LendInk, Fan Fiction, and Misinformation

Published August 9, 2012 by administrator

I’m sure at this point everybody has had the opportunity to develop an opinion on the LendInk debacle. If you haven’t, check out these links to catch up:

Techdirt
Indie Author Blog
The Digital Media Machine

I’m not here to point fingers or play the blame game or tell anyone what’s right and what’s wrong. I’m here to defend my position as a small-press indie author. I’m not going to be mean or try to throw my weight around. I want to offer explanations for both sides in a way that makes sense for people who don’t care to wade through the technical and angry mumbo-jumbo the internet has produced in the last few weeks.

What saddens me the most is that authors, in an attempt to protect themselves and their intellectual property, have been viciously attacked by hundreds and thousands of people who are trying to pick a fight. This has nothing to do with the masses as a whole. This is a matter best left between the website in question and the concerned authors.

The last of those links has direct statements from the site’s owner. What truly upsets me is not his defense of his position, but the unceasing, unnecessary, vicious, violent and cruel attacks on a woman who attempted to apologize that followed in the comments. Hurting each other isn’t the way to solve this problem.

As eBook authors, we are at the forefront of a new industry. We are the trendsetters and the pioneers of the future of books. We are going to encounter tough situations and huge obstacles. It won’t be easy, but then again if we liked things easy, we wouldn’t be writers.

MY POSITION

I write for four small press publishers under two names. I have seven stories in digital print with two on the way later this year and several others in submission. I write all manner of things, so I have a very scattered audience. I’m on multiple lists and boards for my publishers, literary groups and fan-based chat groups. I talk to people. I network.

I am also an author whose work is not lendable through any site at all. Regardless of the LendInk policies, it doesn’t really affect me one way or the other because my stuff shouldn’t have been available. I know my books were listed on the site, but I don’t know the status of their lendability. Before I could really check that far into it, the site went down.

The reason I couldn’t check? You have to create an account. Before I could create an account my computer threw up all manner of warning flags – expired certificates, javascript errors, and even antivirus warnings of dangerous content. That worried me.

I am also an author who attempted the self-pub route and found I wasn’t any good at it, so I stuck with the more traditional style. That means I have a publisher to play middle-man between the distributors and me.

As an author, I’m always going to look like the villain when it comes to touchy subject such as this. If I protect myself and my work, I will be demonized for it. If I state an opinion, someone will tell me I’m wrong (I’m used to that, though). If I present factual information, someone will inevitably misunderstand it, twist my words, and still make me into a monster. In short, no matter what I say or do, as the author, I CANNOT WIN.

MY LENDINK THOUGHTS

First and foremost – I honestly and wholeheartedly believe that the owner of the site didn’t mean any harm when he set it up (I have more to say but I’ll get to that in a minute). As an author, I think a site like LendInk could be beneficial because it does become a sort of online library and allows people access to work they normally wouldn’t purchase without perusal. That’s the problem with digital publishing – you can’t go pick a book up off a shelf and read two pages to see if you like the style. You’re stuck with a cover, a blurb, a price tag, and (if you’re lucky) a set of reviews from other readers. It’s a tough market for us bibliophiles – yes, I’m guilty of the same thing because I like to stand in the bookstore aisle and read a little bit before I buy.

However, instead of putting up every book in every catalog on this type of site, it needs to be handled like a library – copies are distributed to libraries in limited quantities (the logistics of that one in ebook form are a nightmare, and not my point here), and no library has every book out there available for lending. By hosting the information on the site, to me it’s sort of like having copies of books on a shelf with a big sign that says “do not touch.” Yes, it’s exposure, but it isn’t really helpful exposure. It also leads to debacles like the one we’re experiencing now.

[From the ubergeek standpoint and playing Devil’s Advocate: If the technology can be created to link people with these titles automatically, chances are there will be someone else to hijack that technology and use it to break the encryption and eventually take copies from the sites… which becomes theft. I’m not saying that has happened… I’m just saying that it’s possible. There are plenty of people out there with enough free time and lack of concern for others that they’d do it just to prove they could.]

I definitely believe it’s necessary for sites like this to secure the permission of authors to host their work. Before I get pitchforked, let me explain:

♥ Yes, these rights are covered in publisher contracts that allow lending.

♥ Yes, these rights are covered with Kindle Digital Publishing agreements.

♥ No, those covered shouldn’t have to be obtained separately because those items are built into said contracts.

♥ Any work not covered under one of those first two items should (a) not be automatically hosted regardless of availability, and (b) have permission requested from the publisher prior to hosting. I say publisher here because the publisher is the one who holds the distribution rights. If the publisher says okay for its titles to be hosted, that will not only give the site the ability to do so, but it will give the authors peace of mind that their publisher thinks its legit.

Yes, that’s a huge undertaking, but it is something that needs to be taken into consideration by anyone wishing to build a library site. It is a very slow process. It is a lot of work, and there are a lot of angles to cover.

