In a memo posted on its Web site Monday afternoon, the Authors Guild outlined its concerns with Amazon’s Kindle Online Lending Library, saying that it is troubled by both Amazon taking some titles from publishers without their permission as well as by publishers who signed onto the licensing program without first getting permission from authors.
The guild said Amazon’s rationale for putting books in the program without permission of publishers is based on a “tortured reading” of the e-tailer’s boilerplate contract with publishers. Amazon’s belief that paying the wholesale price for an e-book gives it the right to sell-e-books at any price, or give them away, as long as the publisher is paid is “nonsense,” the guild said, noting that typical contracts do not cede that level of control to Amazon. “Amazon’s boilerplate terms specifically contemplate the sale of e-books, not giveaways, subscriptions, or lending. Amazon can make other uses of e-books only with the publishers’ consent,” the memo notes. To do so without permission is “an exercise in brute economic power,” the guild asserts.
Similarly, publishers who took a licensing fee for including titles in the program first need to get the permission of authors before making a deal, the guild says. Noting that licenses are traditionally done on an advance-and-royalty basis to ensure that the interests of the author and the publisher are aligned, the guild noted that when a list of titles is licensed for a flat fee “interests can easily become misaligned, and opportunities for mischief abound.”
“For example,” the guild noted, “a publisher could cherry pick a selection of ‘loss leaders’ to license for unlimited use in order to attract readers to the publisher’s other books.” The guild told authors it believes that under most, if not all contracts, “a license to Amazon’s Lending Library is outside the bounds of the publisher’s licensing authority. This isn’t a minor matter – in order to protect the author’s interests, all publishers should be asking permission before entering into such a bulk licensing agreement, and most would need to seek a contract amendment to do so.”
The guild advised its members to get in touch with their publishers if their title has been licensed to Amazon without their permission, to inform them such inclusion requires their authorization. The guild also said authors should find out why their publisher agreed to be included in the program.
Authors whose titles have been added to the lending program without permission of their publisher, should still contact their publisher to find out how houses are planning to pay authors for their use, the guild wrote.