDA in the comments that you will probably want to check out.
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Books To Jump Up and Down Over
Beyond Heaving Bosoms by Sarah Wendell and Candy Tan. The famed writers behind Smart Bitches, Trashy Books have written a very funny and thoughtful volume about romances, both Old Skool and New Skool. Here is a book that any smug and humorless literary manboy beating his flabby passive chest over Banville or Bolano should probably read pronto, if only for the distant possibility that he might get over himself. While the Choose Your Own Adventure segment at the end caused me to have a very disturbing dream involving Shelley Long (don't ask), Sarah and Candy did have me rethinking many of my own misperceptions when I wasn't busy laughing. They're not afraid to take on the New York Times Bok Review or even the groupthink within certain sectors of the romance community.
Alice Fantastic by Maggie Estep. This wild and highly enjoyable narrative involves two sisters (presumably, the third one was still being rented out by Chekhov), a hippie ex-junkie mother who lives with seventeen dogs, a murder, gambling, and libidinous Hollywood actresses who live in Woodstock. But this is the wonderful Maggie Estep we're talking here. And what seems at first like a quirky yarn becomes something unexpectedly moving about connectivity. What I love about Estep's work is the way that she'll juxtapose an extremely astute observation (now that you mention it, why do cab drivers always have somebody to talk with on the phone past midnight?) with an often outrageous story development.
Generosity by Richard Powers. It doesn't come out until September 29th, but Richard Powers's latest will have anyone committed to books reconsidering their literary fervor. I foresee some animosity from the vanilla critics hostile to idea-driven novels, but book bloggers, YouTube chroniclers, and MFAs would do well to plunge into this chance-taking narrative, which introduces vital questions about what the reader's relationship is with media, scientific dissection, and "creative nonfiction." Are we rats fleeing to happy cities? Or can we find the humanism within the purported plague?
Pieces for the Left Hand by J. Robert Lennon. Lennon is one of the most underrated fiction writers working today. Much as On the Night Plain proved that Lennon had a lot more in the toolbox than heartfelt (and often very funny) suburban satire, this slim but fascinating volume juxtaposes 100 small-town anecdotes -- arranged by category -- in a manner that reads, at times, like Nicholson Baker's passions for minutiae and, at other times, Stewart O'Nan's concern for psychological detail. The result is fiction that makes us wonder about whether one person's subjective view of particulars can entirely be trusted. This book never found a publisher in 2005. But thankfully, Graywolf has released it in the United States, along with Lennon's latest novel, The Castle.
Wonderful World by Javier Calvo. This wonderfully raucous volume has been completely ignored by the Washington Post, the New York Times, and the Los Angeles Times. But it's probably one of the most delightful reading experiences I've had this year. Calvo cavalierly mashes up multiple genres and manages to mix up familial subtext with larger-than-life, almost cartoonish characters. (Indeed, one might argue that one mobster's penis is a character of its own in this sprawling novel.). This is not an easy thing to pull off, but Calvo makes it work. And it's helped immeasurably by Mara Faye Lethem's idiom-specific translation. (See longer post.)
The Means of Reproduction, Michelle Goldberg This thoughtful book tackles the complicated (and little discussed) subject of reproductive rights from numerous angles, which includes a number of unpleasant but necessary ones. The upshot is that there isn't a quick fix solution for declining birth rates and fundamentalist abuses. Just about every political faction has contributed to the friction. But you'll want to read this book anyway to refamiliarize yourself with the topic, but also to understand just what's occurred during the past several decades to get us where we are today. (See also podcast interview with Goldberg.)
>>>Thanks to Section 7 of Kindle’s Digital Publication Distribution Agreement, you effectively become Amazon’s bitch.
Yes, but then they get to stand in their tiny vanity spotlight like a poor man’s Sally Field and gush, “You like me! You really like me!”
How pathetic!
Ed, I’m just not feeling it! I just posted something about this on Follow the Reader here and that pretty much states what I feel. I think you’re making a big deal over nothing. A corporate stooge? I consider Amazon my partner in this arrangement, and corporations don’t scare me.
Now, I’m not a lawyer or a large fan of almost all of the agreements Amazon has built over the years but….
If you read the paragraph you’ve cited completely you’ll find several of the clauses you call out are limiting:
1. “a nonexclusive, irrevocable, worldwide right and license to distribute” – the phrase that matters in this one big time is the one that comes right before it “throughout the term of this Agreement.” This whole section doesn’t survive the agreements termination (which you can do on 30 days written notice – after that point they still are able to retain copies of your content but only for the re-downloading of previously purchased copies).
2. There is no right to create a derivative work (such as a book) granted except in the case of the “metadata that you submit to us for the purpose of improving categorization, recommendations, personalization features and other features of any Amazon Properties” Another important point to this comes in section 10:
“Subject to the authorizations granted to us under this Agreement, as between us and you, you retain all ownership rights in and to the copyrights and all other rights and interest in and to the Publications.”
Also re-read section (b):
“(b) display, market, transmit, distribute, and otherwise digitally make available all or any portion of Publications through Amazon Properties (as defined below), for customers and prospective customers to download, access, copy and paste, print, annotate and/or view, including on any Portable Device (as defined below)”
That’s the primary right granted that involves sales — and its limited to the Amazon Properties. (which are also defined in the agreement). Amazon Properties are very strictly defined within section seven in the area you quoted.
