Value Propositions

Here’s the thing, we can all talk until we’re blue in face about ebooks, bookstores, publishers, writers, et al (a point some would say we already reached sometime in early 2012) but none of it means a damn thing. The only thing that matters is the value proposition offered to us and how that informs the choices people make. Everything else is bluster. Worse yet, it’s meaningless bluster that far too frequently merges with wish fulfillment of the person doing the blustering. “Ebooks are dying.” “Bookstores are crucial to the future.” “Writers need publishers to be the best they can be.” And my personal favorite of wishful thinking bullshit, “Amazon is evil.” None of those things are true. They also aren’t necessarily false in all situations. It depends on the context in which those lines are parsed. And that context depends entirely on the value proposition to the individual.

Twenty five years ago, if I wanted a new book, I had a few choices. There was the library (a brick and mortar bookstore that’s basically free for readers), used bookstores (brick and mortar store that’s cheap but whose offerings are dependent on readers getting rid of their old books), rotating racks of best sellers in retail stores (having little to do with book discovery and everything to do with pushing already known entities to impulse buyers) or bookstores themselves (who offered the best selection and knowledge about books available at the time).

In that environment, the value proposition to readers was on the side of bookstores. The time, effort and extra money necessary to patronize a bookstore was a fair trade off for what we got in return; a wider selection of books to choose from. Today, however, that value has flipped on them. Bookstores, with their real world physical constraints, inherently offer a limited selection of books. Online, however, has no such trouble. Online, you can find and buy every book. All of them. So now, bookstores have gone from having the best selection of books available to having a limited subsection of books. I know it’s frustrating because they haven’t really changed. The environment they operate in has shifted beneath them. What was once their greatest strength has now become a weakness to overcome through no fault of their own. But that doesn’t mean it’s any less of a weakness.

With ebooks, online print book sales and rapidly approaching explosion of print on demand technology, the value proposition to readers of frequenting bookstores is a problem. When they had the best selection and a knowledgeable staff that wasn’t easily reproducible, we thought nothing of the outlay in time and effort to shop there. We didn’t mind paying a few extra dollars on the price of a book to support their infrastructure when they provided a service that we valued. Today, though, shopping at physical bookstores requires readers to sacrifice. We need to give up our time and effort to get there, then pay those extra few dollars for the privilege of shopping in a limited pool of material. We need to choose to give up value available to us in order to use bookstores. I can find any book I want online, without the premium price they need to pay the rent and employee salaries, without ever leaving my couch. Hang on a second…there, I just did some book shopping, bought a book and now it’s open to chapter one in another window on my smartphone in slightly more time than it took me to type those ellipses. But only slightly.

When the value proposition changes from one where I pay out because you bring me value to one where I pay out to bring you value, that’s not going to end well for you. You can discuss bookstores’ place in literary history and culture all day long, it doesn’t change the simple fact that the value you once earned your coin with simply ain’t what it used to be.

This applies to the publisher/writer dynamic as well. Twenty five years ago, if I wanted to be a published writer, I had to go through the slow slog of querying agents, editors or whomever, piling up rejection after rejection until I get lucky enough to be offered a contract that paid me pennies on the dollar from the revenue my work generated. Not only did writers accept this, we fetishized it to the point where there are still writers who have inexplicably fond memories of taping rejection letters to their bulletin boards. The fact was, if I wanted to be published, that’s what I had to do. The value proposition of going through that crucible was worth it because it was the only way to reach the goals we wanted. Today, though, I can write, format, and offer a book for sale to anyone with an Internet connection without so much as saying hello to an agent or publisher and be selling books tomorrow. The value proposition of the publishing industry gatekeeper-rejection logjam has been gutted. The time, effort and low pay you offered to get published seems vaguely insane now that getting published and selling books at much higher compensation rates is as simple as clicking a button. Publishers, like bookstores, didn’t change, the circumstances around them changed through no fault of their own. In fact, it’s changed and is still changing despite their concerted efforts to fight those changes. Pissing into the wind may be a popular corporate response when social behavior shifts leave them behind, but that doesn’t make it an effective response. It only makes your pants wet. And smelly.

Publishers and bookstores carefully crafted the value they brought over decades, some would say centuries. It does seem a bit unfair to people who have dedicated their lives to those ends to see that value knee-capped in less than 10 years. But that’s life. Sometimes, the things we value are life-long, sometimes they only last a matter of days or weeks. The thing is, you can never really tell when that value is going to vanish. And once that happens, you have to look toward the value you actually possess today and going forward.

When you hear people talk of the role of bookstores and their value to society, ask yourself, are they referring to the value they offer right this moment or the value they offered a quarter-century ago? Same with publishers. Is what they do today valuable or are they still treading on what they did that was valuable two or three decades ago? It doesn’t matter that Borders had a great selection of books that made people happy to shop there in 1995. They’re bankrupt and gone now, not coming back. It doesn’t matter that publishers frame themselves as great curators of the written word because of their gatekeeping of the past. Their gates have been kicked down and trampled into the dirt.

What matters is that when I want to buy a book as a reader or publish a book as a writer, what I’m willing to put up with to do so. That’s the value proposition you offer us and, increasingly, it’s one that isn’t trending in a direction that’s helpful to past paradigms or the dominant businesses that profited from them.

Take a long, hard look at what people value today and what they’re willing to do to acquire that value. That’s where the path to the future rests. Reminiscing about the value people appreciated in a different time and a different place, and doubling down on nostalgia isn’t going to fend off the bankruptcy judge for very long.

