Amazon Kindle contract sucks

Courtesy of the Science Fiction Writers of America, Celia sends us "an annotated copy of the Kindle contract. Based on my decidedly non-lawyerish interpretation of this contract and the annotations, I think it says that Amazon now owns everything it wants to own, and you're out of luck if you don't like that."

Publishing contracts are generally kind of bogus to begin with, but this is a real pinnacle of bogosity.

Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other, except that (i) Amazon may assign any of its rights and obligations under this Agreement without consent and (ii) you may assign all of you [sic: your] rights and obligations under this Agreement to any corporation or other entity domiciled in the United States without consent in connection with the sale of all or substantially all of the assets of a Title; provided that you shall give Amazon written notice of any such assignment no later than ten (10) business days following such assignment. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

Amazon can sell this contract - indeed, the whole Digital Books business - to anybody it wants, and your contract rides along with the sale. We revert to the essential necessity for you to be able to terminate this Agreement any time you want under the blue highlighted language in Section 9.

Amazon Kindle Contract Review and Annotation (Thanks, Celia!)

• [rosenkrantz]

  In a free market economy, corporations are allowed to exert pretty much any thing they want in regards to their products & services. I find it humorously ironic that individuals love our economic way of life when its suits their purposes but start waving the “down with big business” and “boo the evil amazon.com” when they find they’re not making as much $$ as they want.

• [surgicalsnack]

  Why does it suck, Cory? I read the entire PDF posted at sfwasite.org, and if anything, the changes the SFWA committee wants to make are even more draconian than those in the relatively mild original Amazon contract.

  For example, they advocate adding the following to the contract: “Excerpt Limit equal to the least of (x) 7,500 words, (y) 10% of any Title, or (z) five pages of graphic material, any such excerpt being approved by the author before its use”

  They also want to stop it when “somebody downloads your book, photoshops the images, and writes offensive but wildly popular slash fiction using your characters. Can that person do so? Can you sue said person?”

  Seems to me that they’d like to curtail some free speech rights there. It also seems like you could have read what they actually said about the contract a bit more closely before giving them a soapbox.

  I mean the committee even comes right out and says “If Amazon gives someone a copyable version of your Digital Book, and that person copies it a million times and floods the internet with free versions, don’t come crying to Amazon. By the way, if we (Amazon) thought this was a good idea, we could strip the DRM without your consent”

  How the heck does that fit under the term “copyfight”?

• [The Raven]

  I note in particular this remark from the contract committee:

  All you can ever collect, under any theory, is what they have paid you over the last twelve months. In other words, Amazon is uncollectible. This means that your sole practical remedy under this contract is termination.

  This part isn’t a whole lot of fun, either:

  If you want to enforce rights under this Agreement, you have to go to Seattle.

  This deal is a loser for any individual author. A large publisher, willing to keep tabs on Amazon, might be able to make it work, but better not to sign the damn thing in the first place.

  The sheer sleaziness of offering this deal to authors means, in my view, that Amazon is a business to deal with only when one must. Krawk!

• [Roy Trumbull]

  The next monster to fall into the grave with newspapers, magazines, radio, and TV is the agent distribution monster.
  I have a professional photographer friend who has contracts with two agencies. One in the U.S. is bankrupt and the other is in Europe. When his images are licensed he collects pennies.
  It seems to me that a thumbnail catalog well indexed, and the agency and distribution function is a natural internet function.
  Much of what is going on in the world is left over carbon paper. Legacy businesses are dust. Don’t sign a contract with one.

• [celia]

  Stephen@9–the piece Cory quoted was not specifically what I was referring to. That was his own choice of quotes. That said, given your interpretation of the quote, it should be mentioned that amazon isn’t actually *buying* anything. I mean, the author is agreeing to sign away certain rights in the hopes of future money, but there is only the assumption of money, nothing actually changes hands.

  @11–the slash fiction example was my favorite part of the whole annotation. It’s such fabulous hyperbole. It’s like warning me not to post pictures of my cat on the web because someone could download them and use them as a modesty banner in a review video for a razor. Yes, it is possible. Yes, it might be something no one wants to happen to their pictures. But, in a serious discussion, is it really the best example to use? When I queried that bit on the sfwa site, both of the comments in reply had more valid concerns that didn’t resort so slash fiction ‘scare’ tactics.

