And then came Jennifer Weiner. You remember Weiner and Jodi Picoult’s criticism of the NYTBR and other book venues for privileging white male authors and all but ignoring female-authored books. So when Kit Steinkellner blogged a piece for The Book Riot entitled “Why Aren’t Jennifer Weiner and Jodi Picoult Pissed at Jeffrey Eugenides?,” because The Marriage Plot has garnered so much press, including a Times Square billboard, Weiner discerned that Bethanne Patrick was Book Riot’s executive editor and opined to her readers, via Twitter, that perhaps “her readers” should stay away from FridayReads. While she deleted her original tweet, she explains her point to Jane:

From there Weiner began to question FridayReads for its promotional aspect, which caught the attention of the Washington Post and extended to Weiner’s own blog, in which she says,

 Nobody’s running a literary blog or magazine to get rich. Most writers who maintain blogs end up losing money, not making it. Should a blogger decide to try to turn their hobby into a paying endeavor, nobody rolls their eyes or clutches their pearls. We’re all used to seeing ads alongside a blog post, or a request for sponsorship on a literary website, or a virtual tip cup at the bottom of a post or a review with a note saying, “Hey, if you like what I’m doing, consider supporting it.” I don’t think anyone begrudges the Fridayread folks the ability to make money from their endeavors, if they’ve found a way to do it honestly.

But honesty matters – to readers, to writers, to bloggers and Twitter users, to those who’ve chosen to monetize their content in a clear and public way, and those who continue to do what they do for community and good karma instead of cash. . . .

I don’t know Bethanne Patrick or her colleagues, except on the Internet…but I believe that you know people through their actions. If they’re honest, if they’re ethical, you can see it in the choices they make. If they aren’t, no amount of indignant insistence otherwise will change your mind.

Patrick responded on her own blog, pointing out that she has tried to keep FridayReads transparent via its FAQ page, which Weiner was, in fact, linking to in her tweets pointing out the promotional elements of the event.

I have what would politely be called a multi-layered response to this fracas. On the most visceral level, while I have read, enjoyed, and recommended several of Weiner’s books, I have long found her a problematic spokesperson for mainstream media’s neglect of women’s fiction. I should probably be grateful that in her call for transparency she was herself pretty clear in connecting her criticism of FridayReads to the personal affront she took at the Book Riot post, which was admittedly snarky and belittling of Wenier and Picoult’s Franzenfreude campaign, part of which included a very clever call for alternate book recommendations, a bit like FridayReads, in fact:

Instead I feel frustration that a woman who has become a de facto spokesperson for the plight of female-written commercial fiction so profoundly personalized her very public Twitter campaign against FridayReads, because that personalization threatens to legitimate the persistent marginalization of female authors as unserious and incapable of taking grown-up criticism (i.e. they weren’t nice to me so I’m not going to be nice to them!). Also, despite Weiner’s insistence that she doesn’t begrudge the FridayReads folks of monetizing the hashtag, her somewhat righteous invocation of the FTC regs and the lecture on honesty and transparency undermine her alleged approval. The irony that she has monetized her own writing and utilizes her own Twitter muddies things a bit, too and undermines the seriousness of even her most valid criticisms.

And then there is the whole “my readers” should stay away from FridayReads because they won’t be welcome, thing, even when it was reconsidered as a recommendation to participate with Weiner’s books, because “[I]magine their nose-hairs curling in rage every time they see mah name!” Weiner’s perception that FridayReads is some kind of ‘place’ where readers are welcome or unwelcome depending on whether the organizers like the authors whose books are being named suggests a fundamental misunderstanding of FridayReads, making Weiner seem more lucky than anything else that she was able to get so much traction on the transparency issue.

Moreover, it’s a problematic construction for readers who don’t just read a single author’s books (i.e. the overwhelming majority of readers). On the one hand Weiner seems to be saying that readers shouldn’t be commercialized by publishers and accusing FridayReads of participating in that process. And yet, how is her own advice and direction to “her readers” any different? In whose interest is it for readers to either fearfully avoid FridayReads or enrage its organizers’ nosehairs by shoving Weiner’s name in their faces? The presumptions alone at work in that choice are immensely problematic for readers to presume to take on as their own.

