A Hazy Future Can Make For Strange Bedfellows

Let me start by saying I like Mike Shatzkin. I see his work as a view from the other side. He’s very much entrenched in the traditional worldview but, unlike some, that doesn’t mean his thoughts are ignorant and should be discounted. Certainly, he falls into some of the same traps of assumption and false narratives that others do, but who involved in following any of this and voicing opinions on it doesn’t occasionally, in some form or another, including myself. I find Shatzkin to be a fairly vocal critic of publishers. Certainly, his point of view can sometimes be very Inside Baseball, as it were, but there’s value in seeing and understanding that point of view. Everyone on all sides have reasons for what they believe, and I’ve always thought the underlying reasons for those beliefs are more important than the beliefs themselves. That’s why I tend to be far more harsh on people voicing opinions based on faith rather than fact, assumption over analytics. You can’t argue with someone who has no sound basis for what they believe. Logic doesn’t work on people whose beliefs are formed without it.

Anyway, here’s an article by Shatzkin from back in May where I think he asks four very pointed and cogent questions, not only about the future of publishing, but what the nature of that future will be. I’ll first state the question he presented, then a short quote from Shatzkin on each point before expounding in my own rambling way…

1. How persistent an activity is immersive long-form reading?

“As my generation is replaced with digital natives, a decline in the market for novels would seem to be a very likely consequence. Or, at least, novels as we know them now.”

I agree to a point. The novel, perhaps more than other types of writing, fit the form of the printed book extremely well. But if it was the pinnacle of the form for fiction, digital “books” open up new channels of possibility with the potential for new forms to emerge. I am confident the novel in its traditional form has legs, be it digital or print. But I’m not as convinced it will remain the dominant form for fiction in the long run. What it will be ursurped by, now that’s a question I’m not sure any of us can answer at this point.

2. How persistent is the demand for printed books for long-form reading?

“My hunch is that ebooks will continue to take share from print for long-form reading, in fits and starts, but inexorably.”

I’m not going to call it a hunch, I’m absolutely certain digital will take share from print over time. I think hardcovers will transition into a boutique market, likely a larger one than what has developed for vinyl albums, but a much smaller niche than it maintains today. I think trade paperbacks have a niche of their own, largely because of the efficiencies and portability of POD technology. This niche will be larger than the hardcover one, cheaper and less ornamental but, however limiting it may be, paper is a great form for static work. And I suspect the conceit of books used basically as furniture and/or expressions of your personality may hold on longer than widespread numbers of people actually reading on paper. At the end of the day, though, I think digital is going to account for 85-90% of the industry’s sales in the not too distant future.

I have one caveat to this, it’s dependent on attracting younger readers and that’s dependent on being available when, where and for how much they want. The only way I can see print maintaining anything close to even 50/50 market share is if we all fail to bring in younger readers, print sustains through the older audience and the industry as a whole contracts greatly as that audience dies off (see: newspapers). But for this to happen, it would constitute an epic failure of the big houses as well as the smaller ones, the indies and retailers both large and small. Possible buy not likely.

3. How well do informational illustrated books compete with alternatives?

“My candidate for a Black Swan here is some industrial-strength attempt to curate the vast amount of video and other Internet-based content into ‘packaged’ competition for books that teach skills.”

I can’t say as I disagree with this either. I think it’s only natural that the vast amount of information available at our fingertips will be packaged in such a way as to maximize it’s use and, ultimately, revolutionize the way we approach education. Anybody looking at the mind blowing costs of college these days can’t help but think of it as an area in dire need of revolution. This will not be good for publishers of textbooks, however, who control a vast, extremely lucrative, captive market of students. But as time goes on, it will become more and more apparent that they no longer control any kind of monopoly on information. What’s available to all of us instantly will end up as the death knell of their exploitative business model. Couldn’t happen to more deserving group, either, in my opinion.

Some forms of book haven’t yet translated in any kind of peak form to digital alternatives. But it’s only a matter of time before they all do. The technology isn’t just going to stop progressing at today’s level. It will keep getting better and better.

4. How much of the creation and selling of books spreads beyond the book business?

“I’m sure that in less than five years every multi-million dollar marketing plan will have an ebook component: sometimes free, sometimes freemium, sometimes paid. Over time the businesses that do this work will learn, probably faster than many book publishers, how to use the online discovery mechanisms to drive the attention of relevant consumers.”

Why this isn’t happening more already is a bit of a surprise to me. Despite what publishers may tell you, it’s not that expensive to bring a book to market. Much of their expense comes from the model they developed to do so in the conditions that it developed. Things have changed, barriers for entry are little piles of rubble in most places now. Individual people can and do access this market regularly and to good success. If you’re a company of any size or bankroll, the cost of diving into this type of product is miniscule.

But more than just using them as a marketing add on, I can see all sorts of businesses using digital writings to supplement their brands. You see a business like Chipotle already experimenting with things like short stories on cups and their own miniseries television show released directly to Hulu. Producing entertainment or informational media and distributing that to an audience is no longer the sole purview of media companies. Everyone can be a publisher now and over time, everyone will.

So there’s Shatzkin, a person whose opinions I often disagree with yet I find I’m in near total agreement (to some extent) on these four questions, all of which forward-looking beyond the present day conditions of the publishing industry and it’s nascent battles with Amazon and the digital revolution. Just because someone seems to be on the other side of the fence today doesn’t mean they’ll always be there. Look at the underlying reasoning for why people believe what they do and you may find more commonalities than you expect.

Dan Meadows is a writer living on the banks of the Chesapeake Bay. Follow him on Twitter @watershedchron

Published in: on August 28, 2014 at 2:51 pm  Leave a Comment  
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Breaking the Scale: Bigger is not always better

A couple weeks or so ago, I left a comment on The Passive Voice under an article about Hachette’s CEO and his response to Amazon’s late night call to give him hell…er, politely inform him of your desire that they think critically about their pricing decisions, and seriously consider dropping the push for higher prices. Anyway, I got into a little bit of my experiences in dealing with large consolidated corporate accounting departments and the thinking I’ve run into about higher prices in days gone by. It got me thinking about a couple things and how this might relate to further understanding Hachette’s position and what the possible consequences could be, even if they get what they want.

Here’s the first comment I left:

“It may even be simpler than that. It reminds me of something I called the bean counter effect at a couple of magazines I worked for. They just couldn’t conceive of the notion that a higher price didn’t automatically mean more money. They wouldn’t recognize any kind of multiplier effect of more for less, no matter how many times we showed it to them on paper. It was a risk, unquantifiable (at the time) and all they knew was the difference between what we were selling at and the increase they wanted. We were selling print ads but it’s the same principle.

“Amazon could have said each sale at $9.99 generates a thousand extra sales and they wouldn’t have recognized it. They simply can’t see past “If I sell this for $13, I make $3 more than if I sell it for $10.” What I could never get across is that it’s not the difference between $13 and $10 that’s at issue, it’s the difference between $10 and the $0 that a not-insignificant number of people will choose instead $13. In this case, it’s the difference between $17.50 and $0 with Amazon’s multiplier data, which makes it an even dumber choice, I think. You’re not gaining anything at $13, you’re losing all the people who would have bought at $10. Essentially what you’re doing is making your customer base smaller and milking your best customers for extra money.”

Later on in the thread, I related a second instance of what I considered overly simplistic thinking involving money we paid out in this case. Here’s that second comment:

“At the same time though, you can’t always trust what they’re telling you about marginal cost. I was the managing editor of a free distribution magazine several years ago for a publisher who’s name would be instantly recognizable (not any of these folks). We were strictly ad supported and we operated on a 60/40 ad to editorial ratio, meaning we basically added up paid ad space and that number would represent 60% of our page count.

“Now I was a huge proponent of trading out ad space for various kinds of work we needed whenever possible. These trades were not counted as paid space so that added no cost outside the simple real price of what we paid to produce that space. Say I needed a delivery route run, something that would take a couple hours. I might pay someone $100 to handle it. Or I would offer them an 1/8 page ad for their business or whatever that’s listed at $150. They always took the ad, every time. Our real-world cost for that space across the entire print run was something like $20. And coming from non paid space, that $20 was a total sunk cost. So I traded $20 worth of sunk cost in exchange for not laying out $100 in real cash, effectively adding $80 to our bottom line. (You could argue it was adding the full $100 to the bottom line considering that $20 was being paid no matter what.) I was saving us somewhere between $2,000-$3,000 an issue with this stuff, if not more.

“Well our accounting department threw a fit. They insisted that we were actually losing $50 on this transaction. (Actually, they started out saying we were losing the full $150 price of the ad but I did manage to convince them the $100 was going to be outlayed in any case.) No matter how many times or how simply I laid it out for them, they would not move off the position that we were losing $50. It turns out their accounting systems had no mechanism for quantifying this because there was no revenue coming in but when they audited the paper, they recorded these ads as paid space, so we showed a deficit between the revenue they said we should have and what we actually produced.

“Eventually, they forbid me from making any more trades rather than adjust their accounting systems to record these gains. To make matters worse, our bottom line actually looked better on paper after they banned trades despite the fact that we were now spending a few thousand more per issue than we had been. That’s when the light bulb went fully on for me. If their standard accounting practices can make a real world $80 gain look like a $50 loss, and do it in such a way that it’s actually defensible and looks like it makes sense, can any of the figures they produce be trusted? How many other gains are showing up on the budgets looking like losses?

“Now this is a little simplified. There are tax issues and time a designer spends getting the ad together and such. But generally, we would get about 4 times the value back on a trade than we would paying out for it, and they banned me from doing so.”

I’ve found myself recently re-asking the two part question I wondered about back then, why in the world would you throw away essentially free money (in the instance of trades) and how do they not see that a much broader customer base at lower prices makes a far more stable longer-term revenue stream than a smaller base with higher prices? I also spent a not-inconsiderable amount of time worrying about the fact that I knew absolutely that the budget sheets we were getting from them were showing an artificially better bottom line than what actually existed. The disconnect between reality on the ground and the faux reality of their accounting systems was an insoluble issue simply because they wouldn’t even admit there was a problem.

