Extraterritoriality & DRM: An Insidious New Gottya Clause

I generally read Kris Rusch's business post as soon as it comes out on Wednesday or Thursday, but I've been busy and didn't get to it until this morning and read it while my brain was still trying to wake up.

It was hilarious! My responses, that is, not Kris' post. I kept batting my eyes and shaking my head thinking, no I can't possibly have read that, that's absurd. But, no, I hadn't read it wrong.

Apparently Hachette has added, or will be adding ...

... language that would require authors to “ensure that any of his or her licensees of rights in territories not licensed under this agreement” will use DRM. 

That's from an article by Cory Doctorow, Doubling Down on DRM: Hachette U.K. dabbles in extraterritoriality . Kris quoted him and I've taken these quotations form his article over at Publishers Weekly. Here's Cory's analysis:

It’s hard to say what’s more shocking to me: the temerity of Hachette to attempt to dictate terms to its rivals on the use of anti-customer technology, or the evidence-free insistence that DRM has some nexus with improving the commercial fortunes of writers and their publishers. Let’s just say that Hachette has balls the size of Mars if it thinks it can dictate what other publishers do with titles in territories where it has no rights.  

Kirs Rusch agrees. She writes:

Yeah. Cory’s exactly right about this. And he’s right about the balls the size of Mars. ...

Still, I e-mailed the link to a friend of mine who happens to be an intellectual property attorney who deals with the publishing industry a lot. The attorney’s response? Not shock, not surprise, but this (and I’m paraphrasing here):

Given what I see in  my dealings with the general counsels at various traditional publishing houses, I have to say that everyone in traditional publishing has gone insane.

Needless to say this clause—if indeed it exists—will be a new deal breaker. ... Do not sign anything that requires you to tell other publishers who publish your work in a different territory what to do. For that matter, do not sign anything that requires you to publish all your other work  (not covered under this contract) with DRM attached. If I had signed a contract like that, for example, I would not be able to publish this blog on my website. I would need to have some sort of DRM on this blog to remain in compliance with this contract.

So…if a publisher demands this of you, do not sign that contract. Negotiate it away. If you can’t, walk away. (A Tale Of Two Royalty Statements)

Cory Doctorow tells the story of an author, left unnamed, who published work with Hachette and also with Tor Books. The problem? Tor Books doesn't use DRM. The author had just received a politely worded letter from Hachette explaining his dilemma to him and inquiring about his proposed course of action. Talk about being between a rock and a hard place!

So put this on your list of deal-breakers: If a publishing company wants to control how your other work is published, work that has nothing to do with them, don't sign it!

I'd normally end my post at this point feeling releived that as an indie author I don't have to worry about gottya clauses and the wiles of the Big Six.

Um, wrong. As Kris points out:

This clause [the DRM clause] has a major impact on indie writers who publish their own work in their native language, then sell foreign rights to Hachette. If you sign the DRM clause as Cory outlines it, you must make sure your indie title is available only as DRM. Do you indie writers now understand why you must pay attention to these contract discussions?

Indie writers often handle sales to the English speaking world (or the world of their native tongue) themselves but hand over foreign rights to a publisher who can then have the book translated.

But if a writer signs one of Hachette's contracts with the DRM clause in it then the indie author would have to use DRM to protect even the English language titles they sell through, for instance, Amazon. Yikies!

Personally I don't like DRM and don't use it because it frustrates readers--I know, because it frustrates the heck out of me! Why would I want to aggravate readers who paid for my book by making it harder for them to read? That doesn't make sense to me. I know some folks believe DRM helps prevent an ebook from being pirated, but I doubt that. For more on the topic of DRM and whether it works, read the rest of Cory's article, Doubling Down on DRM, especially the comments.

Wishing you the best of luck in all your contract negotiations! Cheers.

Other articles you might be interested in:
- Why Indie Authors Are Good For Publishing
- Hugh Howey, Bestselling Author Of Wool, On The Key To Writing Success

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