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Judge Denise Cote Approves Department of Justice Agency Pricing Settlement

5069265780_3c7be147e1_mWell, that was fast. Just two days after Bob Kohn filed his comic-book amicus curae brief, Judge Denise Cote has issued an opinion approving the settlement proposal put forward by the Department of Justice and the three settling Agency Five publishers. Cote’s 45-page opinion restates the arguments made by both sides and addresses them, and by and large comes down in favor of the arguments put forward by the DoJ and its responses to the criticisms made in the public comments and other filings. It also quotes Emily Dickenson.

Did the judge intentionally plan to release this opinion on the same day Amazon attracted so much hoopla and attention in the e-book field with its new product announcement? It could be strictly coincidence, but do we have to assume that it is? Regardless, there are certain to be a number of appeals, so don’t expect to see it go into effect any time soon.

The four chief categories of opposition to the settlement come down to it (1) harming third parties such as print bookstores or non-Amazon e-bookstores, (2) being overbroad and impossible to implement effectively, (3) not having a sufficient factual basis, and (4) promoting Amazon’s monopoly power.

However Cote replies that (1) The Sherman Act isn’t meant to protect other businesses from actually having to compete, it’s meant to protect consumers from all businesses when they don’t compete; (2) the settlement is as broad as it has to be to provide the remedies it needs to (and one of the more contentious clauses was actually included at the urging of the publishers, who were confident enough in their ability to enforce it to ask for it themselves); (3) the government provided all the facts it needed to under the relevant laws and precedents, and doesn’t have to meet the demands for more material that falls outside those requirements; and (4) Amazon’s opponents haven’t adequately proven that it really does have a monopoly—other competitors were already entering the market before agency pricing, and continued even after agency pricing was cast into doubt—and even if it did, two wrongs don’t make a right.

Cote also responded to Apple complaints about being punished by unexpectedly early termination of its contracts without a trial by saying that, no, Apple isn’t having to do a thing, it’s the publishers who are the ones who have to terminate their contracts—and besides, it had far more advance warning that this termination was coming than it was even asking for given that the original filings took place months ago. And Cote dismissed Apple’s request that the implementation of the settlement be postponed until after the trial, because the publishers who did elect to settle deserve to reap the benefits of that decision right away rather than be dragged through a costly discovery process.

One thing that interested me was that, as part of point (4) above, Cote actually devoted over two pages to discussing and rebutting the arguments of Bob Kohn in detail—drawn from his public comment, rather than his comic book amicus curae, which she didn’t mention at all (other than that he had filed one). Submitting the comic book doesn’t seem to have done Kohn any harm, and he doesn’t exactly seem to have suffered from being limited to just five pages since the judge drew his arguments from what she called “one of the more detailed” of the comments.

I can’t say I’d expected to see this so soon, but I’m not really surprised by how the judge ruled. The Department of Justice isn’t exactly staffed by rank amateurs, and it stands to reason they’d have a pretty clear understanding of how the law works. They laid out their arguments so cogently, and gave such short shrift to any complaints that fell outside the scope of what was required by law and precedent, it seems rather reasonable that the judge approved it. Ruling within established law and not rocking the boat is usually what lower-court judges do. It’s left to the appellate courts to examine special circumstances and additional arguments and make new laws.

It will be interesting to see if the higher courts find some of those arguments more convincing.

Photo by geetarchurchy.

Could Miniature Kindle and iPad Tablets Save the Newspaper Industry? Probably Not

ipadsAs we approach upcoming launch events for both Amazon and Apple, speculation is rife about what the things they’re launching could mean for the reading industry. For example, the Guardian ponders what it might mean to have new 7” tablets available for both Amazon and Apple.

The article seems to me to lose a few points for asking in the headline if such tablets can “revive the news industry” but not really making a good argument in the actual article that it really could. A lot more people read books with ereaders than read newspapers or magazines with tablets. The Guardian even admits this, noting that iPad-only paper The Daily just laid off a third of its staff of 150. But wait—we haven’t had a 7” Apple tablet yet!

"With an 'iPad mini', the tablet becomes much more portable," says Francisco Jeronimo, smartphones and tablets analyst with the research firm IDC. "You can slip it in your pocket, take it on the train, wherever." A smaller screen that you have on a journey is just the audience that newspapers want. And with the low-end versions only offering wifi, without the 3G mobile connections, newspaper and magazine apps could drive people to pay for news apps – if news is what they want on those trips, of course.

Seriously, Guardian? That’s your best argument? If you build it, they might come? People can read newspapers on 7” e-ink readers, you know, and those are every bit as portable as 7” tablets. And, indeed, most newspaper content is just black and white (and read all over). If they haven’t done that yet, why would they start on tablets of the same size?

