Correcting Some Misstatements of Law
Wow. Without going back and deconstructing everything, I want to correct a few misstatements of law in the recent sidetracking of this topic.
Egem said:
First when I mentioned here state AG I was just trying to help here. It is usually a good place to start when you have a disagreement over a contract. They would at least direct her to the best course of action.
I'm afraid not. Not at all.
First, the state AG represents the state. Period. That can sometimes incidentally mean representing some of the interests of individual citizens, but AGs are in fact
prohibited from representing individual citizens (except in their official capacity as government officials, and not always then).
Second, most state AGs want nothing to do with contracts that don't involve the state itself. The rest of them don't even want to deal with those contracts—those questions get deferred to a section of the Secretary of State.
Third, most state AGs (and local attorneys who represent the state, often called "District Attorneys") don't know enough about the local legal landscape to make a good referral, let alone advise on a good course of action.
Egem said:
Second, you are 100% right about publishing companies have termination clauses, most say you cannot terminate them unless the company breaks their agreement, but that's neither here not there.
False. Most commercial publishing contracts have multiple termination clauses, ranging from failure to submit a conforming manuscript and late delivery (on the author's side) to failure to publish within a specific window and manuscript refusal (on the publisher's side).
Further, even when not stated in the contract, there are a lot of common-law and statutory reasons to terminate a contract that are included in the contract. For example,
every US contract includes the warranty of merchantability, which
cannot be disclaimed (no matter what the contract itself says). A simple example is purchasing a new book that falls apart as soon as you leave the store because there's no glue in the spine. Even if the store claims "all stock as is," that cannot disclaim the warranty of merchantability.
Egem said:
Also, "they draw up contracts specifying what rights each publisher will have" isn't this sharing rights? The publishers work it out so they both get something from the deal.
False. These are two entirely different questions. "Sharing rights" is something that happens
only when there are joint copyright holders. Everything else is a license, from which both parties hope to benefit—but that is not at all what anyone in publishing (or law) would understand as "sharing rights."
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Can I make my bimonthly plea for people to stop stating "the law says..." without either (1) getting a law license or (2) looking it up in a reputable source first?