The Kathleen Hale Story

About a week ago, I started writing a piece in response to someone I got into a spirited discussion with in an article’s comments section, complete with accusations that I don’t know what I’m talking about. That comment always annoys me because, for one, the person lobbing it has usually illustrated some heavy ignorance of their own, and two, experiences and circumstances vary so what I’m talking about may or may not match what you’re talking about, so I try not to toss that particular word grenade if I can help it. Ultimately, I was called out with a bullet point list, no less, so I felt the need to respond.

That was before I heard about the Kathleen Hale nonsense. If you haven’t heard about that, read up, in her own words. Then go read this nice rundown and timeline of Hale’s own description juxtaposed with what evidence exists. This is disturbing not just because the author seems oddly detached from the severity of her actions, but far too many in the writing community have actually justified and defended her clearly inappropriate (and fucking epically creepy) actions. Her enablers include some pretty recognizable names, including some that have no business whatsoever justifying anyone’s actions in dealing with bad reviews, Anne Rice. This is a case study in how not to behave. And not simply as an author, but as a goddamned human being. Stalking people is not ok. Running background checks on people who criticize you is not ok. Using an innocent event designed to celebrate books in your genre for your own private agenda is not ok. Hunting down the home address of a book reviewer you don’t know to go there and confront them is not ok. Calling them repeatedly (or at all) at work is not ok. Snooping around at what’s in their car or looking in their windows is not ok. There is nothing that reviewer could have posted anywhere online about Hale’s book or her writing, no matter how insistent or repetitive or nasty, that legitimizes any of those actions.

Anyone who does think that needs to put themselves in the blogger’s place for a minute. Say you wrote a negative review under a pseudonym for a book from an author you don’t know. Say the book offended you to the point that you were particularly blunt in your treatment of it. Say that author tries to get in touch with you and you’ve been avoiding doing so. Then say you walk outside one day to find a copy of that author’s book just laying on your front doorstep. Do you:

A. Freak the hell out
B. Buy a new, stronger deadbolt
C. Buy a shotgun and some shells
D. Call the police
E. All of the above

What you don’t do is think, “Gee, I bet there’s a totally innocent explanation for why this person who feels wronged by me managed to hunt down my real identity and my home address and visit here without my knowledge or invitation. Maybe she just wants to have tea and discuss the finer points of literature. Sure, she could have just emailed but I appreciate her going that extra mile.”

What Hale did is unethical, unprofessional, inappropriate and possibly criminal. But overall, it’s wrong. Just wrong. No excuses need apply.

I’m not the type to say you should never engage your detractors. I’ve rather happily engaged numerous detractors over the years and I’ll continue to do so. That’s the way this post began, as a response to being called out online. That’s why I put that piece aside for a while when I read about Hale. Here was a person who took engaging their detractors to near-felony level. I’m just trying to enjoy a good spirited discussion. The last thing in the world I can imagine doing is hunting someone down and confronting them in real life at their home or place of business. That’s just 22 cards short of a full deck kinda crazy.

Her actions made me question whether or not I’d even finish the other piece but then I thought better of it (coming soon). I’m only arguing the relative merits of various economic theories of publishing. I’m not even certain I actually care about anything personal or private about the side on the other end of the argument. It’s a thought exercise designed to clarify, defend and support my opinions while trying to understand conflicting ones. I do that all the time. I’m not going to let a writer who couldn’t control her obsessions and insecurities enough to avoid super-creepy behavior stop me now.

But Hale’s thing stuck with me. I’m still having trouble understanding how anyone could defend her. Interestingly, there have been many pieces written, including this one, that dug around online, reading things Hale had written, finding out about her connections in the publishing community (and there are some doozies), and trying to find any social media interactions that may apply. What no one has done is use their position to hunt down her address, repeatedly call and harass her, show up at her house, or snoop around in her private space. If someone has/does that, they’d be widely recognized as a psycho. And potentially dangerous. That is precisely what Hale did when she escalated things from online interactions to in-real-life ones. Read her own detailing of the story again. There can be no doubt that Hale is 100% responsible for that escalation. Her own words portray Harris as a person engaging in a pattern specifically designed to avoid her.

There are three basic elements used in her defense/justification that I feel need addressing.

1. The Blogger’s Anonymity

Blythe Harris is a fake name and persona. Duh! You know how I know that? Like sands through the hourglass, no one who’s not an heiress or a soap opera character or both is named Blythe. (Cue someone named Blythe emailing me in 3, 2, 1…) And so what if it is? This is publishing, for God’s sake! Half the shit you’re reading is presented under a fake name and/or persona. Writers use pseudonyms for lots of reasons. Some have had bad career breaks under their own name, some want to try a different genre/style, some want privacy, some are trying to skirt non-compete clauses, some don’t want to be associated with what they write for some personal reason or other. Many writers of romance and erotica have used false names for years, including the earlier-mentioned Anne Rice. And Harris, whether you like it or not, is a writer. You don’t crank out hundreds of reviews and have a blog dedicated to them without being one.

I actually saw someone in a comments thread list a bunch of writers who used their real names and no fewer than three of them were psudonyms, including Mark Twain. Is it possible for a person to be so ignorant of probably the most famous pseudonym in American Literature? Mark Twain wasn’t just a false name, either. He was a character, a constructed persona by Samuel Clemens trotted out in public appearances, stage shows and in his prose. The real man was a bitter, depressive sort, not the charming, cigar-chomping master of wit in a white suit we all know.

Each and every one of us create the persona we want to be in many ways. Does it matter if we named ourselves or if someone else gave us those names. Criticizing Harris for using a pseudonym is nonsensical in the context of writing. More than that, it’s completely and totally ignorant of the history of the art itself. Also keep in mind, both Stephen King and J.K. Rowling have used pseudonyms with fake author photos and back stories in the past, to name just two of many. In fact, Rowling herself started using the initials J.K. in part to intentionally obscure her gender. Was she catfishing us all?

There’s also another reason someone may want to use a false identity to front their public persona, a reason that seems perfectly conducive to this case; to protect themselves from obsessives and stalkers.

2. Bullying/Career Destroying

This is a big one. Those nasty bloggers are just out to destroy your career, one tweet that 75 people will see at a time. And I’d be willing to bet a large percentage of those people belong to their own little insular echo chambers. Look at the way most of these things start, with the author or what have you wading into their space like a bull in a china shop. That’s what Hale admitted to doing here that got her labeled by people other than Harris as a BBA (badly behaving author). There’s a huge subgroup in publishing today that fully absorbed in fighting this so-called bullying and career destroying meme. Does online bullying exist? Certainly and it’s reprehensible and should be fought. But this career destroying stuff? That’s not the bully doing that. They don’t have the power. If it happens at all, it’s the author doing it to themselves.

Look, the Amazon/Hachette dispute has been near-daily news for the better part of six months now. It’s shown up in all the major media outlets, big name celebrities have drawn attention to it. In the circle of people I tend to flow in online, everybody knows about it; all the details, the principles, the circumstances surrounding it. It’s pervasive in that world. But outside that circle? Not one person I know in real life has even heard of Hachette, let alone any dispute. The vast majority of readers don’t either. If something like that, something that’s publicized in major outlets by brand name people every day, doesn’t raise awareness in regular people, you think a Goodreads review and a few snarky substweets, no matter how nasty, is going to make a dent? The only way any of that garbage can have power over you or your career is if you give it to them. Hale did that here in spades. The career destroying phase she was concerned about? She created that all on her own.

Now if you’d like to discuss bullying, let’s look at how Hale characterized Harris in her article:

“Recent studies have had dark things to say about abusive internet commenters – a University of Manitoba report suggested they share traits with child molesters and serial killers.”

I wonder if they share any traits with obsessive stalkers? There is little to no corroboration for what Hale accused Harris of doing. Here is the Goodreads discussion following Harris as she tried to read the book. There’s no career destroying there. I see someone reading a book somewhat analytically. If I had to characterize it, I’d say Harris was being a little nitpicky, but then I haven’t read the book. It looks to me like she hit something early on that struck her the wrong way, likely because, like all readers, she was viewing the text through the lens of her own experience. As she progressed, she couldn’t shake the negative feelings and slowly turned into hate-reading the book, actively searching for things to be pissed about, until, finally, she quit altogether. I don’t do much hate-reading of novels but I do hate-watch some movies now and then, and “fuck this” is an absolutely accurate response to walking away from one of those.

The thing is, as the writer, your intent behind the work is no more important than the reader’s interpretation of it. In fact, your intent is simply just another interpretation. Everyone who reads your work will see it in their own way, and every one is valid to themselves. You don’t control how your work is received, good, bad or indifferent. That’s not a bad thing. In my opinion, it’s one of the features of writing; your story can mean totally different, totally valid things to completely different people. That’s amazing to me. If something someone sees in your work concerns you, the proper thing to do is go back and look at your work from their point of view to get a feel for why they made such an interpretation. That’s what professionals do. Spoiled children throw little tantrums, become obsessive and go to extreme lengths to get the satisfaction they believe they are entitled. I’ll let the reader decide which one they think Hale’s behavior fits.

3. It Wasn’t Stalking, It Was Journalism

“This came with its fair share of [criticism] from people who didn’t read the piece and have little-to-no understanding of journalism.”
Kathleen Hale on the response to her piece.

When I first saw this suggestion, in an article touting Hale’s appearance as a guest of honor at a New York literary festival, I got pissed. It’s the precise point when this piece escalated from a few blunt tweets to an italicized prologue to the other piece I was writing into this full-blown rant. Just for the sake of making myself clear on this, get the fuck outta here with that nonsense! This is not in any way, shape or form journalism! It’s a confessional designed to elicit sympathy for her while demonizing someone else. And she’s practically gloating about how clever she’s being while doing it. Harris isn’t really relevant to this story, just as the object that drove Hale’s actions and now unburdening. It doesn’t seem to matter that we have no corroboration. Her story hit it’s mark with certain people who were only too ready to lap it up and defend it to the hilt.

For one thing, this story is about herself. It only pretends to be seeking any kind of understanding, and does so at the expense of another human being who had the misfortune of transgressing against the writer. It’s not journalism, it’s a diary entry. You don’t get to excuse hunting her down because you can slap the badge of The Guardian on your chest and call it journalism. It’s a personal vendetta. She admits it’s an obsession that everyone she talks to tells her to stay away from. So, conveniently, she finds a way to justify it, courtesy of The Guardian. “I’m being a journalist so it’s ok that I’m running a background check on a stranger!”

Two questions, if this is really journalism. One, did you verify and document the evidence for your allegations? If not, in some places, so I hear, they call that libel. Look it up. And two, is the Michael Rich you sited as expert medical opinion in any way related to your soon to be father in law Frank Rich and your fiance Simon Rich? Disclosure is another word you might want to learn if you’re going to play act as a reporter.

But, of course, she wasn’t reporting. She used The Guardian as an affirmative defense for her stalkiness, just like she used the Debut Author Bash of YA Reads to drag Harris back into her little vortex and misrepresented herself to get her home address. That’s not journalism either. It’s manipulative and self serving. This was an event to celebrate her work and the work of other authors in her genre and she cynically used that to further her own agenda of getting satisfaction from Harris. The editor who gave her the address clearly is upset and feels betrayed. Plus, she shows some actual contrition in her statement of the type Hale’s article sorely lacks.

“Hale said although the situation is difficult, it led to a rewarding moment in her career, being the third most read author on The Guardian two consecutive days.”

And there you have it. It’s all about the attention. Doesn’t matter how you get it and shame need not appy. It’s narcissism writ large. Maybe when she writes the sequel about her difficulties during the civil lawsuit she’s angling for, she can make it to number two! Aim high! All her nonfiction work seems to be in the same vein; they all contain an uncomfortable amount of oversharing personally embarrassing details. There’s only two reasons for someone to do that repeatedly; a genuine sense of contrition and wanting to help others avoid their mistakes or to manipulate people. From what I’ve seen, put me on Team Manipulate.

“If I can talk about how the Internet cultivates obsession in a way that reads like a horror story, then I’ve done my job.”

Well, she’s certainly done her job here. The only thing is, in this horror story, she’s asking us to set aside the behavior of the machete wielding psycho because the other kids were mean to him at camp when he was a boy. The thing that struck me when I first read her piece was how much it was like a short story I could’ve written. A person becomes obsessed and spirals out of control. The only difference is my story would end in something tragic. That’s what this story actually is. It doesn’t happen all the time or even most of the time, but often enough, this tale ends with someone in jail, a hospital bed or on a slab in the morgue. And I have no impression Hale has even the slightest understanding of how dangerous a road she was on. Her intentions may have been good (I’m doubtful of that) but I understand the Road to Hell is some fine traveling, too, until you reach the overpass.

