There are some days when I wonder how my head keeps from exploding because of the sheer idiocy that seems to be pervading so much of publishing. It’s not enough that we have publishers trying to kill mass market paperbacks because they make more money per sale for a hard cover book. Nor is it enough that they think they can convince readers that it costs as much to make an e-book as it does a hard copy edition of that same book, especially when the digital and print versions come out at the same time. I won’t even go into the archaic form of hand-wavium they use to justify either of these actions or how they report out sales and royalty figures to authors. Now we have Bob Kohn of RoyaltyShare filing yet another comic strip brief with the court in opposition to the already approved settlement between the Department of Justice and three of the publishers named in the price fixing lawsuit.
Yep, you read that right. A comic strip brief. His first brief, all five pages of what he called a “graphic novel” brief, was dismissed by the court. Kohn has filed yet another comic brief. I don’t know what gets to me more: the fact that Kohn is getting publicity from all of this — and that I’m adding to it this morning — or the fact that he has so little regard for our justice system that he thinks filing a comic as a pleading document is appropriate in any sort of lawsuit, much less one that has the potential of impacting an industry as much as this particular suit does.
Frankly, I can’t help but wonder if the only reason Kohn is continuing to take this tact is because he sees it as a free source of PR. Especially since it seems to be working…sigh. Mr. Kohn, grow up and quit acting like a self-indulgent child. If you have an argument you want to be taken seriously, then you need to take it seriously yourself. Presenting it as a comic isn’t the way.
Since my head is already threatening to explode because of the antics of Kohn with regard to the price fixing law suit, we might as well keep with that general topic. “Apple and/or the publisher defendants” filed a motion to subpoena Amazon in the class action lawsuit that’s been filed against Apple and the publishers. Amazon has, of course, filed a motion to quash the subpoena. While we don’t and can’t know all that was included in the filing of the subpoena, what it does show is that in this suit, as in the price fixing suit, the defendants are trying to play a game of smoke and mirrors by casting Amazon as the big evil that has to be protected against, even if it means breaking the law to do so.
Look, this tactic isn’t anything new, but that doesn’t make it right. We can’t allow businesses, or individuals, to go around breaking the law because there is the possibility that a competitor might, at some unknown point in the future, do something that might be bad or illegal. That sort of logic sends my mind spinning. It reminds me of the Tom Cruise movie “Minority Report”. In the movie, “criminals” are apprehended before the crime based on information provided by precogs. Of course, it is assumed that the precogs are infallible and that what they’ve forecast can’t be changed. I don’t know about you, but I have a real problem with this sort of thinking, especially when you assume that something is going to happen NO MATTER WHAT THE INTERVENING CIRCUMSTANCES MIGHT BE.
My concern is that Apple and the non-settling publishers will manage to so confuse the issue that the underlying allegation against them in the DoJ suit will be lost. That issue is whether or not they colluded to fix the price of e-books. Contrary to what these same defendants and so many publishers, editors and, yes, even authors would have you believe, it isn’t about whether or not agency pricing is legal or not. It boils down to a simple of question of if the named parties communicated, either in person or via other means, a plan to set prices for e-books across the board in a way that did away with competitive pricing. It is the collusion that is the heart of the DoJ’s lawsuit, nothing more and nothing less.
Just as the named defendants want us to think the real enemy to publishing and to readers is Amazon, they don’t want us looking too closely at their own practices. If they keep us focused on the evil that Amazon might do at some point down the road, we don’t look at their own practices. Practices like using Bookscan to report sales figures because, gee, they can’t use a simple computer program to know how many books they printed, how many were sent to bookstores and how many were sold/returned. Instead, they rely on a sampling of sales from certain stores to report. Are the figures accurate? Hell no. Not when you can walk into a bookstore and find a book still on the shelves two or three years after it was printed — which means that book is selling and being reordered time and again — and yet the publisher says there aren’t enough sales to continue the series.
Authors, if you want to get angry over anything, get angry at your agents and publishers for allowing this farce to continue. Quit giving in to the knee-jerk reaction instilled by years of knowing the only way to have legitimacy as an author was to bend over and take whatever the legacy publishers did. They aren’t the only path now. There are any number of respected and successful small presses out there, all more than happy to treat you with more respect than you are getting now. The self-publishing road is no longer the kiss of death it once was. There are, in short, other players and you need to know them and understand what they can offer you, especially since legacy publisher are not doing the jobs they promise.
Ask yourself, when is the last time your publisher actually promoted your work (assuming you aren’t a best seller or literary darling). Ask yourself when you last got a royalty statement not only on time but with numbers that made sense based on what you are seeing in the local bookstores and hearing from your fans. Ask yourself why it is publishers think they are the most important part in the book creation process and not the person or persons actually responsible for writing the book.
