A New "Beware": Scammers Impersonating Reputable Literary Agents

Posted by Victoria Strauss for Writer Beware®

I've written about this new "beware" twice already (you can see those posts here and here), but it appears to be a growing problem, so I want to put out a more focused warning.

Scammers--the same Philippines-based Author Solutions copycats that I've featured numerous times in this blog (also see the long, long list in the sidebar)--are impersonating reputable literary agents and agencies in order to bamboozle writers into buying worthless "services." Here are the misused names I've documented so far; the scam companies they work for are in parentheses:

- Jennifer Jackson of the Donald Maass Literary Agency (TechBooks Media)

- Victoria Marini of the Irene Goodman Literary Agency (Writers Desks)

- Danielle Burby of the Nelson Literary Agency (Writers Desks)

- Nelson Literary Agency (some guy calling himself Jason Smith, Book Scout, with a fake Nelson Agency email address)

The scammers' solicitations come out of the blue. Here's what you might receive:

Or this: 

Or this: 

These approaches are followed by opportunities to spend large amounts of cash. For the Jennifer Jackson scammer, it's a "review" of your book plus "book insurance and returnability" for a total of $1,400. For the Victoria Marini scammer, the video trailer she's shilling for "promotional" purposes costs $3,000 (an amazing discount!) For the Danielle Burby scammer, it's "Submissions to Traditional Publishing Companies" by "Book Scouts" for the wallet-squeezing sum of $5,000. 

The Jennifer Jackson scammer has also recently started offering something so off the wall that it's worth another image:

I've seen a lot of egregious lies and bullshit from the Philippines-based scammers, but this one--that there is such a thing as publisher insurance and writers need to buy it in order for their work to be considered--really takes the cake. There. Is. No. Such. Thing. (This email also illustrates a growing scammer trend: attempting to capitalize on the pandemic. A number of predatory vanity publishers are doing this too.)

I shouldn't need to say that reputable literary agents don't charge fees or sell services as part of (or as a condition of) representing you. It's also very rare that a reputable literary agent will contact you out of the blue; in the publishing biz, you can never really say never, but the odds that any such contact is legitimate are extremely small. 

The poor English in the emails above should be a very large clue as well. 

Even though I've only identified four iterations of this scam so far, I don't doubt that there are others. Writers, please, PLEASE be on your guard. If it seems too good to be true, it probably is. And if you encounter a scam like this, please contact me, so I can add it to my list.

Some basic tips for protecting yourself: 

1. Proceed from a point of skepticism. As noted above, an unsolicited contact from a real, reputable agent isn't automatically suspect, but it's rare. Out-of-the-blue contacts are far more likely to be illegitimate. Caution is definitely in order. 

2. Mistrust--and verify. Google all the individuals and/or companies that are mentioned to see what information you can find (are there complaints? Have they shown up on this blog?) If someone claims to work for an agency, visit the agency's website to see if that person is mentioned--and be suspicious if they aren't. If an individual or company claims to have placed books with reputable publishers, or to have sold film or other subsidiary rights, see if you can verify the claim--and if you can't, or if there are no checkable details (such as names or book titles) attached to the claim, be wary. 

3. Use your common sense. Anyone can make an occasional typo, but professionals communicate professionally (no reputable agent would send out language-challenged emails like the ones above). Check the email address and any links--do they match the person or company claiming to be contacting you? (For the Jennifer Jackson and Victoria Marini scammers, the mismatch between their email addresses and their claimed agencies is an important clue. Unfortunately, the Justin Smith/Nelson Agency scammer is a bit savvier; the address he's using is fake, but it looks legit if you don't know otherwise.) If there's a demand for money, or if there's a service for sale, be sure it's a company that customarily charges such fees or offers such services (reputable agents generally don't).

4. Contact Writer Beware. Always a good default if you aren't sure about an individual or company. We may have heard something, or received complaints, and if we have, we'll let you know.

Finally, I want to note that, while writers are the scammers' principal targets, the agents and agencies are also victims. These scams are a form of identity theft, tying the agents' names and reputations to dishonest and predatory practices that they are then forced to disclaim. Everybody loses--except the scammer, of course. 

Hopefully, with increased awareness, we can make it more likely that the scammers will be losers, too.

Small Press Storm Warnings: Filles Vertes Publishing

Scroll down for updates

Posted by Victoria Strauss for Writer Beware®

I first heard of Filles Vertes Publishing (FVP) in late February of last year, when I was contacted by a writer wanting to know if I'd received any complaints. I hadn't--but a look at FVP's website prompted some concerns. 

On the plus side, FVP was distributed by Small Press United, the small press arm of Independent Publishers Group: a positive indication for a small press, as it can boost the possibility of getting books into brick-and-mortar stores. Pretty covers and an attractive website produced a professional impression.

But the bio of founder and owner Myra Fiacco did not suggest an abundance of relevant publishing or writing experience (FVP has removed staff info from its Our Team page--for reasons that will become clear--but here's how it looked last year). And given that FVP had been in business for several years, I was struck by how few books it had issued: just nine, according to Amazon: three in 2017, five in 2018, and one to date in 2019, with big gaps between some of the pub dates (you don't want a small press to rush out too many books and get into logistical trouble or become an author mill, but you do want to see a more robust--and regular--publishing schedule). Oddly, at that time only seven of the nine appeared on FVP's bookstore page, and the one book with a 2019 pub date was listed on Amazon as "unavailable".

I suspected that FVP might be having some production or logistical issues. If so, I figured I'd get more questions, or hear something through the grapevine. I didn't. Meanwhile, FVP modestly upped its 2019 production to six books, and its 2020 offerings to nine (four pubbed so far, with five more scheduled for later this year).

Flash forward to July 2020. As sometimes happens with troubled small presses, long-standing problems abruptly reach critical mass and news breaks all at once. In the past few weeks, I've received multiple complaints from FVP authors and staff that suggest a seriously troubled publisher.

