SOME QUESTIONS ABOUT THE KINDLE

Recently, my publisher and agent have been looking into licensing the rights to publish my books for Amazon's Kindle. Several writer friends now have Kindles and have carried on enthusiastically about them. I'm not so sure.

One writer friend is currently reading a new book on a Kindle. The book was bought for less than the price of the hardback, or a trade paperback and there is every chance that the author received a much lower royalty on that sale than he would have on a traditional book sale. (And, if his contract is anything like mine, he probably only got half of the royalty (minus his agent's 15% of course), while the book's traditional publisher got the other half.) Good for my friend who saved money on the book and loves the Kindle. Good for Amazon who made most of the money. Good for the publisher who got half the royalty at virtually no cost to itself. Not so good for the author.

I've got some questions:

• What are the royalties on Kindle sales? How often are statements issued? How often are they paid?

• Is there any sort of advance payment?

• Is Amazon’s right to publish for the Kindle, exclusive? Is there a limit, time or otherwise, to that exclusivity? Kindle is a proprietary technology, so if they get exclusive rights to a book, it is very much as if we licensed the right to sell a book only to Barnes & Noble and not to Borders or any other bookstores. That seems like a bad idea. At the moment there isn’t much competition for Kindle – although Sony makes an e-book reader – but in the future there will be.

• If we, or our agent, upload the book ourselves (in essence, make the sale ourselves), how is that affected by the existing contract with our traditional publisher – the one that says they get 50% of e-book sale proceeds - but, presumably only if they make that sale, because the contract only gives them “non-exclusive” rights to license subsidiary rights.

• On the other hand, if we (my agent and I) are uploading the version of my books that my traditional publisher worked on – editing, formatting, cover art, etc. – then they probably are entitled to some percentage, even if they didn’t make the “sale.” But, probably it should be less than 50% since they aren’t having to produce and distribute an actual book, and we’re doing the work to upload the book, or the manuscript or whatever. If that is the case, what percent are they entitled to?

A lot of these issues are similar to those that led the screenwriters to go on strike last year. But, we book authors don't have the same sort of clout - very few of us have networks, advertisers and viewers dependent on our output.

At the moment, sales of e-books for the Kindle - and for Sony's reader - are pretty small. But they're growing. And as the technology improves, as more reading machines come on the market, as more books are available at lower prices, that market is going to grow - fast. And unless writers' contracts reflect these technological and market changes, writers are going to be on the losing end.

My standing instructions to the lawyer who reviews my contracts are: "As a writer, I realize that I'm going to get screwed. Just make sure that they use enough lube." The Kindle is going to require an additional application of grease to my contracts before I’m happy with it.

HAPPY BIRTHDAY EMMA & THE U.S.

Yesterday, June 27, Emma Goldman was 139 years old. So long as there is anyone left alive who loves freedom and who loves the U.S. for the real reasons that it is great, she lives on. It is fitting that the celebration of her birth should come close to July Fourth, Independence Day.

Here's what she had to say about the U.S. while she was on trial for speaking out against the draft during the First World War - another "war for democracy." (I think I may have blogged about this before, but it bears repeating, especially during an election year.)

"Who is the real patriot, or rather what is the kind of patriotism that we represent? The kind of patriotism we represent is the kind of patriotism which loves America with open eyes. Our relation towards America is the same as the relation of a man who loves a woman, who is enchanted by her beauty and yet who cannot be blind to her defects. And so I wish to state here, in my own behalf and in behalf of hundreds of thousands whom you decry and state to be antipatriotic, that we love America, we love her beauty, we love her riches, we love her mountains and her forests, and above all we love the people who have produced her wealth and riches, who have created all her beauty, we love the dreamers and the philosophers and the thinkers who are giving America liberty. But that must not make us blind to the social faults of America. That cannot compel us to be inarticulate to the terrible wrongs committed in the name of the country.
"We simply insist, regardless of all protests to the contrary, that this war is not a war for democracy. If it were a war for the purpose of making democracy safe for the world, we would say that democracy must first be safe for America before it can be safe for the world."

Emma Goldman came here from Lithuania, then part of the Russian Empire. My family showed up about twenty-five years later from Poland, the Ukraine and Romania. And like pretty much everyone else who shows up here, they all came looking for something better; for freedom, opportunity, elbow-room, to live in a society where they could be largely left alone to be themselves. And for the most part, with some terrible exceptions, they found all that.

