james_davis_nicoll | Chump Change

John Scalzi explains why aspiring authors should not sell stories to Dragon Magazine.

From:

tsm-in-toronto.livejournal.com

Yes, but ...

... for example, how many of us click on the "I accept" button, for EULA terms and conditions of software we're downloading from the net, without reading the things at all. Forget understanding them (chock full of technical terms of art within the sub-disciplines of contract & intellectual property, as they typically are), I mean, without reading them. I'd say, 50%-90% of downloaders, especially yootz, who can be quite innocent of the idea of The Law, no matter what their mark was in their High School "how a bill becomes a law" civics course.

... how many of us read the back of a theatre or sporting event ticket, when we buy it?

And so on.

The truth is, despite living in litigious societies (I was told, but have never been able to confirm it, that USians, with about 5% of the world's population, have about 50% of the world's lawyers), considerable numbers of us float about within the legal soup that surrounds us, like so many plankters adrift in a tropical sea, unaware of the currents & tides, but subject to them nonetheless.

I'd warrant (subject to the laws of the Province of Ontario, void where prohibited by law), that your typical 19- or 23-year old GM who, inspired by the last five months of his or her campaign, has written a marvelous tale of Zak the Barbarian and the Flying Monkeys of Doom, who rushes it off to fester in the slush-piles of That Famous Publishing House, Inc., and who gets a non-rejection-slip reply, simply isn't equipped, culturally, to understand the idea of the need, to hire someone to interpret what rights, exactly, are being offered-to-buy.

And, let's get real: the 9,375-word tale of Zak and those Doomish Flying Monkeys, at (say) 4 cents a word, will bring in $375.00 -- a fortune to someone who's never sold a story before, but not the sort of revenue stream out of which you fund a consultation with an intellectual property lawyer at $500/hr., to read the contract. As if.

So, the only thing that's keeping this [the topic of discussion, broadly] from being a rip-off of considerable proportion, across the entire industry, is the fact that most first sales are not usually (yes, there are exceptions) going to be a repeat author's finest, most re-printed works.

So: yeah, adults (>18) are responsible for reading the terms, etc. Yeah, sure. And I guess you've read the entire criminal code and income tax Act from the jurisdiction within which you live, right? But: iggeranx of The Law is "no excuse", eh? So, don't cry for me Argentinasaurus (http://www.gavinrymill.com/dinosaurs/giants/argentinasaurus.gif) if you get arrested for some obscure tax thing, right? (Don't think I'm being all super-pompous-like, here -- I ain't read 'em, either).

I suppose I'm supposed to conclude here with some brilliant concluding point, but I don't really have one -- as a practical matter, people simply don't read contracts ('til they've been burned), that's all.

Just sayin'.

(And anyway, I have to leave now with these RCMP officers ... some obscure tax thing, apparently.)

From:

viktor-haag.livejournal.com

people simply don't read contracts ('til they've been burned)

But to argue that the people offering the deal are "ripping off" your budding young author is disingenuous. They're not. They're offering very poor terms for work for hire. If the budding young author is old enough to sign a contract and get paid for the work, then it's the budding young author's choice to accept the terms for work, reject them, or attempt to negotiate better ones.

Sympathize with their plight? Sure. Educate them? Sure.

But please don't pretend that the publisher is some big awful boogie monster bent on world domination. They're playing by the rules. (Although, according to the discussion James and I had last night about this, their track record on playing by the rules is not exactly minty-fresh so their business practices do deserve a certain amount of skepticism.)

Is the publisher offering incredibly poor terms, relatively, in their contracts? Yes. Are they behaving unethically by doing so? I have a hard time believing that.

From:

tsm-in-toronto.livejournal.com

In all honesty, I can't say I really disagree with what you are saying, here.

I think the problem is, the exact, precise centre of gravity of the topic of conversation here, has been bouncing around a bit with each added comment.

I think the point I was trying to make was simply, "all kinds of people, especially people who are young, or who are [very] new to a given sort of transaction that is governed by Rules of Law -- large numbers of such people like that are often truly terribly, even painful-to-watch-ly (pretend that's a word) naive."

Your reply is [if I am understanding you properly!], that Hasbro and its corporate avatars and suchlike are positioning themselves to charge what the market will bear (in terms of their counter-offer terms, for the 3-6 cents a word they offer), and who can fault them for that?

And I guess you're right. It's economics. It's how markets decide what a thing is worth. And so on. So, how could it be a "rip off"? Sure.

I see your point. so when you write:

Is the publisher offering incredibly poor terms, relatively, in their contracts? Yes.
Are they behaving unethically by doing so? I have a hard time believing that.

... a meaningful and helpful counterpoint probably revolves around figuring out how we could agree on a shared meaning (if that is possible) for "behaving unethically".

For example, it is possible (I do not know if this is so, I'm being hypothetical), that the deliberate, discuss-it-around-a-corporate boardroom-and-vote-in-favour-aye-carried corporate strategy here is one of deliberately targetting the "naive" authors I mention above, because some corporate-internal study of the industry shows that 0.0027% of the things arriving at a slush pile from naive, guileless new authors end up making $50M or more in film rights within 25 years, or something. Hence a deliberate corporate effort: "target the naive". If so: -- unethical [IMHO].

But then, I suppose lions and hyenas culling the weak and defenceless from the zebra herd by that same sort of reasoning, would also be "unethical" (insofar as that is not a category mistake, on the grounds that "ethics" aren't expected of animals).

But, if the pricing/rights policy under discussion here is accidental (the result of the mindless cutting and pasting of past contractual boiler-plate, for example, as some comments here and on the other site seem to imply), or was just an arbitrary "try and grab as much IP as you can for as low a price as you can" strategy, with no thought at all having been given to the legal sophistication of the counter-party prospective contributing authors: -- then, I suppose, not-unethical [again, IMHO].

As I imply above, -- at this point, the conversation ceases to be about contractual terms, and turns to being more about how one defines "ethical".

[You will notice we are drifting perilously close to the event horizon of the Marxist "Labour Theory of Value" debate. Were we to fall fully within its fatal gravitational tides, time would dilate for us, but eventually we would both be shredded into our constituent atoms, to be spat out the arse-end of a worm-hole, somewhere, many parsecs and aeons from here ... -- a fate best avoided, I would humbly suggest...]