Which brings me to the “transparency” and “honesty” issue. The fact that Weiner has become so well-known for her off-page commentaries is a testament to the power of social media and the breaking down of certain barriers between authors, publishers, and readers. The viral power of tweets and hashtags have created new opportunities to be notable, noted, and even notorious. Which makes the desire to establish boundaries, guidelines, and transparencies even more understandable and difficult.

As Weiner’s own tweets, with links to Patrick’s FAQ page demonstrate, Patrick wasn’t exactly hiding the promotional aspects of FridayReads. In fact, I was surprised to learn that up until several months ago, Patrick was giving away books from her own collection; I always assumed that the books were donated by publishers, and in fact assumed some kind of publisher support long before the program had any.  I am personally less suspect of ventures that rely on the support of multiple publishers, because I am less likely to feel there is a bias, although that does not solve the problem of transparency, per se. I also think that Weiner’s implication that FridayReads (and more specifically Bethanne Patrick) is pimping for publishers weakens her credibility by hyperbolizing the relationship between publishers and FridayReads. She refers to Patrick “selling” books and likens publisher sponsorship to “slipp[ing] … some cash” or “expect[ing] a favor later,” in return for a book recommendation.  I don’t see the same intent to deceive that Weiner does, and I do think there’s a substantive difference between trying to bury a connection and failing to disclose obviously enough to meet the expectations of strangers who aren’t necessarily privy to things you may believe are more widely and obviously known. There is a sense of insularity online that can distort in various directions one’s sense of being known and understood, which I think is often in play when these issues arise.

In general, though, I’m not sure how much of a problem there has been with FridayReads’ transparency; that is, if none of the publisher sponsorship was known beyond the FAQ page, would it fundamentally change or diminish the value for readers participating in book recommendations (and potentially winning a randomly awarded free book)? I don’t think so, because I don’t see FridayReads as much different from any other forum in which readers recommend books and have the potential for winning a publisher-donated book. It’s no secret that publishers utilize blogs, messageboards, and social media venues to cull information on reader likes and dislikes and promote their own books, which is presumably their interest in FridayReads, as well. And the disclosure solution turned out to be straightforwardly simple: the #promo hashtag for promotional tweets. But even in absence of that new hashtag, I have to ask: were readers really being duped by potentially false recommendations and publisher payola, or is Weiner the one underestimating readers to serve her very personal interest in FridayReads?

If Weiner has been paying attention to the broader online communities centered on female-authored fiction, she must know that these issues have been under discussion for several years now. I’m not sure how much Weiner actually contributes to the discussion, especially given the emphatically personalized nature of her critique. Which is not to say that this is an unimportant discussion or that we should not all be having it openly and – ideally – civilly, precisely because the online landscape is shifting so dramatically. In academic and literary circles, authors serving as reviewers has been a long-standing tradition. In genre fiction communities, readers, bloggers, and authors are themselves contributing to multiple venues, sometimes for payment: RT Magazine, Publisher’s Weekly, Kirkus, USA Today, Macmillan sponsored Tor.com and Heroes and Heartbreakers, New York Journal of Books, Borders, Barnes and Noble, etc. Not every individual is taking special pains to disclose these ventures, and I haven’t seen a lot of accusations of nefarious intent from the general community.

In many ways I think these new opportunities provide genre books with wider recognition and respect, and they provide readers with more venues for discussion. In other ways these relationships provide challenges, because we are all, in fact, reading and talking about commercial fiction, which means that publishers and authors are always looking for ways to capitalize on the independent activities of readers.