“Kathleen wrote something that was extremely real, honest, and ugly, and she did so with an incredible amount of grace, candor, and humor, and I do truly believe that the people who feel differently have not read the piece.”
Hale’s friend and editor Haley Mlotek

I think both Hale and her editor, when they say that the people who are criticizing her didn’t read her article, are acting under the impression that she earned some kind of points for admitting her sins. But look at it this way, if I told you I stomped a puppy to death on the way home from work today but I feel kinda bad about it, would I be a better person for being open and forthright about my actions and feelings or would I simply be a piece of shit for having done them in the first place? Or an even bigger piece of shit for now going out of my way to further draw attention to the extraordinarily shitty thing I just did? Admitting you did something and saying, half-heartedly, maybe, it might be bad is not the same thing as taking responsibility for your conduct. Especially when you’re doing it in the service of demonizing the very person you did said shitty thing to.

The ugly little implication here is if Hale wasn’t being totally honest or if there is no corroboration because it didn’t happen the way Hale presented it, that means Harris fits very neatly and indisputably into another category: victim. (For the record, I think Harris is a victim even if she did everything Hale claimed plus a few extra “fuck you” Facebook messages on top.) As such, Hale’s article itself is further victimizing her, as are all the people repeating Hale’s accusations as fact. They’re dangerously close to blaming or shaming the victim or the venerable “she was asking for it” defense. Oddly, that very attitude was one of the complaints Harris had about some of the characterization in Hale’s book. When in doubt, look for patterns in someone’s behavior. Patterns often surface unconsciously and reveal all, whether the person wants them to or not.

Hale is fortunate she’s a woman. If she had a penis and had written the exact same article word for word, changing the pronouns accordingly, the only people coming to her (now his) defense would be the GamerGate assholes. Somehow, I suspect that wouldn’t be her desired audience. But her actions have more in common with their particular brand of vileness than with the actual victim of a bullying campaign. Just remove the gender, and they’re two peas in a pod.

Counter-Points To My Earlier Points

I made the arguments earlier. Now here’s the rebuttals (sort of). And the rebuttals to the rebuttals. Yeah, I’m three degrees deep in arguing with myself about obscure market competition issues on a Sunday. What of it?

When I talked about Oliver Wendell Holmes arguments in his dissent, I skipped over this part. In retrospect, he’s got a bit of a point. But only to a point.

“What really fixes that (prices) is the competition of conflicting desires. We, none of us, can have as much as we want of all the things that we want. Therefore, we have to choose. As soon as the price of something that we want goes above the point at which we are willing to give up other things to have that, we cease to buy it and buy something else. Of course, I am speaking of things that we can get along without. There may be necessaries that sooner or later must be dealt with like short rations in a shipwreck, but they are not Dr. Miles’ medicines. With regard to things like the latter, it seems to me that the point of most profitable returns marks the equilibrium of social desires, and determines the fair price in the only sense in which I can find meaning in those words.”

If things get too expensive, people stop buying. The market’s self correcting in a way. In that sense, what does it hurt if Hachette wants to price itself out of the range of a large percentage, if not most, of the people interested in buying ebooks? It’s their funeral. And, hey, maybe people in large numbers will be willing to pay higher prices. Doesn’t Hachette deserve the opportunity to sell its product for the maximum price it can muster?

Of course they do. The only thing is Hachette isn’t capable of selling directly to customers, at least not on a scale sufficient to support their annual sales and revenue needs. If they could, they wouldn’t need anything but their own storefront. To reach those readers, however, they need retailers. Specifically, they need Amazon. Hachette’s maximum price isn’t what the reader will pay, it’s what the retailer (or wholesaler) will pay. The retailer is the one with the direct connection to the customer, the one with first hand knowledge of what constitutes a reasonable price to the customer. Why should Hachette be entitled to preferential treatment in being able to restrain Amazon’s trade just because it needs something from them but doesn’t like the terms it’ll have to pay to get it? Hachette has the right to seek the maximum price it can get, yet Amazon doesn’t possess that same right? Amazon must have its interests inhibited so Hachette’s can be fulfilled? What is the basis in law for that distinction, that preferential position that Hachette seems to want?

I think you’ll find that the equilibrium of social desires, as Holmes calls it, isn’t going to be found by restricting price competition among retailers. And because we’re talking about preventing retailers from making pricing decisions, if things do go south from suppliers overestimating what the public views as a reasonable price, they’ll have no recourse but to sit there and watch money float right out the door. If retailers can’t make pricing decisions, even in the face of their own survival, giving manufacturers control of retail pricing can do a hell of a lot of harm.

The other point I wanted to make is with regards to the concept of a title to goods being transferred through a sale and the rights to that transferring with it. With ebooks, and all digital goods in this vein, there is no title being transferred. Amazon isn’t buying ebooks from Hachette, they’re selling them, much like consignment. If the title to the product doesn’t transfer, then it follows that the rights of the producer won’t be terminated at the point of sale. So it is conceivable Hachette, or others, may have the power to dictate additional terms to retailers, possibly even under copyright in ways it didn’t apply when sales were sales and title went with them.

However, the kicker here is that in order for Amazon to sell those ebooks, Hachette has to license them to do so. The terms of said license are the result of…wait for it…negotiation! Hachette doesn’t magically gain more leverage even if the title to the product remains with them.

This is the result of an issue with digital goods that will need to be addressed at some point. When products are effectively sold but, through legal definition, are only licensed, it puts the balance of power in the market off kilter. It, potentially, grants manufacturers the ability to vertically fix prices if it can do so, and exercise controls or restrictions/the elimination of further traffic in future sales. This means the consumer’s bargain of granting the producer limited exclusive rights is no longer being balanced by those rights for themselves once they’ve made the purchase. The consumer is still implicitly giving something up but no longer getting anything in return.

The situation here, however, is that Hachette (or all of the individual Big 5 independently with the possible exception of PRH) don’t possess the leverage or the will to sacrifice what it would take to get any significantly sized retailer on board with those terms. Short of working in unison (been there, done that, wrote checks for tens of millions) or Uncle Sam changing the ground rules in their favor, the title transfer issue is not one they’ll be able put to much use.

Eventually though, that’s going to become an issue. If I had to guess, I’d say it’ll start as a dispute between a customer and a retailer and mushroom out from there before a court somewhere rules that the licenses used here are indistinguishable from a sale. Then all hell breaks loose. I can’t wait!

If I were one of these publishers, I’d try to get ahead of this game by working to set up some second hand markets and make certain I was in for a sizable cut while I still had the leverage. The downside is what? Resale will undermine the value of books and drive prices downward? Subscription services, the persistence and growth of indies publishers selling at much lower pricing tiers and consumers understanding that ebooks offer less value than print versions, even paperbacks, and should be much cheaper are already doing that. Right now, resale can’t exist without the consent of the copyright holder. Such a market needs their approval to happen. That makes their signature very valuable at the moment. However, wait until a judge, a consumer agency or some legislation changes things to where digital resale markets don’t need their consent and they’ll be out in the cold. Remember this, though. When it happens, and it will eventually, publishers will be caught in yet another lurch of their own making through lack of vision and even more inexcusable lack of action.

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

Agency and Anti-Competitive Behavior: Looking back a century

I was reading Barry Eisler’s takedown of the most recent Amazon hit piece (Surprise! From yet another author with a book under contract to Hachette who didn’t think it necessary to disclose that fact. Funny how often that happens. You’d almost think it was a pattern of intentionally misleading readers into believing they don’t have a direct financial stake in the matter. Yeah, almost). During a comment I left there, I went back and plucked a quote or two from an old SCOTUS decision ruling against agreements that allow a manufacturer to fix the retail price of their goods. As I glossed over the text of the case, I found many interesting points of reference.

Now understand, this is from a century ago. These issues have been adjudicated again and again over the years, so this case is in no way binding or even any sort of standard for how these deals are dealt with today. But as I was reading it, I was struck with how much sense it made. Perhaps this is one instance where the traditional ways of thinking about something (resale price maintenance agreements or vertical price fixing, if you will) truly should have been maintained.

The case, Dr. Miles Medical Co. v. John D. Park & Sons Co. (220 U.S. 373, 1911) involved a pharmaceutical company who created a network of contracts with both wholesalers and retailers whereby to access their products, they had to agree to numerous stipulations about the resale of those goods, most importantly related to a minimum price they were allowed to sell to the public, under penalty referenced in the contract. The company refused to sell to any entity that didn’t agree with its dictates and further, was attempting to squash a retailer who managed to get its products and was selling them below their required costs. Dr. Miles lost this particular case, the court finding at the time that the company had no statutory legal right to impose such requirements on wholesalers or retailers and, further, such agreements, enforced only through the “monopoly of production” as the Court put it, ran afoul of the Sherman Antitrust Act.

Much of the following is from Justice Charles Evans Hughes writing the majority decision, with some excerpts from other applicable rulings. I’m also choosing to quote liberally, taking longer blocks of thought in some places. If I learned anything from the Orwell kerfuffle, it’s to read the entire line of thought, not simply the one or two sentences you agree with. Here’s a link to the full text of the ruling, including the dissent penned by none other than Oliver Wendell Holmes, that’s also fascinating for how similar it is to some of the pro-Agency arguments I’ve seen in its lack of concern for competition and the best interests of consumers. It’s super-long and pretty dry, lawyerly stuff, but well worth the read if you have any interest in the background of what Agency actually means and what it does in market conditions. I’ve excerpted a few high points to discuss. The bold type is my own added emphasis.

“But this argument rests on monopoly of production, and not on the secrecy of the process or the particular fact that may confer that monopoly. It implies that if, for any reason, monopoly of production exists, it carries with it the right to control the entire trade of the produced article, and to prevent any competition that otherwise might arise between wholesale and retail dealers. The principle would not be limited to secret processes, but would extend to goods manufactured by anyone who secured control of the source of supply of a necessary raw material or ingredient. But because there is monopoly of production, it certainly cannot be said that there is no public interest in maintaining freedom of trade with respect to future sales after the article has been placed on the market and the producer has parted with his title. Moreover, every manufacturer, before sale, controls the articles he makes. With respect to these, he has the rights of ownership, and his dominion does not depend upon whether the process of manufacture is known or unknown, or upon any special advantage he may possess by reason of location, materials, or efficiency. The fact that the market may not be supplied with the particular article unless he produces it is a practical consequence which does not enlarge his right of property in what he does produce.”

Here’s the idea of “monopoly of production.” From the book trade, only Hachette can produce Hachette books. They are the only source. They have a monopoly of production on Hachette books. What they’re trying to say, and what Justice Hughes is refuting here, is that this monopoly of production gives them rights to control the product, specifically it’s pricing, after its been transferred to another party. Dr. Miles was telling people who bought their drugs what they could sell them for. Hachette is trying to tell Amazon what to sell its books for.

Note the implication that the reasoning behind this is to inhibit or prevent competition. Hughes certainly didn’t. He makes a clear point that once a product has been placed on the market, the title transferred (sold) to another entity, that the public interest is in freedom of trade in future sales. Dr. Miles was arguing just the opposite, and by extension, so is Hachette. They want to restrain trade in that area. I think it’s telling that the principle weapon most of those calling for action against Amazon for its market power advocate for is, itself, a form of restraint of trade against retailers.

I also like the last sentence there. Just because you’re the only one who can produce or bring your products to market, that doesn’t mean it gives you any more rights of property than anyone else. No special snowflakes need apply.

“Nor can the manufacturer by rule and notice, in the absence of contract or statutory right, even though the restriction be known to purchasers, fix prices for future sales. It has been held by this Court that no such privilege exists under the copyright statutes, although the owner of the copyright has the sole right to vend copies of the copyrighted production. Bobbs-Merrill Co. v. Straus, 210 U. S. 339. There, the Court said:

‘The owner of the copyright in this case did sell copies of the book in quantities and at a price satisfactory to it. It has exercised the right to vend. What the complainant contends for embraces not only the right to sell the copies, but to qualify the title of a future purchaser by the reservation of the right to have the remedies of the statute against an infringer because of the printed notice of its purpose so to do unless the purchaser sells at a price fixed in the notice. To add to the right of exclusive sale the authority to control all future retail sales, by a notice that such sales must be made at a fixed sum, would give a right not included in the terms of the statute, and, in our view, extend its operation, by construction, beyond its meaning, when interpreted with a view to ascertaining the legislative intent in its enactment.'”

The statute referred to there is copyright. Our current situation isn’t the first time publishers tried to fix retail prices for books. The case here is from 1908. A publisher included a disclaimer on the copyright page of their books that said selling this book under the price printed on it constituted copyright infringement. They were interpreting the “exclusive right” to produce and sell conferred to authors and creators in copyright statute as meaning it gave them the right to control the uses (prices) of the books after they’d been sold (title transferred).

