June 23, 2006:
Koziol vs. Booksurge -- Cause for Cheering... or Head-scratching?

For once, I disagree with my husband.

This is not a common occurrence. As you can probably imagine, I am normally a meek, mild, submissive wife, unlikely to voice a wayward opinion... Ahem. Well, perhaps not. However, in most cases, my husband's opinions and mine run very much "in sync."

Until the other evening, when I mentioned the lawsuit filed by one Leon Koziol against the print-on-demand publisher Booksurge, and its parent company, Amazon.com. "Good for him!" my husband declared. "Time someone got those (expletive deleted)."

And to my surprise, I found that I did not agree. This might also surprise anyone who has read my articles about the potential perils of print-on-demand (POD) publishing and vanity publishing in general; most readers would suppose that I, too, would be all favor of anyone who is finally challenging this industry.

Let me point out, therefore, that I am not in any way opposed to the idea of print-on-demand publishing; in fact, I think it has the potential to be a huge boon to writers. I have used it myself, and expect to use it again in the future. It offers an ideal means to accomplish specific goals. I most certainly do not think that all POD companies are "predators" who take advantage of unwary authors (consider Lulu.com, for example), nor do I have any idea whether BookSurge has a reputation for doing so. But problems are bound to arise whenever authors believe, or are led to believe, that POD can accomplish goals for which it is not suited. And if your goal is to see your book on the bestseller lists, praised by reviewers and read by thousands, POD is most emphatically not suited to help you achieve that goal.

Unfortunately, several major POD companies (who shall not be named in this editorial) have built their business upon practice of playing on the dreams of unpublished authors. "Don't you want to be a published author?" their ads proclaim (or words to that effect). But what, exactly, does that word "published" mean? To an author, it conjures up visions of books lining the bookstore shelves, from whence they fly into the hands of eager readers. It means reviews and booksignings and royalty checks. It means that your book has gone out into the world, like a fledgling bird that has finally left the nest and taken flight.

Unfortunately, what most POD publishers mean by the word "published" is simply "it looks like a book." It's typeset, printed, and bound, with a glossy cover with your name on it. Holding it in your hand, you have to admit, "Yep, that's a book. No doubt about it." And for all too many authors, that's pretty much where the process ends. According to industry statistics, of the thousands of POD titles published every year, most sell fewer than 100 copies. (For more on the statistics and their sources, see my article, "To POD or Not to POD: Some Pros and Cons".) Of course, we've all heard occasional POD success stories; not long ago, a reader sent me an e-mail about an author who had made $40,000 from his POD book. The problem is, we hear these stories for the same reason that we hear about lottery winners: A lot of people play, but only a handful win.

Except, you can buy a lottery ticket for as little as a dollar (which is why even I will play occasionally; just last week, I bought three $1 tickets, and got a whole dollar back!). Playing the POD lottery can cost $1000 or more, and the average author's chances of ever "getting it back" are exceedingly slim. The math is simple: If you're getting a (generous) 25% royalty on a title priced at (typically) $17, you'd have to sell 235 copies just to break even. Most authors don't.

So now that an author has finally done more than simply swallow his disappointment, and has taken on a POD company head-on, why am I not cheering? Why, instead, am I scratching my head? Because the case of Leon Koziol vs. Booksurge (and Amazon.com) just doesn't add up. Leon Koziol wants Booksurge to pay him $11 million -- but too many things about his suit don't make sense.

Let's take a look at the case as it has been presented in the news. Here's a quote from one of the shorter news reports on the case:

This looks fairly straightforward on the surface, but the picture gets murkier as one explores other, more detailed reports. For example, while $1 million of the lawsuit is for "punitive damages," much of the suit is related to that term, "disparagement."

Now, I am not a lawyer, and I've put that in bold type to appease any lawyers who might be reading this. I do not know what the legal definition of "disparagement" may be. I do know what it means in ordinary English, however. If you were to write me an e-mail (and I'm sure someone will) stating that "this was the most ridiculous, inane, dunderheaded editorial ever published," I would consider that a "disparaging" comment. Thus, when I read that, as stated above, "the company issued a press release that 'disparaged the book's potential'" (emphasis mine), I instantly assumed that this meant that the company said something disaparaging in that release. Such an action struck me as rather odd, if not stupid, since the whole purpose of the release was to promote Koziol's book, so that it would sell and make more money for everyone.

However, it turns out that the company did not, apparently, actually say anything "disparaging" about Koziol or his book (beyond misspelling his name). Instead, according to an article in Publisher's Weekly, Koziol is claiming disparagement because "Koziol maintains that BookSurge's failure to produce quality products ruined his reputation." In other words, Koziol says he has been disparaged because BookSurge produced an inferior product.

Well, unlike me, Koziol is a lawyer, so I have to assume he knows what "disparagement" means. And as an author, I do know what it feels like to wait eagerly for that first shipment of books -- only to discover that they are "an inferior product." It's awful. It's crushing. And if there's nothing you can do about it, it goes beyond mere "disappointment." So I should be able to sympathize.

Except... I keep reading the details of Koziol's "deal" with BookSurge, and again my fingers keep itching, figuratively, to scratch my head. Because instead of wanting to say, "Oh, you poor fellow, I know just how you feel," I keep wanting to say instead, "What were you thinking?"

Let's review that news release again. In March 2005, Leon Koziol entered into an unwritten agreement with BookSurge, whereby he paid the company $5000 for 250 books, to be delivered within six weeks -- which was apparently a rush order. Here's where my head-scratching starts in earnest. Koziol is a lawyer. He is a candidate for state senate in New York. And yet he throws thousands of dollars at a company to produce a book that, allegedly, he spent two years writing -- without any sort of written agreement?

