We oppose morals clauses in book contracts (2019) | Hacker News Reader

We oppose morals clauses in book contracts (2019)

authorsguild.org

89 pointsTomte61 comments

I would go so far as to say that these clauses aren't even slimy, they're just lazy. If the publishers are truly scared that the author's behavior could lose them substantial amounts of money, then there have existed for decades far more terrestrial constructs for them to use - tying compensation to total sales numbers, tying compensation to milestones, or even just lowballing them. To tie their compensation to what is essentially a form of censorship hands disproportional power to the publishers, is subject to lawsuit, and is entirely asinine.

Publishers front nearly all of the deelopment costs of the book --- e.g., the advance, the printing costs, whatever editing work that gets done, etc. Publishers don't have to pay all of these costs; they could make the authors front all of those costs, which reduces their risk. There is a name for that sort of arrangement; it's called a "vanity press".

But funny thing, most authors don't want to use vanity press, and most writer's guilds don't consider publication by a vanity press to be a valid criteria for membership in the Author's Guild, Science Fiction Writer's Association, Romance Writer's Association, etc.

> Publishers front nearly all of the deelopment costs of the book

The largest development cost for a book is the labor to write the book, and the training required to be able to do so, and that is fronted entirely by the author.

Advances tend to be very small and are a loan from the publisher to the author. Printing costs have been going down for decades. Print on demand now means that publishers have complete control over choosing a printing cost that minimizes their risk and matches their projected sales. Editing is a cost, but is relatively small compared to writing the book.

> There is a name for that sort of arrangement; it's called a "vanity press".

That term arose in the time before print-on-demand where an author really did have to sink significant capital into printing their own book. Likewise, before digital distribution, a vanity press author was unlikely to be able to get their book in many stores. Choosing to self-publish a book that couldn't get picked up by a traditional publisher was an indication that the author was doing something for their own enrichment more than for good financial reasons because they were unlikely to recoup those costs.

But self-publishing today requires little capital investment and it's trivial for a self-published book to be widely distributed. That means it's much more possible for an author to be making a sound financial choice to self publish.

> don't consider publication by a vanity press to be a valid criteria for membership in the Author's Guild, Science Fiction Writer's Association, Romance Writer's Association, etc.

The Author's guild says:

> Regular Membership: Traditionally published authors with at least 1 published book in the U.S.; self-published authors who have made at least $5,000 in the past 18 months from their writing; and freelance writers who have published 3+ pieces or made $5,000 in the past 18 months.

SFWA says:

> A published work of fiction of a minimum of 40,000 words either sold to a small press or self-published for which the author can demonstrate net income of at least $3,000 over the course of a year since January 1, 2013. Income can be in the form of advance, royalties, or some combination thereof or;

RWA just says:

> Per RWA policy, all prospective members must provide proof that they are seriously pursuing a career in romance writing in order to qualify for General membership. Either of the following serve as proof: One complete original work of romance fiction of at least 20,000 words. Multiple complete original works of romance fiction* which combine for a total of at least 20,000 words.

>Advances tend to be very small and are a loan from the publisher to the author.
No, not a loan. An advance does not normally get paid back if it doesn't earn out.

But it does get paid back if it does earn out. The payout profile looks basically the same as a non-recourse loan.

That just means it's a forgiven loan. The point is that the advance does not add to the money the author makes on top of royalties. Advances are not an additional cost to the publisher. They are an investment with some risk, but they control that risk by choosing the size of the advance.

... but what about graphic novels?!

> tying compensation to total sales numbers, tying compensation to milestones, or even just lowballing them.
Author contracts already do all of those things. Advances have gotten lower and lower over the years ("lowballing them"), and typically pay out incrementally at various phases of completion ("compensation to milestones"). Once the book is done, most of the author's compensation comes from royalties ("tying compensation to total sales numbers").
Authors are already highly incentivized not to commit "moral turpitude" because doing so will tank sales of their book and thus their royalties.
Publishers aren't adding morals clauses to incentivize authors. It's just another example of the classic move a large corporation in a position of power trying to grab even more power. If they could get away with it, publishers would add a clause to every contract saying, "We can demand your advance back at any time for any reason or no reason at all, just because we feel like it."

