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Author Topic: Any lawyers here? I need help
Wannabe
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[Situation resolved, thanks for the help]

[ April 02, 2013, 04:46 PM: Message edited by: Wannabe ]

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extrinsic
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First off, I am not a lawyer, though I do have practical experience and education and training in intellectual property and contract law.

The expectation of the exclusive agreement both parties entered into is exactly that. That aspect is ironclad. You have asked to be released from the agreement. They have refused. That is ironclad too.

One possible alternative you have is to discover a material breach on the part of the publisher. I don't see that being likely, except for nonpayment if the contract terms for timely payment have not been met in good faith. That is a sufficient material breach to void a contract. Contrarily, all they have to do to repair the breach is pay what's due.

However, you are at an impasse upon which I strongly urge and advise you to seek professional legal advice before taking your product elsewhere.

Personally, frankly, I'd advise leaving it alone and moving on to new horizons. Far less strife and heartache and expense that way, trust me.

Product performance is directly corollary to consumer-perceived value. Surely you can do better with the next project, having learned a valuable if confrontational lesson about publishing.

[ March 18, 2013, 01:47 PM: Message edited by: extrinsic ]

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Wannabe
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Thanks for the advice but I think in the law a breach of contract is considered to be morally neutral and not "wrong" so long as the non-breaching party is restored. I'm not going to wait 7 years for the contract to expire. I would rather pay damages and be released from the obligation, which I consider to be quite predatory in hindsight.
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Meredith
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I'm not a lawyer, either. However:

Audible is Amazon. They're out of your weight class.

Just. Don't. Go. There.

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extrinsic
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Did you know that intellectual property case damages may include costs of litigation? No intellectual or contract lawyers take cases on contingency or pro bono bases. Up-front retainers for intellectual property and contract law cases run into tens and hundreds of thousands of dollars. Audible has a history of fierce litigation and a stable of competent lawyers.
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rcmann
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There is also the matter of your own rep to consider. Things get around. If you get a rep as a contract breaker, it might come back to bite you in the ass.

If they fail to pay you the money that you are fairly owed, you have just cause to challenge the contract IMO. (I'm not a lawyer, etc.) But if they have lived up to their end of the bargain, it behooves you to live up to your end of the bargain.

If your only complaint is that the book hasn't sold well, I urge you to cultivate patience. Frankly, if posting it on a division of Amazon won't get it sold, nowhere else is likely to be more lucrative. Again, IMO.

I have seen several lawsuits come and go among my employers. I never saw one yet where either party did NOT come out worse off than they went in. The lawyers made money, hand over fist. Everyone else on both sides got reamed. For one audio book it might be worthwhile to let it simmer and see what happens in the first year.

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Pyre Dynasty
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If you really feel that strongly about it then get a lawyer. But, this could get really expensive. Is this book worth all that? If it's not selling at Audible what makes you think it will do better somewhere else? (I don't even know where that somewhere else would be.)

Take what rcmann is saying seriously. If you are bailing on a 7 year contract after four months then someone else is going to be hesitant to offer you any contract. New York is a small town.

My non-lawyery advice: leave it alone. Let it gather steam, advertise it. Write your next book instead of wasting all your time fighting a contract you signed.

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History
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I concur with what has been said.
Never breach a contract.

You can contest it, if you feel the other party is in breach. For this, I advise legal council.

If there is no breach, you may request early release from a contract which is totally at the other party's discretion, and again I'd advise this be done through legal council.

This will cost you $$, however. For something you acknowledge has "not done well", it is unlikely to be cost-effective.

You would do better to self-market the availability of your audiobook to boost your sales at Audible. Encourage reviews. You could start here at Hatrack.

And there is nothing better to promote sales of existing works than new content. Keep writing. Get more of your work out there.

Again, never breach a contract. You will rue it.

Dr. Bob

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Kathleen Dalton Woodbury
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What everyone else said, Wannabe. Breach of contract is not neutral, it's actionable.

If it were neutral, what point would there be in having contracts in the first place?

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MAP
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I'm not a lawyer either, but I agree with everything that has been said. DON'T BREACH THE CONTRACT.

Give it some more time. Four months isn't enough to determine if it is going to sell. Do some promotion or write something new. If you feel that you were taken advantage of, don't do it again. But don't try to get out of it. Contracts are serious business. Going to court could bankrupt you.

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Grumpy old guy
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The only ways to exit a binding contract are:

1. Breach of the terms of the contract by either party--actionable and you'd better have very deep pockets if you're going up against Amazon. They don't kid around where their property rights are concerned.

2. Unconscionable conduct on the part of Amazon. In other words, they misrepresented themselves, their service or the expectations on the saleability of your audio book. Takes a Judge to determine if Amazon has behaved in an unconscionable manner.

If a Judge finds against you in a civil action for breach of contract, Amazon can be awarded damages that can add up to the value of everything you own. Amazon might be able to successfully argue that the commercial losses incurred by them are in excess of $1 million. Let's not even go near punitive damages to deter others from similar breaches. If they can, and they have the market share to make a reasonable case, then you're screwed.

Finally, as has been commented, your case will hit the news, the internet, the blogger-sphere and even Aunt Sally will hear about it. That means no Agent or Publisher will deal with you--ever.

Put it all down to experience and move on. The only way you can look at this is as a valuable lesson learned--and you're still breathing.

Phil. (Not a lawyer but have studied Commercial Law)

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rcmann
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I'm taking a guess here, and I could easily be wrong. But from your original post I conclude that you are either very young, or you feel some driving need to make fast progress with this book.

If you are young, this gray haired grandparent advises that seven years will passes with distressing speed. Then, if you are still dissatisfied, yank your book.

