The No Starch Press Blog

Section 3 of our Publishing Agreement is pretty straightforward. I’ll take a crack at it now. It states:

3. Outline and Schedule. You’ll develop an outline and schedule for completion of the Work in consultation with Us. The schedule shall provide for submission of the text on a section-by-section basis. If you are unable to meet a deadline in your schedule you will notify Us in advance. If you fall more than four weeks behind any deadline in your schedule, and we, in our sole discretion, have not agreed in writing to extend your deadline, we may terminate your Agreement, and you shall promptly return to us any monies advanced or granted to you by us.

The first part is easy. You’re agreeing to develop an outline and schedule for writing your book, but not unilaterally. We ask that you submit manuscript section-by-section so that we can edit section-by-section. This is a non-traditional process for many book publishers, but it’s the process that most tech book publishers use because it speeds things up. We like working this way, too, because we like being involved with books as they’re being written, so that we can offer help, advice, and suggestions along the way. Once you’ve written your entire manuscript and turned it in for editing, you’ll probably be a bit tired. That’s not a good time for us to ask you to fix things. It’s much better to do so as you’re developing your project.

We ask our authors to set their own schedules; we won’t impose a schedule on you unless you (a) ask us to, or (b) are so far behind that if we don’t give you hard and fast dates we think your book will never happen. You’re committing here to notifying us in advance if you’re going to fall behind schedule, which is just an effort on our part to keep things moving and the lines of communication open. We’re really not sticklers about schedules though we probably should be more so. We’ve had several books drag on for years, which isn’t good for anyone.

The hard-ass part is that our contract gives us the right to terminate your agreement if you fall more than four weeks behind any deadline. Does that mean we’ll terminate your agreement as soon as you’re four weeks behind? Most likely not, but the agreement does give us the right to; make no mistake about it. When would we terminate your agreement under these terms? If we felt that nothing was going to happen with your book, you’re so far behind schedule that it isn’t funny, and there’s no longer any point in putting anyone through the misery. Basically, when we offer you an agreement, we want to publish your book. We’re not in the business of signing agreements and not publishing the books.

Finally, if we do terminate your agreement because you have fallen more than four weeks behind schedule, you’re agreeing to return any advances to us.

And that wraps up Section 3.

In response to a post that I made titled “Our Publishing Agreement,” Ms. Maria Langer, a computer book author, had this to say:

As the author of over 70 books since 1992, I’ve found that the book contracts with terms like this that I signed years ago have prevented me from getting back the rights to many of my older titles. The problem is that the books are no longer going “out of print” when they’re still available for purchase as ebooks on the publisher’s Web site. So while my publisher is pushing a book about the Web that’s 5 years old and horribly out of date, they’re neither contracting me to revise it for them nor letting me shop a revision elsewhere.Even though I have copyright of the title, I have no power to use my rights.

I strongly advise authors of computer-related books to add a rights expiration term to their contracts to protect themselves. I own intellectual properties that aren’t earning me any money because I signed away too many rights in a day and age before publishing turned to electronic distribution. It’s the “…any medium now known or hereafter developed” part of the above quote that can really screw an author.

Ms. Langer raises a very good point about book publishing agreements and also about agreements and the book publishing business in general. But before I begin with my response, please note that Ms. Langer is responding to only one section in our publishing agreement. I’ve posted our agreement for download but I’ve only worked my way through Section 2.

Every publishing agreement must be taken as a whole since clauses are interrelated. For example, in our agreement, Section 21 states that the Agreement will terminate if:

(1) the Work goes out-of-print and we, within ninety days after we receive notice from you that the Work is out-of-print, do not place the Work in print again. The Work shall be deemed out-of-print if it is not available for sale in reasonable quantities in normal trade channels

This clause has worked well for us over the years and we have not had any issue with it that I can recall. But that doesn’t mean it’s perfect, and the jury is still out on how to handle out-of-print clauses in publishing agreements especially with the rise of electronic content delivery. In fact, as I look at this section, I see a potential problem going forward. Perhaps more than one.

What if electronic delivery is considered a normal trade channel? Would the availability of an electronic version of a book on Amazon, a normal trade channel, qualify as “reasonable quantities”?

I took at look at Ms. Langer’s books and I note that most are based on particular applications that date within 12 to 18 months. That fact certainly poses a challenge to out-of-print clauses that are poorly worded. When a new version of OS X is released and her book becomes essentially dead, shouldn’t she receive the rights back to her book if the publisher doesn’t want her to revise it? Certainly she should.