Read Part Two of “Value Propositions, The Bookstore Conundrum” here.

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

Who’s Got The Ether? Publishing, Hugh Howey and the downfall of old assumptions

A little while ago, I ran across this Writing on the Ether article by Porter Anderson. Anderson does a fantastic job of culling together the various viewpoints of whatever outbreaks of argumentativeness spring up around the publishing industry every week. Check him out on Twitter and definitely look for his articles when they come around. Always well worth the read.

Anyway, this particular piece dealt with author Hugh Howey’s suggestions of what would constitute a fair and equitable industry for writers given the new realities of independent publishing. Here’s a brief rundown of his points, all good ones, in my opinion:

“1. No more digital rights until ebook royalties are 50 percent of net.
2. No more “Most Favored Nation” clauses.
3. No more DRM for Guild members.
4. Fair pricing for ebooks.
5. No more non-compete clauses.
6. Stop fighting “free”.
7. The Authors Guild should embrace Amazon as a friend to writers and readers.”

The only thing I would add to that is no more DRM for anybody, but he was specifically referring to a hypothetical writers’ strike led by the Authors Guild, so there’s that. Go read his full piece yourself. Howey is clearly positioning himself not as simply a successful author but a strong advocate for author’s rights and fair treatment, something we seem to be sorely lacking from the old guard (looking at you, Scott Turow). Not surprisingly, his suggestions weren’t very well received by the establishment players, and that was the gist of Anderson’s piece and what led to the comment that caught my eye that I’ll get to further down.

Here’s industry consultant and analyst Mike Shatzkin taking issue with Howey:

“Hugh, your post is so thoroughly from an indie author’s POV that it is really not relevant to anybody else and, frankly, not to all indie authors either…It is doubtful to me that indies have 25% of all ebook unit sales everywhere, but, even if they did, they’d have a much smaller fraction of the ecommerce…let’s just say that my respect for your expertise does not extend to your ideas about how publishers ought to operate.”

To be fair, Shatzkin was very complimentary to Howey for his writing ability and the successful path he’s forged for himself. I like Shatzkin, but I have to wonder about an industry analyst advocating outright ignoring the suggestions of possibly the most successful author to emerge from these technologically challenging times. (I also find myself saying, “I like Shatzkin but…” a lot the past few weeks. I really thought he was turning a corner on this stuff, too.) He has a point of sorts, in that large publishers as they exist today likely can’t continue to function in the environment Howey describes. They’d have to cut a whole lot of fat from the bone and do damn near a complete 180 degree shift on their attitudes toward writers. But, like Howey seems to believe, those kinds of changes may look optional to publishers today (admittedly, a bad option for them) but before much longer, they won’t be. Get ahead of the curve now before it’s too late. And, maybe, paying some attention to a guy who’s already well ahead of that curve might make some sense, but I digress.

This brings me to the comment from Anderson that drove me to save this article. Here goes:

“You know where I’ve heard Shatzkin’s comments before? From myself! From myself and from other news people when “citizen journalists” became a rude, unwanted, upstart presence in “our” network news. We said just these things. Citizen journalists were a minuscule part of the overall picture in media coverage, we said. Citizen journalists, with their silly cell-phone videos, couldn’t hold a camera to our superb camera crews, we said. Citizen journalists, many of them fine folks, of course, knew nothing about how genuine journalism worked, we said.

“What we couldn’t see as we said these things was that the digital disruption of journalism would neutralize most of our traditional models and modalities. The news audience would not rush to “genuine journalism’s” aid. And the ways and means of our industry would be profoundly shifted toward open access and non-expert participation.

“See, we were wrong: every cell phone really was our competition. But we couldn’t see that, not then, not for anything, not even when we tried.”

I have to give a huge thumbs up to Anderson for not only recognizing this but stating his, and others’, mistakenly dismissing major change for a brief inconvenience. I haven’t seen that nearly as much as I should have at this point. When I first shifted over from following the newspaper/periodical segment of publishing (I started out working for newspapers, after all) to the book publishing side, one of the first things I noticed was that many in the established guard were spouting the identical nonsense about the self publishing interlopers that I had seen newspaper execs espouse about independent journalists, bloggers and the like, leading directly to them getting beaten around left, right and sideways by the shifting sands of disruption.

Kudos to Anderson for seeing that and pointing it out. Even more so for recognizing the error in his own dismissals of the past. Book publishers are still following that path, one that will lead to ruin. I’ve said before that the only thing that saved newspapers from completely collapsing in on themselves was, due to the nature of that industry segment, there was no simple, inexpensive means for the talent (writers) to fire up their own directly competing products that could monetize as well as needed. Some did, but it could have been much worse given a little different dynamic.

Ebooks are that different dynamic. There is clearly a simple, inexpensive means for authors to compete directly with publishers, largely thanks to Amazon and others. Howey has shown that it’s the case, both in his own success and now the Author Earnings data collection effort that has, even at a formative stage, shown how the interlopers are increasingly snatching up a larger and larger share of the market and the money that goes with it.

Many traditional defenders have nitpicked Howey’s data and, in some respects, they have a point as Howey himself has said. You don’t release you’re raw data unless you’re trying to invite exactly such nitpicking. But, to me, many of those arguments reek of fear. And they should be very afraid. If publishers don’t wise up, the turmoil the newspaper segment suffered isn’t the worst case scenario here. Given the talent’s ability to reach the market on their own and, more crucially, monetize in more than adequate means to support the low infrastructure costs, it could get a whole lot worse for book publishers than even their newspaper brethren ever dreamed.

