Blogosphere Reacts to Licensing Terms for Amazon’s New Kindle Publishing for Blogs

Amazon has just released the beta of its new Kindle Publishing for Blogs, and the blogosphere is starting to react to Amazon’s new licensing terms in its terms and conditions.

What are bloggers saying? Well, the early consensus seems to be that while the concept of blog content licensing to Kindle is good, the required terms and conditions are very problematic.

Jeffrey Gordon of the Licensing Handbook Blog alerted me to this issue, summing up his concerns about Amazon’s new beta site as follows:

Amazon is now allowing blog authors to license content for packaging and distribution on the Kindle, with the blog author receiving about 30% of the revenue generated from the license price. . . . But there’s a problem, Amazon has a license agreement that I would have to accept in order to make this happen. And this license agreement also gives Amazon the right to bundle and resell my content in other forms, too, without paying me for it at all.

Blogger Edward Champion posted a very thoughtful warning to fellow bloggers, who might be tempted to agree to Amazon’s terms, which I would urge everyone to read, asserted:

I am extremely saddened to see so many of my fellow bloggers betray their interests. They have happily become corporate slaves, granting “a nonexclusive, irrevocable, worldwide right and license” to their thoughtful essays and carefully written posts.

I sincerely hope that any authors (and the agents who represent them) who appear on blogs distributed through Kindle are fully aware of what they are giving up here. The rights for any writing you publish on a blog go to Amazon. That goes for guest blog posts, excerpts of chapters*, interview excerpts, you name it.

I took a look at Amazon’s terms and conditions to see if the concerns were truly warranted, and after reviewing the agreement in full, I definitely agree that bloggers should use caution in agreeing to these terms and conditions, as there are a number of clauses in the agreement that warrant serious consideration. What are some of those clauses?

First and foremost, the license grant is extremely broad. Section 7 of the Terms and Conditions states as follows:

Rights Granted. You grant to us, throughout the term of this Agreement, a nonexclusive, irrevocable, worldwide right and license to distribute Publications as described in this Agreement, such right to include, without limitation, the right to: (a) reproduce and store Publications on one or more computer facilities, and reformat, convert and encode Publications; (b) display, market, transmit, distribute, and otherwise digitally make available all or any portion of Publications through Amazon Properties (as defined below), for customers and prospective customers to download, access, copy and paste, print, annotate and/or view, including on any Portable Device (as defined below); (c) permit customers to “store” Publications that they have purchased from us on Amazon’s servers (“Virtual Storage”) and to re-download such Publications from Virtual Storage from time to time; (d) display and distribute (i) your trademarks and logos in the form you provide them to us , including within Publications (with such modifications as are necessary to optimize their viewing on Portable Devices), and (ii) other limited portions of Publications, in each case on and through any Amazon Properties and solely for the purposes of marketing, soliciting and selling Publications; (e) use, reproduce, adapt, modify, and create derivative works of any metadata that you submit to us for the purpose of improving categorization, recommendations, personalization features and other features of any Amazon Properties; and (f) transmit, reproduce and otherwise use (or cause the reformatting, transmission, reproduction, and/or other use of) Publications as mere technological incidents to and for the limited purpose of technically enabling the foregoing (e.g., caching to enable display). In addition, you agree that Amazon may permit its affiliates and independent contractors, and its affiliates’ independent contractors, to exercise the rights that you grant to us in this Agreement. “Amazon Properties” means the website with the primary home page identified by the URL http://www.amazon.com/, together with any successor or replacement thereto (the “Amazon Site”), any software application that is capable of supporting the electronic purchase, display and/or management of digital text, graphics, audio, video and/or other content, and any other web site or any web page widget or other web page real estate or online point of presence, on any platform, that is owned by us or operated under license by us (such as http://www.target.com/ ), branded or co-branded Amazon or with any brand we license for use, own or control, and any web site or online point of presence through which any Amazon sites or products available for sale thereon are syndicated, offered, merchandised, advertised or described. “Portable Device” means any device that is capable of supporting the electronic purchase, display and/or management of digital text, graphics, audio, video and/or other content via wireless telecommunications service, Wi-Fi, USB, or otherwise.

So what does this mean? Well, the short answer is that if you sign up to publish your blog under Kindle, you give away a very broad nonexclusive license to your rights in your work to Amazon. Now, the good news is that this license is nonexclusive, so you still have rights in your own work; however, the license is irrevocable, so once you have signed up, you are stuck.

Second of all, like most online contracts, Amazon has the right to change the terms of the agreement at any time. Section 8 of the Terms and Conditions states as follows:

Amendment, Term and Termination. We reserve the right to change the terms of this Agreement at any time. We will notify you of changes to this Agreement by sending you an e-mail to the e-mail address registered for you in the Application or by posting the updated agreement on Amazon.com. If you do not agree to the changes, you will be entitled to terminate the Agreement by providing us written notice (in the manner provided in Section 14.2) and removing your Publications from further sale through the Program by using our Program procedures for removal of Publications from further sale within seven (7) days of our notice to you. IF YOU DO NOT GIVE US NOTICE OF TERMINATION, YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING POSTING OF THE CHANGES OR OUR NOTICE TO YOU WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES. This Agreement will remain in effect unless and until terminated by either party in accordance with this Section. Amazon has the right, in its sole discretion, to terminate this Agreement without cause upon notice to you which may be delivered by an email sent to the e-mail address registered for you in the Application. You have the right, in your sole discretion, to terminate this Agreement without cause by delivering at least 30 days’ prior written notice to Amazon delivered as provided in Section 14.2 below. All rights to Publications acquired by Customers prior to termination shall survive termination, and Amazon shall be entitled to retain archival copies of the Publications after termination in order to provide access or copies of the Digital Books to customers who have purchased Publications prior to termination. All rights, terms and obligations stated to continue after termination and all rights, terms and obligations that, by their nature, continue after termination will survive any termination of the Agreement, including, without limitation, Sections 3-6 (but only to the extent of any payments that are accrued but unpaid at termination), Sections 8-14, and any provisions that define capitalized terms in the foregoing sections.