We typically avoid publishing books that date this quickly but our books date, regardless. However, the addition of an arbitrary expiration to the publishing agreement of, say, five years would have caused innumerable problems for us over the years, and for other publishers who keep books in print – and selling – for years. For example, we just released a new edition of our best-selling title Hacking: The Art of Exploitation this year. This has been about our best-selling book over the years, but it was nearly five years old. What would have happened if we had set an arbitrary expiration term of five years? We would have been at risk of having an agreement terminate for no good reason, other than the passage of time, and through no fault of our own. We’ve continued to promote this book every year since publication and we’ve certainly kept it in stock.

Aside from the specific wording in any book publishing agreement, your relationship with a publishing company, and that company’s business practices, can be nearly as important as the agreement itself. As far as I’m concerned, and many lawyers too, if both parties are reasonable, the publishing agreement exists in the background. The agreement is mostly used to codify payment terms, and most of its clauses come into play only during disputes. Fortunately, we’ve had very few disputes over the years, and I’ve always tried to be reasonable in those disputes.

What would happen in Ms. Langer’s case if she had published a book on OS X with us which had fallen into returns due to a new release of OS X? First, if the book had sold well and if we were pleased with Ms. Langer’s work on the book, we would have approached her about revising it, well in advance of the OS X release. At that point, our Revisions section, Section 18, would come into play. It states:

18. Revisions. If we decide that a revision of the Work is warranted, we will offer you first option to undertake the revision, under the terms of this agreement. You will advise us within 30 days of our request as to whether you will revise the Work. If you choose to prepare the revision, you and we will negotiate a schedule and you shall diligently proceed with the revision according to the schedule. If you do not advise us within such 30 day period that you will revise the work, or you cannot or choose not to revise the Work, or you do not diligently proceed with the revision, or if the manuscript for the revised Work that you submit to us is not acceptable, we may have the Work revised by a person competent to do so and charge the costs of the revision against payments due you under this Agreement. We may continue to use your name on all revisions.

Say Ms. Langer chose not to revise her book, as some of our authors have. In the case of a book on OS X, and assuming that the book had sold well, we would look for someone to revise her book. (We have rarely brought someone on to take over a revision of a book at No Starch but it has happened.) Our preference is to have the author involved in that search but sometimes the original author doesn’t want to be involved. In that case, the best busines decision is to try to find someone to take the book over. If you look at our list though, you’ll find maybe one book that has been taken over without the author’s approval. (I can’t recall one exactly but let’s say there is one.) That doesn’t mean that we haven’t tried to find authors to take over books in need of revision; we have. I just don’t like to do it and rather than have everyone in a huff I often give up trying to find someone to revise and just let the book die. Who needs the aggravation.

Now, let’s say that we have a book that is truly dead and that we don’t want to revise it. The author comes to us and says that they want to revise it but we choose not too. The book has been in returns for months, there are no copies in regular trade channels (let’s eliminate electronic for the moment), and we have no need or interest in reprinting it because sales are negative and we’re accumulating hurt returns in our warehouse. Now Section 21 comes into play. Our author calls the book out-of-print and we have 90 days to cure this out-of-print condition. If we don’t reprint and get the book into normal trade channels (which we wouldn’t be able to do because the channels wouldn’t take it), the contract terminates and all rights revert to the author.

I will say that in our 15 year history, most of our authors would rather keep their book available, in whatever form, rather than put it out-of-print. We do a once or twice a year cleanup of titles that are truly dead and we send authors notices that their books are out-of-print, but many of our books simply don’t die. They just fade away.

I did a search of some publishing law sites to see what others have to say about out-of-print clauses. I quote from two lawyers, below.

Ivan Hoffman

I enjoy Mr. Hoffman’s thoughts on book publishing agreements and find his insights quite useful. He argues at his site that there should be some concrete standard in a publishing agreement that deems a work out-of-print. I agree. The question is, what is that concrete standard? He chooses income, as follows:

. . . the basis of income being received by the author during any given accounting period or periods. In other words, in the event the author does not receive $x.00 during 1 or 2 accounting periods from print on demand sources, then the book shall be deemed out of print, at least in that format.

I like this idea, especially when tied to a particular format. Would this create competition with another publisher who picks up an out-of-print edition and makes it available via print on demand (POD)? Potentially, but if a book is truly not selling, making the book available in POD would probably have no affect.

There are other issues that complicate this matter, and you can read Mr. Hoffman’s extended and very interesting discussion here: http://www.ivanhoffman.com/print.html.

