Pluralistic: 27 Jun 2022

Today's links

Two swordsmen cross blades while standing on the pages of an open book, an inkpot between them. The swords are antique pen-nibs.

Podcasting "Reasonable Agreement" (permalink)

This week on my podcast, I read my recent @Medium column, "Reasonable Agreement: On the Crapification of Literary Contracts," about the alarming standardization of non-negotiable (and terrible) contracting terms in freelance writing contracts:

I started selling to magazines in the 1980s, a moment when Reagan's antitrust deregulation drove waves of mergers in the market. The major magazines were changing owners frequently, and each new corporate overlord brought new contracts lawyers with weird and terrible ideas about the contracts they sent to writers. Lucky for writers, editors were on our side, and were able to help us get around these unfair terms.

For example, one of these mergers resulted in a whole family of magazines changing their contracts to grab rights that had historically belonged to writers (translation, audio adaptation) including some that were rarely exercised but represented an enormous upside for authors (film and TV rights). These new contracts also grabbed stupid rights that no one ever bought or sold for short stories, like theme-park and toy rights.

The editors came up with a clever countermeasure: they moved all this objectionable garbage to the final page of the contract, then quietly advised writers to tear off that page, throw it in the trash, and sign the bottom of the page before, where they'd conveniently left room for dated signatures.

But the editors – and us writers – were fighting a losing battle. Corporate contract lawyers figured out what was going on and started to force all contractual variations through their offices, and declared the worst of these clauses to be "non-negotiable" and simply refused to discuss (or change!) them.

This meant that writers like me found themselves in a bind when it came to the editors who liked and sought out our work. For example, in 2009, an editor I'd worked with at the sf magazines got a plum gig, commissioning short fiction for a global, glossy, general-interest magazine and she asked me to contribute. I had loved her other short fiction work and leapt at the chance, writing her a story that she accepted on the spot.

But then the contract came in, and it included a clause that I never signed: I had to indemnify the publisher against all claims related to my work, including any that the publisher decided, unilaterally, to settle. This magazine, published all over the world, had exposure to legal systems I knew nothing about, as well as legal systems that I knew all too well to be grossly authoritarian and terrible.

Even though my short story didn't have anything in it that would attract any legitimate legal claims, the magazine wanted me to promise that if some crank in any of these countries sent them a legal threat, they could pay this person any amount of money and then send me the bill, irrespective of the merits of the claim.

At the time, these clauses were widespread, but were considered negotiable – any canny writer would simply line them out and initial them, and the publisher's contracts person would initial them, too, and that was that. Not this time. My requested change went all the way up to the CEO, who flat our refused to change the clause or discuss it with me.

The editor was ordered to kill the story, and I was told I wouldn't get a nickle. I worked with @SFWA's grievance committee, who got me a 50% kill-fee and then I sold the story elsewhere for more than the original offer:

But I burned that editor, put her in a terrible position with her new bosses. I resolved that henceforth, I'd confirm contracting terms before accepting freelance commissions, and I did…but I still slipped up from time to time.

Last year, I got a commission from a major US daily paper who asked me to write an op-ed condemning the bullying legal threats that a giant tech company had just made against some of its critics. As is often the case with op-eds, this had a news hook and they were eager to publish immediately, so I wrote the piece – and they published it – before I saw the contract.

This contract had the same awful indemnity clause, and worse, in this case, they had asked me to take to their editorial page to criticize a company that sued people who criticized it! Of course I refused to sign, to the distress of the (perfectly nice) contracts person, who had been told that this clause could not be modified under any circumstances.

I stuck to my guns, pointing out that they'd already published and had no leverage over me, and that the couple hundred bucks they were offering to pay me wouldn't cover a month's worth of media insurance to back up the indemnity they were seeking, and since I have very few assets and very little savings, I was literally financially incapable of indemnifying them. Signing that clause might ruin my life and drive me to bankruptcy, but it wouldn't actually protect them in any way.

The newspaper caved and the "non-negotiable" clause was removed from the contract I'd signed, but – once again – I'd burned an editor whose only sin was enjoying my work enough to commission me to write for them.

I'm more careful these days. There are seven contractual terms that I negotiate before I take an assignment:

I. Binding arbitration. This is the bullshit practice of forcing writers to surrender their right to sue publishers, even in the face of fraud or other illegal acts. Instead, writers have to take their claims to a corporate arbitrator – a fake judge whose fees are paid by the publisher. There is no legitimate reason for a publisher to demand binding arbitration. I won't sign these, period.

