In my room hangs a poster that has to be close to 30 years old, if not older. It shows a group of gentlemen in Victorian dress, hats in hands, looking down the railroad tracks to the bridge that has failed and the steam engine has gone off the bridge into the river below. The caption is very simple: “Oh, shit!”. That’s exactly the image I see right now when I look at the responses from those who are having such a hard time understanding why the Department of Justice has filed suit against Amazon and the five publishers (Hachette, Harper-Collins, Macmillan, Penguin and Simon & Schuster). These folks are reacting in this manner for different reasons, but they are rallying around the status quo and crying “foul” without really considering the allegations against the parties or the reasons for them.
Apple has come out and denied the allegations. No surprise. The corporation has the deep pockets necessary to tie the Department of Justice up in litigation for years. But antitrust allegations and problems with the DoJ are nothing new to Apple. Their lawyers are smart enough to wait to settle until they see exactly what the government has in way of evidence. Of course, they do have to worry about the video of Steve Jobs talking about the price of e-books. Does Jobs explicitly say he and the named publishers in the suit have made this super secret agreement to take down Amazon? No. But, when taken in context with other evidence the DoJ possibly has, it is something a jury could use to infer guilt. Remember, circumstantial evidence is still evidence. A pattern of behavior can also help demonstrate guilt. Am I saying this is what happened or will happen, no. I’m saying it is something that should be taken into consideration.
But what has really had me wondering if I fell asleep and woke up in an alternate world has been the cry of some writers that even if Apple and the Publishing 5 did collude to fix prices, we shouldn’t be going after them. Scott Turow posted this on the Authors Guild site: By allowing Amazon to resume selling most titles at a loss, the Department of Justice will basically prevent traditional bookstores from trying to enter the e-book market, at the same time it drives trade out of those stores and into the proprietary world of the Kindle.
First of all, this isn’t necessarily what the DoJ is after. In fact, if you read the court documents, you will see that the DoJ specifically says it isn’t alleging that agency pricing is a bad thing. No, the alleged collusion between the parties to set prices is what the DoJ is going after. All this is is the knee-jerk reaction of someone who should know better. But isn’t it much moredramatic to say the DoJ is acting like it is working for the big bad Amazon’s best interest than to say it is simply trying to enforce the antitrust laws passed by Congress?
Another part of that comment that drives me up a wall is how Turow goes back to how this will prevent “traditional bookstores from trying to enter the e-book market”. Wait a minute, what traditional bookstores is he talking about? Borders? They’re gone. Barnes & Noble? They are already in the e-book market and have their own branded e-book reader line. Of course, they are behind the eight ball because they failed to recognize the importance of the market and enter it as early as they should have. Local indie bookstores? Oh, wait, B&N and the other big box bookstores (most of whom are no longer in existence) put the majority of the indie stores out of business. Where was the hue and cry when that happened? And where is the cry of “foul” against Google for withdrawing their support of indie stores regarding e-books. Oh, wait, I guess because none of those entities are named Amazon, it’s all right.
Apple had this to say about the allegations: The launch of the iBookstore in 2010 fostered innovation and competition, breaking Amazon’s monopolistic grip on the publishing industry. Since then customers have benefited from eBooks that are more interactive and engaging. Just as we’ve allowed developers to set prices on the App Store, publishers set prices on the iBookstore.
First all, Amazon didn’t have a “monopolistic grip on the publishing industry”. Smoke and mirrors. If you say it long enough and loud enough, people may start to believe it. As for benefiting from e-books that are more “interactive and engaging”, that has nothing to do with the iBookstore. That has to do with the platform the e-books are designed for. These interactive or “enhanced” e-books were designed for the iPad. The iBookstore is simply the venue where they can be purchased. Also, these so-called enhanced e-books are a very small, minute even, percentage of the titles coming out that to use them as a justification for what happened is ridiculous.
Apple goes on to say, “Just as we’ve allowed developers to set prices on the App Store, publishers set prices on the iBookstore.” Oh yeah, one minor thing the spokesman left out — this is with the understanding that those same publishers can’t offer their goods for a lower price anywhere else. Again, not necessarily illegal. But there is still that nasty little allegation that Apple and the Publishing 5 colluded to use the agency model to drive up prices.
I can’t find it right now — my laptop with most of my research on it died before I could back the research up — but there are several posts by authors and publishing insiders who admit that Apple and the Publishing 5 may have colluded in such a way as to violate the antitrust laws. But, they say, it was for the common good. After all, all they were trying to do was protect the little guy by breaking the stranglehold Amazon has on publishing. And, well, if Amazon doesn’t have it now, it will. Sure it will. And it’s evil. Would they lie to us? Besides, they continue, why is DoJ going after them when it should be going after Amazon?
