Can I Raise the Dead with the Amazonium Codexorum?

Now, back to where I started when i was so rudely interrupted by Kathleen Hale and her “light stalking.” I’m still not sure where light stalking rests on the hierarchy of criminal complaints; somewhere between a dash of armed robbery and a smattering of homicide, I think. But enough about her ridiculousness. This is what I was working on when I was sidetracked. Anti-climactic, I know, but then being sane and rational is always more dull than batshit crazy.

I got into a bit of a pissing contest in the comment section of a pretty solid piece on how crucial (or even accurate) the advance system used by publishers truly is by author William O’Neil on The Digital Reader site a couple weekends back. Normally, I let these things go, but in the last comment left by author Rick Chapman, in response to the moderator admonishing him for being too confrontational, he conveniently left a bullet point list of areas where he thinks I’ve been misled or not properly informed. Personally, I do so enjoy a good confrontational argument, so let’s go through it point by point. The discussion, by the way, bounced back and forth across various comments to the post. Feel free to go check out the entire thing at the above link, if you’re interested. Here’s the full comment, in italics, with my thoughts interspersed in plain type.

“I have been completely factual in my statements. Facts aren’t confrontational. Facts and dispassionate analysis are always acceptable. Dan, on the other hand, has made repeated misstatements of fact. I believe he has read too many times on too many sites assertions about Amazon that are misleading and untrue. These include:

* Amazon pays royalties. Amazon pays no one royalties except with the exception noted. Amazon should immediately stop making that claim and accurately describe what it’s charging you. A “retail usage fee.” A “download fee.” I’ll let them define it. But it’s not a royalty.”

I didn’t say anything about whether it was a royalty or not. I’m not sure it really matters, though. Generally speaking, a royalty is a negotiated percentage paid from the revenue (or some version of net) generated when you license a work for use. When I put something up on Amazon, I am licensing them to sell, reproduce, distribute, etc, the work. For that, under the terms of the license, I get 70% of the gross in defined price ranges and 35% of the gross in others. You can make a case that it is, at least, a form of royalty.

I don’t think it matters what you call it, however. The important thing to remember is the difference in the type of payment you get from a publisher and what you get from Amazon. With Amazon, the payment hasn’t had any production expenses incurred backed out or accounted for. It’s up to me to determine how to use that payment, in what percentages, to recoup my expenses. In this sense, I agree that it’s not always made clear and can often be presented as an apples to apples comparison when it’s not. Arguing whether or not it’s a royalty, a fee or whatever is a semantic exercise that has no real bearing on the facts at hand. Amazon’s payout is before production expenses are backed out or accounted for, one from a publisher is after. This could be made more clear and the 70% to 12.5% (or what have you) comparison is not strictly accurate.

To use a somewhat imperfect construction analogy, Amazon’s payment is like the check a contractor gets for work from a homeowner. The contractor has to pay labor wages, materials, etc, from that. A publisher’s payment is more like the paycheck a laborer receives from the contractor. You can make a good salary as a skilled laborer, but everyone in construction knows the real money is in being the contractor. I saw this phrase the other day and I like it, so I’m gonna co-opt it here. It’s called “Controlling the Capital.” Call it a royalty, call it an expense, you get a cut of the gross and you retain your IP. The cost of that is 30% and you cover production expenses (which you also control).

“* Amazon complains about agency pricing but imposes a modified version of it on indie publishers. Their margin is locked in a la agency; you have very limited pricing flexibility as I’ve noted. Accurately. And not every author is writing a book about the Zombie Apocalypse. Or Vampire Love. Or Dating Werewolves.”

Amazon still retains ultimate control over the pricing. As such, any price flexibility I have is at Amazon’s discretion. I’m not sure how much “agency” one can exercise when their actions are entirely at the discretion of another party. You can call it modified agency but when the modified part serves to restrict the agency part, it seems to be a bit of a misnomer. But again, it doesn’t really matter what you call it. I have no right to tell Amazon what to do, Amazon retains that power in total in its agreement with me. A big part of Agency type agreements is that the supplier has some or all of that control. I don’t. Amazon encourages me to price within a certain window by offering a higher cut of the gross in that range. I have limited freedom to price how I choose, even outside that range where I’d incur a lower cut of the proceeds.