Although Weiner has  bristled at the suggestion that some of her soapboxing has a mercenary intention, I don’t find the charge particularly objectionable. After all, I assume that authors move through their careers with self-interest their primary driver. Ditto publishers. And,  ideally, readers, too, should be looking out for their own self-interest, which may not be the same for every reader, even if it is identifiable across readers generally. And along with the concerns regarding disclosure and transparency in this new reading and writing environment, I think we also need to be talking about ways to protect the self-interest of readers, just as we take that for granted with authors and publishers. And in many ways, having readers participate more broadly and more formally in book discussions – through blogging, reviewing, and other ventures – opens up more spaces into which readers can identify and pursue their own interests as readers. The concern that bloggers, reviewers, and readers are somehow becoming the pawns of publishers, for example, is not insignificant or irrational, but I think we need to look at the flipside, as well – in the ways that readers can remain just as self-interested as we believe authors can be, even if they’re receiving free arcs, advertising money, or even pay for reviews and/or blog posts.

Currently there is a good deal of justifiable suspicion and confusion regarding the short and long-term effects of all this boundary destruction. Rules, such as they are, have been applied haphazardly, and lines of “acceptable” behavior continue to shift, both for individuals and across communities. Still, if readers are going to maintain their own independent interests, which is more likely to make that happen: refusing to participate in FridayReads or reviewing books for the USA Today Romance blog? Or perhaps that’s an unfair way to pose the question. Let me ask it this way, instead: can readers commercialize their own self-interest as a way to preserve their independence?

Related posts:

1. Amazon Censors Its Rankings & Search Results to Protect Us Against GLBT Books
2. Links of Interest
3. Can the locale of a book affect your interest in reading it?

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Dovetailing this report are the findings that Greystripe, a mobile ad network, is releasing about iPhone moms, mothers of young children who own iPhones.   TechCrunch reports on the usage of the iPhone by moms. Moms are using iPhones to make their shopping easier (by locating stores nearest to them and keep track of shopping lists) to entertaining their kids (59% allow their children to use the iPhone) and for personal entertainment purposes.

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Brewster Kahle announced last week that over 1.6 million books have been scanned and digitized.   All 1.6 million Internet Archive books to be available on the OLPC. Approximately 750,000 to 1 million people have OLPC. All books that have been scanned and digitized are in the public domain.

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The American Booksellers Association wants the government to save independent bookseller’s bacon. The organization has asked the government to investigate what it believes to be predatory pricing by Amazon, Wal-Mart, Target for its $9.00 hardcovers and the $9.99 ebook pricing.

Now I don’t know of any caselaw that would support this and essentially it seems like the ABA is asking the government to step in and save the hardcover business model. A government investigation in pricing would necessarily involve an investigation into the entire business model of publishing. Maybe we should welcome this. Publishers would be called to testify why they essentially gamble on books and hope to make up the gambling in large margins on hardcover bestsellers.

Publisher Michael Hyatt argues that this pricing isn’t good for anyone, arguing that the loss of hardcovers will result in lower advances, driving authors out of the publishing space. Commenter Mark McElroy points out that the digital market space can actually result in more authors being successful because of the elimination of the middle man.

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The FTC is changing its mind, again.   It’s fairly difficult to keep up with these folks.   According to reports from kidlitcon, Mary Engle, Associate Director for Advertising Practices at FTC, says that independent blogging reviewers do not need to disclose the provenance of their books but that affiliate links will need to be disclosed.   The FTC will be providing updated guidelines or FAQs or clarifications soon (hopefully before December).   We’ll be watching and will be sure to comply with whatever rules the FTC is going to implement.

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In summing up the take away from the Frankfurt Book Fair, Richard Nash blogs that publishers need to engage in reality based business decisions.   This is a world where piracy can and does happen and will not go away. Conversely, the mobile market is expanding and this means growing business opportunities.   Change is here and those that are most adaptable will succeed.