Next, the company fails to deliver on this unwritten promise. The books are late, and when they do arrive, they are, according to Koziol, "riddled with misspellings, jumbled text, mismatched pages and other errors."

Now, I know what I would do in this situation. I would do everything in my power to insist that the company "make good" -- by which I mean, "give me what I paid for." If I could prove that the errors were the fault of the company (i.e., not present in my manuscript), I would firmly request that the company either (a) refund my money or (b) re-do the books correctly, at their own cost. I also know what I would not do in this situation: I most certainly would not give the company even more money! Yet this is exactly what Koziol does: He gives BookSurge yet another $4,500 for an additional 750 books, which, he says, were never delivered. (Thus I guess we'll never know if BookSurge got those "right" or not!)

A second thing that starts me scratching my head is the question, "What, exactly, was Koziol planning to do with 1000 print-on-demand books?" There's usually only one reason why one would buy such a large quantity of books: To resell them. But how? Where? It's virtually impossible to get POD books into bookstores, irrespective of questions of quality, because (a) unsold POD books cannot be returned to the publisher, and (b) POD books are so expensive to produce that they can't be offered at standard bookstore or distributor discounts. finally, if you want to sell your own book, it doesn't make much sense to pay an average of $10 per book when you can go to a traditional book printer and get the job done for about $2.

Yet here we have a situation in which a skilled lawyer and politician enters into an unwritten contract with a POD publisher to produce 1000 copies of a book that cannot be sold in stores (not, at least, by the author himself) -- and when the first print run comes back flawed, instead of simply demanding his money back, he orders even more books. When those aren't delivered, he still waits almost an entire year before suing the company for $11 million.

Now before you decide that I've suddenly become a flack for the POD industry, let's take a quick look at the type of author who is most likely to be taken advantage of by the more unscrupulous segments of that industry. Typically, such authors fall into two categories: Those that lack sufficient information about the publishing industry to make an informed decision, and those who may have the information but choose not to accept it.

In the first category are thousands of what one article on Koziol refers to as "recreational" writers -- writers who may have produced a book, but who are not part of the writing "profession." They are not, one might say, "in the know." They have not, like so many of us, read dozens of books and articles on how to find an agent or write a synopsis or negotiate a book contract. It is easy to point out that the Web offers a wealth of free information for writers, but in order to make use of it, one has to know enough about the writing profession to know where to look and what to look for, and one also has to be aware that one needs that information in the first place. Unfortunately, the first thing that is likely to pop up in a search for "how to get published" is paid ads for the top POD publishers.

In the second category are those writers who have read the warnings about POD and vanity publishing -- but are firmly convinced that their book will be the exception in the vanity publishing lottery. These writers are a bit like Steve Martin in the movie The Man with Two Brains, where he stands before the portrait of his dead wife asking her to give him a sign if he shouldn't marry Kathleen Turner. The portrait spins, the lights blow out, a wind rises, and a ghostly voice wails "Nooooooo!!!!" When it is over, Steve Martin is still standing there, a bit disheveled but smiling. "Any little sign at all," he says. "I'll be watching."

I can understand how easy it is for the average "recreational" writer, who knows little or nothing about the publishing industry, to be scammed. Hey, I've been published by the National Library of Poetry, and I bought the anthology! I can also understand why someone who has already tried the traditional approach to publication might become frustrated or desperate enough to try something that promises better results (even knowing that the promise may be hollow).

But the "average" recreational writer doesn't typically hold degrees not only in law but in business and public management. The average "frustrated writer" is rarely skilled in the art of investigation and information-gathering. So what keeps me scratching my head over Koziol's situation is this: How does a savvy lawyer, politician and business expert end up throwing $10,000 at a company without first investigating that company's claims and reputation? How does someone whose very business rests upon being able to investigate claims fail to determine whether BookSurge had a good production track record -- or even whether a POD company was the best choice for publishing his book in the first place? Why would a legal expert put his money and his dream on the line without a written contract (which could have been enforced if the company failed to deliver)? And once the company allegedly did fail to deliver to his satisfaction, why on earth did he throw good money after bad? It's questions like these that prevent me from working up a great deal of sympathy for Leon Koziol.

Does this mean that I feel sympathetic toward the POD/vanity press industry instead? Not a bit. There are still plenty of predators out there who are making a profit off the dreams of unwary authors. But if that industry is going to be sued by one of its "victims," I can't help but wish that it could be someone who really is a victim, rather than someone who had every opportunity not to be.

For more information:

Amazon.com/Booksurge Sued

http://mayareynoldswriter.blogspot.com/2006/05/amazonbooksurge-sued.html

"Delays on the POD Subsidy Express" (Publishers Weekly, June 5, 2006)

http://www.publishersweekly.com/article/CA6340616.html

"Sue for $1 a typo!! I love it!!" (Blog This! Miss Snark, the Literary Agent

http://misssnark.blogspot.com/2006/06/sue-for-1-typo-i-love-it.html

Related Articles:

To POD or Not to POD? Some Pros and Cons, by Moira Allen

http://www.writing-world.com/publish/PODstats.shtml

Subsidy Publishing: Sacrificing the Dream, by Tina Morgan

http://www.writing-world.com/publish/dream.shtml

The POD Quandary: How to decide if print-on-demand publishing is right for you, by Brenda Rollins

http://www.writing-world.com/publish/POD.shtml

The Price of Vanity, by Moira Allen

http://www.writing-world.com/publish/vanity.shtml

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