Both authors and staff cite royalty and other payments late by weeks or months (most of those who wrote to me told me that this was not a one- or two-time issue, but a consistent, ongoing problem); delayed or missed publication dates (some authors had their pub dates pushed back; others told me that on release day, their books were available on the FVP website but could not be ordered elsewhere); missed deadlines for cover art, editing, formatting, and proofing; poor communication (both staff and authors told me it was often difficult to get Myra Fiacco to respond to questions and concerns, and authors cited communication lapses with some staff members as well); and various contract breaches, including overshooting the publish-or-return-rights window and failing to register copyrights.

Most of FVP's staff has resigned (hence the removal of staff info from FVP's website)--something that's complicated by the fact that several FVP staff members are also FVP authors. I'm told the total number of departing staffers is nine, though I haven't independently verified that (FVP also seems to have depended heavily on unpaid interns). 

Some resigning staffers have been asked to sign multi-page non-disclosure agreements. When I asked Myra why the NDAs (see question 2 of our Q & A, below), she indicated that two staffers who were also authors had been asked to sign NDAs "as authors" (I saw one of these NDAs, and it was, in fact, specifically for the individual's employment), but they'd refused, and negotiations were in progress. Later, she told me that "[d]ue to the misstep and confusion in the contracts involving authors that were team members, both authors have been reissued new termination agreements that are author specific and have been issued updates per their resignation with the company." This appears to be true--for those two author/staffers. However, I've heard from others who did sign NDAs, either as part of their employment or as a condition of rights reversion.

Along with staff departures, a number of FVP authors have asked that their rights be returned (and with its small catalog, FVP can't afford to lose too many). Initially, some were asked to sign reversion documents that included onerous liability releases and confidentiality terms, and potentially relieved FVP of the obligation to pay any sums still due and owing at the time of termination: 

Possibly because the authors balked (and also after I sent Myra my questions), there appears to have been backtracking on these documents, with at least two authors issued more conventional reversion letters that do not include language like that above. However, one of these letters includes a demand for a substantial termination fee. And Myra shared the letters with me without asking the authors' permission to do so (I confirmed this with the authors)--which in light of her concerns about confidentiality seems fairly ironic. 

I should note that I've also heard from a couple of FVP authors who say they've had a much more positive experience. But given the number and magnitude of the complaints I've received, as well as the document demands, the apparent confusion around staff and author departures, and what feels like general disarray, it seems clear that Filles Vertes Publishing is a company in trouble. 

Publishers do survive upheaval and financial stress. But right now, if I were an FVP author I'd be feeling pretty nervous.

******

I sent a list of questions to Myra Fiacco. She has given me permission to print her responses, and I reproduce them without comment.

1. As I mentioned, I've been hearing from authors and staff who say that they've been experiencing delayed or missing payments, going back months or longer. Could you comment on this, please? How are you addressing these issues? 

Yes, this is true and unfortunate. In the wake of recent setbacks, several payments have had to be deferred. As with many small businesses, we operate with tight profit margins and a small, rotating amount of operating capital. This year has been difficult for us, as it has for many publishers during this pandemic, but we are not giving up. We understand this unfortunate change of financial events have resulted in broken contracts and broken trust 

We have taken and are continuing to take all appropriate steps to rectify each situation accordingly. Payments are being made to team members within the parameters of their contracts and with applicable interest. All royalty payments to authors have been caught up. We are terminating two contracts as requested by backlist authors as a result. Additionally, we are negotiating with forthcoming authors whose contracts we have not broken but whose faith we have compromised, especially as the editors they signed with are departing from the company. We understand one of the largest contributing factors to signing a book with a small press is the team with which the authors plans to work as it drastically affects the outcome of the book. We care deeply about each book and want what is best for each author, even if it's not with us. 

 Although making payments late is not preferred--and neither is the resulting fall out--it is preferred over shutting our doors, as many publishers have been forced to do since the pandemic. We will get through this tough time without compromising our commitment to the authors who have put and renewed their faith in us. 

2. I understand that you've been asking at least some departing staff to sign non-disclosure agreements applying retroactively to their employment with Filles Vertes. Could you comment on why you feel this is necessary?

I am happy to comment. This is not true. We have asked two members of the staff who were also signed authors to sign a non-disclosure agreement as authors. This was a part of the initial offer for negotiations to receive their publishing rights back. The goal, as communicated with each author, was to protect confidential information about the company including but not limited to processes, budgets, and terms we have worked hard to build over the last four years in business. The proposed terms did not require non-compete clauses, as we want authors to use their best judgment for their future writing careers. Both authors have refused and we are not requiring them to sign but are currently in negotiations with each author to find an agreeable solution that does not include an NDA. 

3. I've seen several recent author termination agreements that include confidentiality clauses and require the author to release the publisher from all liability. These aren't things that are typically included in publishers' rights reversion documents. Could you comment on why you feel this is necessary? 

As stated above, none of these termination agreements were final agreements, but merely starting points for negotiations with authors whose contracts were not compromised in any way. Although a request may not be typical for an industry, we don't believe there is shame in asking for additional protective measures to preserve what we have worked tirelessly to create as a company. The goal was and continues to be an amicable solution for all parties involved. 

4. I've been told that a number of Filles Vertes staff members have recently resigned. Could you confirm whether this is the case? 

Yes, we are in the midst of a significant team changeover, which is common in growing businesses. Not only has the previous few months been a time of duress for many members of the publishing community, but after several months of trying to make the team function to our highest potential, it became clear that we could not find a solution to differences, varied expectations, and vision for the company's future direction. As a result, multiple team members have chosen to take what they've learned with FVP and pursue opportunities elsewhere, which we encourage and support. 

