I doubt there is anyone who writes or works in publishing who doubts the industry is changing. They might not like it. They might throw themselves down on the floor and kick their feet and pound their fists in protest. None of that will stop the change. It might slow it down for awhile as legacy publishers delay some very necessary changes, but change is coming. Heck, it’s already here. We just don’t know how far it’s going to go.
The first indication that change is here is the latest in the “class action” suit filed against Amazon and the big six publishers. The key element in the suit revolves around Amazon’s proprietary DRM that is applied to some of the e-books sold through its site. The plaintiffs in the suit, independent booksellers, basically allege in their suit that there is a conspiracy between Amazon and the publishers to use the DRM to prevent third parties from selling their e-books. That’s a bit over-simplified but it’s morning and I haven’t had my caffeine yet.
The key is the allegation of “conspiracy” between Amazon and the publishers. Now, those of you who have followed my posts here on MGC can guess my reaction to an allegation of conspiracy between these particular parties. These are the same publishers who really do NOT like Amazon, or at least Amazon’s sales tactics. These are the same publishers, on the whole, who bought into Steve Job’s agency pricing model hook, line and sinker and have been facing price fixing allegations from the Department of Justice as a result, allegations raised by Amazon and others. So the first reaction of anyone alleging a conspiracy between Amazon and the big six has me chuckling.
But then, as I continued to read this article from Publishers Weekly, my chuckles turned to almost sad shakes of the head. The plantiffs’ attorney has basically admitted that “the publisher contracts merely ‘allowed’ Amazon to use its proprietary platform.” In other words, Amazon doesn’t demand DRM be applied and the publishers are the ones who determine whether or not DRM will be included in the final product. All it takes is a quick perusal of Amazon’s e-book offerings to find that there are major publishers who don’t apply DRM to their kindle offerings. TOR and Baen are the first two that come to mind.
So, absent an agreement made between the parties, it is hard to have a conspiracy. That becomes even more hard to prove when you add in the next part — that the parties add the proprietary DRM in an attempt to harm the plaintiffs. If there is no underlying conspiracy, there can be no intent to harm. As a result, it is now looking like the court is about to throw out the suit. If that happens, I hope these booksellers focus on trying forge connections with the publishers and find ways to sell their e-books in-store (and there are easy ways to do it once the substructure is in place) instead of spending yet more money on law suits they really don’t have the deep pockets for.
In the next bit of news, “Judge Denise Cote shot down Penguin’s request for a jury trial to hear the remaining state and the consumer class action cases against them.” Basically, before entering into an agreement with the DoJ in the price fixing lawsuit, Penguin had agreed to have the suits in question heard in a bench trial. Specifically, back in October, Penguin waived its right to a jury trial. Furthermore, its actions in subsequent conferences, hearings, etc., confirmed this decision. So, come June 3rd, the trial will begin — barring any unforeseen delays — and, hopefully, an end to yet another drawn-out round of litigation centering on the way the industry giants conduct business.
It has also been announced that Macmillan has agreed to pay a $26 million settlement in the state and consumer class action cases against them. All that is needed is for Judge Cote to approve the settlement. “The final settlement includes $20 million for consumer compensation; $3 million to cover the costs of the “investigation” and litigation; $2.475 million for plaintiff’s attorneys’ fees; and $1,000 for each of the named plaintiffs in the consumer class as a ‘service award’.” Now, like most such agreements, Macmillan is not admitting any guilt, which isn’t a surprise. But, if I’m remembering correctly, it leaves only Apple and Penguin as the remaining defendants in the state and consumer class action cases. So, as I noted earlier, hopefully this chapter will soon be over.
I’ll admit that this next piece first had me wondering how to respond. In case you missed it, last weekend James Patterson took out full page ads on the cover of Publishers Weekly, the New York Times Book Review and Kirkus. I saw the NYTBR ad and, frankly, it had me shaking my head and wondering what Patterson was smoking. In the ad, he asks three questions: Who will save our books? Our bookstores? Our libraries? Then he went on to note that the federal government has stepped in to save banks and other industries and he wonders where it is when it comes to books (publishing). In the NYT ad, he then lists a number of books such as All the President’s Men and The Sound and The Fury. He ended with this: “If there are no bookstores, no libraries, no serious publishers with passionate, dedicated, idealistic editors, what will happen to our literature? Who will discover and mentor new writers? Who will publish our important books? What will happen if there are no more books like these?”