I’m watching book publishers and their supporters today making arguments that are just as inexplicable to me as those were then. Do they not understand what’s really going on out here? Can they really be deluded enough to believe that readers will be supportive, even in the short term, of a strategy that gives them less choice, more restrictions and a higher price? Were they being taken in by comments from some readers supporting such a position? What I knew, from lots of experience, is that there’s often a hell of a difference between people speaking in high minded pronouncements about paying a premium to support their “culture” or what have you, and the choices they actually make when it comes time to break out the wallet.

I’m starting to believe the problem here is scale. Larger and larger companies require higher and higher outlays of resources just to keep the lights on, meaning the proportion of price needed for simple infrastructure that has nothing to do with actual production expenses grows near exponentially with the size of the entity. We’ve had it drummed into our heads that scale is beneficial because it provides greater negotiating leverage and greater purchasing power at lower prices from larger levels of bulk buying. This may have made sense at some pre-internet point, but does it still make sense in the current atmosphere? Does it even apply to something like ebooks that requires no physical materials to produce or distribute, making the notion of bulk buying power completely irrelevant? Certainly, Amazon is a large and growing company, their scale does have decided advantages, but is there a similar advantage from scale for publishers in dealing with them? It certainly doesn’t appear that Hachette’s size is any kind of advantage. If it were, there’d be no dispute going on.

Penguin Random House is often pointed to as the direction of things to come, but should it be? Consolidation in the periodical sector, looking back now, clearly did considerable harm to those publications siphoned up in it. It looks like efficiency on the surface but in practice turned out to be just the opposite. The question I have now is does the counter effect of increased infrastructure costs of consolidation counteract any bulk savings? I say yes, and then some.

Hachette’s not arguing for profit so much as arguing for maintaining revenue to cover sizable infrastructure costs. The obvious counter of why aren’t you decreasing your infrastructure costs to support those margins doesn’t seem to be a very popular one. It is, however, a needed question to ask and answer. There’s a line of thought going around that the lower production costs for ebooks and POD should have no bearing on the end retail price. I find that as inexplicable as not understanding a multiplier effect from lower prices or the savings from trades based on actual out of pocket expenses. Of course those lower production costs are a factor in price. Not only that, they must be.

Smaller entities are currently taking full advantage of these lessened costs. The problem for large publishers is their sheer size changes the equation. For an independent, the lower costs are directly tied to both lower prices to readers and a higher margins to themselves. For the larger entities, the lower price is threatening because of the sizable portion of the cut must go to the infrastructure costs associated with such scale. They can’t risk the multiplier effect not taking place because they need the raw revenue stream to be somewhat constant to keep meeting payroll and keep the lights on. The conventional wisdom that bigger is better is increasingly looking to be just flat wrong in this atmosphere. And if you’re doing it as a publisher to “compete” with Amazon, you’re making an even bigger mistake, as well as displaying a fundamental misunderstanding of the word compete.

There are numerous reasons to believe that, in the current environment, it’s better to be a smaller entity. One is that your accounting doesn’t have to be so complex and standardized as to be inflexible. Really, the problem I had with trades was that what I was doing didn’t fit into the parameters of their accounting software, so instead of adapting the software they just stopped me from doing it. Admittedly, changing that software is a pain in the ass on a much smaller scale. On a giant corporate one, I can understand why it wouldn’t be your first choice. But that’s stupid! I was one magazine adding an extra $50 grand a year or so to our bottom line doing what I was doing. This company had dozens and dozens of publications. They chose to throw that away because of inertia. It was a big enough amount to be a pain but not a big enough amount to force any accomodations. And they somehow managed to make the budget sheets look better than they had when they were in reality, worse.

Another is that the costs of the bundle of services publishers offer are inflated well beyond what those same (or better) services cost in an open market. That’s why you see some trad writers, when discussing the costs of publishing on their own, will cite numbers anywhere from $15k to as high as $40k for those services. It’s what they’ve been told these things cost. The knowledge of the reality that this work actually can cost at least 10 times less outside the gated publisher world isn’t even available to them. My lower prices/higher margin sales can relatively quickly cover those costs where your lower royalties require many, many times the number of sales just to cover the overly-inflated expense figures. Publishers costs in this regard are inflated for the same reason they want to maintain higher prices on the books themselves, their huge infrastructure costs have to be paid from somewhere.

In the present environment, scale isn’t some kind of competitive panacea for suppliers to retailers. It’s an albatross of expense and inefficiency hanging about their necks that necessarily limit their ability to fully exploit emerging markets and bring costs down in flattening if not outright declining markets. Scale, which may have been useful in the past, is increasingly suffocating now.

It’s really a matter of intetests. Is it in a writer’s interest to sign on with one of these increasingly consolidating publishers? How much does their sheer size, and the need to pay for that, change the dynamic between their interests and yours? How much longer will it be before a critical mass of writers realize that they’re bearing much of the weight of paying for many of elements of the publisher that have nothing whatsoever to do with producing, marketing and selling their books? They’re paying their expenses using you for pennies on the dollar, while pocketing the gains from the diminished to near nonexistent ebook production costs. Just on a simple dollar for dollar examination, the publisher’s interests run almost completely counter to my own and that’s moving more into the publishers favor as each day passes.

When the print ad revenue collapse hit newspapers, the companies with the largest scale responded the only way they could, tens of thousands of people losing jobs in round after round of layoffs. This not only hurt their ability to handle the size they had become, it further handcuffed their digital growth, which is now evident in the fact that their digital revenues are also declining and managing little to no separation in the rate of loss as the decimated print sector. Their scale forced the cutbacks which in turn left them understaffed to handle the essential tasks and woefully short on money for experimentation and growth in digital or keeping forward-thinking folks in their employ. Their scale became a self-defeating necessity to maintain itself rather than the advantage it had initially appeared to be.

What happens if we have a bad holiday season in print books sales this year? Can Barnes & Noble even sustain through another massive hit? Publishers are already squeezing writers both with deep discount clauses on print books and low ebook royalties (not to mention shrinking advances). If a round of layoffs or two end up a reality, the value of their bundle of services declines even more than the over-inflated costs we’re already experiencing. In turn, these companies become even less efficient, and less productive as they become understaffed to handle their sheer size. And raising prices to recoup print declines simply is not going to possible.

In the future, bigger is better may no longer be true, even for Amazon. People seem to be under some impression that it takes a giant to slay a giant. But that’s not altogether accurate. As Amazon continues to grow and expand, it’s own scale is adding massive infrastructure costs by the day. It’s not going to be one big company that gets them (certainly not one big consolidated publisher). They’ll suffer the death of a thousand cuts as many small, nimble entities target various bits and pieces of what they do, undermining the whole by eroding key components of it wherever possible. And Amazon is in a position where it simply cannot raise prices to compensate. Trying to do so will drive customers away in droves which will, in turn, further exacerbate the infrastructure cost problem. It can try to further squeeze suppliers but there are limits to how far that kind of strategy can take you, too. If they get complacent and anything is going to get them, it will be their scale that’s they’re undoing.

Smaller Is Better appears to me to be the approaching mantra of the 21st century. As huge consolidated corporations fall by the wayside under the weight of their own infrastructure, the only question I have left is how long it will take for Wall Street and business schools to catch on. Consolidation and ever larger entities may seem like something beneficial to those businesses today but, ultimately, they might only be serving to break the scale.

Dan Meadows is a writer living on the banks of the Chesapeake Bay. Follow him on Twitter @watershedchron

Print Protectionism Rules The Day…For Now

So Amazon came out with a statement a week ago detailing its position on ebook prices and, not insignificantly, it’s belief that authors are being short changed on royalties by publishers. Not surprisingly, it was met with a collective shrug by the mainstream industry, if not outright contempt. One thing this has done, however, is bring the belief that publishers’ actions on ebooks are all about protecting print out of the implied shadows. Here’s a variety of quotes from various sources critical of Amazon in response to their statement. Read on:

“Amazon doesn’t quantify what lower e-book prices would mean for sales of physical copies of the same books. Authors who work with traditional publishers like Hachette tend to make more, per copy, from hardcover sales than from e-books. If cheaper e-books draw people away from hardcovers, that could hurt these authors financially.”

“If lower e-book prices were to eventually destroy the market for physical books entirely—or even shrink it enough so that it wouldn’t make financial sense for traditional booksellers to publish them—that would help Amazon consolidate its power, which would ultimately be dangerous for authors.”

Literary agent Brian DeFiore in The New Yorker

“Lower e-book prices aren’t necessarily the best thing for writers. We get a percentage of the price as a royalty. You also have to take into consideration the price of the hardcover. Yes, it’s cheap to make a digital book but it’s expensive to present a book in hardcover.”

Roxana Robinson, Authors Guild President in Wall Street Journal

“Amazon’s assumptions don’t include, for example, that publishers and authors might have a legitimate reason for not wanting the gulf between eBook and physical hardcover pricing to be so large that brick and mortar retailers suffer, narrowing the number of venues into which books can sell.”

John Scalzi from his blog

“It is true that ebooks live in a world where they compete with other media. It is also true that the they live in a world which includes print, also an important component of a publisher’s and an author’s economic world. This analysis is very short on measurements of the impact on print sales of lower ebook prices.”

Michael Shatzkin from his blog

“Their figures consider a world of ebooks only. Their “total pie” is really just a piece of the pie. But publishers and authors are looking to maximize revenue across all formats. “Total revenue” on an ebook is only part of the “total revenue” for a new release book, and the hardcover edition still generates substantially more revenue per unit.”

Michael Cader from Publishers Lunch via Joe Konrath

“Even if ebook prices are the focal point of the dispute, that does not mean (Hachette) should not be looking at the effect across their total business, and their total account base.”

Michael Cader from Joe Konrath’s blog

What do all these have in common? The belief that the ebook is not only inextricably tied to print, but must, in some way, be handicapped to shield the older, more expensive and inefficient model. So what we’ve got here is the key issue in modern publishing, do you believe that digital must necessarily be hamstrung in some way to the benefit of print?

If you’re a Patterson or King or someone who gets the benefits of large numbers of hardcover sales in physical bookstores, that answer seems to be a resounding yes. But if you’re not one of those very select few, the question becomes much more difficult to answer. How does it benefit the midlist author or the debut author to have your ebook prices placed higher to support brick and mortar hardcover sales that benefit a much smaller number of superstar writers almost exclusively, and very likely, not you? As for the indie authors, it clearly doesn’t seem to benefit you to link print and digital in this way at all.