How things have changed. Byron was a rock star author at the same time as he was described as 'mad, bad, and dangerous to know' By Lady Caroline Lamb.

>If the publishers are truly scared that the author's behavior could lose them substantial amounts of money
The risk is not recouping their investment, but rather degrading the overall enterprise value of their entire publishing business through bad PR. Unless the author agrees to tie their pay to the performance of the entire enterprise (which why would you), something like a morality clause is a better option.

If one or more of the four people who have downvoted my comment could explain themselves we might all learn something here.

Let’s hope this attitude doesn’t trickle down into the legal profession where we have attorneys and layers in general refusing service to people who are morally corrupt /bankrupt or are previous felons. Or, don’t spend public dollars defending “bad” people.

Heh, imagine a world where the law requires the appointment of a public defender, but it's also disallowed by the bar association to serve as one.

Good on them.
I don’t know what the hell is happening but I don’t understand how people who support the ACLU and every other 90s liberal who supported free speech unencumbered can now get on board with this censorship which shamelessly hides behind “private cos are not the gov, so it’s not real censorship.
You don’t have to like the people, you can hate them, despise them, shame them whatever, but people should not be silenced.
We’re going to regret this short sighted spiral into self imposed censorship.

Humans of all kinds are bad about seeing beyond their own noses.
Having principles is hard when it might apply to / benefit someone you don't like.
That's not applicable to any particular group, it's a human problem.
I often wonder when talking to folks who I agree with:
How much does this person really think about this topic... and how much do they just think that this bad thing we don't like is bad because that guy did it? And would they be dismissive if someone we agreed with generally did the exact same thing?

Personally, I use the trick of substituting myself or someone I like in the position of the accused when trying to determine ethics/morality.

The most disappointing is the XKCD comic, which people still wave around. Being shouted down by the mob on a private platform isn't something to be applauded. And it isn't just "showing someone the door", as the comic puts it.

Indeed, that was the first XKCD I felt strong negative reaction to.
It's sad because it engages in two fallacies:
- The equivocation of the 1st Amendment with free speech
- The assumption that all people being de-platformed are trolls

Similarly, once a company has found out (or been reminded) that their author is a sex offender, they should no longer be under contractual obligation to publish it - that would be compelled speech, no?

What’s next lawyers and attorneys refuse to represent people of poor moral standing or worse are known felons?
WTF are we coming to?

Lawyers can and do refuse to represent people who have behaved badly towards them. The rules for criminal defense lawyers are usually much stricter on who they can refuse, but it can still happen. In particular, misconduct towards your lawyer will get you dropped.

Ok, but do they with frequency drop clients due to moral incompatibility?

> they should no longer be under contractual obligation to publish it
That entirely depends on what the contract says, which is probably why they're adding these clauses to the contracts.
The point is that there's no background "moral clause" in contract law. If you sign a contract, and then discover that the other person is a sex offender/nazi/actually Hitler, that doesn't matter. You still need to fulfil your obligations under the contract.
And we don't want to change this. Because getting on the wrong end of a Twitter dogpile is astonishingly easy to do. If the stakes were higher, and not only future careers but all existing contracts would be ruined, that would just inspire more dogpile. Then no-one wants to say anything in public, or where a journalist might hear of it, and the mob moves onto ever tinier infringements of ever more arcane moral rules.

> Because getting on the wrong end of a Twitter dogpile is astonishingly easy to do. If the stakes were higher, and not only future careers but all existing contracts would be ruined, that would just inspire more dogpile.
IANAL, but this is a good time to remind people that, in the U.S., but actively trying to sabotage a contract between two parties may be tortious interference[1], and something one can be sued for.
If social media platforms made reporting of and discovery for these kinds of behaviors easier, I suspect we would see a drop-off in such dogpiling.
[1] https://smallbusiness.findlaw.com/liability-and-insurance/to...

Are you arguing that pointing out to Hachette that Woody Allen's daughter accuses him of sexual assault should render someone liable? And this is supposed to be the pro free speech position?
Nobody on Twitter did anything but speech, did they?