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

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

Amazon and The Mystery of the Great Used eBooks

I am finding the notion of first sale rights and used ebooks pretty fascinating these days. I wrote a bit yesterday about how I suspect that taking away first sale rights from consumers has damaged the book business. Today, I read this piece by Marcus Wohlsen for Wired, completely wrapped in consternation over Amazon’s patent filing for a digital goods resale scheme. There’s a few points in the article I’d like to discuss. I’m not a lawyer, so these are simply my opinions on how copyright law, particularly first sale, might affect Amazon’s actions with regards to used digital stuff.

“Digital content is infinitely reproducible. No technological limit exists to how many times a single digital original can be copied and resold.”

No technological limit exists because nobody’s bothered to implement an effective one. And maybe I’m wrong, but isn’t all that fancy DRM we’ve had shoved down our throats a technological limitation to copying? Pretty sure that exists. It may not work very well, or might be crazy-easy to circumvent, but it exists. The entire ebook market has grown under the assumption that consumers had no right of resale, therefore no screaming need to invent one. But look, ReDigi is getting sued for its used digital business and they have a method to limit copying. Amazon’s patent here is another. If second hand digital goods becomes a reality, you can bet there’ll be numerous technical methods to deal with this post haste.

As for copying infinitely for resale, that doesn’t even apply in this case. What Amazon’s talking about here seems to be totally in-house. They already know who bought what and how many times. They’re suggesting a scheme to resell the licenses not so much the actual ebooks. There’s no way somebody copying an ebook bought from Amazon is going to be selling it over and over again without Amazon being willfully complicit. They have zero motivation to engage in something so risky and outright stupid. There is no chance anyone will be selling multiple copies of the same ebook in the system Amazon’s trying to patent.

“Just as with physical books, publishers would only have a say — or get a cut — the first time a customer buys a copy of an e-book. The second, third and fourth sales of that “same” e-book would be purely under Amazon’s control.”

That would totally depend on how this was executed. If a first sale use is exerted to allow the resale, then it’s actually the customer who has control of the resale. Amazon would, theoretically, either expedite a sale between two customers and take a small cut, or create a system where they buy the ebooks from the customers, then they would gain those resale rights. The alternative is if the resale was a product of a licensing agreement with the publisher, in which case, no first sale rights were exerted and Amazon would have as much control as the licensing agreement allows and no more. Publishers would have to be nigh-on-braindead to license resale rights to Amazon, though. They’d be better off just releasing first sale rights to everybody altogether and letting the chips fall where they may than giving Amazon more power to lock customers into their world. In fact, I think they’d be better off doing that than what they’re doing now, even if they maintain the good sense not to license away the second hand market.

Wohlsen then quotes Bill Rosenblatt, who he describes as “a consultant and expert witness in digital content patent cases”:

“If Amazon is allowed to get away with doing resale transactions without compensating publishers, then what they can do is say, ‘hey authors, sign with us and we’ll give you a piece of the resale.’”

If Amazon is allowed to resell without compensating publishers, then that means buyers would have regained first sale rights. That would mean Amazon, or anybody else for that matter, wouldn’t be able to control the resale of these goods. You can’t just say “Kindle owners have first sale rights but Nook owners don’t.” Amazon could certainly cut writers in on the resale of their books on their site, but in this hypothetical, they’d be far from the only place selling second hand digital goods. As a,writer, if would definitely be something I’d listen to, though.

There is no circumstance where Amazon totally controls the resale market and doesn’t pay publishers. Either they license the content for resale, in which case publishers get paid, or they invoke first sale, publishers don’t get paid, but the real control and resale rights would belong to consumers. (Unless, of course, a court somewhere warps copyright law to create such a circumstance. Not exactly an unheard of occurrence.) Amazon might build a nice little business with used ebooks, but it would largely have to do so by offering buyers enough incentive to exert their first sale rights with Amazon. Hardly a dominating position.

“Buried in the patent is language spelling out that the technology Amazon intends to use will have the ability to limit the number of times a digital good could be resold or loaned out. Amazon could use that constraint to strike bargains with publishers and authors to cut them in on used digital sales, which doesn’t happen with used physical media.”

And would only happen here if it were a product of a licensing deal. If they invoke first sale, Amazon couldn’t uninvoke it later. They wouldn’t have the right to put any limits on resale. They could buy the license, then willingly retire it, but they couldn’t prohibit a buyer from selling it. If it were licensed for resale, however, Amazon could do just that, per terms of the licensing agreement. But again, publishers…resale licensing with Amazon…braindead stupid.

I do believe we need to return first sale rights of digital goods to consumers. I believe there will be a technological means developed that is simple enough to make this happen without unduly encouraging piracy. Even so, no matter what you do, somebody somewhere is gonna rip you off. Publishers are just gonna have to accept that reality. Taking away first sale rights devalues the product in a very real monetary sense to the buyer. That is simply bad business.

What Amazon’s patenting here sounds to me like an attempt to strengthen its walled garden. I’m not sure this method would hold up or work in an atmosphere where first sale rights are truly implemented by consumers. So it seems as though licensing resale from publishers is the point of this. But what publisher in their right mind would give Amazon this ability? On second thought, don’t answer that. Like with most things, some idiot(s) will.