Lloyd L. Rich

Mr. Rich, sponsor of the Publishing Law Center, has this to say about out-of-print clauses:

It is my opinion that an author’s work should not be declared out-of-print based solely on the condition that it is no longer available in a print format. Instead, the out-of-print clause should recognize that an author’s work will be considered “in print” for as long as the publisher and author agree to certain conditions that provide for (1) the continuing availability of the author’s work which will include it being published through print-on-demand technology or as an electronic book, (2) the book publisher’s commitment to promoting the author’s title in its regular trade catalog and on its web site, if such web site exists, and (3) guaranteeing the author a minimum annual royalty.

I think I find Ivan Hoffman’s solution a bit easier to put into practice; I’m not quite sure how I’d implement the one that Mr. Rich proposes. Still, both gentleman offer interesting insight into this issue.

As you can see, the out-of-print clause in publishing agreements is not a simple one in today’s world, and it’s complicated by the emergence of electronic sales and document delivery. For the most part, I think our current clause has been working fine, but I will be considering a revision based on Mr. Hoffman’s and Mr. Rich’s suggestions.

And now to Section 2 of our Publishing Agreement: Delivery of Manuscript. Here it is in all its glory:

2. Delivery of Manuscript. On or before ________20__, you’ll deliver to Us the complete manuscript of the Work of approximately _____ typeset pages, and any additional materials, as described in Schedule A. You’ll be responsible for writing the text of the Work, generating appropriate rough sketches for illustrations, and compiling all front and back matter. You will also deliver all source code, a disk image for a CD-ROM, a demonstration version of a software program, or any other materials specified in Schedule A or elsewhere in this Agreement. You’ll deliver the manuscript to us in an electronic form acceptable to us and shall include any additional materials required under Paragraph 5 (except that you’ll deliver the index to us within seven (7) days after we deliver paginated proofs to you) and Paragraph 6, unless otherwise instructed by us in writing.

Let’s see what this says. First off, we ask you to set your own delivery date; to choose one that’s comfortable for you. Most of our authors take six to eight months to write their books, but we leave the final choice up to you.

That said, the delivery date is nothing to sneeze at as they say. If you tell us you’re going to finish your book in July we’d like to think that that’s when you’ll finish your book, even if we know that you’re being optimistic. (And, if you are being optimistic, we’ll tell you that, too.)

Too, while we’re not as deadline driven as many companies, much to the chagrin of the O’Reilly sales reps I’m sure (love them I do), but deadlines do matter. And to be clear, if you’re months beyond your delivery date and your book is simply not happening, we can cancel your book simply because you haven’t delivered it. In fact, if you fall more than 30 days behind any promised date in your Agreement, we can cancel your book. Will we cancel your book if you’re 31 days behind schedule? Sixty days? Not likely but note that the contract would allow us to do so. Cancellation is by no means automatic but we will bring delivery date into play when it makes sense to do so. When does it make sense? When your book just isn’t moving or we think that you won’t be able to complete a book that we’d like to publish. Cancellation in such case would not (I hope) come as a surprise; you would receive plenty of warning. But note that this does exist.

Why do we care about being able to cancel your Agreement? Couldn’t we just let you flounder around for months, or even years?

Some of our authors have done so, to be sure, and some are still doing so. But the thing is, that sort of extended pain and suffering is good for no one. It saps an author’s time, it bogs us down, it keeps our editors from finding and developing new projects, and it prevents us from signing another book on the same topic. Unlike many publishers, we don’t publish books that compete with those of our own authors, so if we have a book in the works on Quicken for example, we won’t sign another, competing Quicken book, even though we know that a Quicken book would be huge. (I’m purposely choosing a topic that I can’t see us ever publishing on so that I won’t have an author write to me and say “hey, that’s my book!” either now or in the future. This does not mean that you should send me your brilliant Quicken proposal. Thank you.)

Another key word in this section is “complete.” When we say complete, we do mean complete. Not a first draft with a million holes; not a collection of notes; not a chapter with missing images, notes to self, and random doodles. Why? Because we generally work on a chapter-by-chapter basis and we really don’t want to put a chapter though the same stage more than once, whether that’s developmental editing, copyedit, proofreading, or other. And if your chapter isn’t complete we can’t move things forward.