It is time for authors to take control of their careers and realize there is no longer any reason to kowtow to legacy publishers. Amazon is not pure as the driven snow, but it most certainly isn’t the big evil Apple and others are trying to make it out to be. Nor should it — or any other business for that matter — be punished for something it might do at some point in the future. C’mon, guys, apply a little common sense not only to what is happening regarding the DoJ price fixing suit but to your careers as well. It’s past time to take care of yourselves and to remember that, without you, publishers wouldn’t exist. They should work for you and not the other way around.
Mad Genius Club 
I thought the point of hiring precogs was to head off problems before they happened (see the Pegasus series by McCaffrey). Which certainly does not describe Big Publishing.
At least academic presses are honest about the fact that the author has to cough up financial aid (“subvention” or “grant”) as well as doing all the publicity aside from getting into the publisher’s catalogue. And the presses do keep track of sales pretty well, from what I’ve seen, because they often answer to the State Board of Regents or a Board of Trustees (aka “shareholders.”) In contrast, what the Big Publishers are doing reminds me of undergrads burning so much incense that it sets off the dorm smoke detector, in hopes of covering up the scent of another burning herb.
Amanda, is your argument that authors should allow the DOJ to play fast and loose with existing copyright law?
Under the law, it is the right of the copyright owner (or their assignees) to control the price for their work, and also to decide which copyrights to exploit and which to refrain from exploiting.
The DOJ appears to be suggesting that $9.99 is an established upper price limit for an ebook. EBooks were priced before Amazon entered the ebook market. Copyright owners should decide for themselves based on common sense and a response to market realities what to charge for an ebook.
The DOJ appears to think that low prices are in the public interest. That is ironic, because the result of this “Settlement” is that one of the settling publishers is now putting up prices.
You might also notice that other activist judges are now suggesting that if authors/publishers choose not to make ebook versions of their work available at “reasonable” prices, the “law” will look tolerantly upon copyright infringement.
Authors ought to take note of the big picture.
As for Bob Kohn, until I read his mini manga, I was concerned that it might be disrespectful, but having read it, I appreciated the directness and simplicity with which complicated legal issues were explained.
I recommend that every author should read the text inside the speech bubbles.
No, I’m not arguing that. What I am suggesting is that authors actually read the entire pleadings of the case and realize that the DoJ isn’t arguing that agency model pricing violates any laws per se. It was the manner in which Apple and the five publishers came to their “agreement” concerning the use of agency pricing that the DoJ has gone after, hence the collusion argument.
And you are right, authors should be taking a look at the larger picture — and that picture goes far beyond the agency pricing model issue. It goes to whether or not agents who also have publishing arms are protecting their authors adequately or if they are violating their fiduciary duty to their clients to get the best publishing deals possible. It goes to authors demanding true accountings of their earnings from publishers and not relying on quarterly reports that read like fiction. I know too many authors who have received identical sales figures for multiple books across multiple quarters. It is statistically impossible for an author to sell exactly the same number of copies of a book over a period of three or more quarters, much less the same number for multiple books over multiple quarters.
It also goes to authors refusing to sign contracts where publishers are grabbing not only the author’s name, but also the names of his characters, series name, etc. Included in this as well are those agents who demand their clients agree to provisions in their contracts that leave a work with an agent for the length of the copyright, even if the agent has been fired by the client or that agent has died. Then there are those pesky little non-competition clauses publishers are demanding which prevents an author from shopping his work around to another publisher without first letting his current publisher look at the book — and possibly sit on it — even if the publisher doesn’t deal with that sort of book.
No, Ms. Cherry, what I am suggesting is that authors take back the power and not blindly trust their agents, their publishers or anyone except a qualified IP attorney. If I sound a little testy, it’s because I am. I am tired of the “Amazon is evil and Apple et. al. should be allowed to break the law because of it.” I’ve never said I’m completely right on anything. All I’ve said is this is my opinion. And, ma’am, my opinion is that authors need to remember that we are the provider of the content. We should be getting much more per book than we are from legacy publishers, especially when those same publishers are trying to pull the wool over everyone’s eyes by saying it costs as much to put out an ebook as it does a hard copy book.
With regard to Mr. Kahn, if a licensed attorney presented such a brief to the court, that attorney would find himself not only sanctioned but also open to a malpractice complaint from his client. If Mr. Kahn has something to say to the court, he should show be required to follow the same rules as anyone else, attorney or not. To me, it is a matter of respect. Also, the fact that he continues to try to use this manner of presenting his argument simply proves, in my mind, that he is more interested in getting additional press for himself than in being taken seriously regarding his arguments.
But then, I also think the professional organizations should be holding the publishers’ feet to the fire and demanding not only accurate and timely accountings for their membership but also the exclusion of such onerous non-competition and the “thou shalt not self-publish” clauses that are now common boilerplate in so many contracts.