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December 18 2012

Instagram: On being the product

Let me start by saying that I’m not an Instagram user, and never have been. So I thought I could be somewhat dispassionate. But I’m finding that hard. The latest change to their terms of service is outrageous: their statement that, by signing up, you are allowing them to use your photographs without permission or compensation in any way they choose. This goes beyond some kind of privacy issue. What are they doing, turning the service into some kind of photographic agency with unpaid labor?

I’m also angered by the response that users should be willing to pay. Folks, Instagram doesn’t have a paid option. You can be as willing as you want to be, and you don’t have the opportunity. Saying that users should be willing to pay is both clueless and irrelevant. And even if users did pay, I don’t see any reason to assume that a hypothetical “Instagram Pro” would have terms of service significantly different.

It really doesn’t have to be this way. I’ve used Flickr for a number of years. I’m one of the few who thinks that Flickr is still pretty awesome, even if it isn’t as awesome as it was back in the day. And I’ve had a couple of offers from people who wanted to use my photographs in commercial publications. One I agreed to, one I refused. That’s how things should work.

As far as the general question of paid versus unpaid services: I have no idea how many online services I use. Forty, 50, more? Most of them are free, with pro versions that cost anywhere from $10-$250/year. It’s easy for a journalist writing an article in a business publication or a blogger hoping to make it rich in his startup to suggest that people ought to be willing to pay, but add that all up, and it’s a couple of thousand dollars a year. That’s a pretty big bill. And while I could afford it, there are many people who can’t. In addition, that bill adds up insidiously, $25 or $50 at a time, so once you realize the amount of money leaking out through “pro” Internet services, it’s a lot of work to scale back.

The ball is in Instagram’s court (I see that they’ve announced that they’re going to say something). Yes, they have to monetize, even within the Facebook ecosystem. Yes, they have to contribute to Facebook’s bottom line. But getting customers to use their service and suddenly changing the rules isn’t a decent way to treat people (though it’s a gambit that Facebook has played several times in the past few years). Instagram is certainly not generating more value than they capture; and it might threaten their ability to capture any value at all. I can’t see any good reason to stick with a service that’s planning to sell your photos behind your back. If nothing else, you have to ask “what’s next?”

Update 5:13 pm ET — Instagram has just released a response in which they say, among other things, “Legal documents are easy to misinterpret,” and claim it’s all a misunderstanding.
I call BS. It’s easy to misinterpret a legal document, but the language of Instagram’s TOS was exemplary in its clarity.

If Instagram is backing down, that’s great. They should just say so, rather then blaming their customers for misunderstanding. And they should (quickly) release some equally clear legal language rectifying the situation. They’ve promised to “remove the language that raised the question.” Great, but what they’re doing now is just damage control until they release the new document. Let’s see it.

March 04 2011

Publishing News: Week in Review

Here are some highlights of what caught my attention in publishing news this week. (Note: These stories were published here on Radar throughout the week.)

HarperCollins decided ebooks would wear out after 26 uses

OverDrive CEO Steve Potash sent a notice to libraries about new restrictions and changes in OverDrive's territory policies. The notice, which sparked an outcry from libraries, library patrons and even some authors, announced that a major U.S. publishing house (later identified as HarperCollins) would be placing a 26-time lending cap on its titles.

In a lively #followreader discussion last Friday on Twitter, Peter Brantley, director of the Bookserver Project at the Internet Archive, suggested libraries respond with a touch of aggression to make a point:

PeterBrantley1.png

Ron Hogan, author and host of Beatrice.com responded to Brantley, taking it a bit further:

RonHogan.png

Neil Gaiman, a HarperCollins author, responded to the situation on Twitter as well:

GaimanTweetLibraryHC.png

Gaiman's suggestion of implementing PLR — public lending rights, a process used in the UK — in the U.S. was discussed in the #followreader session. You can see the entire session here or by searching Twitter for the hashtag #followreader.