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According to the AAP, August sales were fairly flat, only increasing 0.9% over same sales last August:

• Adult Hardcover = up by 12.3 percent   ( $110.6 million); YTD down by 12.2 percent.
• Adult Paperback = up by 3.2 percent   ($152.7 million); YTD down by   9.0 percent.
• Adult Mass Market= up   1.3 percent ( $70.4 million); YTD down by 4.5 percent.
• Children’s/YA Hardcover = down 12.9 percent ($84.5 million); YTD up by 14.0 percent.
• Children’s/YA Paperback = down by 0.2 percent ($69.4 million); YTD up by 1.7 percent.
• Audio Book = down by 12.5 percent ( $12.9 million);   YTD down by 25.1 percent.
• E-books= up by 189.1 percent ($14.4 million); TYPD up by 177.3 percent.

Related posts:

1. Wednesday Midday Links Roundup:
2. Monday Midday Links RoundUp: EC Rumors, HSN, and Branding
3. Monday Midday RoundUp: The Brave New World of Reviews

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The Times has an article on the numerous ebook readers that are on or soon to enter the market and notes at the end that the tablet computers might threaten the dedicated reading device market.

And there’s the looming threat posed by next-generation tablet computers. Apple, the king of cool handheld devices, is rumored to be readying a tablet computer with all the functions of a laptop as well as iPhone-like touch capabilities for release early next year. Microsoft has been secretive about its plans for a tablet, but a video making the rounds of the blogosphere show a dual-LCD-screen prototype that closes like a book. “E-readers are a transitional technology,” says Rotman Epps of Forrester Research. Which means that just when the e-reader is taking off, it may be becoming obsolete.

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The publisher of Winnie the Pooh has agreed to allow Winnie the Pooh and other children’s classics to be digitized. The deal was struck with Nintendo and the companies plan to launch a digital Winnie the Pooh for Nintendo DS.

However, the Danish publisher now faces its biggest challenge yet as it attempts to move into the digital age. While there will “always be a market for traditional books and magazines”, according to Mr McMenemy, he says the children’s publishing industry needs to better embrace digital methods. The group will today announce one of its most significant digital deals yet: an agreement – which it says also involves Penguin -with EA Games to create ebooks for children for use on the Nintendo DS games console.

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Kristen Nelson reports that she is seeing huge increases in ebook sales on the royalty statements of her authors. Where she used to see 50 copies, she is now seeing 500 to 1,000 copies of ebooks sold. She refers to it a “tectonic shift.” Hopefully RWA will be providing digital publishing and digital promotion panels for next year’s RWA.

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Jeff Bezos is claiming that sales of Kindle books is creeping even higher.

As proof of the way that the Kindle has changed reader habits, Bezos brings up an amazing statistic. Earlier this year, he startled people by revealing that of books available on both Kindle and paper versions, 35 percent of copies sold by Amazon were Kindle versions. Now, he says, the number is up to 48 percent. This means that a lot of people have bought Kindles (Amazon won’t reveal the figures) and that Kindle owners buy a lot of books.

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COOL-er eBook Reader is bringing a wireless device to the market and plans to partner with QVC to offer one over its home shopping network. COOL-er is the company that employs Booth Babes to sell its devices. I wonder if that will carry over to QVC.

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Barnes and Noble is not content to rely on iRex to provide an ebook reader for Barnes and Noble customers. Instead, it will offer its own device. They intend to roll out a different device to consumers in time for the holiday.

The eReader will reportedly have a 6-inch touchscreen with a virtual keyboard, contrasting it immediately with the Kindle’s physical buttons and QWERTY input system. The WSJ claims the screen will be E-Ink, but a Barnes & Noble representative in the video below told us explicitly that the screen will be in color, unlike the Kindle. A color screen makes it very unlikely the reader will be E-Ink based, and much more likely to be an LCD or even OLED device.

Others claim that the Barnes and Noble device won’t come out until next Spring. Who knows!\

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Richard Cleland is probably tired of fielding complaints from bloggers because in his most recent statements he explicitly excludes bloggers from enforcement of the regulations.

If people think that the FTC is going to issue them a citation for $11,000 because they failed to disclose that they got a free box of Pampers,” Cleland says, “that’s not true.”