Second Hand Blues: First Sale Rights and Used eBooks

That sound you just heard was the collective heads of everyone in the traditional mass media industry exploding as news of Amazon filing a patent for a process to resell digital goods spread. Many of them are having enough trouble keeping their heads above water in the current digital marketplace as it is. Now, suddenly, they might have to deal with competition from an area they thought was locked down, resale rights of customers. Oh shit.

Personally, I’m all for this development, although I would much rather someone other than Amazon be the one to push this possibly emerging market. However, the fact that they’re taking steps to be prepared for it again shows why they have essentially made fools of the traditional industry. They think ahead, they pay attention, they prepare and, most of all, their business model adds value for their customers instead of taking it away.

I’ve long been a proponent of an aftermarket for digital goods. I believe it’s lack is the one key flaw in the ebook market. In fact, I’ve started to develop a little theory about this. Far from being just simply a loss of value for consumers, I’m starting to get behind the notion that the lack of an aftermarket is a primary cause of three of the most troublesome issues with ebooks and other digital media; piracy, discoverability and the downward pressure on prices.

1. Piracy

I usually take issue with even defining the activity of file sharing, even obviously infringing file sharing, as piracy. I just don’t think it is. I also think it clouds the issue by broadening the scope of conduct corporations would like to monetize into a individual crime, which hurts efforts to combat actual, destructive commercial-scale piracy. But for the sake of brevity, I’m just going to use the term piracy here. It’s easier to type than “possibly infringing and much maligned but potentially fair use protected file sharing,” which would be a far more accurate description of the conduct to which the industry objects.

The biggest joke of all from the anti-piracy brigade is the assumption that every download is a full price lost sale, complete with lost royalties for the creator. That’s obviously a skyscraper-high pile of horseshit I’m not going to waste time refuting. But let’s say, for the sake of argument, that it’s somewhat true, who’s to say that lost sale would have even been one that affected the industry or artists at all? It’s easy to suggest that someone downloading an ebook wasn’t going to buy it anyway. But what if they were going to buy it, only a cheaper second hand version? Even if it was a lost sale, it wasn’t one that would have earned the industry a dime anyway. Or any royalties for the artists. Amazon routinely lists used alternatives to new versions right on the product page, always significantly cheaper. Is it really a stretch to think that people who choose downloading for free over buying full price wouldn’t also choose to buy cheaper used than new? Even if every download were a lost sale, if those sales were going to be of the cheaper, used variety, the industry and artists lose nothing. And it’s perfectly legal under the first sale part of copyright.

Ebooks circumvent first sale by being sold as a license for use. When that happens, customers lose the ability to resell those goods (among other things). It’s why I can’t just sell the ebook I bought last week from Amazon to somebody else on eBay. But the book publishing industry has long existed side by side with its used counterpart. There has always been a place to buy books at a significantly discounted price. When eBooks took off, however, there was a vacuum left where that discounted market used to be. Isn’t it possible that piracy grew to fill this very gap that the loss of first sale left in the digitized side of the market? We went from a system where you could get books full price new, heavily discounted used, or free from libraries to a system where it was full price new, extremely limited and inconvenient from libraries or free through piracy. The industry, through the means it chose to sell ebooks, removed the discounted option completely, hamstrung the legal free option and then loudly wondered why people pirated.

I think a lot about rights, I am a writer, after all, and I spend a fair amount of time complaining about rights grabs from publishers. But it just dawned on me that I’ve essentially missed the biggest rights grab of all. The way ebooks are sold protects publishers under copyright law, protects authors under copyright law (although I would argue in too ancillary of a way through publishers but that’s for another day) and takes away almost all the rights of consumers under copyright law. It is pretty egregious when you look at it. The first theft was committed when publishers agreed to the licensing scheme and took away customer rights. Then they turned right around, started pointing fingers and yelling, “Thief!”

Removing first sale rights created a vacuum in the ebook market and piracy was what grew in its place. Nature does, indeed, abhor a vacuum.

2. Discoverability

Here’s another thought that’s been kicking around in my head: what if, instead of causing the drop in sales, piracy actually prevented that drop from being significantly worse? Think about it. When digital music hit the scene, that industry panicked, fought the rudimentary early age file sharing spots like Napster and Limewire tooth and nail, right down to suing their own damn customers. At that point, broadband was slower, not nearly as widespread, and most people didn’t know how or have the capacity to download sometimes large music files. As first sale rights fell away, the secondary markets thinned, discovery was hampered and sales dropped precipitously. When ebooks hit publishing, there were well-established file sharing networks in place, broadband was much faster and more ubiquitous. The discovery hit from loss of first sale was mitigated somewhat by piracy and the drop in sales was much lower. Book publishing, quite possibly, was somewhat protected from itself by the very pirates it so loves to demonize.

Look at it this way, when I buy a print book, I can go sell it to someone else. They in turn, can sell it again, the next owner can sell it, then that owner could donate it to the library where it can be checked out over and over again. That one book could pass through numerous hands, all legal and all based on one sale, the first sale, from which publishers and creators reap their proceeds. The rest of that book’s lifespan constitutes exposure, or discovery, if you prefer. Now, if I buy an ebook, other than a limited ability to share with a few people under specific conditions, the life span of that ebook essentially dies immediately after the first sale. All of that exposure and discovery that was present with print books sold with first sale rights is washed away. And again, the industry is perplexed about why people aren’t finding new books as easily as in the past. That kind of thing happens when you destroy the primary mechanisms of discovery by swiping rights from customers.