Brantley also pointed to a second concerning item in the OverDrive notice:

PeterBrantley2.png

The section of the note he's referring to states (via Librarian by Day):

In addition, our publishing partners have expressed concerns regarding the card issuance policies and qualification of patrons who have access to OverDrive supplied digital content. Addressing these concerns will require OverDrive and our library partners to cooperate to honor geographic and territorial rights for digital book lending, as well as to review and audit policies regarding an eBook borrower's relationship to the library (i.e. customer lives, works, attends school in service area, etc.). I can assure you OverDrive is not interested in managing or having any say in your library policies and issues. Select publisher terms and conditions require us to work toward their comfort that the library eBook lending is in compliance with publisher requirements on these topics.

Brantley responded:

PeterBrantley3.png

Heather McCormack, Book Review Editor at Library Journal, commented on the HarperCollins situation in an e-mail interview. She highlighted the issue of trust:

The most obvious short-term consequence is what appears to be a mass obliteration of trust. Don't get me wrong — there was ample discontent with the ebook loaning model as it stood. DRM and Overdrive's interface have long been pointed to as stumbling blocks in providing easy access to information, and yet the model was largely tolerated. With the announcement of HarperCollins' loaning cap, however, a sizable contingent of librarians have had it. See "The Ebook User Bill of Rights" issued this week by a set of advocates led by Andy Woodworth and Sarah Houghton-Jan, and the charge to boycott HarperCollins content by librarians Brett Bonfield and Gabriel Farrell.

No trust means little to no communication, of course, and that's what scares me the most. Librarians have long been shut out of conversations about the ebook loaning model, so from where I'm standing, it doesn't make much sense for librarians to formally sever their commercial relationships with HarperCollins. Cap or no cap, they have a responsibility to provide access to information, and in order to fulfill their mission, they need to do the exact opposite of a boycott. They need to join forces on an unprecedented scale to lobby for value for their communities and collections: paging the blogosphere; paging ALA; paging the publishers who do support libraries; paging the sea of patrons who are ultimately affected.

As for long-term effects, I hope HarperCollins' move isn't replicated in its exact terms, but I do hope it will set a precedent of publishers and librarians engaging much more directly about new loaning models. A good, old-fashioned dustup can pave the way for clearer communication and progress.

It's important to note that a couple of the major U.S. publishing houses — Simon & Schuster and MacMillan — don't make their titles available for digital lending at all.

For more on these moves, check out related links posted at Librarian by Day, and commentary by Jane Litte at Dear Author and Martyn Daniels at Brave New World.

Retail bookselling moved to niche retailers to reach new audiences

ChronicleLogo.png As publishers struggle to adapt to the changing economy and the changing technological landscapes, distribution becomes more and more of a challenge. With large bookstore chains failing and consumers turning to the Internet to buy books, the sales agreements with traditional bookstores are starting to make less sense. Sheila Bounford, deputy managing director of NBN International, described the distribution problem in a recent blog post:

It is well known that when it comes to returns, bricks and mortar booksellers feel that they deserve equal discounts to those enjoyed by the online retailers whilst also maintaining that in order to offer range, they must have the right to return. What this ignores is that although the online retailers theoretically have the right to return, they almost never exercise it. Returns from online resellers run at less than 1% of invoice value. From the high street it is usually well in excess of 10% and often very very much higher. Returns are a drain on publishers' resources. Not just in terms of the cost of the book which is often unsaleable — but in terms of the cost of administration.

Some publishers are addressing distribution and point-of-sale issues with creativity. A recent New York Times piece looked at how publishers are selling books through non-traditional, non-bookstore retailers. These niche outlets expand sales reach, allowing publishers access to consumers who might never step foot in a bookstore. Another plus noted in the Times article: books sold through these channels are generally non-returnable.

One publisher tapping these non-traditional markets is Chronicle Books, which sells titles through Urban Outfitters, Nordstrom, Toys R Us, and Paper Source. In an e-mail interview, Kim Anderson, executive director of sales at Chronicle Books, said this model has worked very well:

Chronicle has long relied on non-traditional book retailers as an important part of our business model and long-term growth. The change in the book retail landscape over the last couple of years has only further highlighted the importance of this channel to our overall success.