My suspicion is that the news industry is going to need something more than a 7” tablet to “save” it. But it’s perhaps symptomatic of how insecure that industry is starting to get that one such paper publishes an article like this. It’s beyond doubt that the news industry is going to need something to come along and save it pretty soon now. The only question is what that something will be.

For Democrats, 'Internet Freedom' Means 'Vigorous' Copyright Enforcement

donkeycratJust a day after the Hugo Awards got stomped on by a copyright bot which saw the (permission-granted!) clips of Doctor Who shown therein as a copyright violation, Michelle Obama’s Democratic Convention speech was allegedly blocked for violating the copyrights of one of half a dozen news agencies. It starts to seem as if copyright enforcement bots are likely to be the true source of the Terminators, rather than Skynet—ruthlessly hunting down and mistakenly killing anything enjoyable on the Internet for mistaken copyright violations. Though there’s actually a bit less to the Youtube copyright issue than meets the eye. More on that below.

Perhaps more interesting is the way this seems naturally to lend itself to discussing how the Republicans and Democrats respectively stand on copyright issues. According to Ars Technica, each party claims it is the party of “Internet freedom”—but Republicans want enforcement of laws against pornography and obscenity, and a continued ban on on-line gambling, while Democrats insist they want “vigorous” enforcement of copyright laws.

Under the Obama Administration, the government has promoted “[number of] strikes” laws or programs in which ISPs would cut off their users after a certain number of copyright violations. It has seized hundreds of allegedly-infringing websites without due process. It has also crusaded with trade negotiations to try to get other countries to tighten up their copyright restrictions after the American model. The whole thing is more than a little ironic given how many copyright reform crusaders come from the left—indeed, Larry Lessig himself was an Obama supporter during his first campaign.

Are we ever going to have politicians who support consumers’ rights over big business interests? Seems like every time we get one, like Congressman Rick Boucher, he ends up getting kicked out of office. As long as it takes money to get elected to major offices, I imagine consumers will take second place to corporations with a lot of money to spend.

Oh, and as for that Obama video? Slate reports that Youtube claims it was due to a glitch causing their copyright-bot system to send the wrong message. The video wasn’t killed in mid-stream like the Hugos, and it wasn’t supposed to be taken down due to copyright issues, it was supposed to be down because it wasn’t intended to be immediately available for non-streaming viewing after the event was over in the first place. The message now just says that the video is private.

So while the original message seems to indicate copyright enforcement run amok, the result would have been the same even if YouTube hadn’t goofed up with the ‘bot message—the video wouldn’t have been available anyway. All the message does is mistakenly give copyright reform advocates more ammo. (Not that this is necessarily a bad thing.)

That being the case, it’s still hard to argue that copyright enforcement bots are not detrimental to the Internet. They bring “zero tolerance” to copyright enforcement: there’s no claim of “fair use” that will work against them, no use of the notice and counter-notice provision so carefully built into the DMCA, and as the Hugos found out, “but we have permission!” is not sufficient to get a stream resumed after it is taken down.

And why do we have these bots? To try to undercut the arguments of corporate interests that places where users can post their own content are wild, lawless piracy havens. Corporate interests think that the DMCA notice and counter-notice process is too slow. They want infringing content taken down yesterday and not to come back. So like a 98-pound weakling who preemptively hands over his lunch money so the playground bully won’t beat him up, these content sites voluntarily hand over the reins of copyright enforcement to interests who (think they) have a lot more at stake.

And you might think that something that applies to videos might not be a concern to e-books, but who is to say that an e-book site might not be as vulnerable to the allure of overzealous copyright enforcement by copyright owners? While not a copyright owner themselves, we already saw PayPal attempt to censor content it didn’t like off of Smashwords. Who’s to say copyright holders might not get the same sort of hold over e-book stores, and demand they pull works of scholarly criticism for daring to mention their own?

Our copyright system at the moment is really messed up. It’s seriously weighted toward the interests of the copyright holders, and copyright users have to scrabble for whatever crumbs they can get their hands on. Hopefully someday the pendulum will swing the other way.

Image by DonkeyHotey.

Can "Full-Service" Publishers Service Self-Publishing Writers?

full-serviceMike Shatzkin has another interesting post in his blog discussing how traditional publishers are starting to unbundle some of their traditional services. He starts by citing HarperCollins CEO Brian Murray complaining about the common use of the term “legacy publishers” to describe the Big Six and their ilk, himself preferring the term “full-service.” (I usually roll with “traditional” for my preference.)