“We have never brought a case against a consumer endorser and we’ve never brought a case against somebody simply for failure to disclose a material connection,” he explains. “Where we have brought cases, there are other issues involved, not only failing to disclose a material connection but also making other misrepresentations about a product, a serious product like a health product or something like that. We have brought those cases but not against the consumer endorser, we have brought those cases against the advertiser that was behind it.”

I wish the regulations would have excluded blogger liability if the FTC had no intention of enforcing the rules against us. I’ll still be disclaiming.

Related posts:

1. Friday Midday Links: To Heaven and Back Again, the Ebook Saga
2. Tuesday Midday Review Links: Kindle is everywhere but Canada (WTF?)
3. Adobe Labs Cooks Up Worst Ebook Reader in Ebook Reader History

1. Simply because there is a chance I won’t be targeted doesn’t mean that there is zero chance I will be targeted.   I don’t think I’ll ever be audited by the IRS but that doesn’t give me free reign to ignore the IRS rules and regulations, even if I don’t agree with them.
2. Even though the regulations do not go in effect until December 1 does not mean that they will change. It took two years to get this revision after periods of public commenting and voting.
3. I am bound by my oath to uphold the laws of the land. Until the regulation by the FTC is ruled in a court of law as unconstitutionally broad, it is my duty to follow the law.   In a court of law, regulations are deemed presumptively accurate interpretation of the law and if there are two competing interpretations (one that includes bloggers and one that does not) then the agency (FTC)’s rules are binding.
4. The FTC regulations govern deception and truth in advertising.   Truthfulness is at the core of a lawyer’s legal duty.   My law license could be in jeopardy from a reprimand, suspension or revocation if I was ever found to be violating a rule on deceptive practices.
5. Ultimately, even though the rule may not be enforced against me does not allow me to disregard the law.   Further, I believe that is what kind of character you would expect from us here at Dear Author.

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Despite the success of Dan Brown’s book, book sales are depressed.

And over all, according to BookScan, book sales were down about 4 percent compared with the same week last year, suggesting that neither of those titles or any of the other big fall books from heavyweights like Mitch Albom, Pat Conroy, E. L. Doctorow and Audrey Niffenegger were helping booksellers to overcome the sludgy economy.

Audrey Niffenegger was famously awarded a $5 million contract for her book, A Fearful Symmetry, a book that managed to only sell 23,000 copies according to Bookscan in the last week.

This decline in sales has shown itself in Barnes and Noble quarterly results. More at Publishers Weekly.

Total sales in the retail group fell 3% for the second quarter, which began August 2 and will close October 31, to $665 million, and comp-store sales were down 4.1% (sales are through October 3). Barnes & Noble.com had a good period, with sales up 8%. Sales in the quarter included sales of The Lost Symbol, which B&N said broke one-day sales records for an adult fiction title. B&N expects comp sales to be down 1% to 3% in the retail group for the entire second quarter and to decline 2% to 4% for the full fiscal year, which will end May 1, 2010 (B&N changed its fiscal year following the completion of the B&N College deal).

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Are ad supported books coming closer to being a reality? Maybe if HotPrints takes off. HotPrints charges zero dollars for a photobook. Instead, they send you a bunch of tear out ads with your photobook (none are printed by your pictures). The limit is one per month, but it’s free. Even the shipping.

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Galley Cat suggests that part of the decline in publishing is the wrong headed focus on the white literary crowd as the mainstay of publishing. The U.S. Census Bureau displays the growing number of minorities in the U.S. and Galley Cat questions whether publishing is missing the mark by not including more multicultural protagonists.

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I’ve been in love with the vintage covers that Harlequin has been showing us and the titles went on sale this week. I admit to being reluctant to try one so I was glad when Keishon announced that she had bought one. Her review of I’ll Bury My Dead by James Headley Chase makes me glad that I hesitated over a purchase.