II. Blanket warranties. I'm not a lawyer, and while I'm familiar with California and US federal law, I don't know what other legal systems your publication is exposed to. It's unreasonable to ask me to warrant that my work doesn't violate "any law." I replace this with "any US or California law." If you are worried that my work creates legal jeopardy for you, you should ask competent counsel, not me.

III. Blanket indemnities. I'm not wealthy, and my insurer won't cover claims that you settle without their consent. Asking me to indemnify you against "all claims" exposes me to the risk of bankruptcy – and still doesn't protect you. I change this to "all finally settled claims."

IV. Confidentiality. It's rare for a publisher to expose me to confidential business information, but if you are going to, then crisply define what that is (and don't ask me to define them – I don't know your secrets, because they are your secrets).

V. Noncompete. Most of my freelance commissions relate to issues that I've written about for 20+ years. I'm not going to promise you that I won't write a similar piece for someone else. If you're commissioning me to write on a new (to me) subject for a major feature, then a short period of exclusivity (6-12m) is okay.

VI. Rights. The standard deal is 6-12 months of exclusive rights, then indefinite non-exclusive rights, and I get the right to resell, reprint, or anthologize the piece.

VII. Derivative works. If you want TV or movie rights, you'll have to talk to my agent at WME and negotiate for an option. If you want translation or conversion rights, that's fine, but you need a plan to use them. I won't give you exclusive French rights if you don't have a French publication or a relationship with one (why would you even want that?).

These principles reflect the standard contracting terms among all publishers when I started my career. I'm lucky that I can stick to these today because the income from my books lets me to walk away from commissions on unfair terms. I write a lot of books – I have eight in production right now.

One of those books is Chokepoint Capitalism, co-written with @rgibli, a book that explains how to reverse unfairness in creative labor markets. The book explains how mergers in every part of the creative supply chain – publishers, studios, labels, distributors, retailers, and online platforms – create #monoposonies, buyers' markets for creative labor.

Along with this analysis, we uncover the vulnerabilities in Big Tech and Big Content, and offer a buffet of actions that individuals, artists groups, municipalities, and regional and national governments can take right now to materially improve the livelihoods and security of creative workers.

Throughout that book, we stress the importance of solidarity – between creative workers, with audiences, and with workers in similarly concentrated industries who face similar challenges. It's not enough that I have the security to demand better terms – we need to work to provide better conditions for all creative workers..and all workers, period.

A good contract is a thing of beauty, a crisp articulation of the mutual expectations of two consenting parties. A contract that demands that you provide things you are incapable of providing (such as blanket indemnity against unilaterally settled claims) is a mockery of the idea of contracts.

When I sign a contract with a publisher, I mean it. I am promising to do everything in that contract. I am baffled that corporate contracts lawyers want their writers to sign contracts that everyone knows they can't uphold.

I have various theories for this, including the possibility that it's just sadism. The legal profession definitely has a sadism problem, with some attorneys deriving twisted pleasure from dominating their adversaries:

But writers aren't the adversaries of publishers. Or at least, we shouldn't be. It's a frankly bizarre circumstance when writers take contracts more seriously than the publishers who write them.

Here's the podcast episode:

Here's a direct link to the MP3 (hosting courtesy of the @InternetArchive, they'll host your stuff for free, forever):

And here's the RSS for my podcast feed:

Hey look at this (permalink)

This day in history (permalink)

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Colophon (permalink)

Today's top sources:

Currently writing:

  • Some Men Rob You With a Fountain Pen, a Martin Hench noir thriller novel about the prison-tech industry. Friday's progress: 645 words (19648 words total)

  • The Internet Con: How to Seize the Means of Computation, a nonfiction book about interoperability for Verso. Friday's progress: 535 words (16230 words total)

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. (92849 words total) – ON PAUSE

  • A Little Brother short story about DIY insulin PLANNING

  • Vigilant, Little Brother short story about remote invigilation. FIRST DRAFT COMPLETE, WAITING FOR EXPERT REVIEW

  • Moral Hazard, a short story for MIT Tech Review's 12 Tomorrows. FIRST DRAFT COMPLETE, ACCEPTED FOR PUBLICATION

  • Spill, a Little Brother short story about pipeline protests. FINAL DRAFT COMPLETE

  • A post-GND utopian novel, "The Lost Cause." FINISHED

  • A cyberpunk noir thriller novel, "Red Team Blues." FINISHED

Currently reading: Analogia by George Dyson.

Latest podcast: Monopolists Want to Create Human Inkjet Printers

Upcoming appearances:

Recent appearances:

Latest book:

Upcoming books:

  • Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid, with Rebecca Giblin, nonfiction/business/politics, Beacon Press, September 2022

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