 Each member of the team, past and present, has contributed to the company's current status; to the successes and the lessons learned. We look forward to rebuilding with a stronger, more unified team to continue serving our purpose; to produce "Fresh, Wild, and Different" books for our valued readers. 

5. What are your plans for the publisher going forward? 

Filles Vertes Publishing has continued production of our forthcoming books without any plans for delayed releases. We are building a stronger marketing and sales team and are focusing many of our efforts locally to better serve our community in the Inland Northwest. We are pruning away processes that have proven ineffective and replacing them with simpler and more powerful systems of operation that better serve our authors and negate confusion. We will continue working with authors from around the world and commit to providing world-class support, especially to those who are new to their publishing journey. Additionally, we are narrowing the genres and age groups we work with to better serve our valued readers. Although we won't reopen to submissions for a few more months as we focus on rebuilding our team, we look forward to contributing to a bright literary future for many authors. 

We have many lessons to learn from and look forward to a brighter future. We will continue to grow with sincerity and well-earned character and wish nothing but the best for our previous team members and authors.

UPDATE 8/5/20: Here's what Myra DM'd to a former FVP staffer, after they commented on Twitter about this blog post. (Note the further confirmation of FVP's practice of forcing departing staff to sign NDAs.)

UPDATE  8/14/20: Filles Vertes Publishing is closing down. Authors have received emails to this effect, and all books are listed on the website at half-price, as FVP looks to reduce inventory. 

Small Press Storm Warnings: Lethe Press, Seventh Star Press

Posted by Victoria Strauss for Writer Beware®

LETHE PRESS

Founded by Steve Berman in 2001, Lethe Press is an LGBTQ-focused independent publisher "specializing in the strange, the eerie, and the uncanny". In a publishing environment where small presses come and go like mushrooms, it has been in business for nearly two decades, and has garnered awards and starred reviews for its books.

Unfortunately, it has recently also been garnering complaints.

Writer Beware has heard from multiple individuals who cite a variety of problems at Lethe, including contract breaches in the form of unpaid royalties (for both authors and editors) and late royalty payments and statements. Contractors (such as audio narrators) have also gone unpaid. Royalty reports I've seen are seriously lacking; among other things, they fail to state sales numbers for ebooks, showing only gross income. 

Poor communication also seems to be a major problem. Nearly everyone who contacted me told me that they have had difficulty getting Berman to respond to questions and emails--or in some cases, to respond at all. Several authors told me that when audio versions of their books were released, Berman didn't let them know. More troublingly, some writers cite retaliatory actions by Berman--for instance, taking a writer's book abruptly out of print after the writer voiced concerns, or sending angry and/or belittling emails (I've seen examples). In one case, Berman posted a negative review of a writer's (non-Lethe) book years after their dispute was resolved (I don't want to out the author so I'm not linking to this, but I've confirmed that it exists).

Although the complaints are recent, the issues--particularly the problems with payment--go back years. Unlike many small presses that face a sudden eruption of complaints, it doesn't look to me as if Lethe is on the verge of failing; I think it's more a matter of long-standing issues reaching critical mass. 

When I reached out to Berman for comment, he referenced the money challenges all small presses face.

Alas, like many small presses, Lethe Press operates on a small and limited cashflow and budget. And some authors have seen unforeseen delays with royalty statements and payments. I do try and do my best to make payments as fast as possible. Should any author request the dissolving of the business relationship, I return rights and pay any and all royalties due immediately. Yes, there has been some rancor, but many of our authors will attest that we publish in good faith and try and make amends.

If there are certain individuals who feel as if I have taken advantage of them, please let them know I am willing to pay them immediately.

Lethe authors, take note. And if you do contact Berman, let me know how you fare.

SEVENTH STAR PRESS

Seventh Star Press is a speculative fiction publisher founded in 2008 by Steven Zimmer. (Zimmer also runs a number of related enterprises, including the Imaginarium Convention and Seventh Star Studios, which develops TV/film and gaming properties.)

On June 6, Seventh Star author Frank Hall posted disturbing allegations to Facebook. Among them: allegations of harassment by Zimmer, as well as royalty payment issues.

The post has attracted hundreds of comments, both from defenders of Zimmer and from individuals who say they've had experiences similar to what's described in Frank's post. Sadly, there's also a lot of victim-shaming, and some of the defenses are vicious. This may explain why, even though I and others have actively invited contact, I've heard from only a handful of Seventh Star writers (who do cite what sounds like a toxic culture). I wish it weren't so common for small presses to develop a kind of cultlike atmosphere, where anyone who steps out of line is persecuted and those who've had bad experiences are too afraid of retaliation to speak up.

In late June, Frank Hall received this, from Zimmer's lawyer. 

The cc's, which I've redacted, are to one of the individuals who shared their experience on Frank's Facebook post, and another who shared the post itself--which seems pretty random, given the number of comments on the post. None of the three have so far complied with the letter's demands.

For more coverage, see Jason Sanford's Genre Grapevine post, which discusses the recent allegations as well as criticism leveled against Zimmer for his defense of right-wing troll Tommy Robinson.

The Impersonation Game Redux

Posted by Victoria Strauss for Writer Beware®

A few months ago, I warned about a scammer impersonating agent Jennifer Jackson of the Donald Maass Literary Agency.

The fraudster in question turned out to be yet another of the Philippines-based publishing and marketing scams that I've been writing about so much over the past couple of years (see the sidebar for a full list of the nearly 100 I've discovered so far). These ripoff artists regularly pretend to be associated with reputable publishers, so it wasn't a surprise that they'd try the same sort of thing with a reputable literary agency.

It was just one instance. But these scams all use the same tactics, so if there was one, there were sure to be more.

The other day I received an email from a writer who was concerned about the legitimacy of a cold-call solicitation from someone claiming to be Victoria Marini, an agent with the Irene Goodman Literary Agency. Here's an excerpt of the email that followed.