So how did I like this novel? I didn’t. This story was a chore to read. I tried in vain to engage myself but it just wasn’t hap pen ing. Why wasn’t I hooked into the story? Can’t answer that. Weren’t the char ac ters engag ing? Not really. I read hard boiled mys ter ies all the time and this one bored me to tears. I’ve even read some of Ed McBain’s stuff from the same era and his books hold up much bet ter than this.

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Hold on to your wallets, international readers. Amazon has pinkie swore to abide by terrotorial rights in the sale of its ebooks. Territorial rights confer the right of a publisher to sell a certain book in a certain geographical locale. Currently Random House is not on board with Amazon over some kind of contractual dispute and none of those books will be available. Oh well. It’s not like the UKers or Europeans or Aussies or New Zealanders need books to go with their shiny new device, right?

Related posts:

1. Thursday Midday Links
2. Thursday Midday Links Roundup: DWEBs Still Thwarting the Women
3. Thursday Midday Links: Is Google Book Settlement Dead?

Amazon has now announced it will ship the Kindle 2 on October 19 to over 100 countries (not Canada though) and will provide wireless access through ATT & its international partners. This announcement is accompanied by a Kindle 2 price drop from $299 to $259.00. Because the Kindle will be shipped from the U.S., international readers will have to pay a customs surcharge (usually over $50 USD) and international shipping costs. This will likely add around $100 USD to the price of the Kindle. Ironically the International Kindle will also ship with the US power adapter. The Kindle’s availability does not remove geographical restrictions. The same ebooks that are unavailable to international purchases yesterday are unavailable today. It is possible that the increased international exposure to ebooks will increase pressure on authors and publishers to grant worldwide digital rights. Maybe.

Harlequin is partnering with ABC to produce four titles based on the lives of the students at the fictional Cyprus-Rhodes University which is the basis for the TV show ‘Greek’. These sound like Sweet Valley High like. (Having said that, I have no idea what Greek is about as I’ve never, ever watched it.)

Boston Bibliophile has a FAQ with a lawyer on the new guidelines for bloggers. One thing that I think is important to remember about the FTC guidelines is that the guidelines are tied to a person and not a location. For me, because I believe the regulations, as interpreted by the FTC, require a disclaimer whenever a person makes a positive statement about a product received directly from the publisher and/or author, my book discussions will take place here at Dear Author where the disclaimer is in the sidebar.

Related posts:

1. Tuesday Midday Links
2. Tuesday Midday Links:
3. Daily Links Round Up: Authors Losing Their Shit & FREE Kindle Books

I suggested a warning and opportunity to cure and Cleland liked that idea. He said that they have used it in the past in the health product field except they are called advisory letters.

I asked about the issue of the fines. Cleland stated that this is something the AP took out of context. The FTC has no ability to levy fines. A charge must be made and taken to an administrative law judge and a cease and desist is requested and provided if the FTC fulfills its burden. If the C&D is ignored, then a civil penalty can be requested for up to $11,000.00. The full explanation of enforcement and penalties for all FTC violations can be read here.

No case would be brought in federal court unless it involved a very serious fraud else the FTC would likely be frowned upon by the court for wasting judicial time.

We discussed the issue of Twitter and whether each and every positive statement about a book that had been received for review would need to carry a disclaimer. Cleland was of the opinion that it would however we did discuss the issue of the product itself. In many other industries, the review product is nearly always returned and not kept by the reviewer. In the book industry, it is common for all reviewers, regardless of whether they review for mainstream publications or whether they review for a personal blog, to keep the books that are reviewed. I also brought up the issue of e-arcs and how any blogger could prove that the product had been deleted or kept.

I’m fairly certain that Cleland is not familiar with the book industry or the book blogging industry. He certainly was open to hearing more from us. I plan to continue to discuss this issue with him.

Related posts:

1. In re: the Moderation of Posts and the Endorsement of Comments
2. The FTC and the Unreasonable Case of Disclosure
3. TV Guide to feature Nora Roberts

I had a different post planned for today. Really. It was from Louisa Edwards and Tessa Dare on the topic of the unlikeable heroine. But yesterday news broke that the new revised Guide from the FTC on endorsements was going to go into effect on December 1, 2009.