[On a personal note – As an author, I (and any other author out there for that matter) do have the right to request that my work be removed from ANY outlet not specifically approved by my publisher and listed in contract or policy documents. It doesn’t matter if the site is legitimate or pirate… if they don’t have a deal with my publisher, they don’t have the right to host my work. If I ask that it be taken down, then it needs to be taken down. But if my publisher says okay, then I don’t have a choice because I gave the ability to distribute my books to my publisher when I put my name on that contract.]

I say this not to be contrary, but to establish a simple fact:

There are copyright infringement laws in place. Whether you intend to go against them or not is irrelevant – if you break a law, you still break a law. It’s always better to follow the CYA mentality than the “better to ask forgiveness than permission” mentality. When it comes to the law, it’s dangerous to jump in without knowing the risks and I hate to see anyone in the hotseat when s/he doesn’t have a clue why.

Now, I’m going to jump back to my first statement about the owner not intending any harm. I’m going back a month to a panel I was on at Fandom Fest about Fan Fiction. It’s a wide leap, but bear with me. I promise it’ll make sense.

Fan Fiction authors, when writing their stories, don’t mean intentional harm against the authors and owners of the work they’re “borrowing.” I saw “borrow” because nine times out of ten, they don’t do anything with it but take the characters and the setting and manipulate them for fun. Regardless of the intent, unless these authors have specific permission from the author and/or publisher of the copyrighted material, they are still in direct violation of the law.

I know this… I used to write Fan Fiction. Lots of it. Before I became a published author, I never really thought about the legal ramifications. Sure, I understood that Anne Rice and several other authors absolutely do not allow it, so I stayed out of those sandboxes. I never charged money for it. I never claimed the characters as mine. I thought I was in the clear.

Nope. Now that I’m on the other side of the book, I’ve learned a lot, and one of those things is that no matter how much I twist someone else’s toys they never become mine, and unless it’s okay for me to use them then I’m breaking the law.

People are violently protective of their Fan Fiction. On that panel one of the audience members was extremely vocal about her opinion that we were wrong. She didn’t like what we had to say, and it made a couple of us a little uneasy. Regardless of her willingness to defend her hobby to the death, breaking the law is still breaking the law. That’s black and white. There’s no room for argument on that.

Remember a decade or so ago when Metallica took Napster head-on? Remember how the big issue was copyright infringement? This is the same thing, just with different media. If you use something that isn’t yours in public, you might not be “stealing” it, but you are using it without permission and it’s still wrong.

I also understand, having been one of those authors, that Fan Fiction is meant to be the highest form of flattery. I understand that and while yes, I would be flattered that someone would want to use my characters, they’re still mine and I would like to be asked permission first.

THAT HAVING BEEN SAID...

I look at LendInk much the same way I do Fan Fiction. It’s a flattering thought and a fairly ingenious idea, but it still pings on raw nerves. No harm is ever intended, and I understand that. I’ve been there.

While there may not actually be a law broken (that’s the big sticking point, isn’t it?), the masses need to understand that we as creative owners are all going to be a bit trigger happy. There are a LOT of sites that pirate our work, and most of the time we’re going to have to fight tooth and nail to get it removed. There are a lot of places that are not legitimate. And there are plenty of places that host our work without our permission, and as soon as one goes down, three more appear.

Remember the Hydra? Same principle and just as frustrating.

If that company’s name isn’t in my contract and I request that my books be removed from its library, that’s my right as the author.

Put the pitchforks down…I’m not done.

Understand that I’m not going to come out with guns blazing and throw around a DCMA notice. If I’m going to respond to something of this nature, it will be with a private, professional letter requesting removal of my work. I’m not interested in taking down someone’s livelihood or criminalizing anyone for being uninformed. I’m not interested in being the bad guy, but I am very interested in protecting my assets. I keep a cease and desist on hand because I’ve had to do this a time or two with pirate sites. It’s nothing personal. It’s for my protection.

It’s a natural and legitimate reaction to request that our work be removed from a strange site. If it turns out to be legitimate in the long run, then great… let’s negotiate. If having such a site will benefit me, then I’m all for participating so long as I’m assured my work won’t be used improperly. I’m always open for negotiation, because I’ll gladly work with anyone who is going to in any way help promote me and my work.

What this is, in reality, is a huge misunderstanding. There was a knee-jerk overreaction from a large group of people trying to protect their interests. They can’t be faulted for attempting to protect themselves. Tempers flared on both sides and a lot of things have been said that shouldn’t have gone public. People can be very hotheaded at times (Yes, I’m guilty of that too), but that doesn’t excuse poor behavior from anyone.

I do feel bad for the site owner because it’s obvious he put a lot of work into the platform. I also believe that he can rebuild it. It might require the help of outside people to address every comment. This is his dream, and no matter how tough it might be, I believe that the fight is always worth it if you believe in your product.