There appears to be two schools of thought on this. One is that print must be protected from lower priced ebooks because they will hurt physical stores, shelf space will decline and Amazon will reign hellfire over the industry forever and ever, which will result in damage to all authors in the long run. This is a call for all but the publishers and most fortunate authors to sacrifice in order to preserve an ecosystem that doesn’t really help them. You must sacrifice now in order to prop up a network where, unless you’re extremely fortunate, you must sacrifice in perpetuity, essentially.

The second school of thought is that ebook prices must necessarily be higher (and royalties lower) because the revenue generated pays for the totality of the book. This line of thought is that profits from ebooks aren’t really profits at all but a portion of the total revenue of a book that includes high print expenses that must be paid. This is a call for authors to sacrifice on ebooks to pay for the publishers’ print expenses even though they’re already being paid for that with a royalty structure on print that was designed and implemented to cover all the costs of bringing the book to market. You’re basically donating 75% or so of your digital proceeds after the retailer’s cut to your publisher for generating and uploading an epub file.

Either way, the presumption is that ebooks can’t be allowed to grow independently of print. They must either be restricted to prevent the erosion of print sales or a large portion of their revenue must be siphoned off to pay for the print infrastructure. There is also the assumption baked into this that the future of bookstores depends on the continued furtherance of $25 or $30 hardcovers. Also that any contraction in the print market (and conversely any unchecked growth in ebooks) will lead to Amazon consolidating even more power. Both assumptions rest on the belief that ebook and print revenue exist in the same continuum as hardcover and paperback revenue did in the past.

Here’s the thing about that, paperbacks didn’t undercut hardcovers because they were windowed. Windowing doesn’t work with digital. So the only means they see to prevent hardcover sales erosions is to actively lessen the sales of ebooks. Presumably, I would think, once the hardcover cycle runs it’s course, the high ebook price should come down to old mass market paperback levels, if not less, but that’s not really what we’re seeing.

All of this rests on the belief that digital sales can be essentially capped at 30-35% of the industry. And further, that print, particularly pricey hardcovers, won’t erode anyway due to other factors irrespective of ebooks or that the large and growing segment of the industry that simply doesn’t care about the hardcover/bookstore ecosystem they’re essentially locked out of won’t undermine the higher ebook prices to the point that publishers lose out on both print and digital sales.

Protecting physical bookstores is also a tenuous ideal from this two-pronged perspective. One, ecommerce is not going away. In fact, same day delivery is being rolled out by multiple players, not just Amazon. That has nothing to do with the price of ebooks but a more existential question on the nature of consumer shopping choices. Two, print on demand technology will become better, cheaper and more pervasive, possibly even resulting in kiosks that have the potential to do some of the same things Redbox did to video stores. When was the last time you visited one of those?

Are publishers going to withhold books from these kiosks? Will they demand near-hardcover prices for the trade paperback products they produce? Are they also going to demand higher prices for print books sold online? All of these elements will eventually erode bookstore sales and if publishers’ interests rely on protecting those stores, then these acts would be totally consistent with the higher ebook price strategy. It also means that publishers would be intentionally harming virtually every new publishing technology that increases efficiency, lowers prices to readers and increases sales in favor of their one preferred sales channel and format. One that, it can’t be understated, makes books more expensive, more inconvenient for readers to buy and less lucrative for writers overall.

If you’re James Patterson, Stephen King or Douglas Preston, these strategies may make some sort of sense in the immediate term. If you’re any of Hachette or any other large publisher’s thousands of non superstar authors, however, this doesn’t make a whole lot of long-term sense. Remember, you’re not just making less money on a contracting print market, you’re covering the publishers’ revenue declines in that respect through lower ebook royalties. The only way declining hardcover sales and rising ebook sales harms these authors is if the publishers are saddling you with a much-too-small cut of ebook proceeds. Amazon is right in this respect. If publishers were paying writers fairly on ebooks, then you stand to make more money on more sales at cheaper prices for readers. Their strategy is going to make you less money on fewer sales at higher prices to readers. The fact that there’s one single non-superstar writer who signed on to that Authors United letter is another illustration that, much like politics, dogma can and does lead some people to make choices that run counter to their own economic self interest.

Also consider, much like ebooks, independent authors will jump all over POD kiosks and the opportunities they bring. After all, when you’re looking at a physical store ecosystem that actively discriminates against you, protecting their margins or even their very existence is likely a non-factor in your choices if not a potential negative to you to do so. This is something bookstores would do well to keep in mind. Continuing to block, ignore or alienate indies is creating an entire giant class of increasingly successful writers who are ambivalent to your problems if not outright hostile to you. You might want to knock that off.

Basically, this strategy that the big publishing houses are engaging in is not in the best interests of readers or the vast majority of authors. The concern that Amazon will dominate everything is a very real one, but this isn’t a particularly practical way of dealing with that. I want a diverse ecosystem as well but asking me to sacrifice to the benefit of organizations that aren’t willing to do so in return isn’t going to work for me. Amazon’s market force is a different problem in need of a solution as innovative as the ones Amazon has used to gain that position. I think it’s fairly safe to say any such innovative competition is not going to be any more friendly to the publishers’ 20th century business strategy.

Let’s say I self publish a few books and my sales take off. A publisher comes to me with an offer. Ignore for a moment that the advances being offered barely cover a few weeks worth of sales in some cases, let alone life of the book. Let’s say I sign it anyway. That offer would require me to pull currently good selling material from the market for months in some cases. When they do return, my ebooks are now two or three times the price, the share of which I receive is less that what I was making per book on my own. I’m locked out of doing anything about it. I’m also hoping that bookstores stock my books in a way that generates sales rather than just another title on just another shelf and that declining physical sales doesn’t cost me even more money. I can’t get my books into libraries without the crazy high prices and restrictive terms publishers impose on them. I can’t take advantage of POD opportunities without my publisher’s approval and even then only on terms they set. On top of that, I have little means of having a viable route to rights reversions should everything go south. I have to hope I get lucky enough to generate hardcover sales (if I even get a hardcover print run) at a high enough volume that my next contract can get more favorable terms or a bigger advance, if there’s a next contract at all. The icing on this particular cake is that my material that was finding a foothold on my own may now be stagnant and trapped with that publisher for at least 35 years unless I can afford a good lawyer and a drawn out legal battle to get my rights back. And all because my publisher chose to emphasize its most difficult, expensive and inefficient product line for a litany of reasons that have little to nothing to do with benefitting me. Why would I sign that? Why would anyone?

I’m of the opinion that, if I were to sign on with a publisher to handle my print business, I absolutely do not want that same entity to also be in control of my digital business. They will almost inevitably do just as these publishers are, handicapping the digital to prop up the print. What should be happening here is another round of disintermediation, this time separating the print and digital products entirely. Focus on finding a way to maximize print that doesn’t involve sacrificing digital. That could mean exploiting POD technology and finding ways to actually cut the cost of physical books to readers (and bookstores), not raise the cost of ebooks. Can it be done? Maybe, maybe not. But what you won’t be doing is handicapping the emerging market that customers’ dollars are flowing toward. $30 hardcovers of mainstream genre fiction is not a long-term growth market, just as $20 compact discs weren’t for the music industry and multi-thousand dollar print ads weren’t for the newspaper industry. Their respective businesses may have been dependent on those things at one point, and they may have seemed reasonable at the time, but they weren’t a strength, instead a major weakness making them extremely vulnerable to technological change and shifting consumer habits.

The music business lost nearly half of its CD sales revenue in a just few years. Newspapers lost near half of their print ad revenue in just a few years. Sometime in 2025, will this paragraph be finished off by saying book publishers lost nearly half of their print revenue in just a few years? Those other two businesses refused to adapt, engaging in protectionist strategies under the mistaken belief that digital alternatives would top out at a lesser market share and the physical product would still retain primacy. Sound familiar?

Ask yourself this: if I sign on with a publisher whose entire strategy is to use digital to support the furtherance of print, what happens to me if print drops precipitously anyway, as there is clear precedent for? How you answer that question may well determine which writers still have a career a decade from now.

Dan Meadows is a writer living on the banks of the Chesapeake Bay. Follow him on Twitter @watershedchron

Predictions

Prognosticating the future is always a tricky business. Easy to do, far less easy to actually be right. Fortunately, we don’t often call out folks for being horribly wrong in their Nostradamus impersonations after the fact. You can argue maybe we should but relatively few who make public predictions are going to jump all over someone else’s bad ones because they know only too well how many of their own are way off base. What goes around, comes around so don’t go around in the first place.

But predicting things is fun! Hell, I spent 40 or 50 tweets predicting the NBA season back in the fall, then used another 20 to predict the playoffs last month even though my regular season picks were so hit or miss as to be nearly random. The only pick I’ve got left is Indiana winning the title. I also may be the last person not named Larry Bird who’s riding that particular bandwagon, and I’m not too sure Larry didn’t tuck-and-roll his way outta there a while back, too. But if they win, you bet your ass I’ll be doing some gloating. Albeit without mentioning the other dozen predictions I made that didn’t come through, of course.

My point here is take any and all prognostications you see with the biggest grain of salt you can find. Not usually something you see a writer say in a piece about to make a prediction, I know. But I find the value in prognosticating doesn’t so much come from whether the final prediction is right or wrong, it comes from the process of evaluating circumstances and evidence and extrapolating that out to a conclusion. When I read predictive pieces, the reasoning why the writer is making the guess they’re making is more important to me than what that guess is. You could be completely correct with your prediction but the reasoning leading to it could be so flawed as to be useless, or you can be completely wrong in your prediction but dead on in the circumstances leading you there. You have to evaluate those circumstances and how they relate to your individual situation. It’s impossible to know for certain how things will turn out in a complex environment like the publishing industry, but it’s very possible to understand the conditions and act accordingly for your personal ends.

That being said, here’s my extrapolated prediction: book publishers, even huge conglomerate ones like Random Penguin, will be non-existent or so altered as to be unrecognizable as present-day publishers in less than 10 years time. Easy to say, no way to prove. In fact, you can’t even prove I’m wrong at the moment, only after the fact. You can try, and state evidence opposing my viewpoint all day long, if you like, but guess what? All you’re doing is making predictions to try and counter my prediction. The same flaw that makes my prognostication far less than a certainty is also making your counter-prognostication far less than a certainty. So my final word, as it were, isn’t really the point, only a guess as to where things are heading, exactly like your theoretical counter is really only a guess.