Notice, again, the intent of this action was not to simply sell copies but to qualify the title of the buyer, restrict what they can sell it for after they’ve bought it. See a pattern developing? The publisher lost this case, by the way. Also note the phrase “in the absence of contract” in the first bold quote there in relation to the ability to fix prices. That relates directly to this next part:

“Whatever right the manufacturer may have to project his control beyond his own sales must depend not upon an inherent power incident to production and original ownership, but upon agreement.”

There’s the thing. These deals weren’t even totally illegal then if, and only if, they resulted from a fair, willing agreement of parties. If a retailer liked, they could grant this right to a manufacturer in a contract and it would be perfectly valid. My question is why would they? What kind of incentives would a manufacturer have to offer to entice a retailer to willingly allow it’s trade to be restrained? That’s probably why there aren’t too many of these types of agreements without some severe power imbalance in favor of the manufacturer or some form of coercion.

The publishers couldn’t get Amazon on board through negotiation, they didn’t have enough to offer for them to even consider it, so they colluded to force it. Now, they’re in the same boat. Want the world, don’t possess the resources to get it. It’s got to be frustrating, especially when you’re a company that used to possess just such leverage and resources. But that’s the way this works. You have to earn your leverage. You don’t just get it because you want it. I suspect that’s why the contract exemption exists. No retailer would accept a deal like that in absence of some likely illegal coercion without a damn good reason for doing so. Amazon certainly doesn’t have one, and I have a hard time envisioning what a publisher like Hachette could possibly bring to offer that would even make a dent. A much higher cut of the proceeds to Amazon would seem like a minimum starting point and I doubt that would even really open the conversation. That’s the thing, in the absence of government mandate or intervention, an Agency type agreement is never going to be willingly negotiated between a healthy retailer and book publishers. Which, again, is calling for special dispensation from government that other industries don’t get.

“The present case is not analogous to that of a sale of goodwill, or of an interest in a business, or of the grant of a right to use a process of manufacture. The complainant has not parted with any interest in its business or instrumentalities of production. It has conferred no right by virtue of which purchasers of its products may compete with it. It retains complete control over the business in which it is engaged, manufacturing what it pleases and fixing such prices for its own sales as it may desire. Nor are we dealing with a single transaction, conceivably unrelated to the public interest. The agreements are designed to maintain prices after the complainant has parted with the title to the articles, and to prevent competition among those who trade in them.”

Third time’s a charm. These agreements are designed to prevent competition. Everybody now! The earlier portion of this is interesting, too, in that it clearly notes that the manufacturer is giving up nothing while simultaneously taking rights away from retailers (and wholesalers, in this case). See my previous comments on agreements. You’ve got to give a little to get a little and, in cases like this, the manufacturer doesn’t want to give at all, only take.

“The bill asserts the importance of a standard retail price, and alleges generally that confusion and damage have resulted from sales at less than the prices fixed. But the advantage of established retail prices primarily concerns the dealers. The enlarged profits which would result from adherence to the established rates would go to them, and not to the complainant. It is through the inability of the favored dealers to realize these profits, on account of the described competition, that the complainant works out its alleged injury.

If there be an advantage to the manufacturer in the maintenance of fixed retail prices, the question remains whether it is one which he is entitled to secure by agreements restricting the freedom of trade on the part of dealers who own what they sell. As to this, the complainant can fare no better with its plan of identical contracts than could the dealers themselves if they formed a combination and endeavored to establish the same restrictions, and thus to achieve the same result, by agreement with each other. If the immediate advantage they would thus obtain would not be sufficient to sustain such a direct agreement, the asserted ulterior benefit to the complainant cannot be regarded as sufficient to support its system. But agreements or combinations between dealers, having for their sole purpose the destruction of competition and the fixing of prices, are injurious to the public interest and void. They are not saved by the advantages which the participants expect to derive from the enhanced price to the consumer.”

What he’s describing there is horizontal price fixing by a cartel of retailers. And he equates the end result of manufacturers controlling retail prices precisely to that. The results are the same. He also makes no bones about describing such deals as having the sole purpose of destroying competition. We wouldn’t want a group of retailers to band together and fix prices. Somehow, though, we should be in favor of it when it’s manufacturers, even though the ultimate results are the same?

See what happened here? The dealers who signed the agreements didn’t like the competition from the ones who didn’t and sold underneath the manufacturer’s required retail price. The competition cut into their guaranteed profits. Here’s a way a manufacturer could entice a retailer, with the notion of larger, locked in profits. There’s a counter argument to that relating to sales volume and how you actually attract sales if there’s no retail competition to speak of. Is a higher profit per item but fewer sales (and little means to spur them) actually good for a retailer? But that’s a different matter. What’s happening here is that Dr. Miles isn’t simply setting the retail price after title has been transferred, they’re actually picking winners and losers among retailers. They’re not only restraining trade but deciding who gets to engage in competition and to what extent that competition is allowed to go. It’s the “give ‘em an Inch and they’ll take a mile” theory.

“The complainant having sold its product at prices satisfactory to itself, the public is entitled to whatever advantage may be derived from competition in the subsequent traffic.”

Yes, the public is. That’s part of the deal. Everyone in the chain has rights up to the point they give up title to the property. Their rights stop there, transferred to the buyer, until they themselves give up title. It’s how things work. Giving anyone in the chain power to dictate actions of participants you should no longer have control over throws everything out of balance. There’s a huge difference between not being able to get most favorable terms from a retailer, as Hachette seems unable to do, and forcing those terms on them through a restraint of trade. It’s very difficult to argue that manufacturers controlling retail prices is anything but a restraint of trade against retailers. The key here is, with that restraint, the public doesn’t benefit from the competition of subsequent traffic in the goods. There is no competition. This breaks the covenant. Everyone has rights. Stay in your lane. In these scenarios, manufacturers benefit while retailers lose autonomy and consumers lose the price benefits of competition. And they are doing so by claiming a right based on a monopoly of production.

This last part is from the dissent in this ruling, written by Justice Oliver Wendell Holmes:

“What, then, is the ground upon which we interfere in the present case? Of course, it is not the interest of the producer. No one, I judge, cares for that. It hardly can be the interest of subordinate vendors, as there seems to be no particular reason for preferring them to the originator and first vendor of the product. Perhaps it may be assumed to be the interest of the consumers and the public. On that point, I confess that I am in a minority as to larger issues than are concerned here. I think that we greatly exaggerate the value and importance to the public of competition in the production or distribution of an article (here it is only distribution) as fixing a fair price. What really fixes that is the competition of conflicting desires.

We, none of us, can have as much as we want of all the things that we want. Therefore, we have to choose. As soon as the price of something that we want goes above the point at which we are willing to give up other things to have that, we cease to buy it and buy something else. Of course, I am speaking of things that we can get along without. There may be necessaries that sooner or later must be dealt with like short rations in a shipwreck, but they are not Dr. Miles’ medicines. With regard to things like the latter, it seems to me that the point of most profitable returns marks the equilibrium of social desires, and determines the fair price in the only sense in which I can find meaning in those words. The Dr. Miles Medical Company knows better than we do what will enable it to do the best business. We must assume its retail price to be reasonable, for it is so alleged and the case is here on demurrer, so I see nothing to warrant my assuming that the public will not be served best by the company’s being allowed to carry out its plan. I cannot believe that, in the long run, the public will profit by this Court’s permitting knaves to cut reasonable prices for some ulterior purpose of their own, and thus to impair, if not to destroy, the production and sale of articles which it is assumed to be desirable that the public should be able to get.”

So answer me a question: if there’s no competition in production, no competition in distribution and you’re supporting agreements that restrict or eliminate competition in retail, when exactly should we be concerned about the value of competition to consumers? I suppose there’s no point in worrying about the value of competition when there isn’t any. I’m stunned by his blunt statement that Dr. Miles knows best and that we must assume the retail prices they are requiring are reasonable. Why, in the name of all things great and holy, would you assume that? His colleagues who supported this ruling certainly didn’t. In fact, I would argue just the opposite. You allow someone outsized power unearned by statute or not gained through the crucible of competition, and I think you have to assume their retail price is not reasonable until shown to be otherwise. Power unchecked by competition doesn’t usually result in best case scenarios for customers. It slows innovation and raises prices. Say what you want about Amazon being a monopoly, there is very little doubt that they behave in a fiercely competitive manner. I’m not sure the same can be said for Hachette or any of the large publishers. More the veneer of competition wrapped around what they perceive as an already divvied up industry.

His point at the end is almost word for word something I’ve seen from publisher supporters. If they can’t charge what they want, they’ll stop producing and the public interest is damaged in turn. It’s nonsense. They can’t do it? So stop. No one cares. Their writers will find other outlets, books will continue to be made and sold and read in the millions upon millions. The life or death of a Hachette is totally irrelevant to the totality of the industry. It is relevant to the people whose livlihoods depend on them. That’s why they should be doing everything they can to stop the self destructive stupidity and hubris that has overtaken the company. Your paycheck depends on it. Amazon is not the one who’ll be pulling your next book contract or laying you off in a year. Amazon will be saying, “you know, we just wanted to sell more of your books. And we wanted you to get paid more while doing so.”

Here’s my point: no one wants Amazon to become an all-consuming monster. Everyone has concerns about their market size and how they decide to wield the power that comes with that. But, as yet, there’s nothing illegal about what they’ve done. The publishers, including Hachette, can’t say the same thing. When you talk about Agency contracts, understand what’s being discussed isn’t simply a different business model, it’s a departure from the basic market structure we’ve had for a very long time. Allowing manufacturers to dictate retail prices to stores isn’t a right they should have, it’s one they specifically don’t have because, in order to do so, it involves instituting a restraint of trade against those stores. More than that, as this case even illustrated, the manufacturer in control of these agreements, garnered through its own monopoly of production, gains more than pricing power, they gain the ability to preferentially choose winners and losers among retailers and even who is or isn’t allowed to compete at all.

Negotiation and a willing arrangement is the proper way to pursue deals like this, its worst excesses kept in check by the give and take of deal making. But the publishers failed at that. They didn’t have the right incentives to negotiate a deal. So they moved on to collusion to force the deal through. That didn’t work either as the DOJ was all over it almost immediately, the attempt was so blatant. Now, having failed to negotiate or coerce a deal, the next step is to cry to the government to step in and force the issue. That, I’m certain, is every bit as doomed to failure. There’s a point where you have to let go of the way you wish things to be and deal with the way things actually are. The longer this particular fight goes on, the farther behind the companies most embroiled in it will fall.

If you’d like to argue that we should get rid of all the anti-competitive actions in publishing, from every side, then that’s an idea I fully support. But by arguing that publishers should have the right to price however they want, that’s not what you’re advocating. You don’t want to clean the industry of anti-competitive behavior, you just want to be the only ones allowed to use it. Arguing for anti-competitive behavior (and resale price maintenance agreements are anti-competitive by nature) to combat what you perceive as other anti-competitive behavior is a non-starter. If my neighbor breaks into my house and steals my tv, then the next night, I break in and steal his tv, we’re both going to jail. I may seem justified but really I’d be just as wrong.

Editor’s Note: If the previous 4,000 words weren’t enough for you, here’s 1,500 more where I make some rebuttals to myself here, and then rebut those rebuttals.

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

Orwellian

This George Orwell thing just won’t die and it’s kinda pissing me off. It’s getting to be like Benghazi for the anti-Amazon crowd. We’ll have hearings any day now on what Bezos knew about this quote and when. Yesterday, I read this piece by Alex Shepherd from Melville House once again rehashing the critique that Amazon manipulated an Orwell quote by manipulating the same quote in a different manner himself.

Before I get too far into this, though, let’s look at that quote, not one or two cherry picked sentences or sentence fragments, but the entire damn thing. It was taken from a review Orwell wrote about a series of 10 inexpensive paperbacks released by Penguin in 1936 for the New English Weekly. The essay is clearly a review. He lists the titles, authors and publisher at the beginning, made the much-requoted opening gambit, then proceeded to gush about each book in turn before concluding by doubling down on his earlier point. Oddly, part of his conclusion makes his feelings about paperbacks quite clear yet it’s not been referenced to speak of. If I had to guess, this was a paying gig for Orwell, it’s written like one, so the gushing PR-type tone in the parts specifically referring to the books he’s reviewing makes perfect sense. The source material for this is a toss-off “book review” column, and not a particularly good one, at that. “Keep getting ‘dem checks,” as NBA commentator Jalen Rose would say. See for yourself. Here’s a link to the full review.

