I’ve been anxiously awaiting the judgement in the Apple antitrust case because I knew the tech giant was going to lose (they deserve it) and I knew that, when that happened, there’d be some woe-is-publishing stuff popping up on the web that I could have a little fun eviscerating. Well, imagine my glee as I read this piece by Michael (no relation to Jason, I hope) Bourne on The Millions website. At first, I thought it would be a run of mill twitter link with a handful of argumentative tweets in analysis, but low and behold, this thing got so confoundingly ridiculous that I had little choice but to go all-in blog post on it.
In fact, I started writing this a few hours ago and that morphed into a totally separate blog post bemoaning the stunning lack of logic in believing Amazon’s potential monopoly is so scary we all should run straight back into the arms of the publishers’ old cartel. This one’s juicy enough I got two blog posts out if it. Here we go:
“…it is altogether possible that the government is right that Apple and publishers conspired to set prices higher than Amazon would charge, which would have forced consumers to pay more for e-books in the short term. But to see this case in this narrowly legalistic light is to completely misunderstand how the book business actually works.”
This is a pretty common theme in publisher-defending circles, either outright admit or strongly imply that the charges are accurate and they broke the goddamn law but then claim it’s not important. The simple fact is there’s no legal exception for breaking antitrust law, even if done in response to illegal activity. Amazon’s shipping boxes coulda been made out of corrugated baby skin and it still wouldn’t have given Apple and the publishers license to collude against them. They broke the law and have to be held accountable, regardless of their reasons. To do otherwise sets a dangerous prcedent that would definitely find its way into other industries and that would be extraordinarily bad for consumers of all kinds of stuff, not just books. I don’t know how many times or how many judges have to say there is no such thing as a special snowflake and you don’t get to pick and choose what laws you care to follow that best suit your business purposes. Don’t do the crime if you can’t do the time.
“…books are not bars of soap. When you go online to buy a book, you are not merely paying for a file full of random ones and zeros. You’re buying the original ideas and stories contained
within that book, and frankly nobody has any idea how much those ideas are worth until people start reading them.”
That doesn’t even make sense. I’m pretty sure somebody’s gotta buy the book before they start reading it. And I have a pretty good notion of what that book’s worth without ever seeing it: $27.99 hardcover, $17.99 trade paperback, $12.99 ebook and maybe an $8.99 mass market paperback, give ot take a couple dollars on any of the above. These big publishers collectively crank out tens of thousands of titles each year and they virtually all fall within the neighborhood of these prices. Books have never been priced by the material inside but by the cost structure of the format.
They most certainly are commodities in the purest sense. The newly merged Random Penguin is set to put out 15,000 books alone next year. To them, any one book is meaningless, even the high advance books. The totality of their 15,000 title catalog is their business model. Big name authors get considerably better terms than average writers, meaning the publisher’s margins are slimmer per book. They also get the benefit of marketing and ad dollars, slicing that margin a little more. Yet we’re also told that these big name books are what bank rolls the lesser selling titles, further gobbling up the publisher’s margins, in theory. More likely, the big name books aren’t really the lone profit centers but simply the lure that gets people into the stores where, hopefully, they’ll also pick up a few other books in their catalog on which the publisher is making very sweet margins. It’s a volume game at this level. The cost or success of one lone book isn’t the point, but the collective success of the full catalog taken as one, nearly all resting within a few dollar range of identical pricing regardless of the author. 15,000 similarly priced, interchangeable pieces…sounds a lot like commodities to me.
The part about not knowing what a book is worth until people start reading could be a reference to advances paid by publishers, but let’s glance at how that system works. There are certainly a handful of high advance books, but for each one of those, there are thousands more which get advances that are more like rounding errors on executives’ expense reports than sizable investments. The threshhold to profit for these books is very low and, once met, publishers bank considerably more money per sale than for superstar books that earn out. This advance system isn’t nearly as risky or speculative as it appears. Even if we take the commonly held belief that 80% of books fail to earn out as fact, Random Penguin, for instance, would be left with about 3,000 books next year alone that do, the vast majority of which on publisher-friendly contracts that earn them more per sale.
Books have been commoditized by publishers because they can’t consistently tell which specific books are going to hit ahead of time. So they built up a bulk catalog made up of mostly low risk, low out-of-pocket books as a hedge against those larger risks. They may not be able to tell which books will be the winners but they certainly have confidence that enough of the totality of their catalog will hit to provide profitability. Saying publishers can’t tell what a book is worth until it’s on the market is both true and misleading. It doesn’t matter how any individual book does, only that enough of them do well in totality.
“…like pharmaceutical companies, publishing houses have to charge above-market rates for their successful products to amortize all those failures. If you limit their ability to do this, books will indeed be cheaper, but they also will be lower in quality and variety because publishers will have less ability to finance experimentation.”
You really wanna compare publishers to pharmaceutical companies? What, you couldn’t think of a metaphor for publishers with war-profiteering arms dealers? Or the Indonesian child sex slave industry? I could buy the above-market price argument if not for the fact that essentially all these books are selling for the same damn prices, successes and failures alike. A book’s price doesn’t increase as it sells more copies. I’m also pretty sure books are indeed cheaper and exist in a greater variety than ever before right now. And publishers certainly aren’t the place to look for experimentation. The bulk of the really unique and creative stuff is being done on the independent writer side these days. Publishers may take risks but they’re generally minimal ones within a narrowly established range. They may occasionally venture out of the plastic wrap but rarely do they get all the way outside of the box it’s in.