 

Over the exchange of several emails, the writer became suspicious. Here's the response the scammer sent when the writer expressed doubts--with, you'll note, a rather interesting invitation to confirm "her" legitimacy:

The writer did indeed contact me, and this blog post is the result.

There's scam sign aplenty here, including the many typos and English-language errors (not exactly what you'd expect from an established literary agent), and the fact that the "office" number goes not to Writers Desks but to a trademark registration service (which itself doesn't look all that kosher). The supposed sample video trailer is a highly professional video from 2013--but Writers Desks didn't exist before June 2020. As for its website, clicking on the URL yields malicious website warnings.

I was pretty sure at this point that Writers Desks was the same kind of scam as the one that impersonated Jennifer Jackson. And sure enough, when I checked its domain registration:

They don't always make it that easy.

I contacted Ms. Marini to let her know.

It has come to my attention that someone is impersonating me online, likely in an attempt to scam writers. I am not associated with WritersDesk LLC, nor do I sell videos, materials, editorial work, or any other good or service. Many Thanks to @victoriastrauss

— Victoria Marini (@LitAgentMarini) July 16, 2020

I'm still puzzled as to why the scammer suggested that the writer contact me. Many of these ripoff artists are aware of my interest in them (there are even some that provide "warnings" about me in their solicitation emails); you'd think they'd want to evade my notice rather than attract it. Maybe the scammer thought the writer would just send me a question, rather than forwarding the entire email chain. Of course, even without the emails, if someone told me that a reputable agent was cold calling random writers to shill video trailers, I'd be pretty sure something fishy was going on.

Some tips for seeing through scams like this:

1. Proceed from a point of skepticism. An unsolicited contact from a real, reputable agent or publisher isn't automatically suspect, but it's rare. Out-of-the-blue contacts are far more likely to be illegitimate. Caution is definitely in order.

2. Mistrust--and verify. Google all the individuals and/or companies that are mentioned (are there complaints? Have they shown up on this blog?) If someone claims to have worked for a major publisher or agency, or a company claims to have placed books with reputable publishers or to have sold film or other subsidiary rights, see if you can verify the claim. If you can't, or if there are no checkable details (such as names or book titles) attached to the claim, be wary. Especially be wary if, as in this case, you can find nothing to connect the person who is supposedly contacting you with the company they claim to be contacting you from. 

3. Use your common sense. Anyone can make an occasional typo, but professionals communicate professionally (no reputable agent would send out language-challenged emails like the ones above). Check the email address and any links--do they match the person or company claiming to be contacting you? (You'd expect Ms. Marini to have an Irene Goodman Literary Agency email address--as indeed she does.) If there's a demand for money, or if there's a service for sale, be sure it's a company that customarily charges such fees or offers such services (reputable agents and publishers generally don't).

4. Contact Writer Beware. Always a good default if you aren't sure about an individual or company. We may have heard something, or received complaints, and if we have, we'll let you know.

NOTE: Writers Desks LLC is not to be confused with Writer's Desk, a company that provides English-language tutoring and classes for Chinese students.

UPDATE 7/20/20: Looks like the Nelson Literary Agency is also being targeted by the scammers. I'm trying to get more details.

It has come to my attention that there is someone out there impersonating me on the phone and calling hopeful authors to offer them "contracts." I'm trying to get to the bottom of this so please let me know if you have any info. I am so sorry to anyone who has experienced this.

— Danielle Burby (@DanielleBurby) July 20, 2020

Agencies in Turmoil: Red Sofa Literary Threatens Legal Action, Mass Firings At Corvisiero Literary Agency

Posted by Victoria Strauss for Writer Beware®

On May 30, following blowback she received for her tweeted responses to the protests in her hometown of St. Paul, MN, Dawn Frederick of Red Sofa Literary posted a note of apology on the agency's website.

Between then and now, Frederick seems to have changed her mind--at least, about her critics.

Today, three of the people who responded critically on social media to Frederick's tweets--agents Beth Phelan and Kelly Van Sant and author Isabel Sterling--received a letter from Frederick's lawyers threatening legal action unless they remove and retract their responses, which the lawyers allege are "false, harm [Frederick's] reputation and are defamatory".

here is the letter that i received via email... pic.twitter.com/npDb7q12gC

— beth phelan (@beth_phelan) June 11, 2020

Phelan, Van Sant, and Sterling are refusing to comply. In an open letter to Frederick, they detail why they believe Frederick's threatened defamation action is without merit, and also why they are taking the matter public.

We are making this public because the book industry still lacks the necessary transparency to fully see and address the many faults in our whole institution. We want to push back against these intimidation tactics so that we can help foster an environment where we can speak our truth about racist practices and other insidiously problematic behaviors without fear of retribution. We need to continue to call these things out. And we need to see people accept responsibility and engage in actual growth, not pandering.

We ask for the community’s support in breaking this cycle of silence. This is not just about one agent, one threat, one voice, but about delegitimizing threats of lawsuits as tools of silencing overall.

Apparently Phelan, Van Sant, and Sterling aren't the only ones who have heard from Frederick's lawyers. Author Foz Meadows, who last week wrote a long blog post about her experience with Red Sofa, reports getting a letter too, though possibly in error:

I received one of these, too - with my name on it, but also an incorrect name, the wrong address, and with a quote of something I never said. It was then "recalled" by Dawn's lawyers. Will I be sent an updated one? Who knows! Either way, I stand with Beth, Kelly and Isabel. https://t.co/CwV9wqZeLV

— Foz Meadows (@fozmeadows) June 11, 2020

Phelan, Van Sant, and Sterling have launched a defense fund to help pay for potential legal expenses. 

Tweets about the protest from Marisa Corvisiero of Corvisiero Literary Agency also generated controversy last week, prompting two of her agents to resign.