What matters is why I’ve extrapolated that publishers are screwed (or why you’ve extrapolated that they aren’t.) Here’s the basis for my reasoning, in five handy points: Hatchette is reportedly trying to reinstitute some flavor of Agency pricing in its deal with Amazon now that it’s prohibition against such is almost up. The other major publishers will likely take similar action as their DOJ-imposed limits expire. What does Agency pricing do? It limits discounting by retailers and raises the price of books. Point one.

One of the major arguments in favor of Agency pricing (and against, to be honest) is that it works to protect hardcover sales and sales in brick and mortar bookstores from ebooks that are “too cheap.” That’s great and all, but ebooks aren’t what’s hurting brick and mortar retailers, online commerce is. Doesn’t matter if someone’s buying a print book or an ebook, if they’re buying it online, that’s a sale a physical store didn’t make. Certainly, ebooks are native to online but trends show print sales are increasingly migrating there, too, for a number of reasons. Online commerce is exposing the inefficiencies of brick and mortar retail in virtually every business that doesn’t ask if you want fries with that. (I also predict it’ll be exposing their inefficiencies sooner than later, too, but that’s a different article.) Does Agency pricing affect that deeper societal trend in any way? No, not really. Point two.

The book publishing industry hasn’t had the classic disruption drop off in sales that all disrupted industries have suffered. Napster and it’s ilk exposed the holes in the music industry’s model and set off the demand for digital music that caused massive, rapid declines in cd sales. (Not that downloading killed cd sales, mind you, consumer demand for digital music did that.) Craigslist (and later, eBay) virtually wiped out newspaper classified advertising almost overnight. For those that don’t know, classifieds were the most profitable advertising per column inch in the newspaper business. The sudden loss of great chunks of it was catastrophic.

It’s tempting to say ebooks were that force and the industry avoided the huge losses. But think about it for a second. Ebooks have been a decided gain for publishers, the extra profits they reap from ebooks have made their bottom lines look better than they should. Ebooks didn’t work against publishers’ interests, they were extra money dropped into their laps. They were the best positioned of anyone to take advantage of this when a market was firmly established. And they did, albeit while bitching all the way to the bank. Ebooks themselves have never been a threat to publishers, so unless they were braindead stupid, they were bound to benefit from them like everybody else. The fact that they haven’t benefitted more from them is something they’ll soon come to regret, I believe. Point three.

Barnes and Noble is circling the drain. We all know it. It’s just a matter of when. I would argue that if not for the college bookstores (a different, less disrupted to-this-point market) they might already by a ghost. They just reported a 10% drop in sales the third quarter of 2013 over the year before. Immediately after, they suffered about a 10% drop in their stock value. This corresponds rather neatly with a recent U.S. Census report that shows bookstore sales in general have dropped by 10% from last year, illustrating that this isn’t a B&N-centric problem but an industry-wide issue. Their online commerce effort is an epic trainwreck. And, they’re a brick and mortar retail store at their core no different from Borders or Best Buy or Circuit City (remember them?) or Blockbuster or any number of other chains that used to be mainstays in strip malls everywhere. Those pressures aren’t going to go away and they really have nothing to do with ebooks or even the publishing industry itself. Higher education is in many people’s crosshairs as a ripe market to be disrupted. When someone finally breaks through, and they will, those college stores aren’t going to be life lining anything. Barnes and Noble is doomed. Point four.

Ebook sales are slowing down. The market is maturing, establishing a ground floor somewhere around 20% of the industry and is growing at a slower rate as its marketshare rises. Now you could argue if that’s even true, given the nature of the data available and the invisibility of many self published works in that data. But what’s not really disputable is that the data we have is unquestionably reflecting traditional publishers. So, while you can argue whether ebooks on the whole are slowing down, you can’t really dispute that they’re slowing down for traditional publishers. On top of that, inexplicably, many of those same publishers seem to be under some impression that this is a good thing. Point five.

So that’s the five elements I see as the present conditions I’ve made my prediction from: the biggest publishers are likely going to try to reinstitute Agency in some form; the results of that will handicap retailers and raise prices in a market struggling with online commerce already undermining brick and mortar retail; we’re still waiting for the classic steep decline in legacy product sales caused by disruption; Barnes and Noble is a dead man walking; and the growth rate of ebook sales for traditional publishers is slowing. Now that I’ve identified what I believe are the current applicable conditions publishers face, I’ve concluded that their long-term prospects aren’t particularly good.

Here’s how I think this goes: Say you’re a big pub CEO and you sit down at your desk one morning to headlines reading “Barnes and Noble files for bankruptcy. Remaining stores to be shuttered.” As you drop your head into your hands considering the 65 different ways this screws you, there’s a knock at your door. It’s Walmart, Target, Sam’s Club and the other warehouse stores.

“We’re so sorry to hear about Barnes and Noble. It’s a terrible tragedy. We’d like to offer our condolences. Here’s a cookie bouquet.” You nod solemnly and they turn to leave, but Walmart stops short, looks to you and says, “By the way, being that we now represent the last mass-market retail space you have, we’d like to have a discussion about the discounts you give us, when you feel better, of course.” He then leaves, closing the door behind him.

Your mind races. “Well, we can probably absorb a bit of an increase in discounting. Maybe we can hire more interns or move to more freelancers.” As you snatch up one of the cookies from the bouquet and start munching, feeling somewhat ok, your office door suddenly flies open and in storms Amazon. “Hey bozo, guess who’s responsible for 70% of your business now? I’d suggest you get ready to open that checkbook of yours or we might happen to have some technical difficulties with your buy buttons. See ya, loser!” Amazon storms back out, slamming the door so hard the picture of you and a smiling James Patterson falls off your office wall.

“Ok,” you think to yourself, “maybe if we cut advances by 30%, we can get through this. We’ll be alright.” Just then, there’s another soft knock at your door and a finely dressed, lawyerly gentleman strolls in. “Hi, I’m from the Independent Bookstore Alliance. We represent 1500 independent bookstores in the U.S. Given as we are now the last bookstore shelf space in the country, we’d like to discuss the types of discounts you can give to our members at your soonest possible convenience.” He softly lays his business card on your desk, next to the half-eaten cookie from the bouquet, and leaves.

You lean all the way back in your fine $10,000 Italian leather desk chair and mutter to yourself, “Oh fuck…”

Or something like that. B&N’s gone, brick and mortar bookstore sales start dropping 10-20% year-over-year, quarter after quarter for years until what was 50% of your business is now 15%. What’s worse is that the sales you’re still making, both online and physical, print and digital, are less profitable than they were before due to being squeezed by retailers of all stripes. Ebook sales growth, while inexorable, isn’t keeping pace with the losses that are mounting. It’s the book industry version of the print dollars to digital dimes problem. On top of that, you’re losing writers from two camps: the upper echelon superstars who you’re not producing results for like you were before, and the entry level writers who scoff at the increasingly miser-like contracts you’re foisting on them. Midlist writers would likely join them in the exodus, too, if they hadn’t already fled in large numbers by this point. Both groups of writers are moving on to either do it themselves, to better adapted publishers or to some new concoction of collaborative publishing or author collectives that cut you out altogether.

At that point, there’s two choices: change to become a different kind of company, one that can handle these new market realities where you and your ilk are no longer at the head of the food chain (a process you may already be too late for) or fade to obscurity in the corporate sell-off/bankruptcy/vanity buyer process that has chewed up most newspapers. Either way, what publishers are today, and especially what they were 10 years ago, will be largely no more.

So that’s my theoretical timeline. Am I right? I don’t know, ask me in 10 years. What I do know is that there are likely more protectionist actions coming from publishers that don’t actually protect anything. I do know that Barnes and Noble is struggling mightily from the same reasons in the same ways other similar businesses didn’t survive. I do know publishers have lost a great deal of their control of the distribution system, and with it, their principle means of discovery and a chunk of their leverage with retailers over discounts. I do know, for whatever reason, ebook sales growth is slowing for traditional players and maybe everybody. I do know that writers have more options to make it to market than ever before, many of them outright replacing the essential positions publishers were anchored in. Whether all this means what I think it means is open for debate. Whether you agree with all of my five points, a few of them, just one or even none at all, there’s elements within each that can have profound impacts on the choices we have to make as writers.

Maybe you don’t think publishers are in serious trouble but you agree B&N is, so you set up a short-sell deal on their stock. Maybe you agree publishers are heading for a period of great upheaval and don’t want to sign an open-ended contract with one, or go with a publisher willing to work with contracts with a 5 or 10 year expiration date. Maybe you’ve been considering striking out on your own and the struggles of publishers are the last push you need. Maybe you think reinstituting Agency will protect the print side of the industry and put your efforts there. Maybe you agree B&N is toast but you think it’ll lead to a resurgence of independent stores rather than the start of a deep brick and mortar downfall and seek out a publisher better integrated with that community. Interpretation is in the eye of the beholder and should always be based on achieving your own individual ends. Making my prediction led me through a long cycle of circumstances, patterns and considerations to reach what I think may happen. Reading this likely led you to consider the same things, even (maybe especially) if you were breathlessly hollering at your screen how full of shit you think I am as you read. Whether I’m right about the end result or not doesn’t really matter. There are several factors in play here that will impact what I ultimately choose to do, and that’s the real value in predictions. It’s not a right or wrong thing, but a process of understanding and examining smaller elements in order to extrapolate out to a conclusion. Progress doesn’t just happen in big, sweeping pronouncements. It occurs from within the smallest details. And nothing you choose to do will be very effective if you don’t have a better understanding of those diverse yet interconnected details. I predict that’s the case, anyway.

Dan Meadows is a writer living on the banks of the Chesapeake Bay. Follow him on Twitter @watershedchron

Do Editors Have Copyright Interests in Books They Edit?

“Our job is to partner with you on a journey to reconcile your vision of your book with the way your prospective readers will see it.”

–From Writer’s Digest

The relationship between an editor and a writer should be collaborative, we’ve all been told time and time again. It seems to make sense on the surface, almost to the point of common sense. The problem, though, is that it’s dead wrong. Even more than that, as a writer, it’s a potentially dangerous and expensive mistake to make. Let me explain…

“A developmental editor will take your manuscript and work with the content itself. If needed, they might reshape your work and rearrange sentences to make the book flow together better. This type of editor helps an author find their voice and help refine their vision.”