I’ve seen numerous polls that suggest bookstores are the number one place for discovery of new works but I’ve never seen one differentiate between what kind of bookstores they’re talking about. Is it more likely you’ll try out new authors in Barnes & Noble where you’re paying $10-25 or so on average per book, or in a used bookstore where hardcovers are $2 and paperbacks can be had for 50 cents? I suspect discovery has been done far more at bookstores selling heavily discounted used books (and libraries, where it’s free) than at stores selling only higher priced new books.

Everybody seems to be wondering why online book discovery is struggling so much. Could it be because publishers have hamstrung libraries and blocked the development of discounted used ebook stores by eliminating consumer rights to resale, places where discovery is far more likely to happen than full price, brand new alternatives? Nah, couldn’t be that, must be the pirates, you know, the only place actually emulating the primary means where book discovery was done in the past.

3. Downward Price Pressure

Taking away first sale rights from consumers does one other key thing, it takes away the customer’s ownership stake in the product. If you can resell something, that has value, and when you buy a print book, it retains that value because of first sale rights. But with ebooks, the monetary value drops to zero immediately after you pay for it. Don’t think for a second people don’t understand this basic fact. The loss of an ownership stake, and the instant elimination of any monetary value necessarily degrades a product in the customer’s eyes. By swiping first sale rights, publishers have devalued their own products. It’s the reason why so many people complain so loudly about ebooks priced anywhere near what print versions cost. We’re not stupid out here, we know damn well you’re selling us a product that doesn’t have anywhere near the tangible value of a print book, and that has nothing at all to do with the quality of the book. I can’t sell it and its uses are limited. I possess significantly fewer rights with ebooks. Consequently, it makes no sense to pay print prices for way-less-than-print value.

Then, there’s this. With the aftermarket for ebooks nonexistent, wiping out a highly discounted layer of sales, it created a huge gap between the prices of trad pubbed ebooks and indie books. That, in turn, created a situation where indie books could be priced much cheaper and attract significant sales through super-low prices alone. That, then, set off a race to the bottom fight for those sales, culminating in 99 cent novels, and generally increasing the downward pressure put on all ebook prices. But consider, if there were a used layer there where trad pubbed ebooks could have been picked up for $2-3 or so, the massive gap in prices between indie and trad books never would have happened, the severe price advantage wouldn’t have sparked the uptick in sales that set off the race to the bottom. Indie authors would have been forced to compete on factors beyond simply super-low prices, and the downward pressure they’re experiencing now declines appreciably. Also, if those same customers now bitching about $15 ebooks knew that could get a few bucks back on them through resale, they wouldn’t be so likely to complain about price. They’d retain their ownership stake, and very likely, not balk at paying a few dollars more. There’s two key elements right there driving prices down that go away if customers hadn’t had their first sale rights taken from them.

First sale rights are hugely important. I’m of the mind that swiping them from consumers as ebooks have is responsible for most of the biggest problems in a growing industry segment. An aftermarket isn’t something to be afraid of, it aids discovery, maintains value in the product chain and gives your customers not just a right to resell, but an actual ownership stake in the product, albeit a small one, relatively. It now becomes in their best interest to maintain the value of ebooks because they have some skin in the game. Take them away, and it seriously damages discoverability, drives prices down as the reality of lost value sinks in, and it drives possible customers to alternatives like piracy.

Whatever the technical difficulties in creating a digital goods aftermarket, or giving consumers back the first sale rights that have been swiped by the ebook licensing scheme, the consequences will be far less severe than continuing to treat customers as naive dullards who don’t mind being gouged by higher prices for a lesser product. There’s a good reason first sale exists as part of copyright law, free markets don’t work when one party has too much control over economic activity. If we don’t change course soon, the ebook market will find out exactly how dysfunctional things can get when the playing field gets unfairly slanted. Customers have rights, too, and it’s high time publishing remembers that.

Bookish: New publisher-backed retail site is game-chan…eh, whatever

I was checking out Bookish today, the new Big Six backed trojan horse, supposed to look like some kinda Goodreads/retail store hybrid thing but really is a not-so-subtle attempt to build their own little walled garden only sans the hardware. Yeah, I’m not a fan, what can I say?

Actually, I don’t really see too much to get worked up about anyway. There’s nothing really new here, and it’s pretty clearly an attempt to regain gatekeeper control by imitating various popular book-related internet properties they could have innovated a decade or so ago if they’d have pulled their collective heads from their assess even temporarily. Late to the party doesn’t usually fly. That and this is traditional publishing trying to be forward-thinking, after all. So forward that the debut was about two years after it was supposed to be. I’m not encouraged by the vision or support behind this if things don’t go instantly great and end up even the slightest bit challenging.

The DRM insistance sucks but not at all unexpected. We’re still quite a ways from the biggest of publishers’ conglomerate masters getting the memo that they’re cutting their own throats with it. The part of the terms of service saying they own all rights to any user generated content is troubling, but again, publishers are behind this. Never met a right they didn’t try to grab. There appears to be a pretty stark “no refunds” policy on ebooks, too, enforceable after download, which, I guess, means store-credit-only if something’s messed up? Of course, shit-out-of-luck is a distinct customer service possibility here, too. Wouldn’t surprise me. By comparison, Amazon gives you seven days to “return” an ebook for a no-questions-asked refund. Not exactly a compelling reason to buy through Bookish rather than Amazon.

I would typically link to their site here, but apparently I would be violating their terms of use if I did so, it containing a provision allowing them to block your link if you disparage them. Lord knows I wouldn’t want to run afoul of their terms. So, good job, guys! Here’s at least one less link to you in the world.