Yesterday I made the difficult decision to leave Corvisiero Litereary Agency, while others have made the same decision, others were systematically let go today. While my heart is hurting, there is a bigger truth that we all have to stand behind.

— Amy Giuffrida IS OPEN TO QUERIES❤️ (@kissedbyink) June 4, 2020

Today I made the very difficult but necessary decision to leave Corvisiero Agency. To my colleagues, I wish you the very best in the future & know the industry will be better with your voices in it. To my clients, we will forge ahead. The best, I truly believe, is yet to come.

— Saritza’s Closed to Queries (@epubagent) June 4, 2020

That same day, Corvisiero made the abrupt decision to fire her entire remaining staff--claiming, basically, that it was for their own protection: 

 

Some of the former employees have issued a joint statement, apologizing to clients and alleging longstanding problems within the agency. 

 
If you're a Corvisiero client with unsold work who has been orphaned by the firings, you can add your name and manuscript(s) to this directory, which "is meant for literary agents and editors to help ease the blow and economic hardship this has placed on these writers by finding them home for new work."

Four Major Publishers Sue the Internet Archive Over Unauthorized Book Scanning

Posted by Victoria Strauss for Writer Beware®

This past March, I wrote about the Internet Archive's National Emergency Library--a spinoff from the IA's massive Open Library project, which makes scanned print books available to the public for free in various digital formats.

While many of these books are in the public domain, many are not: they are in-copyright and commercially available, and have been scanned and uploaded without authors' or publishers' permission, violating copyright law and potentially interfering with authors' income. To create the National Emergency Library, the IA has used the figleaf of the coronavirus pandemic as justification to remove even the minimal restrictions on borrowing that governed the Open Library--abandoning one of the key provisions of the legal theory that it and others created to justify what amounts to massive copyright violation.

Though controversy erupted over the Open Library a few years ago, with the IA's actions condemned by authors, publishers, and authors' groups, and many authors contacting the IA to have their books removed, no legal action followed. Given the outcome of the Authors' Guild's long legal fight against Google's book scanning project, I'm guessing it might never have done, had the IA not thrown down the gauntlet of the National Emergency Library. Now, four publishers have called the IA's bluff.

This morning, Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House filed suit against the Internet Archive in the United States District Court for the Southern District of New York, alleging "systematic mass scanning and distribution of literary works." The suit asks the court to declare that the Open Library constitutes "willful copyright infringement", to enjoin the IA from further infringing activities relating to the plaintiffs, and impose payment of statutory damages.

From the Association of American Publishers' press release on the lawsuit:

From Publishers Lunch (which also points out that the IA sells its book scanning and digitization capabilities commerically, generating millions in revenue):

The full complaint can be seen here. The list of titles cited in the complaint gives a taste of the breadth of  the IA's copyright violation.

UPDATE 6/11/20: The Internet Archive has announced that it will be shuttering the National Emergency Library two weeks early, on June 16, and "returning to traditional controlled digital lending." 

It claims to be doing so because "the vast majority of people use digitized books on the Internet Archive for a very short time", and also because "four commercial publishers chose to sue Internet Archive during a global pandemic". Many people suspect that a lawsuit was exactly what the IA wanted, in hopes of getting legal rulings that will validate its disputed Controlled Digital Lending theory.

Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself

Posted by Victoria Strauss for Writer Beware®

(A version of this post was originally published in 2014.)

Several years ago, a now-defunct literary magazine called The Toast gained notoriety by demanding that its writers surrender copyright. In the widespread discussion that followed exposure of this author-unfriendly policy, I was struck by the number of comments from writers who seemed to think that a bad contract clause was not so very awful if (pick one) the publication was great; the people who run it were great; the bad contract clause was not always enforced. (See especially the comments thread on The Toast's still-surviving post about the controversy.)

That's all very well. But this kind of thinking is exactly how writers get screwed: by making assumptions about a publisher's intentions, by letting their emotions overrule their business sense, and by forgetting that, in the author-publisher relationship, the publishing contract is the bottom line.

These issues are as relevant now as they were years ago, if not more so (see, for instance, the ChiZine scandal, where authors accepted all kinds of abuse, including questionable contract language, because of the publisher's then-stellar reputation). I hear all the time from writers who've been offered seriously problematic contracts and are using various rationalizations to convince themselves (sometimes at the publisher's urging) that bad language or bad terms are not actually so bad, or are unlikely ever to apply.

Here are my suggestions for changing these damaging ways of thinking.

• Don't assume that every single word of your contract won't apply to you at some point. You may think "Oh, that will never happen" (for instance, the publisher's right to refuse to publish your manuscript if it thinks that changes in the market may reduce your sales, or its right to terminate the contract if it believes you've violated a non-disparagement clause). Or the publisher may tell you "We never actually do that" (for instance, edit at will without consulting you, or impose a termination fee). But if your contract says it can happen, it may well happen...and if it does happen, can you live with it? That's the question you need to ask yourself when evaluating a contract.
 
• Don't mistake "nice" or "responsive" or "professional" or even "crazy about my work" for "author-friendly." Remember, the lovely, enthusiastic editors you deal with when you submit your work probably didn't create the contract (they may not even be fully aware of its provisions). It's a sad truth of the industry that outwardly wonderful publishers can have shitty contracts. Don't let your warm fuzzy feelings push aside your business sense.
 
• Don't make assumptions about what contract language means. If you don't understand the meaning of a clause, or aren't sure about its implications, don't guess. Get advice from someone qualified to provide it. (Writer Beware will gladly provide experience-based--not legal, we are not lawyers--contract commentary. Email us.)
 