Look, I can’t tell you how all of this will work out. All I can say is that three of the publishers named in the suit have agreed to a settlement that will include cancelling the agency contract with Apple. the agency contracts with Amazon and the other sellers will become moot. For a period of two years, things may go back to how they were before the agency model or there may be a hybrid model of sorts. But it doesn’t necessarily mean the agency model is dead for all extents and purposes. As I said Saturday, only time will tell.
I’m also not saying Amazon is pure as the driven snow. It is a business. It is out to make money. The only true loyalty it has is to its shareholders. However, as a writer, I will say it has opened up the field to those of us who couldn’t get past the gatekeepers before. Sure, some of us didn’t have the talent to do so. But others do. We just didn’t hit the right person in the agency or at the publishing house at the right time or with the right material. As a reader, I love what Amazon has done because it has given me access to writers who don’t fit the mold of the latest craze artificially produced by a legacy publisher. I don’t care about sparkly vampires, much less derivative stories about them produced by other writers because that is what the bean counters in their offices overlooking Central Park say will sell.
A commenter to my Saturday post railed against Amazon’s KDP program requirement that they not sell their e-books for less anywhere else. After all, that’s the same thing that Apple and the Publishing 5 were in trouble for. I had a couple of problems with that statement. First, because it overlooked the fact that that isn’t what the DoJ said in its filings. It was the alleged collusion that would be in violation of the law, not the agency agreement itself. My second issue with the comment was that it overlooked the fact that this is the same agreement indies have to “sign” with Barnes & Noble’s PubIt program, with Apple if you publish through them, etc. But the only outlet this commenter pointed to was Amazon.
There are others out there who decry Amazon because to go into the KDP Select Program that lets you actually put your titles up for free for a period of five days in any 90 period, you have to remove your titles from other sales outlets. How dare Amazon do that? Sorry, but it is a voluntary program so you don’t have to do it. Also, to the best of my knowledge, you can’t take your titles for free — or at least not easily — anywhere else (Smashwords is the exception but that opens a whole new can of worms about getting it off being free through the retailers it distributes to if you are in the expanded catalog). But the fact that Amazon gives an author or small press a viable promotion tool makes it evil and it is taking advantage of us poor dumb writers and editors.
Then there are those spreading disinformation about how “[f]rom a publishing perspective, the ebook platforms are too fragmented, ebook creation and design is too complicated, expensive, and limited, and sales are too dominated by a single platform that has a history of being aggressive towards its suppliers.” First of all, which publishing perspective? What platforms? Is he talking e-book formats or sales outlets? E-book design, and creation is anything but complicated and expensive. There is a learning curve, but in all honesty, it is easier to layout an e-book than it is a print book. As for e-book creation and design being too limited, that is changing — has changed — with the rising popularity of tablets. The only problem there is that most e-book readers still prefer reading on their dedicated e-book readers because there are too many distractions on a tablet. Yes, there are those legacy publishers worried about Amazon (who else could he be talking about?), but I, for one, have no problem realizing that Amazon was the first to recognize the importance of e-books as a retailer and to act. I guess, by the line of thought in this “publishing perspective”, we should now go in and penalize Amazon, even if it isn’t in violation of any laws, for being forward thinking. Wouldn’t that set a great example? As for being aggressive towards its suppliers, duh. It is called business. It is called negotiation. No one yells “foul” when a publisher decides not to sell through Amazon. No, the fault is Amazon for wanting terms the publisher isn’t willing to give. Yes, I am now rolling my eyes.
Look, the agency model of publishing isn’t dead. It may be dying. But none of us will know for sure until the antitrust case has run its course through the courts, if it goes that far. Then there is the two year period of the settlement agreement to see what happens. In the meantime, there are other issues in the publishing industry that have to be addressed. Issues such as the creative accounting that has gone on for years. Using figures that are nothing more than fiction when determining whether or not to pay royalties to a writer. Sorry, I don’t give a damn what bookscan says, or what a publisher says in its report, but when an author has books on the shelves of a major bookstore more than two years after the book came out — and I’m not talking the clearance table — that book has been selling and selling well. Otherwise, they wouldn’t still be stocking it. So why does the publisher claim there weren’t sales? In this day and age of computer technology and RFIDs, there is no reason for a publisher not to know exactly how many copies of a book were printed, how many copies went where and how many were returned. But, for that to be implemented, they’d have to change their model and they aren’t going to do that.
Instead, they’d rather stand at the edge of the publishing bridge watching their train steam along the track, not seeing that the track has collapsed due to age and failure to use the latest technology not only to maintain but to expand and race out to meet the future. Publishing might not be dead, but it is ailing and continuing to cling to out-of-date practices and beliefs isn’t going to help save it.
Edited to add: Welcome to everyone coming here from Instapundit. Thanks for dropping by and many thanks to Glenn Reynolds for linking to us.