– from PBS Mediashift

So an editor of this type, or one that engages in this type of action, precipitates significant changes to the finished product. Do you think it’s fair to say the end result of such a relationship is a collaborative work? That the editor’s contributions are an essential component in the finished creative work for sale? So would I.

“Do editors have a copyright interest in the edited version of the manuscript? Maybe, maybe not, but it is a weapon in the editor’s collection arsenal that should not be ignored.”

–From An American Editor

This is from a blog for editors openly discussing whether editors have a copyright interest in the finished edit of a work. It’s not a theoretical construct, it’s an actual thing being openly advocated for amongst some editors. Albeit, editors in this case who have been stiffed by their clients, but I don’t think they’d be wrong in doing so under any circumstance. Although, I find the author’s stance that as little as inserting one comma would give an editor a copyright interest is maybe a little bit of an overreach. Appropriate stress due to “maybe” there. It well could. What I have no personal doubt of is that, if you’re making substantive content changes at the behest or recommendation of an editor, you most certainly are giving them a copyright interest.

So why aren’t we seeing courtrooms filled with editors making copyright claims? Because it’s something that was largely irrelevant in the past, and people’s perceptions haven’t quite caught up with reality yet. When most books went through publishers and most editors were employed by those publishers, the copyright interest of the work product of the editor belonged to the publisher. There was little reason for anyone to enforce it. Even after publishers started relying more and more on freelance editors, you can be sure their agreements with those editors contained work-for-hire language, meaning their work product, and any subsequent copyright interest, still belonged to the publishers.

The rights were there but everyone’s interests, as they were aware of them, generally flowed in the same direction so they were rarely, if ever, expressed. That’s why we think of editors as collaborative but not to the extent of a copyright claim, even though, particularly with deep substantive editing, it’s difficult for me to find a rational reason why they wouldn’t that isn’t based on the assumption that they’ve never had one. It’s not that it didn’t exist, but that the nature of the industry itself repressed their claim, likely without most of them even realizing it.

So what’s changed? Everything. Now we have independent writers hiring freelance editors and designers for all manner of tasks. We have writers selling print only rights to publishers and retaining ebook rights to publish themselves. We have the 35 year rights termination procedure passed into law in the ’70s only now coming into use. Everyone’s interests are no longer flowing in the same direction. Little things that were insignificant in the past because the system inherently suppressed them, like any potential copyright claim for editors, can now bubble up through the cracks these changes have opened in the industry’s very foundations. Just because we haven’t seen it doesn’t mean we won’t.

Self Publishers and Independent Contractors

Let me just say this, if you’re doing any freelance work yourself or hiring independent contractors for things with any copyright implications at all, you had better know the law relating to work-for-hire and the IRS and Agency definitions of “employee” inside and out. I see a ton of articles about how to pick an editor or how to pick a designer directed at self publishers. What I don’t see is nearly enough articles explaining how not to screw yourself on the contractual relationships with those contractors.

“(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)”

–From U.S. Copyright Act of 1976

Work-for-hire is a fairly simple concept on the surface. If you are an employee, any work product of doing your job, and any resulting copyright interests, belong to your employer. “Employee” is a little more complicated than just if you’re on the payroll and they’re paying payroll taxes on you, although those are considerations. Whether you are legally regarded as an employee depends on the nature of the relationship. The more the employer controls the terms of your work; the times you work, the equipment you use, where you work, etc; the more likely you are to be deemed an employee regardless of how they’re paying you.

The second part of work-for-hire, and the one you really need to pay attention to, is that the work must fit into one of those categories listed in the quote and be expressed in writing. The and is the crucial part there. If you are an independent contractor and there’s no written work-for-hire agreement, it doesn’t exist. This means whoever contracted you has limited use of the work per the terms of the contract and all copyright interests remain with you. The written agreement is not optional. No contract, no work-for-hire. And believe me, as someone who’s done my share of independent contractor work, it’s extremely useful to be aware of its absence in your agreements. Here’s a link to a pdf of the U.S. Copyright Office circular that explains work-for-hire, and the criteria for employee determination. If you don’t already know it forwards and backwards, read it now.

The point of this is, simply, don’t be stupid. Know the law and protect yourself. Understand that everything is different about the nature of your relationship to an editor you contract versus one you work with who was also contracted by the same third party publisher. And I mean everything, right down to the legal implications of the structure of your business arrangements.

Do editors have a copyright interest? I think they do but I don’t know absolutely. That’s for a judge to decide at some point. But do you want to be the one standing in court across from that judge when he tells you they do? I sure as hell don’t. Simple work-for-hire language in your agreements with any independent contractors who are contributing anything creative to your final work for sale will make it a moot point. Even if a clear ruling is made that they do, you, through the work-for-hire language, would own that copyright interest in the work they did for you.

If you go around leaving holes in your agreements with people, you’re going to fall into one. Know the law, use it, protect yourself and your interests. You can be damn sure others will.

The 35 Year Termination Rule

We’re just now entering an era where authors can have their rights reverted 35 years from publication just by filing some paperwork. This applies to any work after January 1, 1978, so we aren’t very far down the road on what this will mean. I expect we’ll see publishers inundated with these things in the coming years and, eventually, we’ll see some long-term lucrative works they really don’t want to give up in the firing line.

In the past, rights reversions were generally one of two things; done through an out of print clause for a book the publisher’s been getting nothing from, or a buy back where the author pays the publisher for the reversion. This new termination rule is different in that it clearly forces publishers to give up rights against their will with no recourse. If you don’t think they’ve got lawyers pouring all over their contracts and the various intricacies of copyright law to find a workaround, you’re kidding yourself.

Here’s another place where a copyright interest for editors might turn up in the future. Publishers never had any reason to acknowledge such an interest, particularly since they owned all those interests anyway through work-for-hire. But now, faced with losing money-making properties for nothing, they very suddenly find themselves with such an interest. But it shouldn’t matter because the rights are reverting at 35 years, anyway, right? Well, no, not really.

Where a typical copyright term is life of the author +70 years, work-for-hire is different; 95 years from publication or 120 years from creation. More than that, work-for-hire is not eligible for the 35 year termination. Yes, you may get your rights reverted but the publisher, through the work-for-hire work product of editors, may still retain a copyright interest in the final product you’ve been selling for over three decades. With that, they could potentially stop you from publishing that version, or licensing the rights to that version to another publisher. More likely, I’d expect they’ll use it as a nuclear option to negotiate a new deal with them at better terms.

Termination may not be what we think it is, all because folks weren’t paying enough attention to small little contract provisions like work-for-hire. You know who was paying attention? Publishers. Or do you think it’s just a coincidence they happen to own all the rights to any possible editor copyright interest for damn near every single significant book of the past 40 years? Harper Collins just won a lawsuit claiming to have bought ebook rights in 1971, for God’s sake! Their contracts may be onerous but they’re not a leaky ship full of loopholes by any means.

This may be something to keep in mind for future negotiations; provisions that keep any work-for-hire copyright interests created in producing the work attached to the rights for the purposes of any reversions. It’s something to consider.

Print Only Publishing Deals

When I first heard about Hugh Howey’s print-only deal a couple years ago, the first thing that popped into my head was, “how is that going to work?” I have questions and maybe Howey, who’s been very forthcoming in a lot of ways, or someone else out there who’s cut one of these deals can answer at some point at their leisure. Enquiring minds want to know…

What’s the deal with editing? Did the print publisher do an edit of their own? Did they just use your final edit you’ve used in your ebooks? If they did do an edit, did you use that in your ebooks, and if so, is there language in your contract that allows that? Or are there two separate edits out there, their’s for print and your’s for ebook? What happens when the rights revert at 10 years or whatever the time limit is? Does the final edit revert too or just the rights to the original before the edit? Does the contract address this at all? I could probably think of a few more but that about sums it up.

The print-only deal where you publish the same material in a different format simultaneously on your own didn’t exist even five years ago. It’s added a layer of complications to what was a fairly simple process. Who knows what kind of holes may open up? There’s no possible way we can foresee all the potential risks such arrangements may bring about. Unintended consequences are a bitch.

If we presume for a moment that editors, especially of the deep, substantive variety, have a copyright interest, then someone owns that. It’s either the editor themselves, the publisher or the author through work-for-hire. It might be a good idea to know who, and a better one to make sure, iron-clad in writing, that it’s you.

One of the great selling points of self publishing is that you keep control, you retain your rights. That’s true, so don’t encumber them unnecessarily through lax independent contractor agreements or because you don’t fully understand work-for-hire or copyright law. It may be that all of this, even the very concept of editors having a copyright interest, is speculative and will never come to pass as a significant issue. But as I look at what role editors are increasingly asked to play, and as I read the particulars of the law, I’m fairly convinced that they do, at least in some circumstances.

This could ultimately have implications reaching much farther than self publishing. We, as independents, can solve this problem by inserting clear work-for-hire provisions in our contractor agreements. But what about the matter of that copyright interest being owned by the publisher through their agreements independent of us? That’s a different kettle of fish, and much harder to protect from. Especially if most of us don’t even realize it’s a danger.

Intellectual property is the 21st Century gold rush. What they found back then was the rush very quickly was followed by claim jumping. Some of it was criminalized, but not all. I’m in favor of protecting myself at every possible angle. You just never can tell where those claim jumpers might look next.

Dan Meadows is a writer living on the banks of the Chesapeake Bay. Follow him on Twitter @watershedchron

The Bookstore Conundrum: Value Propositions Part Two

Earlier today, I wrote about value propositions, mostly in reference to the reader/bookstore and writer/publisher relationships. Almost as soon as I clicked post, I started thinking about bookstores and how we perceive what they do. More importantly, how the talk coming from some quarters there is actually producing contradictory results to their stated aims. Basically, some of them seem like they don’t really want to succeed, they want someone else to assure success for them. Now obviously, I’m speaking in generalizations. But that’s what we trade in here in publishing land; generalizations. Big Publishers, indies, writers, readers, traditional, legacy, hybrid…these are all broad generalizations, just like bookstores. All these various groups are built of diverse collections of individuals. Your experience may vary.