So, for the sake of clarity, here’s the opening quote in its entirety:

“The Penguin Books are splendid value for sixpence, so splendid that if the other publishers had any sense they would combine against them and suppress them. It is, of course, a great mistake to imagine that cheap books are good for the book trade. Actually it is just the other way around. If you have, for instance, five shillings to spend and the normal price of a book is half-a-crown, you are quite likely to spend your whole five shillings on two books. But if books are sixpence each you are not going to buy ten of them, because you don’t want as many as ten; your saturation-point will have been reached long before that. Probably you will buy three sixpenny books and spend the rest of your five shillings on seats at the ‘movies’. Hence the cheaper the books become, the less money is spent on books. This is an advantage from the reader’s point of view and doesn’t hurt trade as a whole, but for the publisher, the compositor, the author and the bookseller it is a disaster.”

And here’s the conclusion paragraph, also complete:

“In my capacity as reader I applaud the Penguin Books; in my capacity as writer I pronounce them anathema. Hutchinson are now bringing out a very similar edition, though only of their own books, and if the other publishers follow suit, the result may be a flood of cheap reprints which will cripple the lending libraries (the novelist’s foster-mother) and check the output of new novels. This would be a fine thing for literature, but it would be a very bad thing for trade, and when you have to choose between art and money well, finish it for yourself.”

The main bone of contention in this Orwellian battle over Orwell’s words is two references Amazon made to a portion of this review in its Readers United statement responding to criticisms of its stated position on the price of ebooks:

“The famous author George Orwell came out publicly and said about the new paperback format, if “publishers had any sense, they would combine against them and suppress them.” Yes, George Orwell was suggesting collusion.”

“Perhaps channeling Orwell’s decades old suggestion, Hachette has already been caught illegally colluding with its competitors to raise e-book prices.”

The popular party line among Amazon’s detractors is that they are misrepresenting Orwell by claiming his reference to “combine against them and suppress them” was serious and not tongue in cheek, or part of a “celebration” of the cheap paperback. I admit, if you read the complete sentence that Amazon excerpted, it does appear that way. Let’s look at just that quote again:

“The Penguin Books are splendid value for sixpence, so splendid that if the other publishers had any sense they would combine against them and suppress them.”

But the detractors don’t stop there. They move on to claim Orwell is actually contradicting Amazon’s point about cheap books and their benefits. Again, I admit, if you start immediately after the first sentence, it certainly appears that way. Let’s look at the rest of that paragraph again:

“It is, of course, a great mistake to imagine that cheap books are good for the book trade. Actually it is just the other way around. If you have, for instance, five shillings to spend and the normal price of a book is half-a-crown, you are quite likely to spend your whole five shillings on two books. But if books are sixpence each you are not going to buy ten of them, because you don’t want as many as ten; your saturation-point will have been reached long before that. Probably you will buy three sixpenny books and spend the rest of your five shillings on seats at the ‘movies’. Hence the cheaper the books become, the less money is spent on books. This is an advantage from the reader’s point of view and doesn’t hurt trade as a whole, but for the publisher, the compositor, the author and the bookseller it is a disaster.”

Independently, both points seem valid. The glaring contradiction, though, is that for both of these points to be true, Orwell has to be celebrating cheap paperbacks and decrying them as the downfall of the industry in the very next sentence. Orwell does differentiate somewhat between the perspective of readers and writers/publishers and can, from a certain point of view, be seen as both celebrating paperbacks (as a reader) and bemoaning what he saw as their their certain destructiveness (as an industry professional). Now let’s look at the specific complaints about Amazon’s usage. Here’s Shepherd:

“Orwell and the publishers were certainly wrong about the paperback. But Amazon was dead wrong about Orwell, whom it had badly misquoted.”

“In context, Orwell not only contradicts Amazon’s argument about paperbacks, he contradicts their entire business model, arguing that cheap books do not mean that people will buy more books or spend more money on them.”

And perhaps the most famous example, from David Streitfeld of the New York Times:

“When Orwell wrote that line, he was celebrating paperbacks published by Penguin, not urging suppression or collusion.”

“Orwell then went on to undermine Amazon’s argument for cheap ebooks.”

So which is it? Is Orwell celebrating cheap paperbacks or weeping for the damage he believes they’re sure to cause? Can it be both? Possibly, but that still doesn’t make the detractors right in their assessment of Amazon’s intentions in using that excerpt. Let’s look at what Amazon actually said in the same statement where they referenced Orwell:

“With it being so inexpensive and with so many more people able to afford to buy and read books, you would think the literary establishment of the day would have celebrated the invention of the paperback, yes? Nope. Instead, they dug in and circled the wagons. They believed low cost paperbacks would destroy literary culture and harm the industry (not to mention their own bank accounts).”

“The fact is many established incumbents in the industry have taken the position that lower e-book prices will “devalue books” and hurt “Arts and Letters.” They’re wrong. Just as paperbacks did not destroy book culture despite being ten times cheaper, neither will e-books. On the contrary, paperbacks ended up rejuvenating the book industry and making it stronger. The same will happen with e-books.”

So Amazon cited Orwell as part of a literary establishment they claim believed cheap paperbacks would harm the industry and their own bank accounts. Here’s Orwell again:

“In my capacity as reader I applaud the Penguin Books; in my capacity as writer I pronounce them anathema. Hutchinson are now bringing out a very similar edition, though only of their own books, and if the other publishers follow suit, the result may be a flood of cheap reprints which will cripple the lending libraries (the novelist’s foster-mother) and check the output of new novels. This would be a fine thing for literature, but it would be a very bad thing for trade, and when you have to choose between art and money well, finish it for yourself.”

If that’s not concern that they would harm the industry and their bottom lines, I don’t know what is. Did Amazon play fast and loose with the collusion line? It’s possible, maybe even likely, but taken in the full context of the piece, Orwell the writer is certainly no fan of cheap paperbacks and to claim he was celebrating them is simply not supported by the fullness of his words. Other than a few short half sentences about their benefit to readers (a point, I feel it necessary to point out, is in a largely promotional book review column whose audience is readers, after all) every line in Orwell’s piece outside of the stock book review portions is a direct attack on cheap paperbacks, overflowing with worry about the havoc they’ll wreak over the industry. As such, is it possible to be completely certain his opening reference to collusion was not, at least partially, a serious one? After all, he does go to great lengths to explain the conditions for why they might want to engage in such things. But here’s the kicker to Orwell’s true feelings toward cheap paperbacks, from his conclusion paragraph. There’s nothing confusing or ambiguous in this sentence:

“In my capacity as writer I pronounce them anathema.”

For a little vocabulary lesson, Miriam-Webster defines “anathema” as “a thing devoted to evil, something that is intensely disliked or loathed, the denunciation of something as accursed.” If that’s how Orwell celebrated something, I bet he threw some kick ass parties!

As for the second complaint, that Orwell undermined or contradicted Amazon’s business model, did he really? Amazon’s point was that the literary establishment hated and feared cheap paperbacks. Orwell, as a member of that establishment, certainly exhibited those characteristics in this essay. Moreso, Amazon’s point is that they were wrong. Historically speaking, they, including Orwell, were wrong. Even Chapman said so:

“Orwell and the publishers were certainly wrong about the paperback.”

Later, however, he says:

“Orwell not only contradicts Amazon’s argument about paperbacks, he contradicts their entire business model.”

But he just said Orwell was wrong about paperbacks. Streitfeld said Orwell “went on to undermine Amazon’s argument for cheap ebooks.” Can you contradict or undermine anything with statements we know to be historically and factually wrong? If Orwell was truly celebrating cheap paperbacks, then he’d be in fundamental agreement with Amazon. But if he were in agreement with Amazon, then he can’t truly be contradicting their point. But if he is contradicting their point then he can’t genuinely be celebrating cheap paperbacks. It’s an incomprehensible feedback loop created by people condemning the use of a partial quote they claim is out of context by using two different sets of partial quotes from the same source material to ascribe fundamentally opposing views to Orwell, sometimes from the very same sentence, each, apparently, requiring its own independent context. Amazon may have missed some sarcasm when they quoted Orwell on collusion, but they didn’t miss the point.

If you make the claim that Orwell’s views contradict Amazon’s views and we know that Orwell’s views were incorrect, doesn’t it follow that citing them does, in fact, support Amazon’s position? Amazon says the literary establishment hated cheap paperbacks and they were wrong to do so. Orwell’s own words from within that establishment showed little in the way of love for cheap paperbacks and he was shown to be wrong. Where’s the contradiction? Where’s the misrepresentation? It appears to me that any misrepresentation here isn’t Amazon choosing the most inflammatory excerpt to emphasize Orwell’s position on cheap paperbacks even if that one reference is taken more seriously than Orwell may have meant it, but in trying to argue that Orwell himself was celebrating those paperbacks in the midst of a piece where he does little but demonize them from an industry point of view.

Here’s one last quote from Streitfeld’s piece that sums things up nicely, I think. Although, I expect, not in the way Streitfeld thought it did:

“Only a fool or a businessman would twist that quote so completely,” wrote John Biggs in TechCrunch.

I’ll leave it up to you to devine who the fools are in this scenario.

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

Public Editor Lays the Smack Down on NY Times’ Amazon/Hachette Coverage

So the New York Times public editor Margaret Sullivan has called the Times and David Streitfeld to task for its coverage of the Amazon/Hachette contract negotiation. Her comments echo in some ways the criticisms many have made of the Times coverage, including myself. In fact, I wrote a letter to Sullivan following what I believe is the most egregious example of poor journalistic ethics, the Streitfeld article pimping the $100k ad set to appear two days later. While she didn’t delve too deeply into that circumstance, she did at least address it with a note that the act of placing an ad in the Times doesn’t typically merit a news article of its own.

“Although this is a business dispute, it’s being treated as a battle for the soul of American culture.”

Sullivan opened on a high note, both clearly stating that the matter is a business dispute and noting that culture war aspects are a treatment of it. As she goes on, it becomes clear that she is uncomfortable with the Times roll is furthering that treatment as opposed to a more balanced approach to such a business dispute. The title of the piece itself says it all: “Publishing Battle Should Be Covered, Not Joined.”

“It’s certainly true that the literary establishment has received a great deal of sympathetic coverage. Authors including Douglas Preston and Philip Roth have been featured giving their allegiance to the complaint against Amazon. But Amazon itself (as well as writers who say legacy publishers have ignored their work while Amazon has made reaching readers possible) is represented less consistently and forcefully.”

If anything, this is an understatement, but I’ll take what I can get. She goes on to describe a few instances where articles have played up (her words) “the fears and anger” of the Amazon opposition before and after giving relative short shrift to Amazon’s side or the side of writers opposing the publishers’ and/or Authors United’s position.

She repeatedly points out direct quotes against Amazon immediately followed by quotes from opposing voices, done in a manner in which none of this would have ever been necessary had Streitfeld himself done so even half as well in the articles in question. Sullivan made no value judgments in these comparisons, only clearly stating the conflicting viewpoints. I can’t speak to her intent but, to me, it almost felt like a direct message to Streitfeld, “this is how you’re supposed to do it.”

She wrapped it up nicely with her take in conclusion, two paragraphs which I’ll present here in their entirety because they make the case for fairness in reporting very neatly and illustrate where many of us, including Sullivan herself in some ways, feel the Times has fallen down on fulfilling their journalistic responsibility and veered too far into advocacy:

“It’s important to remember that this is a tale of digital disruption, not good and evil. The establishment figures The Times has quoted on this issue, respected and renowned though they are, should have their statements subjected to critical analysis, just as Amazon’s actions should be. The Times has given a lot of ink to one side and — in story choice, tone and display — helped to portray the retailer as a literature-killing bully instead of a hard-nosed business.

I would like to see more unemotional exploration of the economic issues; more critical questioning of the statements of big-name publishing players; and greater representation of those who think Amazon may be a boon to a book-loving culture, not its killer.”

Very well said. Thank you, Margaret Sullivan, for trying to hold journalism at the Times to a higher standard.

Now it should be noted that Sullivan, in her position as public editor, has no actual authority or ability to see that such suggestions are acted upon. Her position is as an independent monitor of the Times coverage and how that’s perceived/received by the public. She has the ability to speak freely but not the ability to actually force changes in the way things are done. But simply the fact that she has very directly and publicly called them out may have some result. We might see a more balanced approach, with other voices weighing in outside of Streitfeld’s seemingly partisan work. (I say “seemingly” to be polite, by the way.)

Now, there are two other references in her piece that I’d like to emphasize to make different points, one is a reference to author Ursula K. LeGuin’s incomprehensible (my words, not Sullivan’s) rant about Amazon and censorship. The other is David Streitfeld defending his disparagement of the indie author petition and trying to explain the reasoning behind his articles. Both are instructive in a few ways, I think. First, here’s the quote about LeGuin:

“Author Ursula K. Le Guin offered more on the perils of Amazon. “We’re talking about censorship: deliberately making a book hard or impossible to get, ‘disappearing’ an author.”