But Amazon could change it at any point and I’d have no recourse to stop them, other than to pull my material. That’s an option not available to me if I’m under contract to a publisher, by the way. Can’t just pull my book from them if I don’t like what they do for me. That’s another benefit you’re paying for in that 30% cut, too. Flexibility is underrated and can be expensive if you give it up. Call it modified agency if you like, doesn’t matter. It’s not the same thing as a deal where the publisher can restrict or prevent discounting or otherwise dictate terms to the retailer. What it is is far more important that what it’s called.

“* Amazon is attempting to create a pricing codex. It says so on its website. I note that no one here will address that truly remarkable statement. If you would like to, I would like to hear your speculations on how the codex will be created, maintained, and enforced.”

(First off, here’s a link to the author’s piece about the pricing codex he believes Amazon is trying to impose, as background.)

I’m not sure what you’re point is here, that Amazon is trying to set up a pricing framework for different types of ebooks within its store? Why wouldn’t they? And how’s that tangibly different from the pricing structure publishers have put upon books forever now? Or is it just sheer random coincidence that books of similar style and form all seem to be priced within a few dollar range of one another? In fact, I’d argue that most of the more dramatic swings in pricing you see come from the retailer discounting or otherwise setting their own pricing. In this way, it could be said that the retailers ability to control prices has prevented publishers from establishing a hard and fast pricing codex, as you call it, of their own. The healthier, more competitive market, in my opinion, is when the retailer has more power over the consumer-facing prices rather than the manufacturer.

“* Amazon buys MOST of its E-books via wholesale, not agency. Amazon wants to stop agency pricing because it want to gain control over the E-book pricing structure. I neither condemn nor approve them. This is business. But their pricing box is part of that strategy. Again, I describe the motivation of both sides on my blog.”

I think you’re missing my point here. I’m not disputing whether Amazon is getting ebooks from publishers under wholesale, agency or any other terms. My point is that when you say they’re buying ebooks wholesale, that’s not correct. You could get me to agree that they’re buying licenses wholesale or they’re paying an agreed wholesale price with each license they sell, but they are not buying the ebooks. Ebooks aren’t sold, they’re licensed for use. You say they’re buying ebooks wholesale like they’re buying a pallette of print books and that isn’t the case. It may amount to the same ends but the difference between a sale and a license has huge implications for use and buyers’ rights. Amazon is clearly getting some sort of right of resale but they’re not getting it through first sale like they would if they were buying physical books. They’re getting it as part of the terms of the contract or the license they are acquiring to sell the end-user ebook licenses to consumers. What no one at any level is doing is buying the ebooks; wholesale, retail, agency or otherwise.

I think too many people play fast and loose with the term “sale” when discussing ebooks (myself included, sometimes). A sale has implications of title transfer and relating use and resale rights. None of that exists with ebooks. Now I’ve often argued that they should because the ways ebooks are distributed through retailers is nearly indistinguishable from a genuine sale. I think the licensing arrangement is a bit of a scam designed to both give the supplier more power and restrict the rights of consumers. But right now, that’s how it is. That doesn’t mean the basic differences between a sale and a license should be conflated. Especially when it directly impacts the rights one party in the transaction has with respect to future use.

“* Amazon’s pricing box HURTS indies. I’m not going to break it down in detail here; I’ll do that on my own blog. But you don’t have to be a marketing genius to figure out what’s wrong with a seven dollar pricing box.”

I’m not sure I agree with you here. There is a case to be made that heavily researched nonfiction work combined with Amazon’s pricing strategy can be problematic. Even Amazon said so. That sentence from them seems to be the basis for you codex theory. I just said it too. Am I tying to institute a pricing codex? It’s a fact that seems self evident. Ebooks are an extremely young market. Not every sector or contingency is properly served as yet. This is one of them, in my opinion. There are situations where $9.99 may not be adequate.

