Thursday, July 21, 2011

Don't Pirate Us; We'll Pirate You?

I'm not the greatest NetGalley user. I occasionally sit down and pick out a bunch of titles I'd like to read, review, and (with luck) recommend. This year has been a surprisingly busy one, however, and the multi-step process of getting a book onto my not-Kindle is one I tend to avoid, not to mention the part where I am, really, trying to not only read books I scheduled for this year, but those on my shelves I've never read, as a book collection downsize is in order.

But that part's me--my not-blogging responsibilities, like work and volunteering, and my technology quirks. The other part, however, is something I've been thinking about for a while. I thought it was an isolated incident, and was willing to accept the not-answer I received about it when I inquired. I've been going through acceptances for e-galleys and I found another.

As I've received this from more than one publisher, I'm just going to quote the most offensive part:
By submitting a review through NetGalley, you agree that [redacted] and/or its related companies may use your review (in whole or in part) for promotional purposes relating to [redacted] products in any and all media with appropriate attribution. Please be sure to include the following when you post your review: • Name of the publication/blog/outlet where your review will be published/posted • Run date for when the review will be posted/published...
Hold on there, cowboy. This isn't a contract. It's probably not enforceable. It's certainly not enforceable if I don't ever review your book, or if I don't submit my review back through NetGalley's system. (I am not a lawyer; I just hang out with them sometimes.) It also seems to be in opposition to NetGalley's  FAQ:
If you do choose to write a review, you can use NetGalley to send the review to the publisher. Your review is shared with the publisher as a courtesy — but the content and publishing rights for that review belong solely to you.
Right. This shouldn't need to be stated specifically, but I'm glad that it is. When you write something original--when you "fix" a creative work--it's yours to do what you please with it (in the U.S., anyway, for a certain length of time). I might have some other situation: I might license someone else the right to use my review, whether for free or for compensation. I might enter into a work-for-hire relationship, where my employer gets the copyright for all the work I do for that employer (in exchange for a salary, one hopes). Some folks prefer Creative Commons licenses. I don't; I can specify the same things that those do, if I want to, under existing laws.

And that's why I'm so concerned by the statement that companies may use your review (in whole or in part) for promotional purposes. I understand that publishers circulate reviews internally to find out what's working, what the buzz is, and so on, and I don't mind that. I don't care if I'm quoted in the media (including blogs), though I appreciate appropriate attribution. I don't even care if you read this post and write a very similar one, because I believe strongly that people can simultaneously, unknowingly create similar works--and that most written work is remixing something you've seen before.

Beyond that, however, I would expect to be asked if a publisher wanted to use a quote I've written for a promotional reason. Promotional reasons are not fair use, like it would be if, say, a reporter used my quote in a story or a teacher used my quote as jumping-off point for a classroom discussion. Heck, if you're a teacher, I've been there. Print this out and give your whole classroom copies if you want.

I would most definitely expect to be asked if a publisher wanted to use an entire review for a promotional reason. Attribution is not a fair use defense, nor it is sufficient to explain why one has used the entirety of a work. I do not want to waive or license my copyright before I've even read the book, something similar to how publishers ask that reviewers don't quote from advance copies, not that this e-mail notice is likely sufficient to waive or license anything. (I am also very wary of being quoted out of context now, too!) This article, though it's specific to the film industry, provides a more in-depth look at what I mean.

This is all hypothetical today. I don't write sound bites. I often review older books. The places where I'm most influential are not public, and when I recommend books in those realms, I'm not thinking about writing for the public eye. I can't imagine that a publisher would want any of my reviews--in whole or in part--for any reason at all, and thus, I can't imagine that I'd end up in a position to have to ask a publisher to cease and desist. But I am very concerned about the phrases in some publishers' NetGalley e-mails that seem to frame my reviews as solely for their promotional purposes, and in my case that bloggers are reviewing solely for the purpose of providing free advertising for books. (Sure, some are. But that's not what I'm talking about. And sure, there's a potential side effect of a review creating welcome buzz for a book, and there's the possibility that a blogger is happily promoting something or someone she loves, but giving any one of those as the whole of what's going on simplifies the blogosphere way too much for my comfort.)

It makes sense for publishers to use their resources wisely--to match advance copies of books with people who will enjoy them and create buzz for them, to match books with people who will review them honestly, and to get books into the hands of people who buy or influence buyers. Go promotional machine! I simply believe that legal overreaching is not the way to do it, and I won't review books where the publisher has an expectation that, in exchange for a copy, I must be a willing participant in its marketing and advertising, that I must give up copyright in my review as a condition of providing feedback for free. When a book is great, and I am not required to love it, I'll happily tell people in public, in private, at bookstores. Maybe I'll suggest that author be a guest at a conference I plan. Maybe that book will be the one I buy for everyone I know.

But I'm stubborn, and I like to make those decisions on my own.


  1. You could put some sort of disclaimer on your profile, like, "ABSENT ASSUMPTION OF LIABILITY IN TERMS AND AGREEMENTS OF NETGALLEY."

    In legal-speak, I think that allows you to negate the "contract" you really didn't sign up for... or something.

  2. Ugh, sorry about the overzealous comment filter.

    I wonder what would happen then--I actually might have something on my profile now that says I don't review books if I'm given that sort of ultimatum, but once you're approved, I don't know if that still gets read. That said, I tend to find NG to be pretty onerous, and I've had a lot of technical difficulties with trying to use DRM and my reader--and, to be honest, I don't *need* more books to read. I just sometimes like them, because sometimes I'm searching for up-and-coming authors, or looking for new books to feature and tell friends about, and the advance notice helps. Still, I have lots of ways to get the same information and I can't sort through all of what I have now, so I don't have any great hard feelings.


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