I saw this the other day when the original scare piece billed as “Literary Lions Fight Amazon” came out and I was taken with its absurdity then. As I’ve thought more about it, though, I think it also represents another example of conduct on the part of some of these authors that I believe is misguided. Namely, she has a valid fear but she’s shouting in the wrong direction about it.

First, to equate Amazon with censorship and the rather ridiculous notion of them “disappearing authors” is, historically speaking, about as wrong as any human being has ever been about anything. Well, maybe not any human being, but it’s pretty audaciously wrong. Amazon has opened the doors to more acts of free expression to more people than damn near any entity ever. The Big 5 publishers and their brethren, on the other hand, have been responsible over the past century or so, of blocking more free expression than just about any collective group of entities in history. Obviously, I’m not equating publishers not choosing to print someone’s book with totalitarian regimes stifling speech and dissent, but if that thought crossed your mind when you just read that, it’s precisely the connection LeGuin made in her comments, and maybe you’ll understand a bit more why I’m annoyed with such an absurd suggestion. Plus, I’m reasonably sure Amazon is not a wing of the CIA and the publishing industry isn’t a mediocre ripoff of a John LeCarre novel, so the less said about authors being disappeared, the better.

Amazon is not the place to go to complain about censorship. Neither are the publishers. If she wants to truly defend free speech and expression, she needs to direct her concerns to the FCC while it’s still considering net neutrality rules and whether or not to permit ISPs to create fast lanes where companies with more money can buy quality internet distribution while the rest of us get ghetto-ized in the slow lanes. Media companies and retailers will always be inherently self-selective in what they allow. It’s the open internet, where we all have the same access at the same speeds to reach anyone on the other end, that guarantees freedom of expression. She should take her complaints there, where they might actually matter, or where they’re at least applicable. Here, as part of the Authors United front, they’re exaggerated noise that has little bearing to reality nor any applicability to the conflict at hand. They do sound nice as a demonizing, scare tactic sound bite, though, which I suspect was the only reason they were uttered to begin with. Why there wasn’t an immediate follow up question of “what the hell are you talking about?” (maybe phrased a bit more politely) is another clear journalistic failing.

Speaking of journalistic failings, that brings me to David Streitfeld. Here’s part of his response to Sullivan when asked about the perception that his reporting was taking sides:

“Mr. Streitfeld says his stories have been driven by one value: newsworthiness. When established authors band together against the largest bookseller, he says, “it’s just a great story, period.” And he says that 900 of their signatures mean much more than “a petition that’s open to anyone on the Internet.” To treat them as equal would be false equivalency, he says.”

Streitfeld says something very clearly here, if you’re looking. The terms “newsworthiness”, “established authors”, “great story” and “false equivalency” all reveal his motivations. Replace the word “established” with “famous” and that’s the angle from which he’s chosen to present this dispute. Famous authors versus mega retailer; the Godzilla-movie approach. He’s presenting the entire negotiating dispute through the lens of name brand authors. It’s sexier more “newsworthy” than anonymous authors against publishers. But, honestly, that’s his angle, it’s a valid one, roll with it.

The problem comes when he goes beyond reporting to manipulating the story to suit his angle. A much larger group of authors who dispute this group doesn’t further his story. So he chose not to simply ignore it but to actively disparage it; hence the “false equivalency” bullshit. The indie petition had 10 times the number of signees, made up of mostly independent writers and readers. The AU signing pool, on the other hand, is clearly a collection of writers from very specific sets of conditions within the industry. It’s also perfectly valid but his false equivalency line cuts both ways. It can be interpreted that the indie petition is far more representative of the reading and writing community than AU, and their letters could very easily be painted as entrenched interests fighting a populist tide threatening their positions (and, most importantly, paychecks).

But that’s just an angle. The truth is there are two (and really many more than two, but for the sake of clarity…) sometimes competing, sometimes aligned sets of interests on this matter. Each one has a point of view and relative merits (and demerits) to their various arguments. When he crosses over from reporting to advocacy, which is what I’d call it, he implies that, because of the AU writers’ position and importance (read: fame), their opinions matter more and therefore they must be speaking for all writers. He goes even further in implying any writers who dispute this are only fringe voices and any supporters they muster don’t carry the legitimacy (again, read: fame) of his selected subjects.

For the sake of full disclosure, I did not sign the indie petition. In fact, I criticized it a bit as being unnecessary, somewhat reactionary and for a tone which practically handed detractors the ability to dismiss it out of hand. Streitfeld’s line calling it a “rambling love letter to Amazon” shows precisely that. Still, it has turned out to be a useful counterweight to the AU group, and has been visible enough that Streitfeld even felt the need to try to attack it rather than simply ignore it.

So remember that. Streitfeld isn’t necessarily furthering any specific agenda for publishers or media entities. He’s furthering the narrative for his own “great story”. In this respect, Sullivan is absolutely right; cover the battle, don’t join it. He’s a journalist, it’s time to start behaving like one.

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

What About Hachette’s Responsibility?

Remember that Amazon/Disney dispute that was supposed to be yet another harbinger of the doom Amazon was looking to bring down upon all its suppliers? Well, that’s over. Or at least negotiated to a point Amazon was willing to reinstate preorders and such on Disney products. So much for the doom. It lasted a little under two months.

There’s also this little tidbit from the same Wall Street Journal article:

“A similar dispute between Amazon and Time Warner Inc.’s Warner Bros. in the spring lasted several weeks. Warner Bros. movies became available for preorder again in June after the studio and Amazon had made significant progress toward a deal, but hadn’t finished ironing out details.”

So that one, that I’d never even heard about before, lasted just a few weeks and preorders were made available as part of the negotiation. What do you know? Let’s also not forget the attempt by Hachette a couple months ago to buy the catalog of Perseus Books, with Ingram absorbing their distributor business, that failed miserably when Hachette, who spearheaded the deal, failed to negotiate an adequate end with either of the other two parties.

Is it time to consider, rather than a victim of some evil Amazon publisher-destroying plot, Hachette may just be really bad at business? Other companies involved in terse negotiations with Amazon, involving many of the same tactics, have emerged none-the-worse-for-wear in a matter of weeks. This has been dragging on with Hachette for almost a year, the past six months of which involving things like lessened stocking and no preorders. Those other two media companies both reportedly got out from under Amazon’s tactics through negotiation. Hachette has taken a hard line stance in negotiating with Amazon (and to this point, an horrifically ineffective one that’s looking more misguided by the day.) It really might be as simple as Hachette just kinda sucking at this.

With all the chatter about the responsibilities Amazon has (or some feel they’re supposed to have, anyway) I got to thinking, doesn’t Hachette have any responsibilities here? Nobody seems to be asking that question. Do you think their parent company cares about their excuses about Amazon, especially when they see other companies settle similar disputes quickly and relatively quietly? Apple’s shareholders didn’t give a damn about how supposedly evil Amazon is when they just filed a lawsuit against them to recoup damages from their illegal collusion with publishers. Why aren’t Hachette’s authors throwing an unholy fit? Maybe we’ve been reading the phrase “special snowflake” all wrong. Maybe the authors are trying to get concessions out of Amazon because they know the company they’re contracted too isn’t competent enough to get them on their own.

In any circumstance, I don’t see how Hachette can be absolved of its responsibilities to the writers under contract to them, no matter how many name brand authors keep mouthing off in the absolute wrong directions. I ran across this letter to Hachette by writer Blair MacGregor yesterday. It’s from early July, just after the first Authors United letter hit, but you wouldn’t know it if you didn’t look at the date. It’s oddly prescient and, in my opinion, spot on.

In it, MacGregor raises four important points, each a different area where Hachette can take action in regards to its responsibilities to the writers they represent (and likely should have already). Read the entire letter, it’s well worth it, but I’m just going to focus on a few points here:

“When I read through the latest round of open letters telling Amazon what they ought to do to support Hachette writers during your negotiations, I thought it exceedingly odd no one had written to you.”

She’s not alone there. I’m at the point where it’s far past exceedingly odd and getting into negligence and/or intentional obfuscation. There is zero logical business reason why someone, anyone under contract to Hachette hasn’t lit a raging fire under their ass to get something done by now.

“You see, your writers are contracted directly with you, and not at all with Amazon, even though many target Amazon with their urging to settle disputes. I get the impression you prefer it that way, which is an odd preference as it assumes you, Hachette, have no ability to support your writers and fulfill your contractual obligations without Amazon’s approval.”

Exactly. I would add, however, that what I think they’re lacking is the will to support their writers, not the ability. And, honestly, many of those same writers are giving them a free pass and, in doing so, applying no pressure or giving them even the slightest reason to lift a finger to fulfill their contractual obligations, as she put it.

“When ethical businesses in your position struggle — with negotiations, with collections, or with other cash flow problems — they don’t send their contractors out to solve the problem for them. Instead, they take care of their obligations to their employees and contractors while making every effort possible to resolve the issue.”

Yup, that’s what ethical businesses do every day. What’s that tell you about where Hachette stands on the ethical scale? Remember, this letter was from three months ago, nearly as long as both Disney and WB’s negotiations combined. What have they gotten done in that time? Zip. Now he gets to the four areas where she believes they should act:

“First, your response to Amazon’s offer to participate in a royalty fund for impacted writers is puzzling if your desire is to care for your writers. Requiring a total resolution be reached with Amazon before discussion on royalties takes place might feel like a powerful move, but exposes the priority you place upon your writers.”

It looks even more egregiously bad now that we have direct examples of both Disney and Warner Brothers getting immediate actions out of Amazon during negotiations. And that’s not to mention MacMillan accepting a nearly identical deal during its last negotiation. Why the authors didn’t use Amazon’s offer to get Hachette to act to mitigate the damage done to themselves and their fellow authors is lost on me. Their irrational and indiscriminate hatred of Amazon is blinding them to both their own and their fellow writers’ interests. But they shouldn’t have had to. Hachette showed zero interest in taking Amazon up on this. Worse still, they have done absolutely nothing on their own, nor did they even try any sort of counter proposal. Someone should mention to Hachette that negotiations typically involve some form of actual negotiating.

“Second, disclose precisely how you are fulfilling the just-in-time orders Amazon is placing with you. I assume your distribution centers aren’t set up for small and swift shipments, but surely a multinational company such as yours has someone in its distribution department able to cobble together a temporary remedy.”

This is spot on, too. If you want us to believe Amazon is why books are shipping slower, prove it. Show us that you’re getting those orders out ASAP and they’re not sitting on someone’s desk in your warehouse for two weeks. I’ve only seen one writer inquire about these shipments, and here’s how that turned out:

“Hachette has continually assured us all orders were shipping “in a timely manner” and Amazon was to blame for placing small orders. We’ve asked for copies of the purchase orders and confirmation of the shipment dates from my publisher but have been told, ‘It is not information we would like to be shared with any third party at the current time.'”
–From Digital Book World

Third party…for his own book shipments! Dripping with concern for writers, right there!

“Third, put some effort into promoting your writers who aren’t your top sellers since they are the ones who stand to lose the most—and most fear that loss.”

I’m totally down with it but they won’t do this when times are good. A snowball has a better chance of wintering successfully in Hell than Hachette ponying up to promote non-mega-selling authors. Still though, not only should they be because of this situation, but because it’s the right thing to do all the time.

“Lastly—and most importantly—publicly and firmly assure your writers that their future contract negotiations will not be based upon lower sales numbers that result from your prolonged negotiations.”

Yes, yes, a million times, yes! This should be the first question anyone asks Hachette from now until the end of time; will you guarantee not to use the lower sales figures during this dispute to drop or otherwise force better deals with writers for yourself? All day, every day. Even Hachette’s most virulent supporters just assume it’s a foregone conclusion that they will employ such unforgivably sleazy actions as this. They’re all over Amazon about the preorders because they’re afraid of the punitive actions Hachette will use those figures to take against them. Yet from writers to Hachette…crickets.

“It’s almost as if no one believes you’d consider it in your best interest to mitigate the damage writers believe will be done to them. It’s almost as if all those urging Amazon to act are far more confident in Amazon’s likelihood of listening than they are in yours. After all, none of them have yet asked you to do…well, much of anything, really.”

Yeah, almost. I think she’s on to something here. Perhaps no one’s pressuring Hachette because they know how futile it is. Whatever the reason, it’s high time that many, many someone’s start not only asking, but demanding Hachette do something here for its writers, if nothing else. Complain about Amazon all you like, but Hachette is directly responsible to the writers it has under contract. And right now, they’re pissing down all of your backs and telling you it’s raining.

You all are worried about your next contract if you rock the boat or make any noise about this? Let me ask you, if this continues to drag on through Christmas, book buying’s most wonderful time of the year, what next contract is it you think is going to be there? Unless you’re a superstar, there won’t be a next contract for you to be concerned about. Speak now or forever hold your peace.