In case you are unclear on what this means, it means that the scope of Amazon’s already broad license could increase at any time and will be effective immediately, and any rights Amazon acquires prior to termination it will keep.

Third of all, if you fail to give Amazon a logo, it has the rights to use your other logos and branding published online. Also, Amazon has the right to compare the versions that you provide to Amazon against other published versions of your work, and to use whatever version is published elsewhere. Thus, giving Amazon a watered down version of your article is not going to be a satisfactory work-around to the Terms and Conditions. Section 1.2 of the Terms and Conditions states as follows:

Delivery Format. You will deliver Publications to us in accordance with the electronic formatting and delivery requirements set forth below in this Section 1.2 and any updated or additional formatting and delivery requirements we provide from time to time, along with a print replica of the intended outcome of the Publication feed in the form of a pdf or similar file which we may use as a reference for quality assurance and error correction. You further authorize us to compare the provided Publication against versions you publish online (e.g. versions you post of the Publications on your website) and to conform the version you provided to us to the version you publish online. You will deliver a full text, well formed XML feed of each publication from which you have removed all advertisements and other materials that are primarily intended to advertise or promote products or services and from which you have removed all video and / or user-generated links (e.g., Reddit, DIGG, and Technorati). All deliveries must be free and clear of viruses, worms and other potentially harmful or disrupting code. At or before your first delivery of each Publication, you will deliver to us a copy of the logo for the Publication that is suitable for our use to market and advertise the Publication. If you do not do so, you authorize us to select, and license us the right to use logos from the Publication as you deliver them to us or as you may otherwise publish the logos online.

Fourth, Amazon has the sole right to set the pricing for any works which are subject to the terms and conditions. Section 3 of the Terms and Conditions states:

Pricing and Program Terms. We may in our sole discretion set the retail price for Subscriptions and Single Issues as well as terms for all promotions and solicitations to be used in connection with the marketing and sale of Subscriptions and Single Issues. We will have sole control over the processing of payments, payment collection, handling of requests for refunds and customer service related to the Program, and we will have sole ownership and control of all data obtained from customers and prospective customers in connection with the Program. We may, but are not obligated to, make your Publications available at no charge as part of free trial subscription(s) or other promotional offer(s) for up to thirty (30) days per Customer.

Finally, the royalty provisions are not as clear as one might like them to be. Section 4 of the Terms and Conditions states as follows:

Royalties. Provided you are not in breach of your obligations under this Agreement or any term of this Agreement, we will pay you a royalty equal to thirty percent (30%) of Subscription and Single Issue sales revenues actually received by us from sales of Subscriptions to and Single Issues of your Publications, net of refunds, credits, bad debt, and any taxes charged to a customer (including without limitation sales taxes) (a “Royalty”). Subscription and Single Issue sales revenues means only amounts actually received by us for the sale of Subscriptions to and Single Issues of your Publications through the Program and excludes any fees paid for any product or service other than a Subscription or Single Issue, even if sold together with any Subscription or Single Issue. If we sell a Subscription or Single Issue to a Publication together with any other content at one undistinguished price (the “Single Price”), sales revenues for such sale will be allocated on a pro rata basis based on the then-current stand-alone retail price for each individual content title included as part of such sale (after taking into account any discounts accorded each participating title in the Single Price sale).

Incidentally, I found it interesting that Amazon included the following clause in its confidentiality provision: “[Y]ou will not issue any press releases or make any other public disclosures regarding this Agreement or its terms. . . .” I assume Amazon was hoping to minimize the discussion on its terms and conditions, and hopefully avoid the type of public debate that Facebook launched with its recent change of terms and conditions (See our blog postings on February 17, 2009, February 18, 2009, and March 2, 2009). Such a clause seems a bit out of place in a set of online terms and conditions, and frankly seem designed to keep bloggers in the dark about the terms and conditions that they are being asked to agree to.

Of course, the terms and conditions are not the only issue that bloggers are raising with Amazon’s new beta product.

Tech Crunch has identified another potential flaw in the beta product, which should concern all bloggers, whether they sign up on Amazon’s product or not: third parties right now can sign bloggers up under these terms and conditions and “claim” ownership of a blog they do not own. Amazon has responded to these concerns with a published statement, but the fact that the issue has arisen should be a concern to all bloggers.

All in all, I would agree with the current blogosphere view that Amazon’s new beta product is a great idea in theory, but that the concept needs some work. Like the other bloggers who have raised concerns over the issue, I will not be jumping on the Kindle Publishing bandwagon in the foreseeable future. Moreover, I will be policing Amazon to ensure that no one else has signed up me or my content without my consent, either.

Related blog postings:

Copyright Infringement on the Internet: Problem is No Longer Confined to Entertainment industry
Anticipating Likely Copyright Battle, Amazon Backs Down Over Kindle 2 Audio Feature
Facebook Adopts Townhall Format to Allow Users to Comment and Vote on New Statement of Rights and Responsibilities
Facebook Reverses Decision and Announces Temporary Return to Prior Terms and Conditions
Facebook Licensing Controversy Prompts Public to Take Closer Look at Social Networking Site Terms and Conditions

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