• Don't rely on your publisher's assurance that objectionable contract language won't be enforced. Your publisher may be telling the truth--at least, up to the point that they give you the assurance. But even if they aren't just trying to get you to shut up and sign, circumstances may alter (what if management changes? What if the publisher sells itself?) and internal policies may shift. Oral or written promises that contradict contract language offer you absolutely no protection or guarantees (especially if your contract contains an entire agreement clause, which specifically invalidates any prior promises or representations). Never forget that by signing a contract, you are giving your publisher the full legal right to enforce it.
 
• Don't accept your publisher's claim that contract language means something different from what you think it means. This is a response you may receive if you attempt to negotiate changes, or bring a troublesome clause to your publisher's attention. Your publisher may be correct: the misinterpretation may be yours. But your publisher may also be unscrupulous or ignorant (many small presses don't properly understand their own contract language). If your publisher's explanation doesn't sound right, don't just take their word for it. Get a second opinion.
 
• Don't let your publisher convince you that asking questions is a bad thing. Dodgy or incompetent publishers don't like pro-active authors, and may try to blow them off by claiming that asking questions is unprofessional, or ungrateful, or something similarly bogus. But asking questions is your right. Walk away from a publisher that discourages you from exercising it.

No contract is perfect. You should always be able to do at least some negotiation. But even under the most favorable circumstances, you'll probably be giving something up. You may even decide to swallow an objectionable clause because of a great opportunity (I don't know of any writer, including me, who hasn't made this decision on occasion). If you do decide to sign a contract with unfavorable language, though, do so in full understanding of the possible consequences. Not in ignorance, or assumption, or fear of annoying the publisher by being too inquisitive.

I'll close with an excellent tweet from author and editor Jane Friedman (if you aren't following her, you should be):

Remember: contracts aren’t there for when times are good & everyone is well-intentioned. They need to work for you when things go to hell.
— Jane Friedman (@JaneFriedman) December 18, 2014

Words to live by.

Contest Scam Alert: Legaia Books Online Book Competition

Posted by Victoria Strauss for Writer Beware®

When is a literary contest not a literary contest?

When its purpose is to make money for the contest sponsor. Alternatively: when its purpose is to assemble a list of likely customers.

Take the online book competition (or book literary contest, or books competition--it doesn't seem to have an actual name) recently announced by Legaia Books, a publishing and marketing scam I've featured on this blog. Here's one of the solicitation emails that are going out:

Sound tempting? Here are all the reasons to kick this "contest" to the curb.

1. Legaia is a scam. This company--which claims a North Carolina address but really operates out of the Philippines--exists to rip off authors. That's really all the reason you need to give this contest a miss...but let's move on.

2. It's a scam within a scam. Legaia's contest has all the elements of a profiteering awards program--a different kind of scam, whose template Legaia is borrowing as a way to make some quick bucks and boost its customer list. Here are the markers:

• Solicitation. See the email above.
• A fat entry fee. You have to dig into the contest guidelines to find this: $40 for entries now, $70 for entries after May 11.
• Policies designed to maximize entries. Most profiteering awards programs offer dozens or scores of entry categories, in order to attract the largest number of entrants and thus the biggest pot of entry fees. Legaia's contest doesn't have categories--but it's "open to all aspiring and established authors", which, combined with what is doubtless a sizeable email solicitation campaign (Legaia is a prolific spammer), is basically the same thing.
• Mystery judging. The prestige of a literary competition is tied, in part, to the reputability of its judges. If the judges' identities aren't revealed, you have no way to know whether they have any credits or experience that would qualify them to be judges. They could be just the contest sponsor's own staff--or no one at all. Legaia's guidelines include multiple mentions of "judges" but, in true scam contest style, no names.
• Opportunities to spend more money. This is where entrants' email addresses--which are required for entry--come in handy; non-winners will almost certainly be solicited to buy Legaia's publishing packages and other services. (Contest guidelines also invite entrants without a book cover to "call us for a professional book cover.")
• Worthless prizes. Profiteering contest sponsors avoid cutting into entry fee income by offering "prizes" that cost them little or nothing to provide. Legaia is no exception. Given that its services are overpriced and substandard, a "Free Book Publication Coupon" is more like a lump of coal than a Christmas present. The "Seal Awards" aren't actual seals--just digital images. Winners are promised a "pitch program" that will expose them to "literary offices and film productions"--despite the fact that Legaia can't cite a single "literary office" or film studio that has ever picked up a book thanks to its (likely nonexistent) efforts. As for the "Marketing Platform worth $15,000"...Legaia offers only junk marketing ("marketing" that's cheap to provide, can be sold for giant markups, and is not effective for book promotion), so the actual worth is closer to zero. 

3. You have to work. In addition to submitting "your (a) manuscript, (b) synopsis, (c) book cover (front and full)" the contest guidelines indicate that there will be a public voting phase (see #7 and #8), which means you will have to bug your friends and family and annoy your social media followers with multiple vote-grubbing posts and announcements. Additionally, you must create a "pitch to the judges" which is "one of the criteria in the second phase of the contest as indicated in Rule 8". You have the option of making a video or using Legaia's "Free Pitch Template," whatever that is; the guidelines offer no guidance on length, content, or anything else.

4. Nobody has heard of it. The supposed benefits of a contest win or placement are often touted by sketchy contests or awards as one of the benefits of entering (not to mention a justification of a big entry fee). You'll be able to tag your book as an "award-winning book" and yourself as an "award-winning author". It'll impress agents and editors! It'll bring visibility to your work! It'll increase sales!

Most contests, however, don't have the prestige or name recognition to accomplish any of that. Agents and editors are well aware of how many dodgy contests are out there competing for writers' money; "I won Grand Prize in this contest you never heard of!" is unlikely to impress them. As for readers and book buyers, how much they care about award and contest wins is an open question--especially, again, where they've never heard of the award or contest. Is it worth $40 (or $70) to you to test that question?

