Patent Weight in Publishing

I once worked for a large company that acquired another large company. Why? Patents. The goal was to reach a “mutually assured destruction” state with other software companies that held patents and were fixing to sue. What was in the patents? No one had, or took, time to read them. How would they play out in court? It didn’t matter; most were unenforceable, because most software patents are ludicrous and over-broad, but that was known. The number was what mattered. If all the major software companies hold patents (most of which are unenforceable bullshit patents) in approximately equal number, then they are in a stalemate and no one gets sued.

I bring this up because it’s relevant to the state of the traditional publishing industry. In 2017, many writers find themselves locked in terrible contracts and cannot extricate their rights, even long after their publishers shat the bed and their books went nowhere. The book might be selling three copies per month, but the writer can’t get it back.

As I write Farisa’s Crossing, I’m also thinking about how I’m going to publish it. And the more I learn about traditional publishing, the more I find myself turned off by the entire industry. They dangle a sweet carrot: you too, Unknown Author, could become a Somebody overnight; all you have to do is write your next query letter so well it’s practically made of blowjobs, then get signed by an arm-twisting power agent who can take your book to auction, then get a lead-title deal with a 6-figure advance and have golden-ticket reviews like New York Times delivered six months before your book even launches, and then repeat the process four or five times and get to the point where people get fired if the press doesn’t punch your book. No one thinks the odds are good, but they’re nonzero. It’s that epsilonic nonzero-ness that keeps agents receiving query letters.

And… plenty of authors find themselves so exhausted by agents and queries and the waiting… waiting… waiting… that when things finally snap together (sort of) and the industry coughs up a $5,000 advance and a contract cleverly designed to have the book never go out of print (and, therefore, rights never to revert to author)… enough of them have been beaten down enough to take it, even though they’ve probably realized that the publisher isn’t going to do jack-shit to sell their book.

They ought to hire lawyers. Just as every self-publisher needs to shell out for an editor, just to have a second pair of eyes, you cannot get by in trade publishing without an experienced copyright attorney. Your agent will not do that job. Unless you’re a 6- or 7-figure client, you’re of low priority to your agent– he really just wants to get your deal done as fast as possible, so he can focus more time on his major clients. Yes, I realize that many writers can’t afford to hire lawyers… but if they’re getting $5,000 advances, they can’t afford traditional publishing either and should consider taking up a skilled trade with strong unions.

On snapping up the rights, though… why would the Manhattan brontosaurs do this? What’s their angle? What value is there in rights to a book that they’ve under-published and that therefore died out? Why would they spend $5,000 (it’s still not nothing) to acquire a book they don’t believe in enough to promote it properly? The answer: writers are earnest and careers are long. Writers will keep working, for years, even if the world loses faith in them. Also, there are more ways for writers to reach readers directly: they can now self-publish. If the author’s fifth book ten years from now hits the New York Times Bestseller list in the crotch, it’ll prop up her backlist, and the publisher gets 75 to 94 percent of the revenues.

Those shitty deals are given to writers who seem plausibly talented (and many of them are quite talented, and a few will go on to succeed) by publishers who view the rights as out-of-the-money call options. Most won’t pay off. A few will hit big.

I used to call the bottom-tier trade deals VIT, or Vanity-In-Trade. It’s a catchy acronym, and I’m not ready to give it up, but I don’t think that vanity press is the best metaphor. Vanity presses collect upfront from unsophisticated writers who are unlikely ever to succeed, and that’s not the case with VIT; it only works because some of these authors actually are good and one can predict that some have backlist value. It might not be clear which authors will pop up 15 years from now, but the portfolio has estimable value.

So, patent trolling might be a better analogue. The publishers buy up rights from young writers who think they’re worth next to nothing– and who rely blindly on their agents, even though they’d do better to hire actual lawyers to vet said agents. A decade or two later, when those writers have reputations and careers and they want to do something with their backlist– perhaps edit and republish an old book, or perhaps write a new book using characters and setting from an old one– they get trolled.

Kristine Kathryn Rusch does an excellent job of summarizing these changes in trade publishing. It’s no longer about improving, marketing, and distributing books. It’s about financialization: the acquisition of intellectual property for less than it’s worth. From an expected value perspective, a debut novel written by anyone persistent enough to suffer literary agents’ bullshit (the long waits, the finicky submission guidelines, the aggressive negging that agents deploy in order to get authors to accept bad deals) and land one is probably worth $5,000.

Writers suffer, but so do books. Often these low-advance titles are shipped out with minimal care, because it doesn’t matter to the publisher if the book sells poorly, since it invested so little. The rights are a call option on work the author will do for herself (because publishers, these days, aren’t going to wipe sweat off their balls to publicize a midlist author) in the future.

I wonder, though, if the publishers acquire rights not only for their (perceived) long-term financial value, but in preparation for some kind of IP war. Perhaps it’s the bulk number of copyrights they hold, much less than what is copyrighted, that they care about. I wouldn’t know, because I’m not party to those conversations, but it wouldn’t surprise me.

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3 thoughts on “Patent Weight in Publishing

  1. It makes sense. Your theory is convincing although not proven. Publishers don’t have time to vet most of their own books. Large-scale publishers are going to treat books as interchangeable commodities and call options.

  2. This “expected value” is a pretty good justification for everything everywhere these days having a bullshit amount of forms to fill out before anything happens. A price floor.

    • I think trade publishing is going to bifurcate like academia / higher-ed. You’ll have the prestige players who make 6-figure incomes and are their own bosses– and getting there will be 80% connections, 17% luck, and 3% the quality of your work– and then you’ll have a bunch of semi-employed delusional adjuncts who a lot of the work (even if they aren’t writing lead title novels, they’ll be a source of information for TP execs on What Writers Are Doing Now) but get no respect.

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