> Are you arguing that pointing out to Hachette that Woody Allen's daughter accuses him of sexual assault should render someone liable?
I'm not talking about that specific case, but about the problem of twitter mobs in general (which is what the parent comment was talking about). It may apply to that case or not, but I'm not rendering judgement on that here.
> Nobody on Twitter did anything but speech, did they?
Telling the truth is not a tort. Often the behavior of twitter mobs rises above simply "telling the truth" and may involve epithets, slander, etc. which are not protected.
EDIT: Also, saying "break your contract or else we will harass you" is probably a tort

> "I don’t know what the hell is happening but I don’t understand how people who support the ACLU and every other 90s liberal who supported free speech unencumbered can now get on board with this censorship which shamelessly hides behind “private cos are not the gov, so it’s not real censorship."
What makes you think old-school liberals are on board with any of this? I would guess that they, like myself, are lying low to avoid being libeled, harassed, and/or "cancelled" by those who favor those things but they don't support such values.
For those old-school liberals and the rest of the political spectrum out there, just remember that one thing that can't ever be "cancelled" is your vote in primaries and on Election Day. Please go out and vote for what you believe in.

> just remember that one thing that can't ever be "cancelled" is your vote in primaries and on Election Day. Please go out and vote for what you believe in.
I've heard people argue that that's exactly what happened with the Trump win. People voted against the party who brought on "well he's an -ist" [racist, mysogist, etc]

Fundamentally it's the idea that you should not tolerate the intolerant.
This idea is what many people believe who justify the use of this kind of censorship Vs freedom of expression.

That’s problematic. Who decides what’s tolerable and not? Twenty years ago this posture would go contra liberal thought.
Do the accused soon not deserve representation because they’re intolerable?
It’s like show trials are wanting to show their face right around the corner any day soon.

> who decides what’s [intolerable]?
A fantastic first step is to eliminate anyone who reserve the right to unilaterally use violence in the name of religion.
After that, exclude those who want a special deal for their faction that they wont grant others.
See, easy.

The word violence in common usage used to have a meaning. Now it can mean anything you want it to mean. There is no solid ground down this path.

Fair enough: actual murders or direct threats thereof.

Curious, does it imply people in prison for rape murder and assault should not be able to have a book written, what about providing an interview?

This is already law in a lot of places. https://en.wikipedia.org/wiki/Son_of_Sam_law

That’s not the same. That says they cannot profit monetarily. So in this case of what’s his face had judgements against him, or indeed was serving a felonious sentence the state could seize proceeds. It doesn’t give them the right to censor publishing.

The usage of violence is already illegal.

See also, the BBC's radioshow on cancel culture and purity spirals, particularly the second half which details the progressive hollowing out of YA fiction publishing by sensitivity readers and the arcane rules of cultural appropriation: https://www.bbc.co.uk/sounds/play/m000d70h

More accurate would be saying that they oppose vague morals clauses.
Which is quite reasonable to do, otherwise in the age of twitter shitstorms this is free "get out of contract" card.

That's very similar to the reasons why I oppose codes of ethics. There's nothing wrong with being ethical and moral - but in these cases, it's just a pretext used by bureaucrats to attain even more power.

I worked for an electronics manufacturer that had a morality clause that extended to personal behavior outside of work that is legal. this is the classic “fired because bachelorette party pics on fb” situation. it was long enough ago, and i was young enough not to understand the implications

The goal of a publisher is to make money selling books. There are many books that publishers do not publish because of concerns that the book will not be a net positive to profits. Authors are free to self-publish, and it has never been easier to do so. Authors with no name recognition have been very successful at reaching large audiences. Woody Allen is already famous and could easily self-publish.
It seems like Woody Allen prefers the legitimacy that comes along with being published by a publishing company. Woody Allen can self-publish his book like many other authors do. I think the issue is less about "freedom of speech" (which Woody Allen has) and more about "legitimacy of an author's writings" (which I think is what Woody Allen is actually seeking given the claims that he sexually abused his daughter). If a publisher chooses not to publish because they don't want their brand used to legitamize an author's claims, is that a violation of free speech when the author is free to publish it elsewhere?

While what you say is true, the book publisher would already be covered if the clause merely covered illegal acts. Also, it's not as if the book publisher didn't know about Woody Allen's issues before they took the contract.
More fundamentally, everything you mention could as well be turned around the other way. What if, after signing the contract, the author decided they didn't like the publisher's reputation, and wanted to terminate the contract and self-publish? I expect the publisher would say something like, "hey, we have a contract! that's an obligation on your part!" If the author wanted an equally vague "morals clause" regarding the publisher, which gave the author an out to cancel the contract whenever they deemed it advisable, the publisher would not agree to such a clause.

Nicely timed to post this on the day of the Weinstein conviction.

Isn’t it rather about the Woody Allen contract?

This raises an interesting question as to whether authors should be able to have "publisher morals clauses" in book contracts.
If an author feels that their publisher is demonstrating moral turpitude (by for example, publishing Woody Allen's memoir), in a way that will harm sales of the author's book, should the author be able to get out of the contract?
At the very least, I think the author's guild has a strong claim that asymmetric morals clauses are bad. A publisher shouldn't be able to hold authors to a standard that they themselves are not beholden too.

Yes, I suspect that brought it to the fore.
Of course I'm sure if you looked over the back catalog of many publishers you'd see a huge number of (successful) books with highly questionable authors and they didn't mind publishing those. Howard Marks and "Mad" Frankie Fraser spring to mind.

As someone that has grown to have a more moderate view over free speech over time, I think morals clauses truly do have two sides.
There are behaviors that most everyone finds reprehensible, and when someone commits them we want to be able to shun them, to remove our connection.
There are many times in the past when this shunning has been abused to censor or otherwise oppress others.
Generally people feel like they believe the latter part is the most important part...until something occurs in the former part.
As a solution to this dilemma, some advocate strong "non-moral" stances (ala "free speech") where everyone can do as they want, unrestricted. That used to be my answer. But I've come around to believing that if society doesn't apply a means of guidance/restriction/social repercussions the void will be filled with emergent results (i.e. ugliness). Abused rules are abusive, but a lack of a set of rules doesn't lead to peace, it leads to warlords and those least willing to restrain their own actions in the name of empathy gaining the most power.
I don't have the right answers, but I'm confident that walking away from the questions is not the right answer.

>As a solution to this dilemma, some advocate strong "non-moral" stances (ala "free speech") where everyone can do as they want, unrestricted
Since when is that the definition of free speech? Free speech has nothing to do with a lack of repercussions to what you say, and especially do, it's about having the right to say things, even if disagreeable, without systemic silencing or punishment from a higher authority. It doesn't mean you can't shun the crap out of people saying dumb shit though.

Here's the trick: Higher powers are how society applies repercussions.
Note: I'm aware U.S. Govt 1st amendment doesn't restrict anything but the govt. I think we're both talking about the general concept of free speech, not that particular example.
Let's take the example of twitter. People swamp twitter with misinformation and toxic behavior. As individuals, we're all free to ignore/block the annoying/misleading people, and the company (the higher power) does not interfere. Ideal, right?
Except that the toxic people drive the others away. White supremacists attack and threaten people of color. Toxic bros attack and threaten women. Misinformation swamps the good information, and only the people that are already experts can tell the difference (and the misleading people will claim to be experts, so...).
If your response to above is "threats are illegal", you've not paid attention to how threats can made sufficiently arguable to be legal, but still clear enough to threaten.
Putting the burden on each individual to filter everyone is NOT taking "no" stance, it's taking the stance that those most willing to "speak" (which includes expressive actions) are given power. When the talking is for good things, that's great. But the people least willing to consider other people, the people lacking empathy, will have no restraint on what they say (or do, expressively) unless imposed. Long before they suffer any personal social repercussions they care about, they will have inflicted their harm upon a lot of people.
Preventing our "higher authorities" from taking action is reducing the power of collective people to take action. Sometimes collective people are wrong, but sometimes they are right, and that's why I say the topic isn't simple.

