ProseQuest: Read the contract then run — don’t walk — away

(Note: this replaces the post lost when the server that hosts my website crashed.)

A new company called ProseQuest is offering authors the option to sell ePubs directly via the BooksOnBoard website. It is not entirely clear what the relationship between ProseQuest and BooksOnBoard is — that is, whether ProseQuest is a sister company or subsidiary of BooksOnBoard or if this is an affiliate partnership — and this, as you will read, is only the first of many unanswered, and often troubling, questions the ProseQuest website raises.

ProseQuest clients are invited to upload their Word manuscripts for free conversion; you can also upload an ePub. Once converted, if the formatting “mirrors a professionally formatted ePub,” you will be published under ProseQuest’s Travis Press imprint. However, while the conversion might be free, ISBN assignment is $29.95 if you want to “maximize your distribution options,” but this is not elaborated upon. ProseQuest states they will also distribute your ePubs to third-party retailers but these third parties are not named until you find the FAQ page — accessible only after you register for an account — where it is stated that ebooks published under the Travis Press imprint are distributed to Amazon, B&N, and iTunes. We know that iTunes will not carry a book without an ISBN, but both Amazon and B&N will; will ProseQuest distribute your book to these latter retailers if you do not pay for an ISBN? ProseQuest does not say.

If your manuscript does not meet professional formatting standards, you can purchase formatting services for $49.95; and if the cover is deemed not to be “high-grade” you can purchase a cover design for $149.95. But who owns the results? ProseQuest does not indicate who owns the cover, and when I accessed their website on 02 December, the “Important notes for you, the author” page stated that:

Once we have converted your manuscript for free for e-publication, you maintain the rights to the manuscript (copyright), but we hold the rights to the converted file. However, if you choose to purchase optional formatting services, the converted file is your property as well.

What this means is that ProseQuest is not obligated to provide you with a copy of the converted file they created for free, but if you specifically pay for formatting they do provide you with your ebook file. However, when I accessed the same web page two days later, this paragraph had been removed. Instead, you now have to troll through “The Fine Print” page to discover that, even if you do pay for formatting services, “ProseQuest retains all right to conversion formatting, if formatting and/or re-formatting was performed by ProseQuest party.”

The contract contains other surprises. Section IV(B) states that you have the right to remove your book from the service, but scroll down a bit further to “VII. Grant of Rights,” and you will find that the “Author grants ProseQuest the non-exclusive and irrevocable rights set forth in this Section VII on a worldwide basis.” This grants ProseQuest an irrevocable right to distribute your book, as well as all the other rights Section VII covers, regardless of the section authorizing the withdrawal of your book. The inherent contradiction in the contract puts the author in a situation whereby, if ProseQuest objects to the removal of your book, or fails to perform that duty as they promise, you would have to seek redress in the courts to determine which of the contradictory clauses is enforceable.

ProseQuest books sold on BooksOnBoard for between $2.99 and $9.99 are paid a royalty of 70% and it appears ProseQuest will not offer ebooks priced outside that range. This is another change from the agreement I first accessed on 02 December. Previously “The Fine Print” stated:

If you are not in breach of your obligations under this Agreement, for each eBook sold to a customer (i.e., an end user) through the Service, ProseQuest will pay you the applicable Royalty set, which in the case of an independent author, will be seventy (70) percent of all sales on the BooksOnBoard retailer Web site for eBooks sold for greater than $2.99. For eBooks sold for less than $2.99, ProseQuest will pay the author sixty (60) percent of sale price for each eBook sold. ProseQuest will retain ten (10) percent of payments received from all retailers except BooksOnBoard.

“The Fine Print” page now makes no mention of royalties for books sold outside the $2.99 to $9.99 range, and the royalty cut has decreased. The contract now states:

ProseQuest will pay … seventy (70) percent of the list price of all sales on the BooksOnBoard retailer Web site for eBooks sold for between $2.99 and $9.99, and for books sold on other retailers Web sites, we will give the full Royalty set available from that retailer, less a six (6) percent fee for distribution, transaction costs, and tracking reports to Author.

Regarding the distribution fee, I interpret the wording to mean that if, for example, Amazon pays you 70%, ProseQuest takes 6% of 70%, not 6% of the sale price. But considering all the other ambiguities and contradictions in the contract, I would ask for clarification first.

The most troubling clause in the contract, however, is this: all ebooks are sold DRM-free, and by selling through ProseQuest you agree to “allow end users to copy, paste, print, email, annotate, view online and share the eBooks.” This essentially grants the consumer a licence to post your work on a torrent site or give copies of your ebook to friends. This goes beyond tolerating piracy to enabling it. It also contradicts BooksOnBoard’s consumer Terms of Use which state “[the consumer] may not sell, rent, lease, distribute, broadcast, transfer, or assign [their] rights to the Digital Content or any portion of it to any third party except as expressly permitted by BooksOnBoard.” “Sharing” is a transference of rights; if the right to do that is permitted by you, the author, to the end user then any limitations imposed by BooksOnBoard potentially become irrelevant: the infringer would likely only have to point to this clause in your ProseQuest contract to circumvent a claim of piracy: as long as the infringer does not sell your work they will not have violated the terms provided to them under your contract with ProseQuest.

What are we authors to make of this new player? I, personally, found the whole ProseQuest site dodgy. It is sparse in its upfront information: you have to register to find out even simple things like what formats they accept for upload and the details of the services they offer. Is it any coincidence that after you have handed over your personal information you are then opted in by default to receive their marketing emails and other communications?

I would stay away from ProseQuest until they structure their site to provide all the necessary information upfront and until they offer a better contract, one that does not give the end user the right to reproduce and share your work, and which does not contain any “irrevocable rights” language.

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