UPDATE: Nate Hoffelder of The Digital Reader just pointed out to me that Perseus Books, the company Hachette swung and missed at, recently struck a new ebook deal of its own with Amazon. According to the report, the deal included not just their own catalog but all the books in their distributor business that were set to be spun off to Ingram in the failed acquisition.

Talk about dodging a bullet! If that sale had gone through, all of those Perseus books would be caught up in the same vortex as the rest of Hachette’s catalog right now. Instead, they’re selling ebooks unencumbered. It’ll be interesting to see if we get any information on what the terms of the deal are, but there can’t be too many smiles around Hachette’s campfire right now.

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

Agree to Disagree

I made the point yesterday that if people, whatever their opinions or beliefs, just come with a considered point of view, they may get arguments but not as much disrespect. Obviously, the world is full of trolls, and some people, as Michael Caine put it, just want to watch the world burn. But I think it’s generally pretty easy to tell who’s thinking things past the top layer or two and who’s just got an ax to grind or a bill of goods to sell. Everybody runs the risk of crossing those lines sometimes, particularly in contentious circumstances like publishing where there’s a different opinion for as many people as can formulate a sentence on the matter. But, for myself, I respond better when I feel like the person speaking has an understanding deeper than everyone’s base rhetoric.

As you may have already seen, Lee Child, author of the popular Jack Reacher books, and a signer of the Authors United efforts, exchanged views with Joe Konrath on the state of things. Read all the way through, the discussion continues into the comments, as well. I found myself alternating between agreeing and disagreeing with Child, but in the end, I was left thinking that, even though I’m generally opposed to their stated efforts, AU would be so much better off with someone like Child and his pragmatism at the helm rather than Preston and his, shall we say, questionable thinking.

“…as a guy entirely unafraid of the future, whatever it may bring – after all, I kicked your ass under the old system, and I’ll kick it under the new system, and the new-new, and the new-new-new, until I retire, or the lung cancer gets me, whichever comes first. I’m completely confident of that, and you’d be an idiot to bet against me.”

I like it! There’s no cowering in corners there, worrying about what tomorrow may bring. Maybe he’s right, maybe he’s wrong, maybe he’s just arrogant, but so what? Publishing is a difficult, often cut throat business. You’ve got to be confident in yourself or you’ll get chewed up and spit out. I’m a basketball fan; talking shit then backing it up on the court is the game’s purest form, in my opinion. Or shutting up the guy talking shit by taking it right to him. And if you can’t shut him up, then he’s earned the right to run his mouth. I love the psychological game as much as the on court action. Child is showing no fear and that wins points with me from the get go.

“Almost every sale Amazon makes happens without a contract with the supplier or manufacturer. It used to be that way with Hachette. Hachette sold to wholesalers, at a certain discount, and the wholesalers sold on to Amazon, at a slight markup. Soon Amazon wanted to avoid that markup, so it went to Hachette and asked, “Please will you sell to us direct?”  And Hachette said, “OK.”  And that’s the so-called contract, right there.”

Ok, now we disagree. Yes, Amazon could just go through a distributor and pay the wholesaler price for Hachette’s print books and then do whatever the hell they’d like with them. But it’s not unheard of for large retailers to have direct contracts with large suppliers to remove the distributor middleman cut. The one thing about Amazon everyone seems to agree on is that they are not fond of middlemen. Barnes & Noble has contracts directly with these publishers, so does Walmart and pretty much every sizable retailer of books out there. It’s been that way for quite a while. It’s not something Amazon started and, in fact, it’s good business on their part to cut out the unnecessary distributor cut if they can.

However, ebooks are a different story. They do need an agreement directly with Hachette in order to sell their ebooks. The act of replicating the files to sell them would constitute copyright infringement without an agreement directly with the publisher. There are no first sale rights on ebooks. Amazon, or anyone else, can’t just buy one, even from a distributor, then turn around and resell it legally. Ebooks, in their present form, require a contract with the publisher, be it Hachette or me as an independent. Amazon couldn’t sell ebooks from me unless I specifically give them the right to do so. There is no circumstance where an agreement with a publisher isn’t necessary for a retailer to sell ebooks.

“Amazon larded on “fees”… in street terms, protection money, to keep the playing field level with other publishers also paying protection money. Equal visibility and honest rankings – which are the best kind of visibility – were at stake. In plain English, Amazon was saying, “Give us cash under the table or we’ll lie in public about the relative merit and appeal of your products.” Publishers were, of course, accustomed to that – B&N pioneered a junior version long ago – so it was business as usual.”

Again, I’m going to have to disagree. Co-op is a form of advertising, and it’s been around forever. Every magazine I ever worked for did a nice business in co-op fees for premium placement of ads within the publication, and that was well established long before Amazon was anything more than a river in South America. Amazon does have a much more diverse mechanism for selling things, so naturally, that likely produces more opportunities to add fees and such. A brick-and-mortar store has, basically, some tables and upfront displays. Amazon has dozens of ways to increase the visibility of books. I’m not surprised at all that they make some extra coin on that. Further, they should. It’s not protection money, it’s advertising, nothing more. And Amazon, or B&N for that matter, didn’t innovate any of it.

“If Hachette walked away, Amazon would lose… unless it was prepared not to carry Hachette titles ever again. Which it isn’t, because Amazon’s whole theory is to be the go-to, first-stop, everything store. Hachette’s best play would be to walk away and suffer a few lean years before an alternative presented itself.”

First, if Hachette walked, Amazon could still sell their print books by getting them through a distributor. Or through their vast network of third party sellers. Unless, of course, Hachette were willing to pull their books from distributors, which isn’t going to happen. The only thing Amazon couldn’t sell if Hachette walked is their ebooks, which they clearly want or they would have bailed on Hachette long ago.

As for a few lean years, I think you’re underestimating how much revenue Amazon generates for Hachette. Far from a few lean years, it would likely be a couple catastrophic years followed by their corporate parent dropping them like a bad habit, either shuffling them off to someone else, likely after massive, destructive rounds of cost-cutting, or spinning them off, a la B&N’s Nook business, to while away the time without dragging down the rest of the company, until straight up bankruptcy. Amazon walking away from Hachette would be inconvenient. Hachette walking away from Amazon would be suicide. You may be right, though, it could be Hachette’s best play. How many different ways can I say the word “screwed”?

“It’s staggeringly naïve to think the current KDP landscape is anything other than a short-term tactic. Note well – I am NOT saying don’t get into it now just because it will get worse in the future… instead I say, hell yes, make hay while the sun shines. Exploit Amazon’s game plan for all you can get, as long as it lasts, and more power to you. But understand that today’s KDP is a pressure point, designed to suck authors out of the established system.”

Indeed, I think we’re in agreement on this. My only question is who thinks it’s not a short-term tactic? In fact, KDP and the offerings associated with it seem to be constantly shifting. And it’s clearly designed to pull authors out of the established system. Specifically, though, it’s authors who have either been tossed aside from that system or those on the outside who couldn’t find a way through the gates. I do think they’d like to attract some name authors but I suspect they’d rather have them under one of their imprints, if at all possible, rather than strictly in KDP. KDP is more like a third party seller program than acting as a publisher itself.

And I am in full agreement with your make hay while the sun shines. That’s a good plan for whatever you do. Large corporations use people for their own ends. Amazon does it, Hachette does it, they all do it. The key, I’ve always found, is to use them for your own ends first. Absolutely take full advantage of any opportunities you can find. That’s not a piece of publishing advice, it’s a mantra for life. Opportunities never last forever.

“I am NOT talking about nurturing or culture or curating or any of that kind of non-existent crap. I’m talking about money.”

Sir, let me say thank you for saying this! If you could get Preston to quit with that nonsense in his AU missives, that’d be really great, too. Might get some people off his back.

“Storytellers will be working for whatever few pennies they choose to hand out. (Or some will. I’ll be doing something else by then. I don’t work for pennies.) And don’t tell me some alternate savior will ride to the rescue. There won’t be one. Publishing makes no sense to any other player. Certainly there won’t be a publishing-only player. Not enough margin in it.”

I don’t work for pennies, either. That’s why I got out of newspapers. There are many who will, though, and many over time who have. These publishers have been the ones principally handing out those pennies over the decades. I don’t agree that there won’t be other competitors. Amazon, no matter how powerful it looks today, is not infinite. And if they actually engaged in many of the things AU is afraid they will, that will only expedite their fall.

I’m not sure where this notion that publishing isn’t profitable enough to attract other competitors comes from, particularly now that the massive barrier for entry that print used to constitute is no more. I also think it’s odd that line of reasoning so often comes from people like yourself (no offense), Doug Preston, Stephen King and James Patterson, people who get paid by publishers in fat stacks of cash. If they truly weren’t profitable, your cut would be infinitesimally smaller.

“So really we should all be equally concerned. We should make common cause. Behind the noise and the bullshit we’re all trying to do the same thing – sell our stories to the same people, for a living wage. And it’s those last four words that made me sign the letter. Not my living wage – that’s already in the bank – but yours, and the people that come after us.”

I agree, to a point, but that’s why I wouldn’t sign a letter like AU puts out there. I’ve seen from the inside how much concern publishers have for a living wage for their creative talent. It’s akin to my concern for the sport of soccer, that is, just slightly above none whatsoever. This is an industry that has long needed its ass handed to it. Change and reform is difficult. Say what you want about Amazon but they ask for my support and offers incentives for me to give it to them. Hachette and the like demand it as a toll for getting to market. Will it always be the case? Probably not, but if the publisher hierarchy isn’t disrupted in a big way, it’s pretty clear to me that they will never change.

“I don’t believe the established publishing industry is good. I believe it is what it is, i.e. reasonably satisfactory for most, and likely better for most than a projected Amazon-only future.
I understand that Amazon is tremendously enabling for writers – at the moment. My advice is make the most of it while it lasts.”

I don’t believe the established industry is good, either. But I would change it to reasonably satisfactory for some instead of most. Amazon is enabling and I’m right with you on taking full advantage of that while we can. The one key area we differ is that I don’t believe such an Amazon-only future will ever come to pass. I’m not even convinced they want it to be that way.

“Re: standard contract terms being shitty: They’re the result of many decades of back-and-forth between agents and publishers, in good times and bad, and as such were completely acceptable to most. Now they look very bad compared to KDP… and one’s feelings on that depend on how one sees KDP.”

I was thrilled when I landed my first gig in publishing. A few years later, I got away from the large corporate publisher I was thrilled to be working for as quickly as I could, moving on to an independent start up publication (which turned out to be very successful until we sold out to another large corporate publisher who ran us right into the ground, reminding me why I hauled ass away from their kind in the first place.) Things always look brighter from the outside. I had no expectation that I would grow anywhere near as disillusioned as I got so quickly when I landed that first gig. What it taught me was that promises are cheap, even if made in a contract, and the perception of what it was far outstripped the reality. Besides, things always look brighter than they should when there are no equivalent alternatives, which has been the case until recently for nearly all writers. The one thing I learned about big publishers is that the glow comes off the rose pretty damn quickly.

“My contracts are exactly the same as they always were, apart from larger advances to reflect larger anticipated sales. Call me a jerk, but I don’t take higher royalty rates or preferential treatment, as a matter of principle. I was effectively subsidized early on (as all new authors are) and I won’t pull up the drawbridge now. I want to earn my corn the old-fashioned way, by selling books, not by using leverage.”

Good for you! One of the criticisms I made of Preston is that his gang could be doing a lot more to help early-career and midlist writers. I’m glad to hear someone out there in your position is actually doing it rather than cashing their checks and complaining that someone else needs to. That being said, I’m not sure your leaving money on the table is actually helping any other writers. I doubt it led to higher advances or better royalties or even more contracts than they would have issued in the first place. Very likely, all it’s doing is enriching some already enriched executive or other, likely after being siphoned off to the parent company as “management fees” or some other mythical line item on an imperceptible budget sheet.

I once worked for a publisher who, like many, failed to pay men and women equivalently. On one occasion, I got a raise (it was my second one within eight months) but I knew there were other people I worked with that hadn’t gotten even one in nearly two years. So I said, how about instead of giving this to me, you give it to my coworker who needs the money far more than I do, especially since I had just gotten one a few months earlier. I was told it couldn’t be done. They had procedures and such, even though they were fully prepared to pay that money out to me, they in no way would even consider giving it to someone else. I argued, as is my wont to do, and I was eventually told either you accept it or no one gets it.

I applaud your efforts in this regard but, if I may make a suggestion, there may be a better way to achieve that end than leaving money on the table and trusting it will trickle down to where you’d like it to go. I can almost guarantee you that it’s not.