We have this notion of bookstores as historical artifacts, a gut feeling of their necessity to literature and the publishing industry itself. But it’s not accurate. Certainly they’ve played an important role to get us to this point in time, but at the risk of sounding callous, what have you done for me lately? Just because you played an important role in my life in the past isn’t reason to belive yourself entitled to that position or one like it in the future.

I used to love going to Blockbuster, too, and record stores! I remember the first time I set foot in a Borders. A book store and a music store! Together! Can I just move in? I’ll sleep on a couch in the cafe. I spent huge sums of money in Borders over several years. But eventually, I found the urge to go less and less prevalent. There were even times I went and left empty handed, a possibility I wouldn’t have even considered before. I had stopped spending money in Borders years before they finally went belly up. Somehow, somewhere along the way, they stopped providing what I needed to get me in their doors.

I’m not even sure what it was they did wrong, maybe nothing. What they were doing just lost all relevance and attraction to my life. That’s where bookstores are finding yourselves right now. You’re still there, providing what you’ve always provided, offering the value we used to love and not be able to live without. But we increasingly aren’t interested anymore. We no longer value you the way you think we should. It’s not your fault, it’s us. We encouraged you to keep doing what you were doing for our own selfish ends and now that our interests have changed, you’re understandably confused about how to win us back. I don’t know the answer to that question, but I can tell you one thing for certain, doing more of what you used to do, that made us love you in the first place, isn’t going to work.

Take a hard look at the ground many of you have staked out; you don’t have any true allies. The Amazon hatred at all expense, even against the interests of your own customers, is alienating the emerging independent writer community. The 1% traditional writers are saying nice things about you, mega-best seller James Patterson even giving out $2 million in grants to bookstores. Sure, it’s divided up amongst so many stores that it’s in increments too small to be of any real help, but every little bit helps. You just have to ask exactly who that little bit helps. Is it the bookstores getting checks so small in some cases that it wouldn’t even cover a couple months rent or is it the image of James Patterson, literary philanthropist; a man who sold 50 times that total amount in books last year alone? It’s like me walking into 40 or 50 bookstores, handing them a $10 bill and saying, “this is for your future.” Ask yourself why he isn’t giving $25,000 or $50,000 grants to these stores, amounts that could actually help. He can certainly afford it. Is this about helping bookstores or is it about a rich guy’s tax write-off and good PR from the illusion of helping bookstores?

The publishers are also out there saying nice things about protecting bookstores and you’re importance. But why in the world would you believe them? Not long ago, they sold all your asses out to the big box stores and discount warehouses, quite literally putting a Target on your back. The carnage got so bad and so prevalent, it became the subject of a Meg Ryan/Tom Hanks rom-com, for God’s sake! Did you forget all that? Just block it out of your memory once they started complimenting you again?

You know why publishers are being so nice to you right now? They need your shelf space to prevent a mass exodus of writers because brick and mortar print sales are the last value hook they’ve got to hang their own hats on. The second they don’t need you anymore, they will throw you out like last week’s trash. They’ve done it before. At nearly 40 years old, one of the things I hold as a near immutable fact of life is that if someone has the will to do something to you once, if you give them the chance, they will do it to you again. Publishers are not your friends, not even by association. I’d have thought the past couple decades would have taught you that only too clearly.

It makes the indiscriminate Amazon hatred many of you show even more absurd. You should be thanking Amazon. They did you a massive solid by killing your most immediate threat, the big box stores. Amazon bought you crucial time to figure out a way to adapt and survive. If you’re just gonna sit around and bitch that people aren’t buying books like they used to, you will get burned. It might be Amazon that gets you, or the publishers. And that’s only if your own so damn customers don’t burn you first.

You could have allies on the indie side if you drop the Amazon spite and lose the last remnants of the bias toward self publishers you developed back in the true vanity press era. But instead you seem to just enjoy whining on about how things were better back in your day and the doom you claim we’re all heading for. Bookstores are for-profit businesses, and as such, the entire point is offer something people are willing to pay enough for that you can keep your doors open. Bookstores that struggle don’t do so because people arent buying books, it’s because they’re not buying books from bookstores.

The industry won’t collapse without you. In fact, the industry is actively moving away from you. Book sales aren’t plummeting as you make fewer of them. When you call for “the need” to help bookstores, what I hear isn’t someone saying help us to adapt, it’s someone saying help us keep doing what we’ve always done because it’s valuable. Here’s a hint: if, as a business, you can’t sustain yourself on what you offer, then it’s not that valuable. If we help you keep alive a model that is getting less and less economically viable now, when does it stop? Are you proposing we make bookstores permanent charity cases? If so, how does that make you different from libraries, which we already support for all the same reasons you cite for supporting bookstores?

And full circle back to my point from earlier today, what’s the value proposition for readers then? It’s not selection, knowledge, convenience or price; we’ve found all of that elsewhere. What is it, exactly, that you think benefits us by saving you? Or is it as I suspect, you don’t really care about benefitting us, just assuring your own continuation with a minimum of upheaval? If the latter has any truth to it at all, then that, not Amazon, is your biggest problem and the answer you’re looking for. Do you see it?

Dan Meadows is a writer living on the banks of the Chesapeake Bay. Follow him on Twitter @watershedchron

Choices

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Who says we can't handle choices? Here's the absurd array of drinks available in one small town grocery store alone.

You know what I like most about publishing? That every two or three days, like clockwork, someone will say or write something that’ll get me all fired up. Today, it’s Michael Kozlowski at Good eReader with this missive “Self Publishers Should Not Be Called Authors.”

As soon as I saw the headline, I instantly had flashbacks to a couple of years ago when I wrote about how ridiculous it was to complain about self publishers calling themselves indies. It was much the same argument; “this term is reserved for your betters, how dare you self publishers presume to define yourself by a term that is clearly accurate and doesn’t convey your rightful position as an industry doormat!” I’m not going to spend too much time refuting this clear and obvious perversion of the term “author” but there’s a greater point to be made here, I think. If you really want my full position on labels, and how limiting I believe even the best of them are, go read my indie-term article.

Being an author is about the act of creation. Nowhere in the dictionary does it list a requirement for your earnings to deserve such a title, nor should it. The only people for whom “author” means something else are those purposely looking to impose a class system or hierarchy of some sort. We see this from certain corners because readers are no longer “respecting” the previous class system in the ways those benefitting from it are used to. Traditionally published authors aren’t being placed on a pedestal by readers appropriately high enough above the self published interlopers, apparently, so let’s parse some language to make it clear to these uninformed people that self published work is dreck and you’re destroying literature by buying and, gasp, actually enjoying such sub-standard fare.

Clearly, the people who pen this material can’t be real authors, they’re simply writers. Authors are a higher class unto themselves. And, according to Kozlowski, the only way to properly earn that title is to make a lot of money. Unless you’re traditionally published, of course, in which case you’re an author by default, recognized as such by organizations that require as little as 1/5 the income of self publishers for the same membership. Ack! Double standards make my brain hurt!

A decade or so ago, I worked for a free distribution boating magazine on the Chesapeake Bay here in Maryland. Our primary competition was another free boating magazine and our racks of magazines would often be set up in places right next to their’s. We did it that way on purpose. We found the best advertisement for our work was to sit it side by side with their’s and let the reader choose which they found more valuable. On average, we moved 4 or 5 copies for every 1 of theirs even though both were free for the taking. If you’re so convinced self publishing work is vastly inferior, why the interest in drawing distinctions with prejudicial labeling? Why not simply trust readers to recognize that quality, or lack of it, and act accordingly?

I’ll tell you why, because readers aren’t seeing self published material as vastly inferior in large enough numbers to suit their assumed hierarchy. So now they must resort to discriminatory labels, artificial class systems and demonization to get their preferred message across because readers aren’t reaching that conclusion by, you know, actually reading the stuff and using their own judgment on what constitutes value or quality. Rather than adapt and compete, they’d rather segregate. Here’s an earlier piece from Kozlowski suggesting just such a course for the major digital retailers to deal with self published material.

His call is in response to some indie erotica turning up in children’s book sections and the rather extreme over-reactions of some retailers. (W.H. Smith, to be specific, shut down their entire online ebook store as a response.) But look closely at his “solution” to this problem. He’s not suggesting retailers need better filters or categorizing ability, he wants to throw all self published material into a digital ghetto, as it were. How does that solve the miscategorization problem? Who cares? Let’s just cram them in a corner and forget they exist. That way, they don’t clutter up the traditional book market or steal sales away from “real” authors.

The interesting point to me is the straw man he uses to illustrate the problem he thinks needs correcting:

“…parents who buy innocently sounding books like “Daddy’s Playtime” might scar their kids for life.”

There’s that popular meme, the one about the reader/consumer too stupid to comprehend what they’re doing. In this case, one so oblivious that they don’t spend even 10 seconds vetting something they’re buying for their children, one who clearly doesn’t take that picture of the girl in a thong on the cover of Daddy’s Playtime as a clue that this isn’t really a kids book. These readers/buyers don’t exist in any sizable number out here in reality but they do in the minds of the traditional world and it’s defenders. In fact, we’re all this kind of consumer in their eyes, easily swayed by keywords and oblivious to matters of quality and judgment unless someone else explains what we want to us. Where our boating magazine’s practice of side by side competition relied on respecting our readers, this is the polar opposite. They want segregation precisely because they don’t respect reader’s judgment.

Lately, the publishing world is rife with complaints about “Tsunami’s of crap” and calls for the reinsertion of gatekeepers and some kind of minimum standard of “quality” abound. Who defines those standards of said “quality” is left vague, but you can bet your ass it’s not going to be readers they suggest for the task. Readers might decide “quality” is not what they want them to think it is. Someone else has to create this gold standard, then they can educate readers on what they should consider books worth buying and books that should be shunned. Better yet, they’ll shun those unworthy books for you before you even know they exist, thereby saving you the trouble of having to use any pesky independent judgment.

The big argument in favor of these sorts of things is that there’s just too many books out there, readers are overwhelmed and they need help finding good books before being drowned in the tsunami of crap. Sounds somewhat reasonable until you consider that none of it is true. More than that, this notion of readers overwhelmed by choices flies directly in the face of virtually every other aspect of 21st century life. People want choices, more, more, more, it’s never enough. We see it in everything from food to movies to music to television to pretty much anything that exists on the internet, which means just about everything.