No, he won’t be able to please everyone because no one person can EVER please everyone… but if he really believes in it, then I’d love to see him take this beast head-on and turn it around. Contact the publishers for the right to host said work rather than trying to contact thousands of authors individually. I said why earlier. That fact remains the same. Let the publishers do their jobs.

You know what else I’d like to see? Since he’s having such a hard time with the whole Amazon vs. California issue, I’d like to see him set up his own storefront and request permission to host books for sale. As authors, we can always use another sales outlet. Pair that with the lending match-up service and he could build something great.

I believe he can do it, and I believe that he can make it better than before. I’m serious when I say I’d love to see him succeed.

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5 comments on “LendInk, Fan Fiction, and Misinformation

  • I am so sorry that this happened. I let people I know and care about know about the site based on the trust I had in the author who told me about it. I talked to my hubby author and he contacted his pub who said it was in their contract with Amazon to allow lending via affiliates. After that I never heard another word. I did not know it blew up the way it did. I regret trusting the person who told me, I feel awful about ever mentioning it to anyone.

    • It wasn’t you, Alexx… you happened upon it just before everything blew up. As authors most people didn’t understand what was happening because it was unsolicited. Some were nastier than others, and the responses to people protecting their interests have been disturbing. You looking out for friends doesn’t mean you did anything at all wrong, and I for one am glad to have you in my corner. 🙂

  • *Sigh* The problem with your entire rant is it makes too many incorrect assumptions. First off, LendInk did not host any books. Secondly, it did not process the lending transaction.

    Here is how it worked: The site listed all books on the Amazon and B&N site. If I purchase an ebook that has lending available, I may lend that book to anyone ONE time for up to 14 days, during which time I may not access said book on my Kindle or nook Device or application. LendInk allowed someone to post that they have a book they LEGALLY purchased and could LEGALLY lend. Another user could come along and ask to LEGALLY borrow that book. Once those two parties were connected, thanks to LendInk, the lending took place through the LEGAL means, e.g., Amazon or Barnes and Noble.

    If the book was not lendable – because the publisher did not make it lendable – then the book could not be lent. It was NOT lent. The entire lending process was always held to the restrictions placed on it by Amazon or B&N.

    LendInk was just a matchmaking service. It hosted no books. It transacted no lends. It did nothing illegal. No copyright infringement took place. The site was 100% legitimate. In other words, many authors basically assumed the worst before doing any investigation.

    • I appreciate your response, but in turn I would like the opportunity to respond to a few of your statements because it appears that the entire point of the post was missed. If you would, please reread my statements. You will find that I believe sites such as LendInk can be useful resources. I say that multiple times and even give suggestions as to how the owner could make it better.

      I never at any time accused the website of illegal activity, but simply compared it to another hot topic in the writing world that has many of the same touchy traits. Comparison often leads to understanding.

      Regarding the “hosting” of the information – One of the many legal definitions of the word ‘host’ is as follows: “a person, place, company, or the like, that provides services, resources, etc.” This website was, in fact providing resource information as well as a service, so while the books may not have been in the digital possession of the site owner, the information was in fact hosted and passed into this system without permission of those who hold distribution rights – i.e. the publishers. No, it isn’t an illegal activity, but it isn’t a publisher-sanctioned activity either and does put the site in a tight spot that leaves it wide open for author criticism.

      Finally, let me say this – as an author, yes I have been conditioned to expect the worst of any website, person or company not contractually affiliated with my publishers. We all are. HOWEVER, not all of us have the “shoot first, ask questions later” mentality. By the time the information gathering could really start, the website was down.

      The LendInk problem, start to finish, is a huge misunderstanding. It’s matter best left to the owner and the publishers to handle in a professional and far less public setting than the internet.

      • ” This website was, in fact providing resource information as well as a service, so while the books may not have been in the digital possession of the site owner, the information was in fact hosted and passed into this system without permission of those who hold distribution rights – i.e. the publishers.”

        And this is what you keep getting wrong. The publishers did consent to this when they enabled lending. There were no guidelines for lending. Nothing in the lending terms states who may or may not initiate the contact between a lender and borrower.

        It’s like returns on Amazon, which is another hot topic for writers. Amazon has a 7 day no questions asked return policy. Sure, someone can read an entire work, love it or hate it, then return it, and the writer can dislike that this occurred. But that writer or the writer’s publisher consented to this action when selling work on Amazon.

        Anything not expressly prohibited in a terms of service or contract or law is permitted. A writer or publisher may not like that someone has found a loophole or is using the grant of use in a way unintended, but as long as the contract or other legal language does not prevent the act, the writer or publisher is legally consenting to the act, i.e., it IS publisher or writer sanctioned.

        As long as the language consented to by publishers or writers in the Amazon contracts permits this behavior, the LendInk site owner – as long as he is staying within those terms – is under no obligation to commence communications with any rights holder.

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