Anyway, I see someone here who’s got a much clearer-headed view of the industry than AU in general comes off as having. There’s still some consternation about Amazon’s size and market power, which isn’t irrational, I share some of that myself. But I prefer a world where I have freedom and flexibility and the ability to do just as he suggests, make hay while the sun shines. I don’t see the value in acting to prop up a system that’s more myth than reality, more faith than fact these days. That system needs to be broken down.

As for Amazon, only time will tell who’s right about their intentions. The only difference being, if Amazon does turn sour, it then becomes just another system that needs breaking down. They’re not there yet, or even close, in my opinion. I have no fear that it can and will be done, should it be necessary. It’s the 21st century now. Entrenched systems break down faster than ever these days. I see no reason to believe Amazon is any kind of exception to that. I don’t believe they think they are, either.

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

Published in: on September 28, 2014 at 11:56 am  Comments (5)  
Tags: , , , , , , ,

Conflicting Notions of the Value of Conflict

Typically in this space, I go to great, rambling lengths to point out and discuss matters I thoroughly disagree with. I’m a confirmed cynic, and on top of that, I tend to hold opinions that aren’t necessarily popular. In some circles, certainly, but not always. I believe we should have first sale rights including resale on digital goods. That’s not a particularly popular opinion in any circles. I couldn’t possibly care less about piracy and, in fact, I’ve said many times that I don’t even think it is piracy nor do I think it’s harmful in the slightest. Another not particularly popular opinion. I’ve openly defended publishing pundits like Mike Shatzkin, and caught some hell for it. Doesn’t change my mind. I don’t always agree with him, even with most of what he says, but I do usually get something to consider out of it. I also think he’s one of the more vocal critics of traditional publishing, one from the inside, and I think those voices are important to consider. Nobody knows everything. Your perspectives may vary and that can color any beliefs. You don’t have to swear allegiance to them, just try to understand where they’re coming from.

But what I absolutely can’t stand is naiveté. It’s why I was so bluntly mean to Doug Preston last week. He’s got name recognition, a large platform and the support of some sizable names amongst authors. To me, that makes it all the more disappointing that he’s using it on nonsensical arguments, pointless shaming actions and industry fairytales of nurturing publishers and literature exempt from commercial pressures (particularly galling to me coming a guy who’s made bank simply because publishing is a commercial entity).

I read this piece on the value of conflict by Barry Eisler yesterday. In it, he talks about an interaction he recently had with someone who doesn’t care for the tone some vocal self publishing supporters take. Here’s a quote from that person:

“Instead of being a force for change, self-publishing appears to be a force that creates conflict, makes people feel defensive or unwilling to speak publicly, and is, I believe, getting in the way of change.”

First, change doesn’t happen without conflict of some form or another. There’s also the matter of the frequently dismissive tone toward self publishers that turns up in many of these pieces, such as the Bush League reference by author Janet Fitch I talked about yesterday. Those kinds of things necessarily set people like me on edge. And we react. We aren’t out here serving any masters other than ourselves, and we are free to speak our minds. I don’t believe many traditionally published authors feel they are free to criticize their publishers. Whether they actually are or not is debatable, but I don’t believe they think they are. Otherwise, wouldn’t there be more of them out here raising hell? Where’s the Hachette authors throwing a fit at them for dragging their feet and not negotiating in good faith while their writers’ careers burn? Don’t tell me they don’t exist. They do, but the industry, with implied and often self-inflicted pressures, keeps them silent.

So when someone comes into what’s essentially a discussion of business models and commercial approaches with some nonsense about books not being products, that gouging readers with higher prices is crucial for the furtherance of literature and all kinds of ridiculous, unsupportable accusations about Amazon’s conduct while totally ignoring or whitewashing the conduct of their own publushers, in this environment, you’re going to get a smack down. And, in my opinion, you’ll deserve it.

Bring logic, facts and rational arguments based on the immutable reality that we’re all discussing a many-billions of dollars commercial enterprise here populated by various multi-billion dollar profit-seeking conglomerates and not some mythical philanthropic exercise and you’ll be okay. I may not agree with you, and I’ll probably argue if I do disagree, but I won’t ridicule you like I did Preston. If you want to discuss literature in the cultural sense detached from commercial concerns (and to be clear, I do believe that’s a worthy discussion) don’t frame it in the context of a business negotiation between the largest retailer going and one of a small handful of the largest publishers in the world. There’s a place for that discussion, just not in the middle of a purely commercial dispute amongst purely commercial enterprises.

The attacks you see come about because, when someone does that, they come off as naive. Worse yet, in not reflecting their lens of criticism at the publishers as well as Amazon, to many of us out here, they can come off as ignorant and a bit clueless. There are more opportunities for writers to get their work, and their ideas, out there to the public today, completely irrespective of commercial concerns than ever before in human history. If that weren’t the case, you wouldn’t be reading this right now. In fact, you wouldn’t be reading 99% of the criticisms of the traditional industry that exist today because mainstream media outlets are inbred with the media conglomerates and don’t often take them properly to task. Just ask Bill Simmons of ESPN how willing these supposedly independent media companies are to brook serious criticisms of their corporate fellow travelers. The voices of opposition have been silent too long, in my opinion, and the megaphones we use to shout our concerns to the masses is an extraordinarily valuable development and it is directly and indirectly responsible for the much-needed reform that’s currently gripping the industry.

So educate yourself before you speak. Bring a thoughtful point of view to the table, wherever on the spectrum your opinions lie, and you’ll be all right. You might even learn something. Better still, some of the people reading you might learn something, too. Everyone has their own perspective and there is clear value is seeing and understanding perspectives different from your own. There is also value in engaging with your critics, as well as your supporters. But you can’t just spout nonsense that flies in the face of the reality many of us see every day and not expect to be called on it. It’s not 1988 anymore. Everyone has a voice. Use them wisely.

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

A Closer Look at Janet Fitch’s Letter to Jeff Bezos

Author’s Note: Earlier today, I referenced a quote from author Janet Fitch. I read her Open Letter to Jeff Bezos a couple weeks ago and pulled some choice quotes from the missive to opine on, like I usually do. Fitch is a signer of Doug Preston’s Authors United publisher front group grassroots organization. There’s nothing particularly compelling in her letter and I had initially only left a comment inquiring why she wasn’t directing her anger at the company she’s under contract to rather than a retailer only associated to her tangentially through her publisher. She did graciously reply (although without actually answering the question). I hadn’t really planned on giving it any more attention until I saw this quote from Preston himself in a letter to his group leading up to the hilariously inept and ill fated letter to Amazon’s board of directors:

“In the meantime, it might be a good idea to do what we can through social media, blogs, opinion pieces, and other means to counter Amazon’s disinformation campaign. The writer Janet Fitch, for example, publicly released her letter to Jeff Bezos, which generated (an) excellent story in the Los Angeles Times.”

There’s no point linking to the Times article. Follow the link in the Publishers Weekly piece that quote came from if you must, but it’s basically just saying what she wrote. Nothing new there under the sun. Mainstream journalism at its laziest! Preston’s call to counter Amazon’s supposed disinformation through social media made up my mind to counter their actual disinformation. So I started writing this piece. Before I finished, though, that Amazon BOD letter came out and it was so absurd that I simply had to direct my attention to giving his cluelessness the what for. Now that it’s settled down a bit, and Authors United astroturfing group has moved on to writing the DOJ in an attempt to spur antitrust action against Amazon, an attempt I sincerely hopes results in a closer look at Hachette and other publishers’ recent actions through the law of unintended consequences, I thought I’d return and finish this up.

Another day, another writer attacking Amazon. This time, it’s Janet Fitch, author of the bestseller of a few years ago, White Oleander. I understand the consternation over what’s going on with Amazon but the more of these I see, the more I find myself questioning how many of these writers have the slightest clue how this business really works. I always think it’s odd when I see someone who should know better espousing virtues to businesses that may or may not have even existed in their mystical golden days and certainly don’t anymore in today’s cut-throat, overly conglomerated publishing world.

Fitch was pseudo-complimentary to self publishing and Amazon, so I suspect the seeds of realization are planted there, she’s just too stuck on what she thinks she knows rather than the preponderance of the evidence. Despite the Doug Preston talking point nonsense right from the jump of her “Letter to Mr. Bezos”, I was willing to give her the benefit of the doubt. Writers, after all, have been intentionally sheltered from the business operations of publishers for long time now, so it’s not surprising that some misconceptions would fester from within the publisher/author infantalization feedback loop. I was looking for sound arguments in her underlying reason. Unfortunately, what I saw was condescending backhanded compliments to indies and adherence to the special snowflake, won’t-somebody-think-about-the-art, blind to business ethic that some seem to think is the author’s proper place in the food chain.

Let’s start with this this from the preamble of her letter to Bezos:

“The magic number which Amazon is holding out for, $9.99, is not based upon the actual cost of publishing books, which includes paying author advances, editor salaries, publicity and all the other costs of creating books for us to read. The publishers well know how much it costs to run their businesses. It’s simply an aesthetic decision, how that number looks to a consumer.”

First off, $9.99 isn’t a magic number Amazon is holding out for, it’s a number they have already been selling books at or below for years now. Years that, up until your publisher and others broke antitrust law to fix retail prices above that number, was generating a booming new ebook market. The market is still booming for some, those who saw the higher price push for what it is, an attempt to choke out the golden goose because she’s spitting out solid gold eggs too damn fast for their taste. Meanwhile, on the traditional side, the side your publisher represents, all signs point to ebook sales having plateaued. Do you think that’s a coincidence?

Secondly, you’re wrong about it not being based on the cost of producing the book. The traditional world is still very much a print-first environment in many respects. Everything is based upon that premise, even the higher cost of ebooks is often cited as a means of protecting print rather than fully exploiting the digital format. Advances and royalty rates for print haven’t appreciably changed in the past 10 years, other than widespread reports of both shrinking advances and increased use of discount clauses that keeps the publisher cut intact while slashing the author’s take. Those rates are well established as the means of paying for the costs of producing the book. Once the print version is already produced and paid for (through those royalty rates on print) the cost of producing an ebook from it is minimal to virtually nonexistent. Plus, once that’s done, the marginal cost of producing every other ebook copy sold is statistically insignificant from zero. Ebooks are as close to pure profit as is possible. Your publisher and their accountants know this, and yet, even with the production costs for the book already accounted for in the print royalty rates, they still pay out only between 12% to 17.5% of the ebook proceeds to the author. Why are the rates so low?

Expenses are covered, there’s only the one time charge for creating the first ebook strictly dedicated to that upfront. That money from the increased margins can go three places, to you in the form of higher royalties, to the reader in the form of lower prices or into the publisher’s pocket, ostensibly paying for expenses that are already covered elsewhere. The third option is the worst one for the long term health and growth of the industry as a whole, specifically readers and writers. It’s also the one your publisher prefers and is trying to permanently stick us with.

As for how that number looks to the customer, that’s a pretty important dynamic. Whether you realize it or not, there are a sizable number of customers who see $9.99 for an ebook as still too high and rightly so, in my opinion. The only justification for both high ebook prices and low royalty rates is an open admission that print is flagging and not producing the returns they need. But the response to that is to handicap the infinitely more margin friendly ebook? This strategy is making the publishers’ bottom lines bright and shiny today but it’s not doing a single thing to protect or encourage new growth in print long term. In fact, this path is putting at risk the ability of everyone signed on with one of these publishers’ to even have an outside chance of getting a decent return on that contract past the next few years.

I’d recommend you read up on the newspaper industry and how their strategy of print-first and digital as supplemental revenue lost them half their print business in just 5 years as well as doing irreparable harm to their emerging digital business. Might be some parallels there you’d like to think about.

Here’s one directly from her letter to Bezos (by the way, calling someone a parasite isn’t generally the best way to win them over to your side.):

“The difference between a symbiotic and a parasitic relationship is that in symbiosis, the host is not harmed in any way. The two organisms work together for mutual benefit. In a parasitic relationship, the growth of the secondary organism outstrips the ability of the host to sustain itself. Unlike symbiosis, a parasite kills its host, and eventually, itself.”

Who are you talking about here? You seem to imply it’s Amazon, but maybe you’d like to point that parasite lens at your own publisher. Very few writers inside or out of the traditional industry would consider the large publisher/writer relationship as symbiotic. Very few writers who’ve worked with or taken advantage of opportunities from Amazon would consider them parasitic. You may have this one backwards. Attacking Amazon is like killing off the beneficial bacteria that helps you digest your food so the tape worm infesting your bowels has more to eat.