We’ll also ask you to fill in your estimate of the number of typeset pages. We really don’t care too much here unless your book is too short or too long. Way too short is anything under 200 pages; too long? While we’ve published a few large books, anything over 500 pages makes me nervous because I think of all that editing! I usually recommend that authors insert 350 pages here. We won’t look too closely at this number unless your manuscript comes in way off and we don’t agree on that new page count.
The rest of this section basically lists your deliverables. You’ll write the text; you’ll create roughs of illustrations (we’ll re-render them if necessary but we won’t take your screenshots); you’ll deliver front matter (introduction, preface, and so on), and back matter (index, bibliography); and, if your book will include a CD or other media, you’ll deliver an image file of that media to us so that we won’t have to create the image. Frankly, I’d pull the CDs out of our books because I’m always afraid there will be problems with duplication or with the code on the CD, but if you insist and we agree to include media, don’t call me.

We’re almost done with this section so hold on. This section references Schedule A. We attach your proposal here and call it Schedule A. I think it’s crucial that before entering into any publishing agreement we all agree as much as possible on what it is that you are planning to write. The image that you have may not match ours and it’s important that we all see as close to the same image as possible.

Next, what does “in an electronic form acceptable to us” actually mean? This means that we get to make the final decision here but usually we’ll take either OpenOffice.org or Word files because they offer the best editing options as far as we’re concerned. That said, we’re finally making some progress on both a LaTeX and XML workflow so we hope to make those regular options going forward. If you’d care to help with that process, please let us know.

And finally, don’t miss the wording about index. Most publishers consider the index to be part of the manuscript, and we do too, although I don’t really know why. Funny that I don’t know why, right, and that I’m actually admitting it? Thing is, indexing is an art and it’s tough to learn to do well in a short period of time. I’ve written a couple of indexes myself and I can’t say that I enjoy it. Still, the best indexes in our books are the ones written by authors who really took the job to heart. (I don’t mean to offend any professional indexers here; I just think that it helps to have the actual author of the work determine what should and should not be indexed.) By contract, then, you’re responsible for producing the index. We’ll offer advice and we’ll copyedit your index if you produce it. If you don’t want to index the book yourself, we’ll hire an indexer and charge the cost against your royalties at about $3 per indexable page or so – not an insignificant sum. I’d just like to clear the air here. You know, take the wool covering off your eyes so that we can use it on the next contestant.

PS – paginated proofs are final pages with numbers on them.

That’s it for Section 2!

Bill

I first drafted our publishing agreement in 1995. The original was based on a boilerplate that I found in Tad Crawford’s excellent book called Business and Legal Forms for Authors and Self Publishers (now in it’s third edition).

Once I had a draft that I was happy with I had Brad Bunnin (author of The Writer’s Legal Companion) take a hard look at it. I asked Brad to make sure that our agreement was even better than what I viewed at the time as the most equitable agreement in the business, the Peachpit Press agreement. When he was finished with ours he felt that he’d succeeded.

Brad rewrote the agreement in parts, added a few sections, and produced what I think still stands as a landmark publishing agreement. In fact, when I co-founded Apress in 1997, we adopted the No Starch Press agreement for our authors. From what I can tell Apress still uses much of our agreement today, with their own modifications (most of which I do not find to be improvements).

In the next series of blog posts I’m going to attempt to take people through each section of our agreement so that current and prospective authors will have a nice body of work to refer to when presented with our publishing agreement. Here goes Section 1. This section states:

1. Grant of Rights and Term of This Agreement. You grant, convey, and transfer to Us the exclusive right to publish, distribute, and sell the Work in whole or in part in print, electronic, or any other form or medium, now known or hereafter developed, in all languages, throughout the world, for the duration of copyright in the Work, which shall be the term of this Agreement unless it is terminated sooner as the Agreement provides. “Electronic Form” shall include photographic, audio, video, digital, laser, magnetic, or any other form, and for any medium now known or hereafter developed. You may publish excerpts from the Work or articles based on the Work, provided that no individual excerpt represents more than ten percent (10%) of the entire Work, and that all such excerpts or articles contain appropriate references to the Work, including a reference to us as its publisher.

What’s important here? For one thing (and I am not a lawyer), while we register copyright in our authors’ names, we have to have you transfer the copyright to us so that we can (lovely term) exploit the copyright. You know, squeeze blood out of a sponge because that’s what publishers do :)

Anyway, this section is basically your agreement to transfer the right to exploit the copyright to us, throughout the world, in pretty much every form that we can think of. We have a pretty extensive networks of international partners who sell our books in the original English language throughout the world, and we’ve had books translated into 21 languages, so we do a pretty decent job of exploiting that copyright. And we pay our authors for the privilege, of course, as we’ll see later on. We’ll also look at ways that the agreement can terminate if we screw up or, barring that, certain rights revert to our authors if we fail to sell them.

All in good time.

Stay tuned. We have 28 sections in our Agreement so plenty to discuss.