The second folly I want to talk about is somewhat embarrassing, since it is my own. Publication contracts are always an adventure for academic authors, of course; we are routinely taken advantage of by publishers who know that publication is a job requirement and believe they have us in a stranglehold. I once read a comment by a lawyer who works with authors that signing an agreement with one of the major publishers was akin to getting into a car with a clearly intoxicated driver – no sensible person should do it. So in this story I have no one but myself to blame. Nevertheless, I want to tell folks about it because it was not one of the big publishers that treated me badly; it was my own professional organization, the American Library Association.
The publishing arm of the ALA asked me last spring if I was interested in writing or editing a book on a particular topic that they identified. I was interested and, after talking with some colleagues and devising a plan that would combine some long essays with shorter case studies, enjoying, I hope, the best of both monographs and edited volumes, I agreed.
Once our proposal was accepted by ALA, we got to the point of negotiating a publication agreement. Our editor was quite accommodating about most of the issues we raised, but on one point he was inflexible — the indemnification clause. As most authors know, these clauses are used by publishers to shift most of the risk of running their business to the authors, the people who have the least control over the process and are least able to actually defend any lawsuit. Sometimes, of course, these clauses are moderate and really try to balance the risks. But not the ALA’s. Here is the clause I agreed to:
“The Author shall indemnify and hold the Publisher harmless from any claim, demand, suit, action, proceeding, or prosecution (and any liability, loss, expense, or demand in consequence thereof) asserted or instituted by reason of publication or sale of the Work or the Publisher’s exercise or enjoyment of any of its rights under this agreement, or by reason of any warranty or indemnity made, assumed or incurred by the Publisher in connection with any of its rights under this agreement.”
The clause goes on to say that “The Publisher shall have the right… to defend such claim, demand suit, action, proceeding or prosecution by counsel of its own selection and at Author’s expense….”
As I say, I am embarrassed to have signed this; were it not that, at that point in the planning, there were a dozen other people involved who are writing case studies, I would have walked away. I consider this clause shocking for a couple of reasons.
First, I am indemnifying ALA for anything that might go wrong, even if I have nothing to do with it and no control over it. This is notably worse than many indemnification clause, which often are limited to actions that the party making the indemnification has some control over. But here, even if ALA publishes the book with artwork on the cover that they fail to license properly, I could still be held liable for their mistake, even though it was unrelated to my authorship of the text. This is not just my interpretation, by the way; the editor admitted to me that he understood the contract the same way.
Second, I cannot even decide for myself how the action will be managed. ALA has absolute control over who the lawyer would be who dealt with whatever problem arose and what the legal strategy would be. My role is just to pay the bill. In a later sentence, the ALA does acknowledge that I might take control of some legal action, but only “with prior written approval of the Publisher.” They have all the control, I am responsible for all the costs. Nice work if you can get it.
I did try to change this, of course. I was told that ALA’s position was that this clause, unlike the rest of the agreement, could not be altered in any way. I asked to talk with the lawyer who wrote it and was told I was not allowed to, because it was non-negotiable. Even more than the actual provision, this inflexible and patronizing attitude was deeply offensive. To add insult to injury, the editor tried to make me feel better by telling me that this was just legal language and would never actually be enforced. This “don’t worry, we will never actually do the terrible things this agreement allow us to do” attitude is endemic in academic publishing, and it is obnoxious; if you don’t mean it, don’t include it, and if you insist on it, you obviously DO mean it.
It is not really news that publishers abuse authors. But the ALA preaches values that are contrary to these practices. As librarians, we support authors and encourage creativity, yet this exploitative agreement patronizes authors who write for the ALA and puts them at unconscionable risk. I have regretted signing this contract since the moment I did it. I will write/edit the book because I believe it will be valuable. But I think that I will not renew my ALA membership when it comes due; I no longer believe that the organization represents the values that matter to me as a librarian.