Down in the comments after her letter, I found these next few quotes. I do give ger kudos for showing up and engaging her detractors directly. So many of the people defending publishers and demonizing Amazon refuse to (I’m looking at you, Preston. You too, David Streitfeld and the NY Times.) Here’s the first snippet:

“I disagree that more people buy based on price. I think the people who are going to buy Paint it Black are going to buy it at $12 as at $8. All dropping the price to $8 will do is take money out of my pocket. And to think that the publisher’s overall plan for the book doesn’t include all forms–to see the ebook is sort of a toss-off after the “book” is published, is mistaken. The cost of producing a book–editing, acquisition (ie paying the writer and his or her agent), design, marketing, overhead–is spread out over all the forms, the hardbound, the paperback, the ebook, the audiobook, large print, etc.”

Two things; one, you’re not taking money out of your pocket, you’re putting it back into the pockets of your fans and customers. And you are leaving something on the table; the zero dollars from all the people who would pay $8 but not $12. It’s nice to think the people buying our work are all strongly committed and willing to pay whatever we charge, but that’s not realistic. Price is an extremely fickle creature, especially when you’re pricing in a range that includes a psychological barrier like $10. The difference between $9.99 and $10 may be small in truth but it’s much larger in perception.

Amazon’s research shows an extra 3/4 of a sale for ebooks priced at 9.99 as opposed to 14.99. As a rough estimate looking at your pricing argument, you wouldn’t be losing $4, you’d be gaining $6 and two readers instead of just one. It’s a fairly well accepted idea that lower prices lead to higher volume sales. It’s not an exact science, of course, but to assume you gain nothing from lower prices isn’t really accurate. Besides that, you are indirectly advocating for intentionally charging higher prices to your most fervent and loyal customers, and for shrinking your audience. I, for one, prefer lower prices, rewarding the best readers and generating a wider audience. Makes for happier customers and more opportunities in the long run.

Secondly, you’re right, they are trying to spread out the total costs across all formats of the book and that’s the problem. If the differential in cost structure wasn’t so great, it may not be an issue. But ebooks are so much more inexpensive and efficient to produce and distribute that there’s no way to spread those costs that doesn’t artificially inflate the prices of ebooks and hinder their growth in order to carry formats that aren’t or soon will be no longer pulling their own weight. You’re just not going to win an argument with readers who know several dollars on the purchase price is just padding or worse still, paying for a version of the product they don’t even want. Like it or not, readers are far more informed about the business dynamics that set prices than ever before. The one-sided conversation of the past is no more.

It’s my opinion that combining expenses like this won’t have any tangible impact on improving the long-term fortunes of print, and may well handicap the long term fortunes of the publisher’s digital business as well. It’s happened before (CDs, newspapers) and it will happen again (movies). It may look like print and ebooks are the same business but they’re not. You have to careful tying them together in such a way. Rather than digital revenue being a raft to raise the total business, it could just as easily be the rest of the total business dragging down digital revenue like an anchor. There is clear precedent for this happening in other media.

“I think the world of self-publishing, where everyone can publish his or her work is amazing, and I think sooner or later, conventional publishers will develop self-publishing arms, which will be cash cows for them, and also serve as ‘bush-league’ teams from which they can cherry-pick for the majors.”

Bush league? Cherry pick for the majors? This is a bit insulting. Actually, take out the word “bit.” It’s 31 flavors of insulting. They’ve already tried to cherry pick from successful indies and it’s not working. There were some a couple years ago who fully signed up with publishers, but what have we heard from them lately? Today, most of what I hear in this regard is about indies turning down offers from publishers. There’s a simple reason for that, once an indie is successful enough to attract their attention, they have to come to the table with a sizable enough offer to compensate for their success and the things they have to give up. I see very little indication that publishers are willing to up the ante on their offers to actually attract successful indies.

As for publishers creating self-publishing arms, it’s been tried once or twice, the most notable of which being Author Solutions, which is about the scammiest of scams going. It also speaks volumes to the lack of general respect publishers have for indies. If they truly want to partner with them, then don’t behave as a predator toward them, and Author Solutions is a far bigger and more devious predator upon writers than Amazon’s been, if they’ve ever been one at all. On top of that, I’ve read quite a lot if these kinds of missives from writers like you or in your position. As for understanding the business of publishing, there certainly are more than a few Bush Leaguers around, and it’s usually not the indies.

“But for the writer who devotes three, four, five, eight years putting his or her all into a book, who aspires to greatness, who doesn’t have a readymade following, a different kind of structure is appreciated, one where agents negotiate contracts and editors refine work, where his or her book is published with some presence. This writer, this kind of literature, generally requires a conventional publisher.”

See, here’s the thing I don’t believe; nobody takes 8 years to write a book. They may take 6 months to write a book stretched out over 8 years, but they certainly didn’t slave away full time, week after week, for 8 solid years to write one book. Don’t get me wrong, I see value in the downtime between bursts of writing on a particular piece of material. I don’t necessarily believe straight through, start to finish, is always the best way to produce the best material. But when you’re dragging one piece out over years with long patches of nothing in between, I can’t help but think that’s a bit lazy. But to each their own. I just don’t buy the romanticized ideal of the writer slaving away for years on a novel when they’re really slaving away for a week then sitting it in a drawer for two months before the next slaving away for another week, but then it’s the holidays, so a few more months off, then another few days of work in January but winter is rolling in now, so you’ll pick up where you left off when spring sets in.

I’ve been as guilty of this as anybody. Sometimes, life gets in the way. But here’s where indie publishing helps, motivation to produce. It helps that you can almost instantly reap the rewards of that production, too, even if it’s not on the scale of a publisher advance (and especially if it meets or exceeds those levels). The industry still runs at a near-glacial pace and it’s going to be a problem in the long run. Many would say it already is. I doubt publishers of the future will be thrilled to invest in too many writers who they may get one book a decade from.

“All I’d like to see is that creators of literature still have the conventional publishers to turn to, and have a chance at a literary career which will pay them a living wage. I know many fine, fine musicians—on the order of our great writers—who no longer can make a living, because the cheapening of the product has broken the music business.”

Those aren’t mutually exclusive. It is entirely possible to have a chance at a career that pays a living wage without turning to a publisher. And it’s entirely possible, likely even, that turning to a publisher isn’t going to produce that living wage either. This is fairly new, admittedly, but that’s what has changed; the single path to success has been split off into as many possible paths are there are people to walk them. Certainly, publishers will hopefully find a way to adapt enough to stick around, but if they don’t, it will be because they lost relevance to what readers and writers want and need. Stay relevant and they’ll be fine.

You and I have very different views of the music industry. I know many excellent musicians myself who couldn’t earn a living prior to cheap digital music and open distribution. Now, they can. The music business was much like books, only those who got that label contract really had a chance to earn. Given the horrid nature of those labels and their contract structures, it’s difficult to say if many of them actually did. The music business isn’t broken, the old label system is. Look at those musicians who you know having trouble. Have they adapted? Are they doing anything differently than they were 15 or 20 years ago? Or are they just hoping the same path that worked then will suddenly start working again?

There are many authors who will soon be in this boat, as well. Hachette authors caught up in this mess may well be some of the first. Signing that publishing contract is only worth it if the publisher has sufficient efficacy within the market to support what you give up. It’s questionable to me, at this point, if Hachette (without Amazon) still possesses that efficacy at a necessary level. It’s a question that will only get louder and louder the longer this dispute drones on.

As I mentioned earlier, I asked a question in the comments section of her article, one I have asked repeatedly of others making similar critiques of Amazon. Have you written to Hachette to express your concerns about this dispute and what they’re doing to rectify things? Here is what she said:

“The thing to remember is that it’s not just my publisher–all the publishers are going to have to go through this. Believe me, at Hachette they keenly feel the loss to their writers–also their own loss–in the revenue that’s vanished during this dispute. But all of the publishers will find themselves in the same boat.”

I hope you’re right about Hachette caring about the loss to its writers. I have my doubts, though. And I agree, all publishers will be in the same boat sooner or later. It’ll be interesting to see if the ones coming later learn anything from the early ones. I have a hard time believing any publisher is looking at how Hachette has handled this negotiation and said, “let’s use those tactics! ” Just the fact that they made no effort at negotiation and simply let their contract expire would infuriate me if I were a Hachette author. I’m at a loss for why it hasn’t infuriated more of them. I can only conclude that many either don’t feel free to be openly critical of Hachette (notice she didn’t answer the actual question and no one else I’ve seen has, either) or they don’t truly understand who dropped the ball here. It looks to me like Hachette actually wanted an impasse, which, if true, doesn’t speak well for any concern for their writers. Also, refusing to kick in on a pool to compensate their writers during this negotiation isn’t worthy of much praise either.

I’m not sure how this ends, but I am certainly glad I’m not under contract and helpless to do anything about it. I feel for writers who find themselves in that kind of personal hell. But they need to ask themselves who put them in that position? The answer isn’t likely going to be one they want to hear; a generous contribution from their publisher with a heaping helping of their own choices.

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

Assumptions and Disintermediation

“To think that the publisher’s plan for the book doesn’t include all forms is mistaken. The cost of producing a book–editing, acquisition (ie paying the writer and his or her agent), design, marketing, overhead–is spread out over all the forms, the hardbound, the paperback, the ebook, the audiobook, large print, etc.”
– Author Janet Fitch

“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

“Their “total pie” is really just a piece of the pie. “Total revenue” on an ebook is only part of the “total revenue” for a new release book.”
– Michael Cader

Here are three quotes framing the industry’s treatment of digital as but one part of an overall picture. The statement is true but (and here’s the kicker) it’s only true for the author, not the publisher unless the author allows it. The assumption that a book is one product with varying delivery mechanisms is wrong. It’s actually three products. I know this because the only way a publisher can have those full range of offerings to spread costs across is if the author sells them those rights. Separately.

There are three basic sets of rights involved (many more if you get all granular down into translations, overseas markets, what have you. I think it was Lee Child who said Amazon represents something like 11 of the 97 markets he sells his books in). At its root, there are three basic products the author is selling as a bundle: print rights, digital rights and audio rights. Everything else, for the most part, stems from these three forms. The question I have is why do so many writers feel it’s not only necessary to sell them as a bundle to the same entity, but to operate under some illusion that it’s not even a bundle at all? There is no reason whatsoever (other than publisher obstinance) why you can’t sell the print rights to one place, digital rights to another and audio rights to a third. Not one.

My take on this has been pretty clear; I do not believe inextricably tying print and digital together is the correct course of action. Further, I absolutely do not want the same entity handling both my print and digital products. That will inevitably result in handicapping one format to benefit the other, as many publishers are doing right now by trying to stifle ebooks to some degree in order to support their print infrastructure. It doesn’t support print because it doesn’t address the online commerce issue which is what’s really hurting bookstores. And it damages the growth potential of your digital business by anchoring it within the far-more-expensive print cost structure. Newspapers cut their own throats by trying to do this exact thing.

I understand why publishers would want the full range of rights for a book, and that made some sense when print was dominant to the point of largely being all there was. What I don’t understand anymore is why writers would still want one entity to have all those rights? Sell the print rights alone and say this is your one job, focus on generating sales for print only. Do the same with digital (or handle them yourself).

Publishers won’t willingly go along with this but tough. Don’t give them the option unless they’re paying a premium for the full bundle. But to accept contracts that are tangibly identical to what they’ve always been with potentially extremely lucrative ebook rights thrown in at largely no additional cost is just not smart. Writers need to quit assuming that a “book” is one product in multiple formats and see it for what it is; multiple products, each needing a different cost structure and level of expertise to properly exploit. Stop just tossing digital rights in with a deal from a company with print expertise. Likewise, don’t toss print rights into a deal with a company with digital expertise. Find the best party for each specific product (or do it yourself).

The buzzword of the 21st century is disintermediation. Bundled arrangements produce inefficiency now. You’re willingly undercutting yourself by selling all your rights to one entity. There’s also the matter of rights reversions. If a publisher is producing print sales for me but their digital sales are lagging, why should my digital rights not have its own separate threshold for reversions? If this were the case, a publisher couldn’t effectively hamstring one format to help another without risking losing the rights to that format. And vice versa, if digital is booming but print isn’t producing, those print rights should revert on their own merits without regard to the performance of other formats. Publishers will hate, hate, hate this, which is all the more reason why we should demand disintermediation of different categories of rights within any publishing contract.

The next writer who so easily spouts the line that the publishers’ plan is spread across all formats should stop and think how that can even come about. They can only do it if you willingly sell them all those rights as a bundle. Your choice to sign a contract like that is what creates an environment where these divergent products are intertwined. It’s not a foregone conclusion out of necessity but a willful business decision by you. And it’s very likely not even in your best interest or the interest of maximizing revenue across all formats. Stop assuming and start looking at what’s actually possible. I think you’ll find things are no longer as the industry at large would like them to appear to be.

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

Published in: on September 25, 2014 at 11:58 am  Comments (5)  
Tags: , , , , , , , ,
Follow

Get every new post delivered to your Inbox.

Join 116 other followers

%d bloggers like this: