A Leaked Contract Reveals that Amazon Insists on DRM

[Nate the great]

Originally Posted by HarryT

The author of this piece appears to be astoundingly ignorant of what boilerplate contracts actually are.

Considering that the author of this piece has admitted as much, well, duh.

[OtterBooks]

Was it determined if the author has some sort of developmental disorder? Not to be insensitive, but it occasionally does occur with exceptionally intelligent writers. That's not just a misreading, it's a fundamental mis-comprehension of how language works. He seems to even know the definition of "insisting," yet applies it to a sentence that by no degree of interpretation could possibly mean it. He may as well have said "Amazon loves grape juice."

[caleb72]

I doubt very much that there's a development disorder involved, but as the author has been participating in this thread, perhaps he can respond to that.

I zoomed in on the word "insist" myself, but it may be that we're placing too much importance on the use of that word in this case; that the author's concern about the default stance in the contract was actually the main point and the word "insist" was an exaggerated expression of that concern.

If you were not accustomed to contract language you might read something a bit more sinister in the existence of the clause than others. I think from there, it's quite possible to see the word "insist" as an overstatement used for effect.

I'm sure people can appreciate the occasional urge to use much more definitive language than may be applicable to make a point. It's prevalent enough, at least to my eyes.

[Nate the great]

Originally Posted by OtterBooks

Was it determined if the author has some sort of developmental disorder? Not to be insensitive, but it occasionally does occur with exceptionally intelligent writers. That's not just a misreading, it's a fundamental mis-comprehension of how language works. He seems to even know the definition of "insisting," yet applies it to a sentence that by no degree of interpretation could possibly mean it. He may as well have said "Amazon loves grape juice."

So you are going to argue, based on my editorial decision, that I have a developmental disorder? Because of course there could not possibly be any other explanation besides mental deficiency.

Congratulations on both insulting me and those with true disorders with this ad hominem attack. You must be very proud.

[DiapDealer]

So what was the thought process in the editorial decision to word the title in a manner inconsistent with the wording of the contract? You have to admit that the word "insist" was a pretty big leap.

[pidgeon92]

Good grief. Anyone who is unfamiliar with contracts might have made the same assumption. It's time to let it go.

[speakingtohe]

Good Grief, anyone who is unfamiliar with contracts shouldn't be posting regarding them.

Helen

[pidgeon92]

... and everyone who makes an error in a blog posting should be vilified? I should think we could come up with a few thousand more examples. Let's get them too.

[DiapDealer]

I'm not trying to vilify anyone. I'm just honestly curious what prompted him to use "Insists on DRM" in the title of the article when nothing in the contract--even taking the boilerplate wording at (a layman's) face value--suggested that there was absolutely no hope of selling DRM-free at Amazon. *shrugs*

[Hitch]

Originally Posted by speakingtohe

Good Grief, anyone who is unfamiliar with contracts shouldn't be posting regarding them.

Helen

Everybody:

Guys, it's not about pro-DRM or anti-DRM. I know that the "Amazon is Evil" group won't believe this, but it isn't. Two things played into the default language in the contract--actually, three.

1. Early on, publishers were very paranoid about their works being stolen and given away for free around the 'Net. They wanted reassurance that this wouldn't happen. You all know this.
2. The publishers, generally, don't upload via the KDP, and don't "decide" DRM or no-DRM on an individual, book-by-book basis. The intake process is via FTP--book file, cover, metadata sheet. The intake software bulk processes books. Obviously, having a simplified "all these books go this way" process for something automated is better than not. If a publisher says "no, I don't want DRM," I'm 100% certain that their FTP'ed books go through a different FTP channel than the DRM'ed books. That's all it is. Bulk efficiency.
3. With over [mumble], nearly [mumblier mumble] decades, working on contracts, I can say without hesitation that 'tis a far, far better thing to put a standarized clause INTO a contract, and then a) negotiate over slight rewording, or b) remove it, than to have the legal reps from 50 different publishers all sending you THEIR versions of what the DRM or no-DRM clause should look like. Given the sheer vasty hugi-ness of Amazon, (Yes, that was a Firefly nod), they likely have hundreds of contracted imprints and publishers. Anyone here who has EVER dealt with contracts knows that this is true--use a standardized, boilerplate form designed to cover all the various aspects, and you nuke, delete, strikeout, reword from there, rather than reading all new text from a new lawyer. It's simply less expensive and far, far more efficient.

In the legal field, it's simply how you work. Period. It's not unusual or even slightly odd. The "everybody has to agree" language isn't about "we will deny you permission," it's about liability. Amazon's saying that they want the Publisher to expressly state that they do not want DRM, and they are saying that they, Amazon, want to expressly affirm that they have received notice thereof, so that if a book gets set loose in the wild, and gets pirated, and the publisher wants to come back on Amazon, in a lawsuit, as some part of it, that they cannot.

Honestly, guys: there's nothing remotely odd about this. Given the way the liability would run, it's smarter to put the DRM clause IN, and make the publisher expressly waive it, than to remove it, and have the publisher say, "oh, wait, 9 bajillion copies of my book got out, and I thought that Amazon was OF COURSE going to put DRM on it." Given that the overwhelming number of publishers want DRM, it would be daft to have made the clause read that they would not put DRM on it, as the default, and then have to amend the vast bulk of the contracts.

I can see how someone not familiar with contracts might not understand this particular language, or why it's in there, but it's simply...normal operating procedure, and given the history of ebooks and publishers, I don't see one thing there that would raise even one hair on one eyebrow on my head.

Hitch

[JoeD]

In the legal field, it's simply how you work. Period. It's not unusual or even slightly odd. The "everybody has to agree" language isn't about "we will deny you permission," it's about liability. Amazon's saying that they want the Publisher to expressly state that they do not want DRM, and they are saying that they, Amazon, want to expressly affirm that they have received notice thereof, so that if a book gets set loose in the wild, and gets pirated, and the publisher wants to come back on Amazon, in a lawsuit, as some part of it, that they cannot.

Hadn't thought of it from the pov of liability, I guess it does make a lot of sense to have the default cover your backside.

As said in a previous post though, it's a mountain out of a molehill as long as when an author or publisher does say we want no DRM, amazon makes it simple to sign a contract doing so.

[Ninjalawyer]

The comment by Hitch above is entirely correct, so I'm not going to comment further on that. I will say though that it's easy for a lay-person to misread a contract; if you combine that with a slight predisposition to mistrusting Amazon, along with needing an eye-catching headline, it's not hard to see the genesis of the article and accompanying headline, no developmental difficulty needed.