Authors, this does matter to you, even if you're not worried just about whether your purchase of A Certain Brand of Cow-Spotted Personal Computer™ may turn out to be a bad one. More and more publishing contracts are imposing arbitration without willingness to negotiate. Although a publishing contract is supposed to be "negotiated," the publishers who impose an arbitration clause do so with no willingness to negotiate it, except perhaps by allowing the parties to agree on an alternate location.
Leaving aside for the moment whether these clauses are fairas a rule, they are not; the Tribune article demonstrates four unfair aspects of that particular arbitration clause, although it never comes out and says soan arbitration clause in a publishing contract includes several provisions of which the author must beware.
- Forum: The clause should specify the arbitration authority and rules. The most even-handed of the major forums available in the publishing context is the American Arbitration Association. Designation of the International Chamber of Commerce, for example, is not acceptable in this context; the ICC does a good job with multimillion-dollar international shipping disputes, but not IMHO with intellectual property or under-$100k disputes.
- Venue: Usually, the clause will designate one particular locationthe publisher's hometownfor the arbitration. Particularly for smaller publishers, this clause should allow the parties to agree upon an alternate location. This is important if the publisher moves, goes out of business, is sold to another company, and sometimes just because all of the necessary records and witnesses might be somewhere else. Too, it is important outside of New York, Los Angeles, and Chicago, because the pool of arbitrators qualified to deal with publishing-law disputes outside those areas is vanishingly smalland, contrary to the claims of arbitration advocates, at least some familiarity with typical industry practices really is necessary for an arbitrator to be even-handed.
- Cost: Arbitration is not free. One of the dirty little secrets of arbitration is that it is ordinarily vastly more expensive than a small-claims-court action; in the case described in the Tribune article, for example, the fees the two sides would have had to pay the arbitrator exceeded the value of the computer at issue. At minimum, these fees and costs should be borne equally, with the winner recovering from the loser; this is still unfair, but better than silence, because some arbitration fora require that the party demanding arbitration of a particular dispute Better still, the party that requires arbitration should pay up front for the privilege, especially if there is a cost-and-fee-shifting provision.
- Binding: If one is going to the inconvenience of arbitrationmake no mistake, these clauses are not imposed for the author's convenienceone at least should expect the result to hold up. If the magic word "binding" is not in the clause, take it to a lawyer who understands these things. Sometimes other language can substitute for that word; sometimes, however, it's an illusion. Yes, Virginia, there are publishers (and others) who impose egregious one-way arbitration clauses.