Meanwhile there is nothing preventing you from reporting any truthful issues you have with Amazon. They are in business to make money, and everyone with business experience knows that word of mouth is worth more than any advertising campaign. It is not in their best interest to piss off their clients.

If you are feeling pushed for some other reason, like serious illness or old age creeping up or dire need of fast money, I recommend writing another book. Then another one. Then another one. Then another one. Rinse and repeat.

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redux
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quote:
But as far as I can tell a breach of contract is not unlawful so long as the non-breaching party is restored to their expectation interest(?)
It is a civil matter, certainly not criminal.

quote:
If a Judge finds against you in a civil action for breach of contract, Amazon can be awarded damages that can add up to the value of everything you own. Amazon might be able to successfully argue that the commercial losses incurred by them are in excess of $1 million.
I find this extremely unlikely given that in breach of contract cases the remedy is to make the "person" whole. There has to be actual damages and only in exceptional cases would a judge award punitive damages for breach of contract.


...

There is always small claims court which you could use to sue for money owed.

Nevertheless, you signed a contract, it's a seven year term, best to wait it out.


Edited to add: What does the contract say? Usually there are clauses/provisions in a contract regarding damages.

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extrinsic
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Breach of contract is typically a civil litigation. However, where intellectual property law is concerned, in the U.S., reproduction rights claims are exclusively in the federal dominion. Some states have laws and jurisdiction for copyright torts. But crossing state lines using telecommunications lands such a case squarely in federal jurisdiction. Intellectual property cases are heard before a specially constituted court and all parties are required to have qualified legal representation; to wit, intellectual property lawyers.

And breaches of reproduction rights may have criminal implications. Egregious and willful breaches are criminal. The intellectual property rights court can and does levy criminal penalties: federal imprisonment and penalties on top of civil damages.

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MattLeo
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OK, you need a lawyer if you're contemplating doing this. I'm not a lawyer, but I'm not a Talmudist either and that doesn't stop me from writing characters who are. So take the following in the same vein; presented for your entertainment and edification, but nothing you'd want to stake your soul on.

The legal theory you are referring to is called "efficient breach". It works like this. You enter into a contract to deliver your entire stock of one thousand widgets to Company A at $1 apiece. Company B then says, "we need those widgets even more, we'll pay you $3 apiece." You go ahead and deliver the widgets to B, and Company A sustains $1500 of damage.

Efficient breach theory says this is perfectly acceptable as long as you pay Company A $1500. Company A is not in the end harmed; they end up with exactly the same net worth as if you had fulfilled the contract. Arguably this is better for them because it's a bird in the hand. Company B has its vital widgets, and you've got $500 more in your pocket, so both of you benefit.

Efficient breach (the argument goes) is better for society than an irrational adherence to a less-than-optimal contract, so long as everyone is just as well off or better for the breach. Now this is a somewhat dubious line of reasoning, because it assumes that everything in life can be precisely valued in fungible dollars. However in purely business terms that's a pretty reasonable assumption.

Not carefully: that doesn't necessarily make attempting an "efficient breach" a good idea for *you*.

I know what your'e thinking. You're thinking, "Amazon isn't selling any of these anyhow, so it won't really hurt them if I sell a few on the side. It's not coming out of their revenues." That's incredibly naive. They have an *exclusive* contract with you. Anything revenue you make selling copies is going to be counted against you as damage. The more successful your business strategy is, the more they'll make you pay. Your only hope is that you are selling so few copies on the side they can't be bothered with you, not even to make an example of you.

The bottom line is unless you think you can sell tens of thousands of copies of your audiobook more than Audible would, you won't generate enough revenue to pay the legal fees. If you expect to sell that many more audiobooks then you should plan on investing five or ten thousand dollars up front on legal advice, rather than asking strangers on an Internet forum, which kind of clues me in on where on the spectrum you think your returns will be. If ten thousand dollars up front sounds like too much money to be slinging around, you're not rich enough for this game.

Now let's set the armchair lawyering aside, and let me give you *business* advice, which I'm actually qualified to do. Before you cut a business partner off at the knees, look for a win-win approach to the problem that deals him in on the up-side.

For example, ask yourself *why* your book isn't selling so well on Audible. Since Audible purchases are made through Amazon and automatically integrate with your iTunes library and iPod/iPhone, you're very unlikely to be able to improve your product distribution.

So maybe Audible isn't marketing your book as much as they could. Well, if your solution is for *you* to take over the marketing personally, fine. But why mess around with distribution? If you're going to orchestrate a marketing campaign for your book, *just do it*, leaving the audio book on Audible. Chances are they'll be very cooperative, and if you look like you're ready to run with the ball, they may even help you.

Sure, there may be reasons this isn't going to work for you, but you should always try working *with* your partners before you stab them in the back.

Finally, as someone above mentioned, seven years is not a long time. Don't spend all your energy on zero sum games with your old products -- develop *new* ones. Those you can sell any way you want and will sell your existing book. Too many writers put all their eggs in one book-basket. Unless your name is Harper Lee that's not a good career strategy.

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RyanB
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You may already be doing what I'm going to suggest. If so, just ignore me.

Get an Audible affiliate account. Market the book yourself using Audible's free book for signing up deal (or two book deal if you have another in mind that goes along with yours). Then you can collect your royalty and the affiliate commission AND you can market your book to people as FREE (as long as they're not already on Audible).

If there's a strategy that's better than that I'd like to know what it is because I think it would be helpful to all of us here.

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Wannabe
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Situation resolved, thanks everybody for the help.

[ April 02, 2013, 05:48 PM: Message edited by: Wannabe ]

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History
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Fascinating. Your resolution would seem to go against precedent (or risk of setting a precedent).

If you have/will have a blog someday, it would be interesting to see the arguments you presented and the wording and character of their response.

It is not what I would have expected at all.

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