5. A serious lack of literacy. Both the email solicitation reproduced above and the contest pages on the Legaia website are littered with grammatical and other errors (like its many brethren--see the sidebar--Legaia is based overseas). This really shouldn't need saying, but the sponsors of an English-language contest for English-language books should be able to demonstrate a good command of English.

Any one of these factors should be enough to at least cause you to give this contest the side-eye. Taken all together, they add up to a giant, screaming red flag.

My own feeling about literary contests is that they are mostly a waste of time (even if not of money). Scams and exploitation abound in this space (if you're a regular reader of this blog, you know how many posts I write about problem contests). Even where the contest is legit and doesn't have "gotchas" in its guidelines, those that can genuinely benefit your writing resume are a tiny minority. Again in my opinion, writers' time is better spent on publishing or submitting for publication.

That said...if you still are attracted by contests, there are resources on the Contests and Awards page of Writer Beware to help you research ones that won't rip you off. Also be sure to use the search box in the sidebar to search this blog for any contests I may have written about, and feel free to email me with questions.

Copyright Violation Redux: The Internet Archive's National Emergency Library

Posted by Victoria Strauss for Writer Beware®

The enormous digital archive that is the Internet Archive encompasses many different initiatives and projects. One of these is the Open Library Project, a huge repository of scanned print books available for borrowing in various digital formats.

Unlike a regular library, the IA does not purchase these books, but relies on donations to build the collection. Nor are permissions sought from copyright holders before creating the new digital editions. And although the IA claims that the project includes primarily 20th century books that are no longer widely available either physically or digitally, the collection in fact includes large numbers of 21st century books that are in-copyright and commercially available--and whose sales the Open Library's unpermissioned versions have the potential to harm.

Most professional writers' groups consider the Open Library to be not library lending, but massive copyright violation. Many have issued alerts and warnings (you can see SFWA's alert here), and many authors have contacted the IA with takedown requests (to which the IA was not always terrific at responding; you can see my account of my own frustrating experience here).

In the fall of 2018, a novel (and disputed) legal theory was created to justify the Open Library and similar initiatives, called Controlled Digital Lending (CDL). CDL's adherents present it as "a good faith interpretation of US copyright law for American libraries" seeking to conduct mass digitization projects, and invoke as support the "exhaustion" principle of the first sale doctrine (the idea that an authorized transfer of a copyrighted work "exhausts" a copyright holder's ability to subsequently control the use and distribution of  that copy; this is what allows used book sales, for example) and the fair use doctrine (a complex principle that permits the copying of a copyrighted work as long as the copying is limited and transformative). As long as the library restricts its lending in ways similar to restrictions on the lending of physical books (for instance, allowing only one user at a time to access each digital format), CDL holds that creating new digital editions of in-copyright books and lending them out is fair use, and copyright holders' permission isn't necessary.

Libraries in particular have embraced CDL. Publishers' and writers' groups...not so much, especially in light of a recent legal decision that rejected both the first sale doctrine and fair use as basis for re-selling digital content. Here's the Authors Guild:

CDL relies on an incorrect interpretation of copyright’s “fair use” doctrine to give legal cover to Open Library and potentially other CDL users’ outright piracy—scanning books without permission and lending those copies via the internet. By restricting access to one user at a time for each copy that the library owns, the proponents analogize scanning and creating digital copies to physically lending a legally purchased book. Although it sounds like an appealing argument, the CDL concept is based on a faulty legal argument that has already been rejected by the U.S. courts.

In Capitol Records v. ReDigi, the Second Circuit held that reselling a digital file without the copyright holder’s permission is not fair use because the resales competed with the legitimate copyright holder’s sales. It found that market harm was likely because the lower-priced resales were sold to the same customers who would have otherwise purchased new licenses. In this regard, the court emphasized a crucial distinction between resales of physical media and resales of digital content, noting that unlike physical copies, digital content does not deteriorate from use and thus directly substitutes new licensed digital copies.

The same rationale applies to the unauthorized resale or lending of ebooks. Allowing libraries to digitize and circulate copies made from physical books in their collection without authorization, when the same books are available or potentially available on the market, directly competes with the market for legitimate ebook licenses, ultimately usurping a valuable piece of the market from authors and copyright holders.

For a more detailed deconstruction of CDL's arguments, see this statement from the Association of American Publishers.

Flash forward to 2020, and the coronavirus pandemic crisis. Last week, the IA announced the debut of the National Emergency Library--really just the Open Library, but with some new provisions.

To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later.

During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe.

What this boils down to, under all the high-flying verbiage: the IA is ditching the one-user-at-a-time restriction that is one of the key justifications for the theory of controlled digital lending, and allowing unlimited numbers of users to access any digitized book in its collection.

The Authors Guild again, on how this harms authors:

IA is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign. Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on for critical revenue. Acting as a piracy site—of which there already are too many—the Internet Archive tramples on authors’ rights by giving away their books to the world.

Here's just one concrete example. Katherine Harbour's Nettle King is available for borrowing in the National Emergency Library as a scan, an EPUB, and a PDF (the IA's EPUB versions are OCR conversions full of errors). Published in 2016, it's also "in print" and available on Amazon and other online retailers as an ebook, in addition to other formats. The IA, which never bought a digital license to Ms. Harbour's book and scanned and uploaded it without permission, now is proposing to allow unlimited numbers of users to access it, potentially impacting her sales. How is this any different from a pirate site?

Announcement of the National Emergency Library has been greeted rapturously by the press and by libraries. Less regarded has been the flood of protest and criticism from authors and professional groups. In situations like these, authors and publishers tend to be dismissed as greedy money-grubbers who are putting profits ahead of the march of progress and the noble dream of universal access to content...despite the fact that authors' right to make money from their work--and, just as important, to control the use of it--springs directly from the US Constitution, and has been enshrined in law since 1790.