And they also found each other. Last weekend, here in Los Angeles, I went to a free music festival in Pasadena. There were bands from Mexico, Cambodia, Africa, South America, even places as exotic and foreign as Europe and New York. Earlier in the day I'd had an Armenian lunch. That night my friends and I had a Chinese dinner. And that is not an atypical weekend for many people in America's big cities.

At its greatest, the U.S. isn't a melting pot, it's a stew in which you can taste and savor all of the individual ingredients while also getting the strong flavor of the whole.

And I'm pretty sure that's one of the things that Emma Goldman loved about this country. And one of the things that she understood it takes open eyes and vigilance and tolerance and agitation and speaking up to protect.

On Independence Day we can best celebrate the U.S. both by our willingness to fight for the many things that are right about this country, and against those that are wrong.

By the way: To celebrate both Emma and the U.S.'s birthdays, I made a donation to the Emma Goldman Papers Project at UC Berkeley. The project is laboring to publish a comprehensive four-volume set of Emma Goldman's papers: speeches, letters, articles, pamphlets. This is a treasure that should not be lost. If you're interested in learning more about Emma Goldman, and about the Papers Project, (or in making a donation of your own), you can click here.

BOOK EXHIBITIONISM & UNALIENABLE RIGHTS AND WRONGS

Book Expo America was in Los Angeles this year. My publisher, Bleak House Books, was there and so was I. It was astounding, a reminder that despite all the creativity involved, I'm part of an industry. What I do is not really all that different than someone who stamps and molds widgets that are then sold to hardware stores. Not deep down at the heart of the matter, in any event.

A couple of complaints:

I, and a lot of other authors at BEA, gave away advanced reading copies (ARCs) of our upcoming books. There was a gigantic autograph area specifically for that purpose. People lined up to get them. Some of those lined up were used and collectible booksellers who wanted nothing more than to get some free stock for their stores. They have no intention of carrying the final product, the one that my publisher sells and that I get royalties for. When those people asked me for a signed ARC, I politely and cheerfully gave them one. But inside I felt like slapping them silly.

Kindles, or something like them, are probably the wave of the future; one of them at least. The tsunami of the future more like. But I'm suspicious. My most recent publishing contract says that I split the proceeds from the sale of electronic rights 50-50 with my publisher. (My agent gets 15 percent of my part of that, too.) When an actual paper copy of one of my books sells, I get a percentage of the cover price from every sale. Electronic rights are usually a one time deal, having nothing to do with how many individual books are sold. (Even if they were calculated on each sale, e-books generally sell for less than half the price of "real" books.) I ran into a few fellow authors who seemed very enthusiastic about Kindles. There is no doubt that the growth of e-publishing is inevitable and I am not one to stand in the way of "progress." Still, it is becoming increasingly clear to me that this is just another way that us authors are going to get fucked.

But, despite my complaints, I had a grand old time at BEA. There are too many pictures to post here, so you can go to my set of them at Flickr.

NOW FOR SOME POLITICAL PONTIFICATION

Are there any legal limits on how the constitution, of the U.S. or California, can be amended? This is an important question.

If an amendment is passed by congress, a state legislature or referendum (in the case of California) and then ratified as required, by definition what it pertains to becomes "constitutional."

Recently, the California Supreme Court overturned the state ban on gay marriage as unconstitutional. They could do that because the ban was a mere law, it wasn't part of the state's constitution. So, opponents of gay marriage now want to pass a constitutional amendment that could not be overturned by the (state) court.

This brings up the question of, can you pass a constitutional amendment about anything? Are there no “unalienable” rights?

What if Congress passed a constitutional amendment, and two-thirds of the states ratified it, that revoked the 14th and 19th amendments, disenfranchising everyone other than white males? There's nothing unconstitutional about that.

Far fetched? Maybe. Prohibition was passed, then repealed. Germany in the 1920s and early '30s was chaotic but democratic. Hitler was elected, then amended the German constitution to create a legal foundation for everything he did.

The initial founding document of the United States, preceding the Constitution by a little over 11 years, is the Declaration of Independence. In its second paragraph it states: "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness..."

Here's a question: does the Declaration of Independence have any actual legal standing? If so, does that mean that some rights are "unalienable"; meaning that they can't be taken away, not even by amending the constitution? And does it also really mean that all "men" (the modern interpretation of which would be "people") share in those unalienable rights?

Is marriage, and its attendant package of legal and financial protections and responsibilities, one of those rights? In spite of divorce rates and a few couples I know, doesn't marriage have something to do with the "pursuit of happiness?"

If indeed all people share rights (and responsibilities) equally, can even a constitutional amendment apportion those rights unequally? Is there some higher, legal power, or basis, than even the Constitution?

I hope so.