“…what Amazon really wants to sell is not so much e-books as the delivery system of those e-books, called a Kindle.”
And what Apple really wants to sell is not so much ebooks as the delivery system of those ebooks called an iPad. You got a point here?
“Apple was offering to once again give the publishing industry the freedom to overcharge for all those e-versions of E.L. James’s Fifty Shades of Grey flying out the virtual doors to make up for the risks it is taking on thousands of other titles…”
Yup, because customers enjoy nothing more than happily giving billion dollar corporations the right to over-charge them. That always works out well.
“…at heart, the case asks a fundamental societal question: what, legally speaking, is art?”
No, the fundamental question in the case is did five of the six largest publishers and the largest tech company in the world hatch an illegally collusive conspiracy to fix prices at considerably higher levels and squash competition? The legal definition of art has no bearing here, only the legal definition of collusion.
“…in Article 1, Section 8 of the Constitution, the framers noted how important it is “to promote the Progress of Science and useful Arts” and thus created copyright protection for authors and inventors.”
That copyright protection is the reason there’s any market for artistic works at all. It was granted to give creators limited exclusivity to access to the market. Copyright wasn’t put in place to spare books from market forces, but so the specific creators could take advantage of those market forces. It’s since been perverted, largely by media lobbyists, into an effectively unlimited time frame of control. They didn’t push for life + 70 years to avoid market forces. Just the opposite, in fact, so they could reap the rewards of a century or more worth of access to those market forces. Copyright offers no guarantee that the creators profit from the work, only that they have the access to potentially profit. Publishers themselves have stood for years as a roadblock to that access, demanding those copyrights be turned over as a toll to the marketplace. By usurping the market access for creators provided in copyright law, publishers have undermined the very point of its existence.
“Books and other works of art aren’t widgets, and art does not now nor has it ever flourished in a truly efficient market.”
Bullshit. The publishing industry, at its base, is a multi-billion-dollar enterprise whose main product is creative output, just like any number of other industries. Questions of art are far too subjective to have any meaning in the actual business realities here. If it hasn’t flourished in a truly efficient market in the past, that’s because it hadn’t really had one in a long time, if ever. Publishers gradually monopolized both the supply of books and the distribution. Any inefficiencies in the market exist because publishers’ iron grip lasted basically uncontested for too long and they got complacent. Those inefficiencies shouldn’t be celebrated or vindicated in any way. They are precisely how Amazon managed to earn its position, by appealing to and improving the conditions of the people most squeezed by those inefficiencies, readers and writers. Oh, the irony of a company doing great things for readers and writers yet being pilloried for it by the existing industry who, all the while, claim to be supporters and nurturers of both those groups. And if you don’t like irony, hypocrisy is another term that will work.
If that’s not enough of a sign for you that the industry has lost its way, I’m not sure what would convince you. The interests of the industry and big publishers diverged over time from the interests of the two most important players in it. That foundation has grown so solid that many just presume what’s good for them is good for everybody. But that’s an extreme oversimplification that ignores the reality that publishers are but middlemen of the longstanding type that eventually shift from providing efficiency by connecting suppliers and buyers to squeezing both sides to the advantage of their own bottom line. That is not an atmosphere that screams for propping up the middlemen when the two parties it supposedly connects find ways to be more efficient without them.
This entire article was an odd combination of musings about the supposedly unique nature of publishing, how the standard rules of business–even the law–shouldn’t apply and some indefinable role of art within it juxtaposed by support for legacy businesses who have shown a history of anticompetitive behavior, cartel-like dominance and a decided lack of concern for the interests of readers and writers. Even the widget point he made multiple times is disingenuous. It’s easy to say books aren’t widgets but you lose a little credibility when you then defend publishers who produce large numbers of similarly priced titles in high volume as part of a business model that treats books suspiciously like widgets.
Publishing is not a special snowflake. It’s a business like any other. Publishers aren’t defenders of art but defenders of profit margins, usually at the expense of readers and writers. The law isn’t something you can willfully ignore just because you don’t care for your competition. It’s also not something that can arbitrarily be waived for the sake of art. The industry is bigger than publishers. It may be hard to see it that way since they’ve been in a position to make it look like they are for longer than most of us have been alive.
Arguing in favor of giant profit-driven conglomerates as the path to art for art’s sake just doesn’t make a lick of coherent sense. Modern publishers were a market response to conditions at the time. Even the most virulent Amazon hater has to admit that the conditions under which publishers thrived have changed. Change is hard, especially when your role is the one being mitigated, but it’s the way life, and the publishing industry at large, works. Putting a veneer of art and culture in defense of price fixing and collusive behavior is naive at best, willfully deceptive at worst.
Whether publishers live or die is immaterial to the matter of whether, and how, the industry on the whole reloads. It will carry on regardless, headlined by readers and writers which to my thinking is a far better development than one dominated by middlemen demanding onerous concessions in rights, control and money if you ever want your work to see the marketplace.
So enough with the high-minded talk about art, literature and culture. Those are great and valuable things, but the old system did little more than pay lip service to those elements while behaving as corporate profit-driven enterprises often do, the bottom line rules all. Amazon may one day become that, as well, but you’ll have to excuse me if I don’t buy in to the argument that we need to prop up the old publisher cartel in the hopes of preventing Amazon from becoming just like them.