3. The reference to section five is somewhat baffling to me because what its saying in the part of it that you reference is that if you challenge them on how much they owe you for publishing your work and you’re right that they should have paid you more then you get the money you’re owed without interest. This is a pretty standard thing from the internet services I’ve worked with before (heck, it’s better terms than Google AdSense will give you — you only get 30 days to dispute with them and it prevents you from taking action outside their system against them).
4. When it comes to guest posts and chapter excerpts and such, unless you have a print publication that you’re sending them you get to define what your content inclusion is. From Section 1.1: “This Agreement covers all content which you have identified for inclusion in the Program in the Application or which you otherwise provide to us for inclusion in the Program (each a “Publication”). If there is a print edition version of the Publication, then the Publication you provide must include the same content as the print edition version.” [note: back to me now] if you don’t want to include something then don’t include it within the definition of your publication.
The reason they need to grant these rights of transmission to independent contractors is because they need to cover their rear while using the cellular data networks that they’re jumping on to deliver publications to the Kindle wirelessly and because of the six other things a piece of kindle data goes through to get to an iPhone or Kindle. The various digital stores that can show it and the various locations where they can advertise / make links available to your product.
Perhaps I’m too trusting but that’s the way the agreement looks to me.
-Joe Kavanagh
Joe: Thanks for the lengthy comment. I’m glad to see other interpretations of the DPDA. (I should also state that I am not an attorney either. Perhaps one might want to jump into this thread.) To respond to your points:
1. If the license is irrevocable, meaning that it cannot be revoked or undone and that it is without end, then that means that any value of length does not apply. Meaning that “the term of this Agreement” clause does not apply. And besides “term” in that section is too vague anyway. Because it doesn’t specify the “Term” (capital T) as established in Section 1. Therefore, it’s a useless clause. But even if we accept the “term” as “Term,” the “Term” is defined too poorly. All we get is “i.e., the Publication is no longer available on your website or otherwise available online or through any digital distribution service.” Not specific enough. And since Section 8 specifies that Amazon has the right to change the terms of the Agreement at any time, it’s useless anyway.
2. While there is certainly no specific clause to create a derivative book, I think you’re overlooking Section 8’s ridiculously liberal modification terms. Sure, you can opt out of the agreement by providing written notice. But you have to do so within seven days of Amazon sending any email to you updating you of the changes. And if you don’t give notice of your termination within seven days, you automatically accept the changes. And keep this in mind: “All rights to Publications acquired by Customers prior to termination shall survive termination, and Amazon shall be entitled to retain archival copies of the Publications after termination in order to provide access or copies of the Digital Books to customers who have purchased Publications prior to termination.” Guess what? Amazon keeps the rights to your previous content (as do the affiliates and the independent contractors). Meaning that they could effectively turn your content into a book. (Christ, the more I look through this agreement, the more jittery I get.) To be clear, it’s the “affiliates and independent contractors” line that bothers me the most, as does the extremely broad definition of “Amazon services,” which includes “any web site or online point of presence through which any Amazon sites or products available for sale thereon are syndicated, offered, merchandised, advertised or described.” (And, yes, that syndication would include books that Amazon could offer for purchase in the future. Think of what tomorrow’s “online point of presence” could be. You have to look at every agreement considering future technologies.)
3. A fair enough comparison with AdSense. But my problem here is that any action is “limited to a determination of the amount of monies.” Any grievance or action concerning Royalties may involve something more — like faulty technology or indeed future “Amazon Services” that are rolled out. (I mean, we’ve had Kindle 2 and Kindle DX just in the past few months. Amazon very much enjoys issuing new Services.)
4. Also, a fair point about print (and I’ll strike out the chapter excerpt point in my post after I finish this comment to reflect it). But this still means content you provide first on an online site will be given to Amazon. You may also want to check out Section 1.2, which is very specific about giving Amazon the right to compare print and online editions. I’d feel more comfortable about this Agreement if Amazon weren’t asking for so many rights. They may want to cover its rear, but they’re doing so without providing for a rider the way that other agreements of this type do.
I’m not a lawyer or a blogger, but on the “term of this agreement” v. Irrevocable” front a plain reading of the language suggests Joe is right. “Term of this agreement” is the (for lack of a better word) dominant part of the construction.
In this case, “irrevocable” I think essentially means that while the agreement is in force you can’t pull back content that’s already been distributed. I’m pretty sure there’s civil statues that make it unlawful to write a contract that is truly and permanently irrevocable. If memory serves the statute was born out of the Hollywood studio system where stars were indentured to specific corporations. There’s something like a seven year limit on contracts for television talent for the same reason.
On the money front, what’s an author get in royalties per book? 10%? 15%? Most of what you’re paying for in a traditional publisher is distribution, which is what Amazon is pledging to do here.
Still, why is someone going to pay for something they get for free already?
I’ve heard many people ask the same question May asks during the course of this debate: “why is someone going to pay for something they get for free”?
I think the answer is simple, and it’s the same reason people pay for bottled water when they can get water for free. They like the packaging.
If the legal shadings are so obscure (they’re actually pretty standard, though, as might be expected in an adhesion contract, leaning to the advantage of Amazon), why not hire a lawyer for a legal read? Or, better yet, an agent?
[...] This blog isn’t available on the Kindle. The main reason I’m not signing up is that I think that free is a perfectly fine price to put on what I what I’m slinging here. But it’s not the only reason. [...]