Let me start off with saying that I believe in transparency. When I remember, I almost always state in a review whether the book was provided to me for free or whether I purchased it because I’ve always thought that a reader’s decision making process is interesting. To some extent, DA serves as reading journal for myself.

If you note, we have ads in the feed and it says that we are paid an affiliate fee. When we had an Amazon bookstore, we told you we received an affiliate fee from that. When we got the Sony Readers, we told you that as well. We believe in transparency. We believe that it is one of the most important parts of our relationship as bloggers with you as the readers and commenters.

However, I don’t believe that the new FTC guidelines actually help to further the goals of transparency but rather, instead, the new rules will be rife with abuse and misuse and uneven application.   Here’s why:

1.   Adversely affects smaller blogs. Small blogs like ours do not have editors.   We don’t get paid to review and what we do is truly a labor of love. Yes, we are starting to host ads but we cannot afford a full time editor for our reviews.   Blogs without editorial staffs will be subject to the new rules while blogs and mainstream publications, regardless of other issues and relationships, will not.   Let me state it this way: the blogs with the highest earning capacity will likely be exempt while the blogs with the lowest earning capacity will not.   I found it fascinating that Richard Cleland of the Bureau of Consumer Protection said this:

Cleland said that a disclosure was necessary when it came to an individual blogger, particularly one who is laboring for free. A paid reviewer was in the clear because money was transferred from an institution to the reviewer, and the reviewer was obligated to dispense with the product. I wondered if Cleland was aware of how many paid reviewers held onto their swag.

"I expect that when I read my local newspaper, I may expect that the reviewer got paid," said Cleland. "His job is to be paid to do reviews. Your economic model is the advertising on the side."

From Cleland’s standpoint, because the reviewer is an individual, the product becomes "compensation."

2.   Uncertainty. Looking at the interview Ed Rants had with Cleland, it’s unclear who will be held to this new standard and what will be the trigger.   Each situation is viewed on a case by case basis and dependent on the “degree of relationship between the advertiser and the blogger.”   By having buy links at the end of the blog, we are engaged in activity that would “raise the eyebrows” of the FTC.   To avoid scrutiny, Cleland suggests that we return the ARCs and, I suppose, remove the buy links.

I’m even uncertain if I buy the book post review but still hold onto the ARC whether I am in violation of the Cleland interpretation. The fact is that a) none of us keep our ARCs because we aren’t supposed to sell them. All of mine go into the recycler and b) I often buy ebook copies of paper books that I have enjoyed.

Again, the lack of clarity in the drafting is so difficult for the blogger in trying to comply.

3.   Inappropriate publisher involvement. The new Guide makes advertisers (or those that provide the product so in this case either authors or publishers) liable to the FTC for any misleading statements made by the blogger.   Thus, if a blogger says something misleading, then the advertiser (publisher/author) is responsible for misleading the consumer as well.   The Guide, in fact, says

In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered

Like I want publishers breathing down my neck while I try to write fair and honest reviews. We’ve already turned away publishers who wanted to have oversight over our reviews. And frankly, I feel like I should be giving instruction to publishers on labeling issues.

4.   Encouraging negative reviews. Sarah Weinman jokingly said that FTC guidelines would be encouraging bloggers to be snarkier and meaner.   This is because the FTC equates endorsements with positive reviews.   According to Cleland, publishers send product in the hopes of a positive review.   In the examples in the FTC guidelines, a blogger who receives product and then gives a “positive review” will be said to have given an endorsement requiring appropriate disclaimer.   Therefore, the F reviews at Dear Author will be named FTC Review (because these don’t require disclaimers).   Alternatively, if we never gave another positive review or recommendation, we would probably be okay.