At the end of the day, Bookish to me loses points precisely for what it’s trying to do, be a limiting factor in book shopping, and serve in a gatekeeper type capacity. It’s not so much what’s seen or recommended on their site, it’s what’s excluded that’s the problem. It’s allowing material in from sources which meet some sort of standard of approval, apparently dependent entirely on the publisher. It’ll be interesting to see if this ends up with the big boys getting all the prime, algorithm-tweaking real estate. There doesn’t really seem to be much in the way of involvement for authors, either. But, I’m willing to give most things the benefit of the doubt, so I clicked on the “I’m an author” link in their FAQ. Here’s what I got:

How can I have my book(s) added to Bookish?

Authors should ask their publishers to confirm that their respective titles are in the data feeds provided to Bookish.

That’s it? I’m an author. I’m interested in becoming involved with this innovative new method of doing the same thing other people are doing just more self-servingly and the only acknowledgement or words of advice you have for me is “go ask your publisher”? Is it me, or is the tone of their suggestion reminiscient of when you were a kid and annoyed your mother with some question she didn’t care about to the point she’d say, “go ask your father?” Seems a bit dismissive and condescending. I also find myself wondering at what point the lawyers took out the “If you’re a self-published author, go fuck yourself!” line that I’m pretty sure was in the first draft.

It’s not a bad thing for publishers to try to get some sort of more direct retail channel. But they can’t even get all the big players to back it. Hell, Apple talked them all into breaking antitrust law together, but something that could actually be a practical benefit to the industry if done right? No way! This should have been done years ago. Now, it’s just chasing, piggy-backing on other people’s hardware, yet still trying to build that mystical walled garden through DRM. Authors are pretty obviously an afterthought, and they certainly aren’t treated as any kind of business equals, more like underlings to their publisher masters. I’ll withhold judgement on whether this is useful to readers until we actually hear from some, but I’m not optimistic given what I see so far. If I had to guess, Bookish will err too far toward crass commercialism over genuinely social interactions with readers. Basically, I’m seeing a site that’s talking at readers, not with them, and that’s going to be its biggest problem.

Data Overload: Reader behavior data lacking in crucial context

I just read this piece on NPR about whether the data collected on reader behavior from ereaders is useful to writers. My gut reaction is, “nope,” but upon further reflection, I can see some circumstances under which some data along those lines could be of use. It’s not a simple, black or white question, however. It all depends on who has the data, and who’s using it and how they overcome the problem of lacking proper context.

I can easily envision a circumstance where a publisher says to a writer, “Our ereader data suggests 63% of your readers were more engaged in the portions of your last book where the hero fought werewolves. We’d like your next book to include more werewolves.” That’s not appreciably different than it is now, only with more data that appears to reinforce their beliefs. Publishing has always been an industry that, when success strikes, beats every ounce of that success into the ground. Fifty shades of erotic romance, anyone? If werewolves are showing signs of being the hot new thing, bring on the werewolves!

But is that interpretation of the data correct? Were those readers more engaged because of the werewolves or because it was a high-tension, exciting sequence that just happened to involve werewolves? That’s a pretty important distinction. The problem is, we can’t say without more data to properly explain this data.

Here’s a point made by author Scott Turow that raises a similar concern in mind:

“I would love to know if 35 percent of my readers were quitting after the first two chapters because that frankly strikes me as, sometimes, a problem I could fix.”

Possibly. But what if that 35% is industry-standard for readers dropping books after the first few chapters? How do we know? I know my reading habits often have me starting books, putting them down for other books, sometimes coming back later, sometimes not. There’s no rhyme or reason related to quality for it, either. Some of my favorite books were started three or four times before I finally followed through. And I’ve read some total tripe cover to cover.

We need a whole lot more information before making any creative decisions based on this. What if we come to discover that 35% is actually better than average? What if 40-45% turns out to be the figure? Would Turow no longer have a problem to fix? He’d still have a third of his readers not getting past chapter two, but he’d also be outperforming the industry. What if we discover this having similarities to baseball, where failing 7 times out of 10 makes you an All Star? We are lacking the frame of reference to make useful decisions based on this data. Finding answers from data lacking adequate context is like reading tea leaves or interpeting ancient religious texts; anybody can do it and find a justification to point to as evidence, even if another person can credibly interpret the proofs you site the exact opposite way.

Turow also said this:

“Would I love to hitch the equivalent of a polygraph to my readers and know how they are responding word by word? That would be quite interesting.”

Frightening might be another word for it. Hell, I sense a dystopian novel where corporations have hitched everyone to a giant monitoring device to record their every impulse and give them back only products that serve their immediate desires, sort of a permanent cultural feedback loop. I don’t see how that much data is even useful. Writers, generally speaking, have varying degrees of OCD. I can easily see the hypochondriac impulse taking over, and some writers getting obsessively lost trying to make sense of this mass of often conflicting information.

He does make a cogent point here, from a publisher’s point of view:

“Why should we publish this book if 11 readers out of 12 can’t make it past page 36?”

It’s hard to argue that. Publishers need to make money to survive. So do writers but on a different scale. If data suggests a book isn’t attracting an audience sizable enough to support publisher overhead, then why should they publish? From the other side, if a book is not showing scale that befits a relationship with a publisher, maybe that’s a way for writers to help determine if a work is better served as an independent release. After all, the term “hybrid authors” is all the rage these days. You have to choose your publishing approach somehow.