  So far as the contract and the annotation, I thought that whether or not I agree with the original or the suggestions, it was an interesting thing to see–we talk a lot here about the rights of the reader of the kindle being limited, I thought it was interesting to see how the kindle treats authors/publishers.

• [Daemon]

  Still not remotely interested in ebooks. Technology is too new, there’s too many locks, too much corporate control over the stuff that I’ve bought… and I don’t want to buy the 800+ novels I already own again.

• [cinemajay]

  I’m sure the ensuing backlash will cause Amazon to take a step back before they try to sneak it back in again.

  In the meantime, I think I’ll stick to actual books and PDFs.

• [Modusoperandi]

  *Pbbt!* The Kindle is old news anyway. My new invention will leave them in the dust.

• [Anonymous]

  If you read this portion carefully, it says that you can in fact sell your ebook to any corporation incorporated in the USA.

  Anyone up to any mischief who has bought a kindle book? I’m thinking almost-out-of-copyright media, a self-employed ‘corporation’, and a hopeful goal of unassailability.

• [thebestthing]

  Haven’t looked a the full contract, but the excerpt quoted above is a standard assignment clause. I’m a lawyer and I insert that clause (or something similar in substance to it) in nearly every contract I draft. Seems fair to me.

• [Anonymous]

  My problem with it is that it says:

  “Neither side can assign any rights without consent, except:
  – Oh wait, we can. We can, in fact, do whatever we want (note the term “any”) under any circumstances (“without consent”) with anyone, anywhere.
  – you can sell your rights to another publisher (note the term “all”) provided it is in the U.S., and you tell us immediately about it. That’s it.”

  More translation:

  “We can do whatever we want. You can do these things, and no other. But to look like we’re being equitable here, we’ll start with ‘Neither party may’.”

  If such one-sidedness is “standard” and “fair” assigment provisioning, I’m glad I’m not a lawyer.

  Having read the whole thing and the comments, I’m also amused by the committee’s fear of “digital piracy” in the context of it being on BoingBoing. They don’t seem to notice that the section they’re all worried about “you can’t force us to use DRM, so millions of people will Steal Your Book” *also* stops Cory from saying “you are not allowed to release it *with* DRM, because that hurts my sales, and violates the commitment I have made to my readers.” Either way bad, but only one seen by the SFWA committee.

  The rest of it (especially the “this is the agreement unless we feel like changing it. You have 30 days to accept the changes or cancel the agreement. You don’t get to change anything, now or later.” traditional shafting) does, indeed, look like the tradtional shafting.

• [Anonymous]

  Yet another anonymous lawyer (YAAL?) piping in — the quoted section is a fairly equitable contract assignment/transfer clause – has nothing to do with intellectual property directly (other parts of the contract must treat this issue, of course, but you can’t see how from the excerpt), and has a degree of mutuality to it — which is better than where most of these start (e.g., we can assign as we please, and you’re stuck with it)

• [william]

  I’m always glad to bag on large corporations, but I don’t see the problem here.

  You’re letting them distribute your book. They want to be able to sell their e-books business without having to track down eight zillion sellers and renegotiate. They’re saying that you can transfer your rights to somebody else as long as you notify them. Presumably that’s so they can find whomever owns the rights to the books they sell.

  If I were the same size as Amazon, I’d ask for a slightly more symmetrical clause. But since I’m not, this seems pretty reasonable.

• [teh_russians]

  I bought the kindle with the intention of never buying a book again, unless I want to own a physical copy. Being a nearly broke college student who loves to read, the kindle seemed a perfect way out, especially with the ridiculous textbook prices nowadays. Now I have all my books and textbooks in one place, for free :). I’ve never used the amazon bookstore or paid them a single cent in any way since the purchase of the kindle itself.