5. Author endorsements. Author blurbs are some of the worst offenders of the Guide in the business. Some of the authors giving endorsements haven’t even read the book. Some will give endorsements to everyone who asks. Read this piece by Jenny Crusie on author blurbs. The FTC Guides have long covered these as inappropriate but has enforced its own rules against publishers?

6. International Effect. A commenter on Mashable noted that ‘Anti-Cyber Squatting Act’ extended to Canadian bloggers

For example the ‘Anti-Cyber Squatting Act’ has seen Canadian companies suing Canadian citizens under US law because the servers that were used (to perform domain registration in this example) resided on US soil.

But the effect could be that publishers will refuse to send books to bloggers, no matter where they are located, if the blogger isn’t complying because the possibility of publisher liability.

7. Eliminating any relationships.  § 255.5 requires disclosure of “material connections”.

When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.

I’m not sure what this pertains to. I have attended luncheons, parties with publishers. Do I need to explain each and every piece of swag I am ever given? Could I even possibly remember every pen and mint tin I picked up? I doubt it.

It’s important to note that in various interviews around the web and in the Guide itself, the FTC contemplates that any comment, tweet, post on a facebook page, participation on a message board, must be accompanied by the relevant disclosure.

As for Twitter, the FTC isn’t letting you get a pass with the excuse that 140 characters–Twitter’s famous text limit–is simply too short. “There are ways to abbreviate a disclosure that fit within 140 characters,” Cleland said. “You may have to say a little bit of something else, but if you can’t make the disclosure, you can’t make the ad.”

8.   Violates the First Amendments. The reviews at Dear Author go far beyond a product description.   Commercial speech is speech by a manufacturer or seller designed to sell a product. It’s pure advertising. I defy anyone to say that a review, even an A one, is pure advertising.   Yes, the government can regulate commercial speech and it can regulate truthful, accurate commercial speech. I would argue, though, that Dear Author reviews are not commercial speech.

9. Potential for abuse. You might not be aware of this but there are people who not only hate Dear Author but despise me personally. There are people who enjoy posting my legal name and place of employment on the internet, I’m sure in hopes of getting me to shut up.

The FTC says that it is going to focus on advertisers and not bloggers but if the FTC   gets enough complaints, there is no doubt the blog will be investigated. The fact is that this sort of thing will actually serve to chill speech instead of encourage honest dissemination of thoughtful opinions. The end effect will be that fewer discussions of books will take place. Fewer books will be reviewed.

Book bloggers’ compensation is so tiny that it’s not likely to influence a reviewer. I mean, do you really think we are for sale for $7.99?  Relationships are much more likely to influence reviews.   There are plenty of established review sites that don’t divulge the private breakfasts, meet and greets, email exchanges and so forth that aren’t subject to these sorts of regulations. You have to rely on those reviewers to be impartial without knowing everyone who is in the inbox. This is the reason that we have always tried to disclose these relationships because we know that you all rely on us to tell you these things.

The FTC issue is not about whether transparency is good or bad. It’s about placing an uncertain burden on those who are least able to manage the compliance. This doesn’t protect the consumer because the most insidious relationships aren’t required to be disclosed. (For example, we disclosed that Janine is critique partners with Sherry Thomas and Meredith Duran. The FTC Guide would not require this).

I would like to see the FTC Guides revised to include some kind of monetary floor.   I think that there should be a warning system so that the blogger gets the opportunity to cure the defect.   The Guide should require the complainant to show links, tweets, comments, that would be considered to be violative of the new regulation.   There should be some qualification in the guide that reviews that are not commercial speech should be exempted. There should also be some time expiration so that a person doesn’t have to keep receipts or proof of payment for products after a significant period of time.   The fine should be equal to to the value of the product. (i.e., I could live with paying a $7.99 fine, not an $11,000 fine). These are all I can think of for the moment. The problem is that the Guide is now a new Federal Regulation and short of a lawsuit, I’m not sure we’ll get more clarity.

Until the FTC regulations are more clear, I don’t feel comfortable stating my positive opinion outside of Dear Author but don’t blame me, blame the FTC.

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