However, for the vast majority of writers, a $7 per book cut is more than sufficient and in most cases, downright great. In fact, that number amounts to several dollars more than a traditional author will be bring in per book on a $25 hardcover. That’s more than adequate. When you subtract the actual physical production/distribution costs with print, it’s more than most publishers’ take on that same $25 hardcover.

The $7 box you refer to constitutes a sizable range with margins from $2 to $7 per book. Indies writing strictly fiction aren’t harmed by that at all. In fact, it’s the range many of us, independent from Amazon, feel that the books should be priced. Even if I had total pricing control at 70% up to any list price I want, I still wouldn’t be putting up $12 or $15 works of fiction. That barrier at $10 isn’t even relevant to me because exceeding that price isn’t a consideration. It’s not harming me because it’s not even a factor.

I believe you could argue that by encouraging indies to stay in an optimal pricing range, they are actually increasing your overall margins on a book with the multiplier effect of increased sales at lower prices. For some nonfiction works, I agree, this can be problematic. For fiction, though, the $7 box isn’t destructive or harmful. It’s what most of us would be doing anyway.

“* The big publishers DO NOT have to live in that pricing box. Only indies do.”

Yeah, so? They have infinitely more influence, money and leverage than your average indie does. They can negotiate out of it. Or not, possibly, from what I hear. There’s some speculation that the S&S/Amazon deal has some sort of descending cut at higher prices. Still very likely better than having your take cut in half at $10, but enough to be a serious consideration in pricing. Besides, the “ceiling” of that box doesn’t matter when your best case for maximizing revenue doesn’t even approach that figure. If and when that factor changes, the discussion does too.

“* 30% points to use a downloading service is a very steep price to pay. Amazon’s NET margins on indie sales is close to 30 points because E-book publishing and distribution are electronic. No warehousing and shipping. Now, of course, you are free to not use their service. But it is accurate to note that 30 point margins are incredibly wonderful in most channels, never mind book channels. 65 point margins are beyond awesome but for an indie, ruinous.

Fortunately for the publishers, none of them are paying 65 point margins. Only indies face it. How nice for us.”

Fortunately for us, we’re not paying any kind of marketing fees or anything like that. Is 30% too high? Not really. Is 65%? Yes. I’m in complete and total agreement with you on that. As I said in one on my comments, I’d rather see a sliding scale where the percentage declines gradually in proportion to the increase in price in a way that still serves as an inducement to generally keep prices low but also allows for books like what you describe; higher production costs, a limited less-price sensitive audience, not likely to get a low price multiplier bump; to be able to collect a larger per book total revenue figure.

Amazon is providing access to millions of potential customers on by far the most popular ebook platform in the world. That’s worth something. I’m in the minority, though, who isn’t concerned that that percentage will drop. I actually think it will increase over time for two simple reasons. One, it’s a volume business. Higher volume means more sales means more revenue. That’s Amazon’s core belief. And two, anyone who wants to compete with Amazon in this space and attract quality work is going to have to offer a better cut, and that will drive an increase in the percentage available to indies. Don’t underestimate subscription services, either. If it comes to show that Kindle Unlimited makes some kind of dent in sales, Amazon may well have to sweeten the pot to keep writers and their books in the program.

“Amazon’s pricing strategies undercut the entire theme of your article. Let’s say you do want to write a piece of “literature” or perhaps a specialized history on a topic most people find obscure. That means you have a far more limited audience that someone writing about Vampire Love. Or Dating Werewolves. Or Bondage with Billionaires.

Yet, the time and effort to produce that work will be as great, if not far greater, than that required to do your research on the best way to flog a besotted masochist.

