Proof Negative

In which it is shown that publishers cannot legally restrict the sale of proof copies of books and why it is silly for them to even bother.

Last month, British publisher Faber & Faber sent an email to the owner of Achuka, an influential website covering children's book publishing, saying,

I hope that you will cooperate with us by removing all Faber proof titles from your site. The books are sent to you in good faith for review purposes, not for financial gain. I am afraid that if you continue to sell these copies we will have to remove you from our mailing list.”

—Head of Children’s Sales, Faber

Though it wasn't well worded, Faber meant that the owner of Achuka should stop selling proofs on eBay. After the request generated some controversy, Faber clarified that its proofs were not for sale and could not be sold from "six months before" publication to "six years" after.

This is not the first time that publishers have taken steps to prevent the sale of proofs and advance review copies (ARCs). On October 4, the New York Times reported, "Early in the spring, Scribner sent out 7,000 galleys [of Stephen King's forthcoming novel, Lisey's Story] to booksellers and people in the press, the most it has distributed since Bag of Bones. In fact, the publisher did not send out any advance reading copies of Mr. King's Cell when it was published earlier this year because it figured most of them would end up on eBay before the book went on sale in stores; Scribner has already asked eBay to remove at least a dozen copies of Lisey's Story from the site."

The cover of the King galley contains an dramatic letter from the publisher, Susan Moldow. Scribner, she writes, has been "stingy with the galleys" of King's books because "immediately after sending them out, we see galleys for sale on eBay, a practice categorically unfair to many parties, from the author, who received no royalties, to those die-hard fans who chose not to profit personally, and indeed to the publisher." Read the ARC of Lisey's Story, Moldow says, then "hold on to it or share it with a personal friend or donate it to a charitable institution."

The effort to restrict sales hasn't been entirely successful, but only a few copies are currently for sale on eBay.

There are two major fallacies behind publishers' approaches to proofs.

First, the market for proofs is very small, even for big-name authors like Stephen King. "Most" ARCs, to use the Times' word, are not going to be sold. If even 5 percent (350 copies) of the galleys for Lisey's Story hit the secondary market, it would be glutted. This has not happened.

A careful search of Abebooks offers just 519 proofs and advance reading copies (ARCs) for all forty of Stephen King's books put together. Even with Scribner's trying to prevent the sale of the Lisey ARCs, they have been going for just $30 to $50 on eBay. Hardly a booming market. And compared to the announced 1.1 million-copy first print run, a few dozen sales are a drop in the proverbial bucket.

The example of the numbered advance copies of Neil Gaiman's new book Fragile Things, cited in an August 14 article in Publisher's Weekly, proves this point. Two copies, PW reported, sold on eBay, one for $102.50 and the other for $198.50. Outrageous, they implied. But no copy has been auctioned in the last 30 days, and no copies are listed on Biblio.com, Alibris, or Abebooks. So, out of 450 copies, literally only a handful landed on the secondary market. That's why they sold for good prices. So much for "most" copies landing on eBay.

The second fallacy has to do with the argument made by publishers that proofs cannot be legally sold. They have used this argument to shut down auctions on eBay and to convince Amazon to prohibit their sale. Most proofs and ARCs state "Not for Sale" on the cover, and this is supposed to prevent recipients from selling them. This position, however, is a violation of federal law in most cases.

Under US law, any unsolicited item you mail to someone is theirs to keep. I quote from the US Post Office:

A company sends you a gift in the mail...But you didn't order it. What do you do?...Don't feel guilty! It's yours, and you are under no obligation to pay anything. You, the consumer, may only legally be sent two types of merchandise through the mail without your consent or agreement: Free samples which are clearly and conspicuously marked as such [and] Merchandise mailed by a charitable organization that is soliciting contributions.

I like the way Congress put it when they enacted the law: "The recipient...may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender." So, if you get an ARC in the mail and you didn't ask for it, you are home free. It's yours to keep, sell, or auction, or do whatever you like.

The situation is murkier, but only slightly, when it comes to requested copies or those picked up at events, like this trade show where my wife was signing galleys of her latest book.

Publishers could, theoretically, require recipients to agree not to sell the books as a condition of taking a copy. However, I've never seen a publisher do that. Putting "Not for sale" on the cover is not sufficient. Ms. Moldow makes a fatal mistake when she suggests that the people who received copies of King's latest novel give them away. Even if the original recipient agreed not to sell the book, that restriction cannot be passed onto the person who gets it as a gift. That's why software companies only license their programs - the buyer never owns it and therefore can be legally prevented from giving a copy away or reselling it (NB: this matter is still unsettled in law; some courts have said buyers of software can resell it). Publishers would have to do the same thing if they want to prohibit sales of ARCs.

I think it's perfectly reasonable for publishers to take the tact initially used by Faber with Achuka. When people persist in selling galleys, stop sending ARCs to them. But the statement that ARCs may not be sold for "six years" isn't worth the paper the email wasn't printed on.