Yet somehow, we’re supposed to believe books is the sole area remaining where consumers can’t handle choices and would prefer to have someone else limit them? Bullshit! The consumer overwhelmed with options is from the same meme as the ignorant or oblivious one. They don’t really exist in large numbers, only in the minds of people in the industry in who’s interest it is to limit those choices. But no one wants to be seen as condescending or insulting, even to themselves, so they paint the effort as a means of “helping” readers.

The truth is readers aren’t having trouble finding good books at all. In fact, they’re finding them at a far greater rate than they can consume. And as for quality, well, they seem to be doing just fine sussing out books they might enjoy from one’s they likely won’t, just as they always have. Their judgment seems to be working perfectly for them and their particular tastes. Which is the real problem here. When given a vastly larger menu of options, people will inevitably make choices of personal preference that don’t synch with those that the supposed tastemakers expect of them. So the tastemakers’ answer to that isn’t “maybe we should pay attention to the readership and what they’re actually showing us they want” but “they’re too distracted and ignorant to know what they’re doing and we need to show them the proper decisions they should be making to protect them from all these difficult choices.”

I think there’s a sizable number of people within publishing who truly believe the tech industry is driving the heavy consumption behavior we see in today’s readers, but that’s precisely backwards. This behavior was emergent long before the tech caught up. The shift in consumer behavior is what created the atmosphere for this tech in the first place, and it happened because a few other someones had the vision to see what regular people truly wanted and created platforms and devices that played directly to that. (Amazon, anyone?)

The tech industry isn’t driving this behavior, it’s a response to it. Big publishing, however, is still operating under the increasingly false assumption that they can, in fact, drive reader behavior in the directions they choose. The problem with that is readers no longer want to be driven, if they ever did. They’re saying, in no uncertain terms, “What we really want is more choices. Give us that and we’ll tell you what we want more of, not in a poll or survey or some social media data mining effort, but by where we spend our money.”

I’ve been around the block a time or two, and I’ve put in more than my fair share of time within publishing. One thing I can say with very little uncertainty is that, when your business model requires you to fight against or change the behavior your customers want to engage in, barring extraordinary measures like government intervention, you are going to fucking lose. And if you’re fighting that behavior while simultaneously acting as if those same customers would stop breathing right now if you don’t text to remind them to inhale, you’re the one who comes off looking ignorant and over-bearing.

The audience isn’t a passive one anymore, it’s no longer a one-way conversation, and they’re certainly not ignorant and uninformed. Arguing in favor of class systems, hierarchies and narrowly-defined labels doesn’t convey anything other than your own bias and pettiness. Personally, I’d prefer a world with no labels, one where “author” is an action and not a defining characteristic. But until then, call me whatever the hell you want. Odds are, at some point, I’ve been called much worse.

Dan Meadows is a writer living on the banks of the Chesapeake Bay. Follow him on Twitter @watershedchron

Without Corporate Reform, The Future is Bleak

I don’t care much for corporations. Well, the giant ones, anyway. Anybody with $1,000 can become a corporation, I did at one point, but that’s not the type of companies I’m talking about. It’s the mega-corporations and the wannabe megas that attract my ire.

During the 2012 presidential campaign, the GOP made a big deal out of refuting the notion that “corporations aren’t people” by arguing that they are, indeed, filled with people. That may be true, but it’s misleading. There are many good people working for these mega corps, I might even say most of those employed there are good people. However, the companies themselves aren’t led by those people, the day to day hard workers who get the job done. They’re led by the upstairs suits who exist in an overly-rarefied air. Over the past few decades, floor level employees of these companies have seen job losses, wage stagnation and benefit cuts while their upstairs kin have reaped compensation packages sometimes hundreds or thousands of times greater than the average working bloke. There’s not just a metaphorical level or two separating these groups now, it’s more like a 2,000 mile winding staircase to the stratosphere.

Publishing has long been an industry that essentially lives with a split personality. Do you wonder why it is almost every major publisher got caught with their pants down when the digital disruption took hold? It’s this separation of powers, as it were. Many of the people on the ground knew the score. They were working the day to day, they saw what was coming, saw what needed be done. The people upstairs, however, were detatched, clueless and disinterested in this fancy new internet thing. After all, they were publishers! Their business model had been perfected over a century, and profit margins were still rolling.

But as revenue losses mounted, far too frequently, the answer was to cut back on ground level people in great numbers, often the very people who spent the previous few years trying to get the “braintrust’s” attention. This has only made things worse as it reaffirmed the positions of the people who dropped the ball in the first place while running out those who actually knew the score. Now, the disconnect between the upper floors and the ground level is wider than ever.

Earlier today, I was reading about convenience stores and there was an anecdote about GOP candidate Mitt Romney’s campaign stop at a Wawa while out on the road. The article told of how in awe Mitt was with the touch screen food ordering system there. I couldn’t help but laugh. I mean, really? Those things have been common for 15 or 20 years, at least. Romney was trying to convince us he had the chops to be President yet the man was overly impressed with ordering a damn sandwich in a convenience store? That is precisely the disconnect we see within corporations. Guys like Romney are upstairs making decisions on business models but he’s so clueless and out of touch that a totally commonplace thing I don’t believe I’ve given three seconds of thought to in ten years blew his mind.

I cringe every time I hear one of these upstairs types in publishing talk about culture and supporting literature. I do it almost reflexively because it’s pure bullshit. The people on the ground floor undoubtedly believe in those things, but the people upstairs believe in profits above all else. Talking in sweeping generalizations about culture puts a shiny veneer on it but, like a faux-woodgrain surface on a pressboard coffee table, it peels away very easily. When you work with a corporation, you may be talking to the lower level people who do care about such things, but you’re really dealing with the upstairs suits. You may be able to massage the inevitable labyrinth of corporate procedures now and again to get things done, but at the end of the day, the quest for margins wins every time. Maybe that’s as it should be, they exist to make money after all, but I like to think there’s a middleground between a naive cultural focus and a cynical profit-driven exploitation. Too much of our corporate world these days is all about the exploitation.

The GOP have it all wrong. The problem with our country today isn’t a government badly in need of reform. It’s our corporate structure that needs reform. Their virtually unchecked greed has damaged the very economy they depend on for their profits. They have corrupted the government by throwing large sums of those profits as look-the-other-way bribes to legislators, buying unpopular and destructive laws that serve only their business interests, and stifling any kind of even-reasonable regulations to rein in the worst of their excess. All the while, they cut pay, break unions, offshore jobs to third world countries, evade any and all taxation and give little or nothing back to the economy that supports them.

No, government isn’t the main problem, it’s simply become the PR wing for big business exploitation. Until we rein in the overbearing corporate culture that’s suffocating us all, we’ll never get back to the true representative democracy we’ve earned. I’m no socialist or communist sympathizer. I believe in free markets, I believe in entrepreneurialism. What we have today barely resembles a free market. Our laws, and our tax codes, bought and paid for by the corporations, undermine any notion of free markets to the benefit of those who would stifle competition, sue to prevent progress, rail against technology that disrupts their income streams and wrap their brand of capitalistic totalitarianism in the flag of faux-patriotism. Our elected representatives are little more than well-paid nobles subservient to their corporate kings.

The world won’t change until the first corporation has its charter dissolved and its assets sold off. It has to happen eventually. Either we do it now, rein these self-serving bastards in, reinforcing the belief that the competition and the free market they try so hard to stifle is more important than they are, or the people will do it eventually. But who knows how that will turn out, or what kind of regime will come after? They aren’t bastions of free markets or capitalism. They, through their greed and exploitation, are poisoning the notion of what those things mean. I don’t want to live in a commune. I want a vibrant, enterprising creative atmosphere with ample competition, and rules that work for all, not just those who can afford them. If we allow things to reach the point of revolution (and make no mistake, continue on our present course and they will) the end results could be very bad for everyone.

We need to send a message to these corporations that the world does not belong to you. Dissolving a few of the biggest offenders, opening the door to real competition, genuine innovation, and removing the artificial impediments they’ve bought to shore up their business models in the face of change would be a good start.

I’m not holding my breath.

Free The eBooks! New petition calls for supporting consumer ownership of ebooks…I think

Yesterday, I saw a link to a new petition on the U.S. government’s website to allow the “unlocking” of ebooks and reaffirmation of ownership rights by consumers for these digital goods. This comes on the heels of the Obama administration coming out strongly in favor of fully legalizing the jailbreaking or unlocking of cell phones. I agree with both sentiments, but the new petition has some issues. Here is the text: 

Protect Readers’ Rights by Unlocking Ebooks

The White House recently came out in favor of allowing consumers to unlock their own cellular telephones. We are asking the White House to apply the same laws and provisions to ebooks.

The purchase of a book, whether online or not, is a purchase, not a license. Digital books should be legal to read on any device that supports standard text files. Legally purchased digital books should not self-destruct, expire or disapper, except under conditions of damage or obsalescence. Within reasonable limits, book purchasers have the right to lend or give books to friends, charitable organizations and libraries. Finally, libraries should be permitted to lend ebooks under the same rules as physical books.

We ask the Obama Administration to champion the rights of readers to own their ebooks.

So, typos notwithstanding, let’s discuss. And by the way, if you’re going to post a petition concerning important issues like literature and consumer rights, you really should spellcheck the damn thing, otherwise your credibility could “disapper.”

For starters, the White House didn’t apply any laws or provisions regarding unlocked cell phones, they only expressed support for the notion going forward. The relevant laws concerning this, specifically in the DMCA, clearly ban the activity. Their opinion on this is all it is, just an opinion. For cell phone unlocking to actually be legal, it’ll take a legislative fix. Good luck with that. Not to mention, they stopped short of showing support for similar unlocking of ereaders and video game consoles, etc (they did mention tablets but only in the limited sense that they were becoming more like smart phones which dedicated ereaders are definitely not). A logical view would follow that if jailbreaking phones is okay, then doing so with all devices should be as well. But the White House doesn’t stretch that far, with their stated position directed at preventing lock-in by telecomm service providers and has nothing at all to do with content providers. In fact, the White House specifically called for “narrow legislative fixes in the telecommunications space.” That’s a far cry from rallying around customer rights for content they purchase. It’s certainly a step in the right direction, but there is no law or provision in this that’s even applicable to content rights for consumers.

