A settlement and another cry of “foul” from the peanut gallery

There are days when I really wonder if I’m the writer or if I’m actually a character living in some writer’s head — and the writer is a mean SOB who likes to torment me with little things meant to drive me insane. The first one of those “why me?” moments happened the other day when not-our-cat (AKA the neighbor’s cat who decided he ought to live part-time with us) decided to leave a gift of a hairball and other things on my desk, covering my thumb drive. EWWWW. Then came this morning’s rude and abrupt awakening when Mom forgot to turn off the burglar alarm, waking me with the WHOOP-WHOOP as she opened the front door. Adding insult to injury, the alarm company rep who called was perky! Yes, perky. That ought to be illegal before nine in the morning and it has to be a capital offense when it occurs before six. And, if that isn’t enough, I’ve been hit by a plot for a book that is the most demanding, insane and loud plot of any I’ve had in a long time. Yes, I’m writing it. I don’t have any choice. But I am not amused, not only because I have other books I should be working on but also because this is not the sort of book I normally write and, well, I need to be working on other things.

Sigh.

So, if I’m a bit scattered this morning, I hope you’ll bear with me and bring me another cup of coffee and maybe a Danish (no, Sarah, not THAT sort of Danish.)

For those of you who missed it, the price fixing law suit filed by the DoJ against five of the Big Six publishers and Apple is drawing to a close. Or at least it appears to be. The last of the publishers named in the suit, Macmillan, has settled with the Department of Justice. Without admitting any guilt, John Sargent (Macmillan CEO) said the company was settling because the potential penalties were more than the equity of the company. The settlement, according to Publishers Weekly, calls for Macmillan to pay $20 million. Of course, that still leaves Apple as the lone named defendant in the price-fixing suit yet to settle. Based on Apple’s history, there is no telling when — or even if — they will settle or if they will demand their day in court. All any of us know for sure is that, assuming the settlement is approved by the court, Macmillan will join the other publishers named in the law suit in having a two year period where they return to wholesale pricing of their e-books. After that, if they negotiate in good faith with the different e-book retail outlets, they are free to return to agency pricing. Yep, that’s right. Agency pricing is not dead. The original filings by the Department of Justice do not condemn agency pricing. The issue has always been the alleged collusion between the publishers and Apple. That is something so many authors and publishing professionals seem to forget in their “Amazon is bad” mentality.

Speaking of the “Amazon is bad” bandwagon, if you’ve been following Facebook the last week or so, you’ve seen a new round of Amazon hating. Authors and others in the industry have been shouting and shaking their fists to the heavens in quick condemnation over Amazon’s plans to sell used e-books. Now, I don’t know about you, but when I see something like that, I want to find the basis for their anger. So I clicked through to the Publishers Weekly post many of them were linking to. The post is a short note (two paragraphs) about a patent received by Amazon Technologies that “indicates” Amazon might be planning to sell used e-books and other digital products at some point in the future.

Now, I’ll admit as a reader, I like the idea. After all, I can go down the block to the used bookstore and sell any physical books I have that I no longer want to keep. I can browse the stock while I’m there and look for books to buy. Readers have long been asking why they can’t do the same thing with their e-books.

Oh, wait, now I remember why we can’t resell our e-books. The publishers tell us we can’t. We aren’t “buying” the book when we buy it in digital format. We are only buying a license to read it on a limited number of devices and that license does not include being able to resell it. Heck, we aren’t even supposed to give it away. That’s why the publishers load all that wonderful DRM into their titles.

So, let’s keep that in mind as we look at what everyone is claiming Amazon is about to do (mind you, keeping Amazon’s business model in mind, I don’t doubt they are looking for a way to do just that. But they also know there are limits built into e-books right now so this isn’t something that is going to happen any time soon). When you buy an e-book from Amazon, you are still buying that book with the same limitations on it that would be there if you bought it directly from the publisher’s site. Exceptions to this may — and that is a very big MAY — come from books published under the Kindle Direct program. Even then, if I remember correctly, you are still only buying a license. So, contract language is going to have to be changed before any legal transfer of an e-book can be made.

Instead of authors being upset with Amazon for contemplating reselling e-books, they ought to be looking at this as an opportunity to make more money. It is near to impossible to track the sales of used print books. Hell, publishers tell us on a daily basis that they can’t accurately track the sales of new print books. That’s why they rely on Bookscan to give them an estimate of the number of books that are sold. Worse, authors have bought into this and are only now, on a very small scale, starting to realize this doesn’t make sense.

But back to e-books. To sell an e-book, it has to go through a server. That’s the joy of digital. If it has been on a server, it is traceable and trackable. That means it is easily reported in sales. (Not that the publishers will agree with that because then they might actually have to pay accurate royalties.) But that also means if an e-book is sold as “used”, it will be equally traceable and reportable. That ought to mean more money to authors.

Now, the reality of the situation is that for that to happen, there are going to have to be contract changes on the publishing end. Changes in the contracts between the publishers and Amazon and also between the publishers and the authors. Am I the only one who can see publishers rushing to redo contracts with Amazon in such a way that these resells bring money into the publishers’ coffers and yet not redoing contracts with authors to make sure they get additional money? Remember, these are the same publishers who have been known to report the exact same e-book sales numbers to authors for multiple titles, quarter after quarter. These are the same publishers who say they can’t accurately track e-book sales because, duh, they are digital and physical and we know what a good job they do on print books (snark meter is about to break).

But, no matter what Amazon plans, it isn’t going to happen overnight. This is a patent. It doesn’t mean the technology is in place and ready to go. It doesn’t mean Amazon’s corporate lawyers aren’t telling Bezos and company they need to make sure all the t’s are crossed and i’s are dotted. Not that it will stop the Amazon haters from crying “foul” again. You have to ask yourself if Barnes & Noble had filed the patent, or if Apple had, if these same folks would be pointing their fingers and lighting their virtual torches. I doubt it, especially if the announcement had come from B&N. But then I’m a cynic. Sue me.

Space Marine!

Sorry, couldn’t help it. VBEG.

What do you think? Should we send the space marines in to knock some heads together in publishing and drag it, kicking and screaming if necessary, into the current century?