And then you are stuck in Amazon’s pricing box trying to sell a book that can’t pay back your time and effort at $9.99. The audience isn’t big enough to make up in volume what you’ve lost in revenue. And, of course, since you are an indie, you’re going to have pay for ALL the expenses incurred by having to market and sell your book. And you will have 30 points less revenue to do it because you will be paying that money over to Amazon right up front (and don’t forget the transmission fees, which you also pay).”

Here’s where I can see your point. The problem, though, is that if you have a book with an inherently limited market, good luck getting a publisher to fork over a sizable advance or do any marketing at all for it. If it’s a captive audience at a high price point who will pay $15 or $17 or more for the ebook, the assumption you’re making is that a lower price point isn’t going to increase your overall market. I’ve seen this argument from writers before with the notion that anyone who will pay $8 a book will pay $12 and you’re just leaving money on the table. I didn’t buy it then and I don’t buy it now, with very few exceptions. And those exceptions, in my mind, are almost entirely complex scholarly work. I don’t think that’s reasonable. That doesn’t mean I don’t think higher prices are justified for some work, just that I’m not sure that high prices combined with a publisher getting 70-80% of the proceeds (or more) is going to pay back your time any more than you keeping 70% at a lower price point. As for 30% percent being too much, remember, that’s the number the publishers themselves imposed on Amazon with their collusive agency deal. If it’s so egregiously wrong, why did they break the law to Institute it themselves?

“Indies in these markets are driven, by necessity, back to the major publishers who may be able to price your product at a level you hope will make your time and effort somewhat profitable. And relieve you of the cost of marketing. Because they don’t live in the box.

Or, maybe, they can apply to be a member of Amazonium Codexorum. If they can demonstrate the “legitimate” reasons to be on the approved list.”

I love the phrase “Amazonium Codexorum” by the way. Every time I see it, I can’t help but think of some dark tome bound in human skin and written in blood that Jeff Bezos is using to cast his evil black magic to raise the dead and dominate the world. You seem to be thinking that Amazon is planning to create some beurocracy that gives thumbs up or down like a Roman Emporer on a case by case basis on whether they’ll be allowed to price above $10. I don’t think that’s the case. I believe it’s far more likely that they’ll try to institute a pricing range, much like KDP, that aims to find an optimum price for maximizing revenue for these works and incentivizes it by paying higher percentage in the preferred range. Amazon won’t be deciding anything. Publishers will be self-segregating in those ranges because it’s in their best interest to do so, making the granular case by case decisions on their own, just like indies do.

As for high-cost-to-produce nonfiction, I’m not sure why you assume $9.99 isn’t sufficient to generate a good return unless you’re presuming a market with a hard ceiling, i.e., a strictly limited potential paying audience. But if that exists, publishers aren’t exactly going to be lining up to dump resources into it either. You’ll still be doing most, if not all, of the marketing and getting a far smaller payout at the end of the day.

But here’s the kicker, if what I have to do to be successful doesn’t fit with what’s available to me through Amazon, I won’t use them, or I’ll adapt what I’m doing in some way so what they offer serves my ultimate ends. Amazon is known for its commitment to low prices. If you have a project that needs high or, at least, higher pricing, the low price store may not be the way to go. If I had a high-end designer clothing line, I’m not trying to cut a deal to get my wares stocked in Dollar General unless I’m prepared to sell them at $5 a shirt. I’ll look to outlets that support my needed price and can produce the customers who will pay it. It’s entirely possible that neither Amazon in its present form nor the publishers in their’s are the best choice for this kind of work.

As I said, ebooks are an extremely young market. This is a potential class of books that’s underserved by what’s currently available to them. I’d dispute that you can’t make a good return on $9.99, considering you still retain the IP (control the capital). Maybe you can’t make it all from Amazon, but nothing is stopping you from exploiting that property in multiple ways. In my opinion, Amazon is best used as one stream of many. Some trickle, some roar, some are steady year round while other others run high and low seasonally. And some do inevitably dry up. If the pricing structure for one particular product form for your IP at one particular retailer, no matter the size, can make or break you, you need to get more baskets and spread those eggs out a little.

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

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