Dana Newman on authors and the e-pocalypse

Trademark-symbol.pngAs the publishing industry wrestles its way into the digital age, a lot of conversation has centered around digital platforms, distribution woes, technological enhancement possibilities and how publishers and readers are adapting and adjusting to the new landscape. But where do authors fit into this mix?

In a recent interview, Dana Newman, a transactional and intellectual property attorney, talked about what authors need to do to protect themselves and their brands, in addition to their books:

Rather than think in terms of "I want to sell my book," think about "I want to license all of my intellectual property rights." Realize that it's not just your book, per say. It may be electronic rights, it may be multimedia rights — it may be all these other areas that your book may be exploited.

Before you enter into an agreement, make sure you understand it. Make sure you understand how you're granting those rights, and if you're granting all of your rights to one particular publisher, [ask yourself] do they have the ability and the plan to role out those other platforms for you?

Also, don't forget about trademarks. Authors are being told now they have to get out there, they have to market themselves. They are their brand. Don't forget to register your trademark — your name ...

During the interview, Newman also discussed the future of territory rights, embracing the "e-pocalypse," and why the film industry's experience with the digital transition contains lessons for the book world. The full interview is available in the following video:

Got news?

Suggestions are always welcome, so feel free to send along your news scoops and ideas.


Keep up with Radar's latest publishing news and interviews with our publishing RSS feed.

March 03 2011

Digital authors need a whole new set of skills

Trademark-symbol.pngAs the publishing industry wrestles its way into the digital age, a lot of conversation has centered around digital platforms, distribution woes, technological enhancement possibilities and how publishers and readers are adapting and adjusting to the new landscape. But where do authors fit into this mix?

In a recent interview, Dana Newman, a transactional and intellectual property attorney, talked about what authors need to do to protect themselves and their brands, in addition to their books:

Rather than think in terms of "I want to sell my book," think about "I want to license all of my intellectual property rights." Realize that it's not just your book, per say. It may be electronic rights, it may be multimedia rights — it may be all these other areas that your book may be exploited.

Before you enter into an agreement, make sure you understand it. Make sure you understand how you're granting those rights, and if you're granting all of your rights to one particular publisher, [ask yourself] do they have the ability and the plan to role out those other platforms for you?

Also, don't forget about trademarks. Authors are being told now they have to get out there, they have to market themselves. They are their brand. Don't forget to register your trademark — your name ...

During the interview, Newman also discussed the future of territory rights, embracing the "e-pocalypse," and why the film industry's experience with the digital transition contains lessons for the book world. The full interview is available in the following video:



Related:




February 09 2011

Bloomsbury eyes worldwide rights

bloomhome_0301.jpgPublisher's Weekly reported on Monday that UK publisher Bloomsbury is dropping its previous geographic model and going global, setting up worldwide divisions structured around publishing categories. As part of this move, they're looking to gain worldwide rights to titles as well.

In an e-mail interview, Dana Newman, a Los Angeles lawyer and literary agent, said Bloomsbury's move is a sign of the changing times and that there's more to come:

I think the Bloomsbury restructuring reflects the rapid transition underway to a global publishing model over traditional territorial markets, and that we'll see a similar disruption in the way rights are licensed — publishers will be seeking world rights, including digital, whenever possible.

These shifts in how publishers approach rights also need to be noted and analyzed by rights holders. "The issues rights holders face in this environment are ensuring that when they grant such expansive rights the publisher is in a position to fully exploit them, and, as always, arriving at fair licensing terms; royalty rates still vary widely among publishers, especially for foreign digital rights," Newman said.

As digital platforms grow and morph, it's getting harder to understand who owns what rights. In the Publisher's Weekly piece, Bloomsbury's Richard Charkin said "Bloomsbury won't do a deal that doesn't include digital rights." This concept of including digital rights will become even more important as publishers such as Harper Collins start packaging digital rights with audio rights.


Dana Newman will be on the "Copyright, Intellectual Property Rights, and Licensing Issues in the Digital Era" panel at TOC 2011 next week.

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