> "Putting the burden on each individual to filter everyone is NOT taking "no" stance, it's taking the stance that those most willing to "speak" (which includes expressive actions) are given power. When the talking is for good things, that's great. But the people least willing to consider other people, the people lacking empathy, will have no restraint on what they say (or do, expressively) unless imposed. Long before they suffer any personal social repercussions they care about, they will have inflicted their harm upon a lot of people."
While phrased as being benevolent, this is incredibly Orwellian. It is tantamount to saying "The adult voting public cannot be trusted to identify 'wrong' beliefs themselves; they must be protected from hearing these dangerous thoughts and only permitted to hear 'correct' beliefs (which conveniently happen to coincide with my own)."
"Beware of those who would deny you access to information for, in their hearts, they dream themselves your masters." Though this quote's origin is in fiction, it turned out to be terrifyingly prescient.

> It is tantamount to saying "The adult voting public cannot be trusted to identify 'wrong' beliefs themselves;
The issue isn't "identify", nor "trust". It's effort. The adult voting public are the ones that should be picking (and auditing!) those that are taking on the effort, as well as drawing the line as to where the effort is worth handing off and where it is worth keeping in personal hand.
Requiring everyone to be an expert on everything in order to evaluate it is a problem. I'm not saying they CAN'T be experts, I'm saying we have the right to choose that we don't HAVE to be. As a group. And pick whom we empower to deal with that. And pick what limitations and reviews it has to go through.
Again, I'm not saying restricting speech is free of problems. It has tons. But so does unrestricted speech. That's why it is complicated and hard, and pretending that everyone is a rational and well-intentioned actor is not a good idea. (Pretending power structures don't have problems is also not a good idea, but I've already admitted that)

> The issue isn't "identify", nor "trust". It's effort.
This is merely shifting the goalpost in the game of censorship.
How is
>"The adult voting public cannot be trusted to _invest sufficient effort_ to identify 'wrong' beliefs themselves"
functionally different from
"The adult voting public cannot be trusted to identify 'wrong' beliefs themselves"
?
The particular reasons for someone believing that the public cannot be trusted to identify 'wrong' beliefs still assumes that the public cannot be trusted to identify 'wrong' beliefs and puts us right back where we started. Not to mention, how is that a better argument than any other qualification for the same idea? Why not education as opposed to effort? Or experience?
The ultimate issue is that any way you spin it, it leads to a centralized authority being entrusted with the task of determining what is and isn't wrong and that is a fundamental non starter if we are to try and preserve free speech in a meaningful way. No one entity can be trusted to be the arbiter of morality for everyone.

> How is "The adult voting public cannot be trusted to _invest sufficient effort_ to identify 'wrong' beliefs themselves" > functionally different from "The adult voting public cannot be trusted to identify 'wrong' beliefs themselves"
You've inserted the word "trust" in there - I was saying we all shouldn't HAVE to.
Let me insert "trust" into your argument, not to be troll-ey, but to show how that's biasing the argument needlessly, and I'll also answer your question.
I recognize my limitation to not be an expert in everything, including distinguishing experts in all fields from those that falsely claim to be.
I recognize that others are ALSO so limited. If you want to call that not trusting people, feel free, and let's adjust this argument to be "there are other people who feel as I do" - the conclusions will be the same.
We (myself and these like-minded others) wish to select those we do trust to filter out the worst abuses. We'll set up rules to say on what basis these decisions are made.
Of course, any system is prone to abuse, but we judge that our ability to monitor this group is better than our ability to monitor literally everyone.
You aren't trusting us to do that.
> it leads to a centralized authority being entrusted with the task of determining what is and isn't wrong and that is a fundamental non starter if we are to try and preserve free speech in a meaningful way
Considering my position here that absolute free speech turns out to be harmful, this feels like a tautology.
Humans have been filtering and evaluating words from others throughout history. Often poorly, even without a centralized authority involved. Often a centralized authority filters words poorly. Yet in the face of both of these words have been heard, progress is made. Perhaps the more important aspect is that we individuals value hearing the words of others, even words we don't like, and push back against excessive filtering, without requiring that no filtering be done.
You aren't trusting us to be able to do that.

There are already many forms of speech that have limited or no protection in the United State: perjury, defamation, incitement, threats, obsceneties, fighting words, commercial speech, and copy-written works.
I have yet to see a proposal for additional classes of unprotected speech that materially benefit the social discourse.