I completely agree with the statement that buying an ebook is a purchase not a license, but that’s far from a popular position to hold. Over the past couple months, in arguing in favor of resale rights to digital goods, I found myself in many places arguing just that point of view. Content providers, including many independent writers, are clinging to the license scheme, and with some solid justification. There have been a few conflicting court decisions, but it’s far from decided that the sale referred to here is, legally speaking, actually a sale. I believe it is, and I think the licensing regime we’ve got going on here is potentionally the greatest threat to consumer rights in any of our lifetimes, but I’m definitely on the minority side of that point of view. It’s going to take a favorable SCOTUS ruling to affirm such rights, as a legislative fix simply isn’t happening in this atmosphere, and I wouldn’t hold my breath for it, even if I absolutely believe it’s what needs to happen to retain balance between producers and consumers in the stream of commerce.

I’m somewhat confused by the statement that says digital books should be legal to read on devices that support standard text files. Ebooks aren’t standard text files and, as formats improve (epub3, html5, etc) they’re even less comparable to simple text. Unless the petitioner is advocating for stripping off the bells and whistles to bare bones text, I don’t understand the point of this statement. Seems naive and, much like the recent lawsuit from bookstores against Amazon and the Big 6 calling for “open-source DRM,” whatever the hell that is, it comes off as very tech-ignorant.

As for libraries being able to loan ebooks under the same rules as print, I have two questions. One, ebooks aren’t print so why would you want to limit libraries to a physical standard that doesn’t necessarily apply? Secondly, and most importantly, the petition plays fast and loose with the first sale provision of copyright law. The ability of libraries to lend physical books as they have comes from first sale. The petitioner’s opening statement that an ebook buy is a purchase not a license supports a first sale position, but it also seems to go out of its way to avoid even mentioning consumer’s rights under the same provision, notably resale. Is the suggestion here that libraries should be granted a waiver to exploit first sale rights customers shouldn’t have, even though it opens with a strong statement supporting a first sale argument? I don’t get it. If the point here is to free ebooks from lockdown control of content providers, why skip the most important tool to achieve that, a true ownership stake in the ebook for the purchaser?

What I see as the big flaw in the argument here is the warping of the concept of first sale rights. Libraries can have them, apparently, the license scheme used to block them is dismissed, yet for some reason, consumers should still be left wanting for their full rights under copyright law? Why? And what, exactly, are reasonable limits to purchasers lending ebooks? Why should libraries get more rights to lend books than consumers? How is it that I can give away or donate said ebook, a library can then use first sale to lend it, but I can’t use the exact same provision of copyright to resell it? I thought this was about freeing ebooks for consumers, but it seems more like exempting libraries than truly benefitting paying readers.

The petition ends with a call for the Obama administration to champion the rights of readers to own their ebooks. I agree, but that’s not what they’re calling for here. This petition still ignores first sale rights for consumers while championing them for libraries and even accepting restrictions on consumers to lend or give away said ebooks. This isn’t ownership at all, but simply a desire to read a Kindle ebook on a Nook or similar type of arrangement. If all you really want is to prevent content provider lock-in to specific devices, then say that. Don’t muddle the issue with notions of first sale or ownership that you’re not even advocating. The wording of the petition also allows for ebooks to be deleted or removed due to obsolescence (misspelled obsalescence, which is a fascinating freudian slip, as license schemes are already limiting the very idea of what constitutes a sale).

I think this is a nice thought, preventing vendor lock-in has some definite merits, but ultimately this petition is poorly executed and unnecessarily convoluted. And again, spellcheck, dammit!

Stop Stealing From Your Customers! Eroding non-creator copyright protections hurts us all

The past week, I’ve been caught up in philosophical meanderings related to the digital goods business and the notion of copyright law. I’ve read quite a bit here and there around the web on the subject and I see more than a few disturbing things.

1. Most people, including creators, don’t really understand copyright

I am continually bothered by the number of writers, musicians, etc who seem to believe copyright gives them some sort of all powerful right to totally control what happens with their work, even after it’s been sold and is out in the world. Copyright doesn’t do that. It grants you a limited monopoly right to use your work commercially, nothing more. One of the primary reasons there is so much consternation about copyright is that those limitations are slowly being eroded away. Life plus 70 years is a flat-out joke that totally spits in the face of what copyright is all about. Think about this for a second and tell me that copyright’s ends of protecting the public interest even still exist: Not one single American creative work entered the public domain statutorially this year. None. Nada. Zero.

Things like the upcoming Kirtsaeng decision in the Supreme Court, depending on how they rule, and the intricate licensing schemes pioneered by the software industry and dove into whole hog by the media industry purposely erode first sale rights, giving creators control of secondary markets (or the ability to prevent them altogether). That also undermines the idea of limited protections. The newspaper industry fighting against Google News and aggregation is an all-out assault on fair use, yet another attempt to wipe away or severely lessen copyright law’s limitations.

I can’t totally blame creators who behave as though they have some kind of all encompassing powers under copyright, media companies have been working very hard behind the scenes to make it that way for their own benefit. But those limitations exist for a reason. Take them away, and the entire purpose of copyright gets perverted away from a protection that gives creators a fair chance at exclusivity for a while to try and make a buck and allows the public to benefit from these works in a way that promotes future progress. Without those limits, the very progress copyright law is supposed to promote gets stunted.

Copyright law grants you the opportunity to make money, it doesn’t guarantee it, and the value to society on the whole is supposed to be balanced against creator’s interests, protected from the very exploitation the erosion of those limits is actively causing.

2. Very few on the creator side seem to give a damn about consumer rights

This, to me, is the most disturbing trend I see emerging, especially when it comes from Indie authors. You can’t talk out of one side of your mouth about appealing better to readers, then ignore or argue against the idea that readers also possess protections under copyright law that we’re actively taking away through the licensing scheme ebooks are sold under. The digital goods market is built upon a foundation of taking away consumer rights. What’s worse, is that we also have creators out there throwing around loaded terms like piracy and stealing that aren’t accurate. Many times, they’re used to demonize people bahaving in ways they always have with regards to sharing material. Every man, woman and child in this country commits an infringing act on par with downloading a torrent file every single day. Probably several. We just don’t see it and most probably don’t even realize we’re doing it. The internet has brought part of that behavior out into the light of day. That doesn’t mean it wasn’t happening on a major scale before the internet. It absolutely was. It didn’t destroy these industries, in fact, I believe it made them considerably stronger. File sharing won’t destroy these industries today, either. What will, however, is if we continue on a path that makes copyright effectively infinite, steals rights from consumers at every opportunity, and tries to force unprecedented controls onto people for works they’ve already bought. It also doesn’t help if creators act like entitled assholes, throwing accusations of theft around while totally ignoring the fact that their entire business model is based on gutting consumer rights. Take a deep breath, go read up on the history of copyright and try to grow a little perspective.

And remember, the perversions of copyright are being driven by giant media conglomerates for their own ends. They don’t care about your rights as a creator any more than they do the rights of consumers. Don’t confuse your interests with theirs. When they’re done wiping out consumer rights, they’re very likely to turn to undermining yours, if they haven’t already. And don’t expect what fans you have left to sympathize when that happens.

3. Everyone seems to believe digital goods are infinite despite the obvious reality that they’re not

I still don’t understand how otherwise intelligent people buy into this heaping load of bullshit. A big part of the argument justifying swiping consumer rights is that digital goods are infinitely perfect. Come on! Do you really believe that we’ll be reading these same epub or mobi files on these same devices five years from now? Or ten? Technological progress is just going to come to a grinding halt, is it? We’re not going to have better, more capable devices in the future with improved or even radically different formats for these works?

If consumers don’t have any ownership rights in these products, what’s to stop an entire generation of culture from being essentially erased on the whim of corporate interests the next time a shift in standards or new technology comes along? One of the key arguments I’ve seen against second hand goods is the idea that no one will ever buy new if the used versions are identical. To begin with, nothing gets sold second hand without it being bought first hand. And don’t give me the line about people wholesale copying the same file and selling it over and over again. That’s a tech problem no one has bothered to solve because the entire industry was built upon the notion that readers were never going to have these rights. More importantly, when we do have a media shift of sorts, these current files will no longer be identical or the best thing going. If we have resale rights, I could be buying today’s epub files cheaply used or choose to buy the newest holographic version that hits the market in 2025. The long tail may be somewhat infinite, but that doesn’t mean the specific containers we’re using today are. I’m not a big fan of the notion that corporate interests can remove a giant swath of our creative culture just by switching standards or technology. Show me where in copyright law that kind of thing is allowed. It runs directly counter to its stated intent of benefitting the culture.

My perusings through this issue, mostly because Amazon filed a patent they may never even use, have been pretty eye-opening. As much as I love ebooks, and the new digital frontier, there’s always been this nagging little voice in the back of my head and I finally figured out what it’s saying: “Hypocrite!” Despite the fact that I frequently argued against increasingly controlling software licenses during my years in the industry, I never really connected the fact that, when I sell an ebook to a reader, I’m engaging in the same activity that I felt was so exploitative from the other side. I’m starting to get a picture of the weaknesses in selling digital goods, and most all of them stem from the erosion of limits in copyright law. Economic karma, perhaps. It may seem odd that I, as a writer who earns money because of copyright, would argue against more power granted to me as a creator, but I take the long view. It’s simply bad business to rip off the people paying us, and that’s what we’ve been doing from day one. By advocating for or even turning a blind eye to the giant theft of customers’ rights we’ve all taken part in, we’ve created a system that is already doing damage to our culture. Copyright doesn’t just protect creators, it protects consumers and society on the whole in a fine balancing act. What it shouldn’t be doing is warping that balance in support of business models that wouldn’t function without the self serving perversions.

Say what you like about copyright, but its value is much more than simply protecting my rights as a creator. Our system has lurched away from any semblance of balance, and it’s getting more slanted every day.

Over the past few years, I’ve read many articles from creators containing a plea for people to “stop stealing” from artists through downloading. I’d like to end this by throwing that plea back at creators.

Stop stealing from your customers!

Here are the links to the other copyright related pieces I’ve written lately, for you reading pleasure.

The Benefits of Globalization Don’t Apply to the Little People

Second Hand Blues: First Sale Rights and Used eBooks

Amazon and the Mystery of the Great Used eBooks

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