But again, this only works if the data means what we think it means. Besides, there’s also the paradox of the fact that the book has to be released in order to collect reader data on it. So, at best, unless we’re talking about turning books into software and releasing beta versions we fix after getting customer feedback, this ereader data is only really useful in a predictive sense for future work. Which means that all we’ve done is pile a lot more data into a decision we’re already making based on an already-existing pile of considerations today. Will it improve end results? Maybe, maybe not. But what it will do is provide justifications to make the initial decision more defensible, regardless of outcome. I’m not certain that’s a good thing because it has the distinct potential to provide pseudo-evidentiary cover for making bad calls on whether or not to publish.

Books will still succeed despite data that suggested beforehand that they wouldn’t. And books will still fail despite having all the indicators of a sure thing. This data is nice, but there are numerous factors at work in a successful novel, reader behavior while reading is a small part of that I can’t definitively say holds much significance. I can’t say it doesn’t, either. We just don’t have enough data. In the future, we’ll fix that, I’m sure, and be awash in all the facts, figures and statistics we can stand on reader behavior. But we’ll still be lacking the context. Without that, I’m not convinced we’ll ever be able to interpret this information properly. Short of Turow’s all-encompassing polygraph or some piece of future tech that reads minds, that context isn’t readily accessible and likely never will be.

More and accurate data is always a good thing, but who wields it and how is crucial. I have a feeling that this will turn out to be little more than echo chamber material. Anyone making an argument will be able to find the numbers somewhere in the increasingly vast data pool to support it, no matter how outlandish.

Will I use this data for something, if available? Absolutely. I can totally see its value from a marketing standpoint. Will I change a character, story or rewrite portions of work based on this information? Absolutely not. I have little confidence that any of this data means what I think it means. I have even less confidence it means what other people think it means. If it only serves to reinforce already existing opinions, then it brings little of value to the table. Maybe I can glean a way to sell more books with this data, and that’s worth a shot, but changing the actual work in response to it is a bridge too far.

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

The U.S. Supreme Court is set to rule on a case that has profound implications for the concept of ownership, (See SCOTUS blog here and read up. It’s fascinating) and could conceivably eliminate the last lingering vestiges of the notion that copyright law has any limits.  If the court rules the wrong way on this, copyright ceases to have any pretense of societal good. And why is it that we’re faced with the possibility from SCOTUS? To defend a publishers’ right to segment the world into territories.

In the past, I’ve argued that the idea of territoriality is already outdated and should be done away with. This case illustrates pretty clearly why that’s the case. Given the technological realities we have today, there is simply no easy way to defend this practice in statute that doesn’t have the unintended consequence of severely undermining first sale, fair use and ownership and resale rights for nearly everything we buy. The benefit to society for allowing territoriality to stand is negligible. In fact, it’s the consequences of doing so that are severe and destructive.

First, let’s look at the publisher, John Wiley & Sons. They are textbook publishers who, as many do, routinely use the concept of territoriality to both exploit poorer markets and maintain the ability to overcharge more affluent ones. The key issue in this case is that an individual, Thai national Supap Kirtsaeng, purchased textbooks sold by Wiley at lower prices in Thailand, brought them to the American market and sold them on eBay to help pay for his education at USC, where the exact same textbooks are priced much, much higher. My first response to this was, “good for him!” This guy identified a seam in the sales channels and exploited the price variance for the same product in different markets to make a buck. That’s market-based globalized free enterprise at its best.

But Wiley was having none of it, suing (in my opinion, inexplicably) for copyright infringement. The guy in question didn’t copy anything. He legally purchased said textbooks at full price offered by the publisher, then used his first sale rights to turn around and sell them for whatever the hell he wanted. There’s no copyright infringement here at all. (Note: I’m speaking in practical terms. Yes, I’m aware that there are portions of copyright law dealing with importation of foreign goods, but those parts were written long before globalization and free trade took hold, before the internet was even a thing and back when importation was a little more complicated than a few mouse clicks and a week’s wait for shipping. Those rules have about as much relevance to modern life as the use of grindstones to make bread). But the 2nd District Court disagreed, invalidating his defense through first sale, declaring his actions as infringing and fining him a substantial amount of money. The key problem lies not just in the decision, which I believe is catastrophically wrongheaded, but in the justification used. The court ruled that first sale rights don’t apply to any goods manufactured outside of the U.S.

Apparently, the judges of the 2nd District missed the memo about the new global economy we’re all supposed to be giddy about. They seem to have not noticed American corporations offshoring jobs and manufacturing at economy-gutting levels to save on labor costs and such. They’ve obviously never set foot in a Walmart or any other retail outlet and taken a few minutes to check the “made in” labels or they would have realized that a plurality of goods we buy every day aren’t manufactured in this country. If first sale doesn’t apply, then this court just swiped ownership rights to the majority of our possessions.

To make matters worse, how many foreign manufactured components do you think are present in our homes and cars? If I own a home that has a central heating system installed that was put together from any amount of foreign made components, do I even have the right to sell my home without first buying licenses for every non-U.S. element it contains? What if I want to sell my home complete with appliances, also made from foreign manufactured components? Do I need separate licenses for my refrigerator, washer, dryer, dish washer, etc? What will the costs of acquiring these licenses do to the overall value of my home. If you said “plummet” you hit the jackpot.

I can no longer legally even sell the smartphone I’m currently typing on. And what about the licenses HTC acquired for the plethora of foreign-made components that make up the phone itself? Does those licenses transfer? Is it enough to get resale permission from HTC or do I also have to get permission from every component manufacturer too? The same applies to cars. Can an ok from Toyota allow me to sell my car, or do I also need an okay from the stereo manufacturer, the maker of the chips in the car’s computer, and whoever made the tires, brake pads, oil filter and anything else in the vehicle that wasn’t American made. What does this do the value of your car? Again, “plummet” is the correct answer.

