Ah, publishing. The one industry where there’s never a dull moment. Between federal lawsuits against legacy publishers for price fixing to the feud between literary authors and genre writers to the battle to save bookstores even as e-books continue to gain popularity, publishing can be like the best — or worst — roller coaster you’ve ever ridden. This week is no different.
In the Department of Justice’s price fixing law suit against Penguin and Apple, the only remaining defendants to the suit, Penguin has filed a motion to compel arbitration “in the consumer class and state claims.” This is basically the same motion Penguin filed earlier in the life of the case and that was denied by the judge last July. Penguin has, I’m assuming, refiled the motion because the judge, at the time she denied the motion, didn’t actually rule on the state claims. That leaves the door open a crack for Penguin here. Basically, this is probably simply a means for Penguin to preserve the issue on appeal and not a real effort to have the judge grant arbitration.
Now, for once, I agree with Publishers Weekly on this issue. First, arbitration in this case would be prohibitively costly. Think about the man hours needed to enter into arbitration with every person who qualifies. How many people bought an e-book from Amazon or Barnes & Noble, for example, during the time in question? How many have opted in to the class action law suits? How many different states are involved? How many of these purchasers have become incapacitated or have died and the arbitration would have to be with guardians or trustees? How many of us believe this is just another attempt to drag out the suit?
As we draw ever closer to the June 3rd trial date, it is clear that the whole case comes down to whether or not the judge will buy Apple’s and Penguin’s argument that there is no “direct evidence” of a conspiracy or if she will see a pattern in the evidence presented to her. It’s been a long time since I’ve read the applicable federal statutes involved in the case, but I doubt there has to be only direct evidence. If there is an overwhelming amount of circumstantial evidence, or a so-called smoking gun, that isn’t rebutted by other evidence, then that can be just as convincing as finding someone standing over the body with the murder weapon in hand.
Remember, that person you find with the murder weapon may just be some poor schmuck who came upon the body and, hearing some sound in another room, picked up the gun to defend himself. Conversely, if you have an abundance of e-mails and sworn testimony describing meetings where the players discussed how they wanted to do in Amazon and the best way to do that was to prevent it from discounting e-books by refusing to sign contracts with it unless it agreed to agency pricing, then you pretty much have evidence of a conspiracy.
Yes, that is over-simplifying it, but you get my meaning.
And then there’s the news that broke over the last couple of days concerning Stephen King. King, who back in 2000 was seen as the champion of e-books — or the betrayer of the industry, depending on your point of view — has seemingly reversed his stance. Back in 2000, he published Riding the Bullet only as an e-book. Oh, the howls of outrage at the time. But even louder were the cries of derision by his fellow authors and others in the industry. After all, back then, there was no Kindle, no Nook, no iPad. E-books were still in their infancy. He was either an innovator or a betrayer.
Flash forward to next month and the release of Joyland. Some sites are hailing King as a hero of print. Others note that, while he has said the book will only be released in print next month, he isn’t completely closing the door on releasing it as an e-book later on. Frankly, it doesn’t matter one way or another. Not really and not in the long run because King has kept the digital rights for himself and that means the e-book can come out whenever he wants it to.
King’s rationale for not releasing the book as an e-book is simple: “I have no plans for a digital version. Maybe at some point, but in the meantime, let people stir their sticks and go to an actual bookstore rather than a digital one.”
Now, am I the only one who sees a problem with that statement?
I doubt it. After all, his publisher for Joyland, Hard Case Crime, isn’t keeping the book off of online sales sites like Amazon or BN.com. As far as I have been able to discover, Hard Case isn’t cutting any special deals with indie bookstores to make it more cost-effective for those smaller, locally owned stores to stock the book. Remember, indies don’t have the buying power that the big box stores do simply because they can’t order in the same volume the bigger stores can.
There’s something else that will happen — and that some folks will use to condemn e-books. I can pretty much guarantee that Joyland will be pirated, possibly even before it hits the shelves. You don’t need a digital file to pirate a book. All you need is a copy of the book, or the ARC, and a scanner with the proper software. A prime example of this is the last Harry Potter book. It was available for download on a number of pirate sites days before the book was on sale. Don’t forget, those books were only offered as e-books within the last year or so.
But if King’s reason for withholding the digital version is to get folks into bookstores, this is probably too little and too late. Sure, he’s a best seller and his hardcore fans will go buy the book in print even if they’d prefer digital. Even though it is coming from a smaller publisher, there will be push for the book. After all, King is a “best seller” and he has more than enough money and pull to get push by simply picking up the phone and issuing a statement like the one announcing there would be no e-book version. But this isn’t one of his trademark horror books. It isn’t coming out in hard cover.
Perhaps this is King’s attempt to help the publishing house and to help support its other authors. Perhaps he really has had a change of heart. But, if that were the case, wouldn’t it be more effective to have Doctor Sleep, his sequel to The Shining, in only print and not digital formats? Wouldn’t that make more of a statement? It would certainly make more of an impact. Oh, wait, that would also impact his bottom line. Guess King likes getting those big paychecks as much I would.
Yes, I’m a cynic.
Let’s face it, if he wanted to help bookstores, he could do so without holding back the e-book version. Kobo has a program where indies can “sell” e-books. I’m sure there are other ways as well, including selling download codes for the book. I remember when audio books were making the transition from tape and CD to digital. You could find displays at the local big box bookstores where you could buy MP3 players with preloaded audio books on them. Publishers and authors could do the same with SD and micro-SD cards. As I said, download codes could be sold as well. There are a number of other methods that could be used as well. But each of them would require publishers, and some authors, to adapt and change their mindsets, something too many have shown a reluctance to do.
Too little, too late on King’s part? I don’t know, but I do know there were other things he could have done to make his effort more effective.
Before signing off, I’d like to ask everyone to keep the people of Moore, OK and the surrounding areas in their thoughts and prayers today and in the coming days. The devastation in the area is horrible and the loss of life is even worse, especially when you consider how many children died.