Now, you can imagine my initial reaction: here’s another “best seller” who doesn’t really understand all the avenues out there for authors, avenues that can and will bring these sorts of books to the reader. But then I found a follow-up by Patterson that clarified his position.
This is an unusual and different time for books, the most unusual in the history of this country. E-books are fine and dandy, but it’s all happening so quickly, and I don’t think anyone thought through the consequences of having many fewer bookstores, of libraries being shut down or limited, of publishers going out of business — possibly in the future, many publishers going out of business.
That much is certainly true. It is a time when the industry is changing, whether it wants to or not. I also agree that too many folks didn’t think through the consequences of what fewer bookstores, libraries, etc., would have on readers. Now, do I think the sudden popularity of e-books is to blame? Not entirely. In fact, not by a long shot. There are fewer bookstores for a number of different reasons, including the fact the super box stores like Borders and Barnes & Noble ran the mom and pop indie stores out of business. Then the big stores over-expanded and, instead of adapting when times got hard, they stayed the course until it was too late — for Borders at least. They failed to accept the e-book trade as a major part of their business until Amazon already had a major hold on the industry.
Do we need publishers? Yeah, we do. I just don’t think we need them in the form the legacy publishers are currently in. Print isn’t going to die any time soon. There will be a niche market for it for years, perhaps centuries, to come. But that means old ways have to be changed and new ones adopted.
As for libraries, well, here is where I have a bit of a bone to pick with Patterson. Libraries are constrained not only by what is happening in the industry but by a decrease in funding from their sponsoring governmental entity. I know of at least one county here in Texas where the county budget will allow the library to stay open. However, there is no money in the budget for books. Yep, that’s right, unless the library finds some creative ways of raising funds, for the next budget year they will be unable to buy any new books or replace books from their collection that are lost or stolen or damaged.
However, publishers are also part of the problem where libraries are concerned. Even as libraries continue to buy print books and other media, they are also trying to have e-books for their patrons to check out. They hold classes on how to use e-book readers and tablets. The problem comes with the cost of e-books. And that is when libraries can get them. Some publishers don’t even make their e-books available to libraries for fear someone might pirate the book or, gasp, if they read the e-book they won’t buy the print book. Others charge what can only be called extortion rate fees for e-books. I’ve seen example of an e-book I could buy for $9.99 being sold to libraries at more then $150. Then there are limits to the number of times an e-book can be loaned out before the library has to buy a new copy — a number much lower than the life of a print book.
I’m not even going to get into the call for a government bail-out. That gets too close to politics and I promised Sarah I wouldn’t bring it here. Just know that I.DO.NOT.APPROVE. of a bailout by the government of any industry that has already proven it can’t and won’t adapt to changing business trends.
Finally, in case you missed it, Naked Reader Press (my boss) brought out two new titles last week.
The first is All That is Gold by Jessica Schlenker.
In this short story, a beautiful and curious heirloom is entrusted to a new family line when Cassandra’s sister purchases a particularly well-chosen gift for her. Still, even daydreamers require time to adjust their notions of reality when confronted with a variation of their dearest desire.
The second is Hunted (Book 1 in Hunter’s Moon Series) by Ellie Ferguson.
When Meg Finley’s parents died, the authorities classified it as a double suicide. Alone, hurting and suddenly the object of the clan’s alpha’s desire, her life was a nightmare. He didn’t care that she was grieving any more than he cared that she was only fifteen. So she’d run and she’d been running ever since. But now, years later, her luck’s run out. The alpha’s trackers have found her and they’re under orders to bring her back, no matter what.
Without warning, Meg finds herself in a game of cat and mouse with the trackers in a downtown Dallas parking garage. She’s learned a lot over the years but, without help, it might not be enough to escape a fate she knows will be worse than death. What she didn’t expect was that help would come from the local clan leader. But would he turn out to be her savior or something else, something much more dangerous?
Both are available through Amazon, Kobo, and iTunes. Other outlets will be coming soon. Hunted is also available through All Romance E-Books.