I finished a Harlequin-published book today. When I was all done and had clicked away from that annoying Amazon plea to review, which no author EVER dare actually do in case Amazon decides to go delete all the reviews on her published books, I saw this “Copyright” notice.
It’s a FEE, motherfucker
By payment of the required fees, you have been granted the non-exclusive, non-transferable right to access and read the text of this e-book on screen. No part of this text may be reproduced, transmitted, down-loaded, decompiled, reverse engineered, or stored in or introduced into any information storage and retrieval systems, in any form or by any means, whether electronic or mechanical, now known or hereinafter invented, without the express written permission of the publisher, Harlequin Enterprises, Limited, 225 Duncan Mill Road, Don Mills, Ontario, Canada, M3B 3K9.
This is a work of fiction. Names ….
When I’m at Amazon here’s what I see:
Buy Now!
Image from the Amazon Kindle page showing the “buy now with 1-Click” button.
You’ll note that the button says “Buy with 1-click.” It does not say “Pay Fee Now.”
What about this? What fee am I paying when the price is $0.00?
Free. No Fee
Screen Cap of a Harlequin book “Honeymoon For One,” Kindle Edition, with a Kindle Price of $0.00. This is NOT the book that had this copyright notice, by the way. It just happened to be the book that was shown when I searched Amazon Kindle store for “Harlequin” so I could screen cap the buy button.
Payment of the Required Fees
Fees. What fees? Amazon didn’t tell me I was paying a fee. The Amazon button says Buy. It doesn’t say “Pay the Fee.”
Also, I didn’t know about these terms until I had already clicked and “bought” the book I read.
My iPad is an information storage and retrieval system. When I backup my iPad, my Kindle app is backed up, too. If I start reading on my iPad and then switch to my iPhone later, Amazon delivers another set of bytes to my iPhone, where it, too, is backed up.
If all I’m doing is paying a fee, is there actually a sale? What happens to the meaning of book contracts for royalties earned from sales, when there’s not a sale, but a fee paid in exchange for a limited right to read the text on a screen? How can Harlequin, or any publisher, change the terms under which they get their book to the consumer without also changing the language of the contract negotiated with the author?
Is Harlequin designating some portion of a “purchase” price as a fee? Does that mean the “fee” is excluded from the royalty due? Is that fee overhead deducted from gross?
Because there’s a difference between paying a fee, and paying a purchase price.
I mean this seriously. How can they do this without negotiating this with the author?
I’m not a lawyer, I’m an author, but if I were writing for Harlequin, I might be asking those questions.
Well, that’s interesting. My contract with Harlequin provides a separate royalty schedule for SALES of a book versus a third-party license, and I’m sure not getting paid for third-party licenses.
Well shit. I mean shoot.
For the record: I am supposed to get 50% of the proceeds from a third party license, and yes, it does specify that is true for the electronic text. I get 8% from sales.
So, if the “purchase price” is actually the “fee”, then you get 50% of that. Which could be pretty sweet, right?
Yet another reason writing for the big six is such a scary prospect…makes me wonder exactly how much the author is getting from the ‘fee’.
Well, scary, I don’t know about. But fraught with contracts that contain legally binding language that is rarely in the author’s favor? Yes. I have no personal knowledge of Harlequin contracts, other that what is generally known, and, now, the language Courtney notes. There can be very good reasons to sign a contract with a traditional publisher, but sign such a contract knowing that the publisher is not a friend or an ally, nor are they an equal business partner.
You need a smart savvy agent and/or experienced lawyer on your side, negotiating on your behalf.
Personally, I do not think publishers can afford to continue writing contracts like this or accounting and booking royalties in ways designed to minimize payments to authors — which certainly Harlequin authors have claimed with respect to their contracts. Authors have other choices, particularly in romance, and we have been exercising that choice.
The really sad thing is that having finished the book, this weird notice, made the reader stop thinking about the author, the book and her reading experience. Instead of wondering whether she should by another book by that author, she might have been driven away…
Nice going H!
Very true!
Your publishing contract includes language that allows the publisher to give away copies of the book for promotional purposes. The standard language of the copyright page doesn’t change. Fee or no fee, by clicking, you accept the terms. This is not a sly ploy on the publisher’s part; it’s basic contract terms.
Thanks for the comment. I’m not sure what promotional copies has to do with this issue. Of course publishers can provide promotional copies and even discounted copies. I’m not disputing that. What I am pointing out is that if the book is free, then no fee has been paid by the consumer. And the publisher has said that the terms of my use of the book are dependent on the payment of a fee. This is a legal issue, I think, that would have to be decided by the courts should a reader decide to argue that those terms cannot apply when no fee is paid.
It’s also not a copyright issue. It’s just that the new language happens to be on the same page(s) as the copyright language.
Here’s the problem: I don’t see how a vendor can change the terms of a “sale” without telling the consumer. This is fundamentally unfair, and it’s why software, which is commonly licensed not sold, requires that the user click “I agree” to the terms BEFORE the software gets installed. If you don’t agree, there’s no installation.
If a publisher wants to provide a license that allows me to read the book, then fairness dictates they must tell me that BEFORE I can read the book.
As I noted in my post, the page with the language about the reader paying fees did not appear until AFTER I finished the book and clicked the X on the Amazon request for a review. By that time, I had already paid for the book and already read it.
Further, it is the case that the publisher constructed the eBook such that this language was dead last. I know this because I know how the guts of an eBook work. You explicitly set the order in which files or portions of a file contained in the book appear to the reader. This page appeared last because that’s how the book was constructed.
I think that anyone who argues that a consumer can agree to terms that were NEVER SHOWN TO THEM until after purchase and use of the product is in a legally indefensible position. It’s ludicrous to suggest that a reader must scroll through an eBook looking for changed legal terms before they read the book.
As to the contract the author signs, Courtney’s point is well taken. Assuming the contact says that sales are accounted differently from transactions that are NOT sales, then when an eBook is not SOLD, there is no royalty and you would look to other provisions of the contract to determine how much the author should be paid. This language says there’s a fee paid and that it’s not a sale — subject to interpretation by the courts, because I actually think the language is vague as to “fee” — is it a portion of the purchase price?
–If so, am I being charged sales tax on money that should be excluded from sales tax? Or is the entire price a fee?
I would expect the author’s contract to define that.
Basically, I think there are a lot of problems with this language that includes, but is not limited to, failing to inform the consumer of the terms.
My understanding is that ALL e-books are “sold” as a license to read. If they were truly sold, a consumer would have the right to re-sell or give them away, which they do with a physical book. With an e-book, we call those behaviors “piracy” and I don’t think that’s what I want.
Thanks for your comment, Blythe.
The question of whether consumers do not have a right to re-sell an eBook is not entirely settled. The issue will end up before the US Supreme Court at some point, I would imagine. There are many, many readers and organizations who feel that readers DO have that right, or should. There was a recent District Court decision — the Redigi case, that was, from the point of understanding the way technology actually works, laughably wrong. Redgi was about the resale of eBooks.
Other than the Harlequin language I ran across, there is nothing in the “purchase” process of an eBook that informs me, the consumer, that my use is a license, not a purchase.
My main point, from the standpoint of an author is this:
Suppose we agree that eBooks are not sold. They are licensed.
What does your contract say about such transactions? As Courtney pointed out, her contract says she is entitled to 50% of the revenue.
None of my publishers have accounted for eBook transactions as anything but a royalty generating sale.
Publishers cannot have it both ways. If they license the book, then accounting for that as a sale is not correct, unless the contract with the author specifically states that.