  I’ve already saved about twice as much money as the cost of the Kindle, and couldn’t care less about what they want to write in their license agreement as long as they keep converting those torrented pdfs I send to my Kindle through their service ^_^

  Oh and once I graduate, pay off my loans, mortgage, car and stuff I’ll probably buy all the books I really enjoyed.

• [JPW]

  Wouldn’t that be the nadir of bogosity?

  Either way, it works for me. . . .

• [WeightedCompanionCube]

  Maybe I’m just old fashioned, but I just can’t get into eBooks, or even audiobooks for that matter. Electronic text is fine for reference material, or for works that started in that format… but there’s just something special about works on paper. I think the problem is that the publishers are treating eBooks like electronic books. There is no such thing. They are documents, not books.

  Unlike analog or digital media, with books the work is not easily copied from the medium, because the medium IS the work.

  It’s funny how I don’t feel that way about anything else. When it comes to CD/DVDs, I value the physical container as property, but not as the actual work: I just rip them and then store them safely. I never lend them out, but if someone wants a copy, I make them a copy and don’t think twice. Most mf my music and video doesn’t even have a physical medium anymore.

  Books are different: I enjoy having something tangible and single-purpose that I interact with directly. There’s a lot of power in the written word, and when you have a physical copy, you _have_ it, and you can do whatever you want with it… but you can only do it in the finite.. you buy it, or receive it, then you can carry it, loan it, give it away, sell it, even burn it if you want to, but it belongs to you, or whoever you transfer it to. DRM or not, “eBooks” are never going to be the same, they don’t have the same presence in your hand or on your shelf.

  The same goes for writing as for reading: I can’t write from the heart at a keyboard. I have to put pen to paper.

• [The Raven]

  It’s a distribution contract, not a publishing contract; an author who signs it is self-publishing. I bet Amazon offers better distribution contracts to pro publishers.

  I remember when self-publishing through the ‘net was supposed to be the salvation of authors.

• [Darren Garrison]

  “Unlike analog or digital media, with books the work is not easily copied from the medium, because the medium IS the work.”

  Not like that to me– when a interesting new book comes out, I think “boy, I want to read that”, not “boy, I want to fondle that paper and smell that, uh, glue or something.”

  The words are the work, not the substrate on which the words are printed.

  BTW, on a related note, I see that Amazon has dropped the price of the Kindle II. Hopefully, that’ll push the producers of better, more open e-paper based readers to drop their prices, too.

• [Palilay]

  I’m all for the Copyfight, but the attitude of people like @15 really saddens me. “PROBABLY” buy all the books you really enjoyed? And how exactly do you expect the authors you are stealing from to stay solvent enough to keep writing? People in @15′s position should try to realise, that the US has some of the lowest prices on books anywhere in the planet. If you lived in Australia or Asia, you could expect to spend easily up to 4 times more on your books. So really, using the defense of having to pay mortgage and car indicates to me not that they are “poor”, but that in buying all the accoutrements of a consumeristic society and not being able to afford them all, they’ve made a conscious choice. That is – that their car, and their mortgage is something they can NOT get away with not paying for, but books are, so they’ve chosen to steal from authors rather than car dealers or real estate agents.

  That’s not poor, that’s spoiled.

  And this entire post is a beat up, Cory is chasing windmills on this one so far as I can see from reading the contract excerpt thoroughly. It’s a standard agreement.

• [Anonymous]

  People are correct in saying that it’s a distribution agreement. What’s wrong, among other things, is that Amazon/Kindle is publishing these works, and it should be using a publishing agreement. The SFWA analysis is based on comparing the Kindle contract to publishing contracts, for which a certain set of standards has arisen over the years. This contract represents the destruction of those standards.

• [Anonymous]

  I agree with the other lawyers that this is a very typical, and quite fair, assignment provision. It basically says that Amazon can sell its eBook business to someone else and your contract goes along with it, and you can sell your book to someone else, and the contract with Amazon goes along with it.

  What’s wrong with that?

• [Stephen]

  “I think it says that Amazon now owns everything it wants to own, and you’re out of luck if you don’t like that.”

  Is the language quoted above the language you think says that? It doesn’t say that. It says Amazon can sell the specific rights it bought from you.