Yet, this value loss is totally on the consumer side. When the resale market gets gutshot in this way, there is no logical reason to expect car makers to do anything except up their prices. Really, all they have to do is refuse permission for resale and the used car market ends instantly. No more competition on that front.

There’s two key problems I see here. One, this kind of ruling creates a massive incentive for businesses to continue and actually speed up offshoring jobs and manufacturing. If first sale doesn’t apply to foreign goods, companies that trade in foreign made goods will control not only the primary market, but any secondary markets would only be allowed to exist on their terms at their discretion. The entire point of first sale was to prevent this very thing.

In a global economy where much if not most of what we buy isn’t made in America, how long would it be before companies still producing goods in the U.S. argue that first sale prevents them from competing and must be done away with here as well? I put the over/under on three hours.

Then there’s the legal illogic of somehow claiming one part of copyright doesn’t apply to foreign goods (first sale) yet other parts will (fair use). Supporters of Wiley have almost all claimed that the above concerns I’ve mentioned are scare tactics because consumers will retain fair use rights to defend their actions. But why should fair use be any more applicable to foreign goods than first sale? This is a flat-out lie by those who want Wiley to win. If the District Court decision on first sale stands, it’ll be roughly a half an hour before someone tries to invalidate fair use for foreign goods as well. And they’ll win because they’re right, logically and legally. If first sale doesn’t apply, then neither does fair use.

Get it yet? Think for a second, how many people in this country just bought, wrapped up and gave away foreign made goods as presents this past Christmas. If this ruling stands, every one of those gifts was an incident of infringement. I’m pretty sure we just rang up a $100 trillion worth of infringement penalities last month. Don’t think businesses will try to exploit this fully? Take a look at how publishers have been extorting exorbitant fees from libraries on ebooks. First sale doesn’t apply to digital goods (I believe strongly that it absolutely should, by the way) and fair use rights for the same have been willfully undermined as a consequence, resulting in absurdly, indefensibly high prices. And these are goods made in this country supposedly subject to the fullness of copyright law. Take away even those limited protections, and I think we can all see where this is heading.

All of these possibilities only exist because the courts are trying to carve a legal protection out of copyright that allows publishers to gouge rich markets while also simultaneously charging more reasonable prices in poorer ones. We could all effectively lose our right to resell virtually anything because a publisher wants the law to protect them from their own pricing strategies.

We’ve all had “the benefits of globalization” crammed down our throats the past few decades, and this case puts the lie to those notions. Corporations will readily tell you how great the global economy is as they ship manufacturing to third world countries with no worker protections, minimum wage laws or safety standards, but here, a regular guy finds a way to profit from globalization, and those same corporations are screaming that hellfire, brimstone and economic ruin will descend upon us all if its allowed to stand. If the District Court decision is held, that will be a clear sign that globalization belongs only to corporations and the wealthy. They get all the benefits and profits, while we get all the sacrifices and consequences.

There are two big societal problems made worse by an upholding of Wiley’s case: offshoring jobs and the cost of higher education. I’ve already mentioned how this decision creates a massive financial incentive for businesses to stop trading in American made goods, making a serious problem exponentially worse. The cost of education is, in part, too high thanks to textbook publishers. Territoriality is one way in which they keep textbook prices in the American market artificially high. This decision would also make that problem significantly worse as well. Textbook makers already undermine resale value by routinely producing new editions with little or no substantive changes specifically to prevent students from selling their books for any tangible return. This decision provides a clear path for them to further erode consumer rights; simply print the books overseas and now students lose all rights to resell (or give away) those books at any price.

The potential damage to the public and the overall economy from upholding the District Court decision outweighs the damage done to publishers by striking down the infringement claim defending territoriality by so many levels that even considering it scares the hell out of me.

What better case can be made that copyright is irretrievably broken than this one? The District Court ruling essentially makes copyright unlimited in scope, with manufacturers retaining not only primary sale rights, but also grabbing total control of any secondary markets as well. Considering that expansion of copyright terms has essentially made copyright length infinite (Life of creator plus 70 years. It is certainly infinite for the creator as my copyright wouldn’t expire until several generations after I’ve been dead and buried. And that’s only presuming it doesn’t get expanded again, which only an outright fool would believe won’t happen when Mickey Mouse next approaches public domain) where exactly are the statutory limits on copyright that were the principle element of the protection in the first place?

If the possible consequences weren’t so severe–as in instantly stealing at least half of the value of the goods we’ve paid for, eliminating secondary resale markets, and extorting copyright monopoly rents with additional licenses on products we’ve already paid for, not to mention possibly gutting fair use which could well have serious deleterious effects on free speech–I’d say maybe a decision this inordinately stupid needs to happen so regular people can see clearly how distorted and unfair copyright law has actually become and demand much needed change. But then, I’m opposed to further destroying what little productive economy we have left to make a point about copyright. Unfortunately, our corporate leaders and government don’t seem to agree.

The only logical choice here is to strike down the copyright infringement defense of territoriality. The alternatives do a hell of a lot more damage. I wish I was more confident that SCOTUS will get it right. We can all dream, can’t we? Unless, of course, your dream includes an infringing appearance by a copyrighted character, in which case that nap’ll cost you $150,000.

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