In response to the outcry over the National Emergency Library, the IA has issued a justification of it, citing the "tremendous and historic outage" of COVID-19-related library closures, with "books that tax-paying citizens have paid to access...sitting on shelves in closed libraries, inaccessible to them." This noble-sounding purpose conveniently ignores the fact that those libraries' (legally-acquired and paid-for) digital collections are still fully available.

If your book is included in the National Emergency Library, and you don't want it there, the IA will graciously allow you to opt out (another inversion of copyright, which is an opt-in system).

Hopefully they'll be more responsive than they were in 2018, when I sent them DMCA notices that they ignored. Or later, when they began rejecting writers' takedown requests by claiming that the IA "operates consistently with the Controlled Digital Lending protocol.”

******************

I've covered this question above, but I want to highlight it again, because it's such a persistent objection when this kind of infringement occurs: Brick-and-mortar libraries lend out books for free, so how are the IA's "library" projects any different?

A few reasons.

- Brick-and-mortar libraries buy the books they lend, a separate purchase for each format (hardcover, paperback, ebook, audiobook, etc.). The author gets a royalty on these purchases. The IA seeks donations, and lends those. Authors get nothing.

- Brick-and-mortar libraries lend only the books they purchase. They don't use those books to create new or additional, un-permissioned lending formats. That's exactly what the IA does. Moreover, one of its additional lending formats is riddled with OCR errors that make them a chore to read. Apart from permission issues, this is not how authors want their books to be represented to the public.

- People who advocate for looser copyright laws often paint copyright defenders as greedy or mercenary, as if defending copyright were only about money. It's worth remembering another important principle of copyright: control. Copyright gives authors not just the right to profit from their intellectual property, but to control its use. That, as much as or even more than money, is the principle the IA is violating with its library projects.

UPDATE: It appears that the IA--on its own initiative--is removing not just illegally-created digital editions in response to authors' takedown requests, but legally-created DAISY editions as well, even where authors don't ask for this (DAISY is a format for the visually impaired, and like Braille, is an exception in copyright law and is also permissioned in publishing contracts).

It did the same thing in 2018, even where the takedown requests specifically exempted DAISY editions. I don't know if the current removals reflect expediency or possibly are just a kind of FU to writers (and, indirectly, to disabled readers), but if you send a removal request to the IA, you might consider specifically asking them not to remove any editions for the blind and disabled (which, again, are legal for the IA to distribute).

UPDATE 4/2/20: The Authors Guild has issued a statement encouraging writers to demand that the Internet Archive remove their books from its National Emergency Library. The statement includes instructions on what to do, along with a sample DMCA notice in the proper legal form.

UPDATE 4/8/20: SFWA has issued a statement on the National Emergency Library, describing the legal theory of Controlled Digital Lending as "unproven and dubious". (A link to SFWA's DMCA notice generator is included.)

[U]sing the Coronavirus pandemic as an excuse, the Archive has created the “National Emergency Library” and removed virtually all controls from the digital copies so that they can be viewed and downloaded by an infinite number of readers. The uncontrolled distribution of copyrighted material is an additional blow to authors who are already facing long-term disruption of their income because of the pandemic. Uncontrolled Digital Lending lacks any legal argument or justification.

UPDATE 4/9/20: The Chairman of the US Senate Subcommittee on Intellectual Property, Thom Tillis, has sent a letter to the Internet Archive, pointing out the many voluntary initiatives by authors, publishers, and libraries to expand access to copyrighted materials, and expressing concern that this be done within the law. 

I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has the jurisdiction to amend.

The letter ends by punting "discussion" until "some point when the global pandemic is behind us." So, basically, carry on and maybe at some point we'll talk.

UPDATE 4/15/20: Internet Archive founder Brewster Kahle has responded to Sen. Tillis's letter, claiming that the National Library is needed because "the entire physical library system is offline and unavailable" (even though libaries' legally acquired digital collections are still fully available) and that "the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances" (there's no such language in the actual Fair Use statute).

Kahle also notes:

In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.

But this is hardly a compelling argument. Large numbers of these books are certainly still in copyright, and many are likely still "in print" and commercially available (in digital form as well as hardcopy). Just because a book was published more than ten years ago or prior to 2000 doesn't magically cause it to become so hard to find it must be digitized without permission in order to save it. "But they're older books" sidesteps, rather than addresses, the thorny copyright issues raised by the IA's unpermissioned scanning and digitizing.

This passage also tacitly confirms the IA's abandonment of the one-user-at-a-time restriction that is a key feature of the rationale for the Controlled Digital Lending theory. If the basis for your enterprise is a legal theory whose strictures can be jettisoned at will, how credible is that theory really?

Kahle also claims that "No books published in the last five years are in the National Emergency Library". As it happens, the example I provide above (Katherine Harbour's Nettle King) handily disproves this statement: it was published in 2016, and was digitized by the IA in 2018 (you can see the scan here). I seriously doubt it's the only instance. Either Kahle is being disingenuous, or he doesn't know his own collection.

As a sop to creators, Kahle reiterates that concerned authors "need only to send us an email" and their books will be removed. As I've pointed out above, this is yet another inversion of copyright law, which explicitly gives creators control over the use of their work. In other words, it's the IA, not authors, who should be the petitioners here.

UPDATE 4/16/20: This terrific, comprehensive article from the NWU's Edward Hasbrouck examines the multiple ways the Internet Archive is distributing the page images from its unpermissioned scanning of print books--"[o]nly one of [which] fits the Internet Archive’s and its supporters’ description of so-called Controlled Digital Lending (CDL)."

UPDATE 6/1/20: Four major publishers--Hachette, HarperCollins, John Wilen & Sons, and Penguin Random House--have filed suit against the Internet Archive over the Open Library and the National Emergency Library, alleging willful mass copyright violation. See my writeup here.