Are you referring to the govt or more broadly?
Because (in relation to the article) we're talking about companies and social groups making decisions, not just the govt. Notably, I think the US 1st amendment is basically based around the idea that we, collectively, will take social action above the personal level. If you remove that ability, my defense of the 1st amendment reduces notably.
I see the social discourse primarily being improved by the general awareness that it CAN be harmed. To think it's immune from harm outside of censorship is the key problem.

What categories of speech outside of the categories I've listed would be valuable for private entities to restrict?

Sure, so the current US admin used it's "higher power" to force the EPA to remove all references to climate change.
It legally can not use that power for non-government entities, including those mirroring that content.
And you're suggesting it should be able to?
> Except that the toxic people drive the others away
And who gets to decide who is toxic? I've seen a user have a meltdown because someone compared democratic socialism to communism, and claimed everyone who disagreed with them was toxic. Should they get to be the judge?
> threats can made sufficiently arguable to be legal, but still clear enough to threaten.
Let's be clear - a threat in and of itself is _not_ illegal. A threat must be a direct, actionable call to violence to be illegal. Someone telling you they're going to make fun of you, post embaressing things or otherwise "threaten" you isn't illegal.
> Putting the burden on each individual to filter everyone
Is a recognition that humans are free agents and get to make their own choices in life. No man or woman is fit to play the censor.
> they will have inflicted their harm upon a lot of people.
What harm? Mean words on the internet? That pales in comparison for a regulatory agency, say the NSC, to suppress true information, say about a major pandemic, by abusing it's powers of censorship.

> > Putting the burden on each individual to filter everyone
> Is a recognition that humans are free agents and get to make their own choices in life.
And also puts the biggest burden upon those in the minority, even if the majority thinks they shouldn't have that burden.
> No man or woman is fit to play the censor.
But apparently they can drive other men and women away. It's defacto censorship, just of another source.
> What harm? Mean words on the internet?
Yes. Pointing out (and sharing) where you live, perhaps some details about your kids, and discussing the tragic consequences of families that lose children is just one example of "mean words on the internet". And maybe, per the above, the govt shouldn't be able to do anything about that. But saying that we, as society, just need to get thick skinned about that and suck it up as individuals is naive as to whom we are empowering and whom we are harming. We have more options than just dealing with things as individuals.
I'm not likely to respond further - my goal was not to debate the topic, but to share that there are some nuanced views on the topic of companies practicing some level of limitations on the free speech of others - anything more is well past the penumbra of the article. You clearly disagree with my views, and you clearly aren't alone, but I feel I've expressed my view well enough.

The 1st Amendment of the U.S. Constitution protects free speech from government regulation, but that does not mean it is free speech.
Free speech as a concept absolutely does mean an absence of consequences for, or at least a relative tolerance of, speech that people in society may generally disagree with.
It stems from the belief that the truth can sometimes be unpopular, and that in order for us to benefit from the truth we must give people some latitude to be unpopular.
The 1st Amendment does not enforce free speech in the social sphere merely because that is not the purview of the Constitution.

I'm not sure I'd have put this quite as emphatically as you, but there's a very important point here about the principle of free speech as compared with government suppression of speech.
While nodding towards quite real problems involving, let's say for example vaccines, I don't think any of that troubles the principle of free speech in the slightest. Practically applying it is difficult and as error-prone as is anything else, but the principle is enlightening in that task.
There does exist a principle of free speech that is not the same thing as the various legal principles, constitutional rules, laws, or rules of thumb that say government suppression of speech is worse than other kinds. Crucially important though those have been, it's still true that suppression of speech itself is uniquely bad: Fundamentally, knowledge is not infallible, all problems are caused by lack of knowledge, and speech is the means of correcting all other mistakes. Practically, we find it all too easy to socially suppress good ideas. It's hard to see the true extent of that because it's impossible to see the upside that hasn't happened as a result of that suppression.
I hardly need to refer explicitly to some of the specific ideas of the not-distant past about social control that we have since learned, though they were certainly obviously good, were not good.
Practically, it's hard to escape the idea that taking seriously the millennia-long stream of historical failures of ideas -- and their replacement with better ones -- does entail treating ideas that are obviously wrong with considerably more flexibility and humility than is tempting.
I recommend David Deutsch's book The Beginning of Infinity to shake up anybody's ideas about this, no matter where you start from.

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