Shatzkin tends to agree with him that “full-service” is a good term, given that publishers have long focused on providing all the services involved with moving a manuscript from author-written form to books on shelf or e-shelf and then into the hands of consumers—including finding the manuscript, nurturing the project, printing it, sending it out into the world, and publicizing it. His blog post is all about how publishers are starting to contract out some of these services to others or even let the authors provide them themselves.

But for my part, I wonder: is “full-service” really a good term? Or is it just more publisher propaganda?

After all, calling any publishing operation “full-service” implies that you actually are getting a full range of services from it. But I’ve seen more complaints than I can count from authors who claimed they were getting short shrift when it came to the publicity and marketing side of things. Most recently, a survey of 300 authors found a considerable majority were unsatisfied with the degree of marketing and communication support they were getting from their publishers. It seems a lot of publishers reserve their “full service” in marketing and publicity to their bestselling authors, and their midlisters have to shift for themselves.

Of course. to spend too much time harping on that term is to miss the actual point Shatzkin is making—that these traditional publishers might be able to offer services, such as editorial support, to self-publishing writers for a fee.

Should publishers have editorial services for rent? Should they try to scale and use technology to handle editiorial (sic) functions — certainly proofreading and copy-editing but ultimately, perhaps, developmental editing — as a commodity to assure themselves a competitive advantage on cost base the way they do now for distribution? Should publishers try to scale digital marketing? Should they have teams that can map out and execute publishing programs for major brands?

Shatzkin again cites Murray, who thinks that the “synthesis of market intelligence and skills” traditional publishers have to offer are what make the difference—not just having your story well edited or (allegedly) well-marketed but having all these things done together by the same firm. And it is this, not just individual services, that publishers need to find a way to deliver to individual writers.

Apparently the idea is that traditional publishers can be the ultimate “self” publishing shops because they already know all there is to know about traditional publishing so they should be best equipped to offer those same sorts of services for money to people who want to do it themselves. (Though, to be fair, he does discuss this in the context of traditional publishers buying or developing their own sorts of services aimed at such writers rather than just resting on their laurels.)

This is, Shatzkin posits, the reason Amazon has done so well as a self-publishing firm itself—it synergizes the value of all the other services it offers into its self-publishing arm. Traditional (or “full-service”) publishers, he suggests, need to figure out how to do the same thing.

That’s all well and good, but it occurs to me that if traditional publishers really were in such a good position to benefit self-publishing writers, they should have figured out a way to do so before now. And it also seems there could be a potential for harmful confusion in self-publishing services offered by major publishers.

Writers could be misled into thinking they could pay to have their book “really” published by these publishers in the same way as the books they publish traditionally. But that’s never going to be the case. If one of these publishers wants to publish something you wrote, they will pay you for it. That’s a bright line that we shouldn’t ever blur.

Photo by acidpix.

Let Me Draw You Some Pictures: Bob Kohn Files 5-page Comic Book Amicus Brief in DoJ Agency Pricing Anti-Trust Settlement Hearing

ScreenClip(41) If a picture is really worth a thousand words, Bob Kohn may have found a clever way to get around Judge Cote’s insistence that he get only the same five pages for an amicus brief that everyone else does. He has submitted his brief in the form of a five-page comic book. I heard about this in a number of places, though I should credit that the first one I actually noticed was on my old home venue, TeleRead. There’s also a New York Times piece on the brief.

Starting with Kohn’s disgruntlement at the judge limiting him to only a five page brief, the comic covers Kohn’s concern that the DoJ’s conclusions are not really reasonable,  his insistence that—due to piracy—the law of supply and demand does not operate normally on e-books, and that prior precedents say that “if the restraint [of trade] is reasonably necessary to achieve the [pro-competitive] benefits [in different markets], it’s legal” and that “[selling] e-books below marginal cost” is “presumed illegal.” Thus, the DoJ must either turn over the results of its investigations into Amazon’s pricing “or the court must find that Amazon engaged in predatory pricing.”

Kohn also insists that the DoJ hasn’t truly shown agency pricing caused harm to consumers, and that it goofed when it said “low” prices, rather than efficient prices, are a goal of antitrust law. And he compares the “one-time event” of the implementation of agency pricing to “ASCAP & BMI, who each spend over $150m a year to maintain their price fixing activity.”

First of all, I’ll admit that the idea of a comic book brief is quite novel, and it’s certainly garnered Kohn a lot of media attention. (And, yes, here’s some more. Yay for you, Bob Kohn.) But should that really be the point of an amicus curae brief? After all, it’s amicus curae, not amicus populi. The only opinion that really matters for such a brief is that of the court itself, and I can’t imagine the judge being terribly thrilled by the subtext of, “I didn’t think you could understand it if I wrote it out in prose, so I’ll draw you some pictures."

The repeated complaint of “Oh noes, only five pages???” that pops up three or four times over the course of the five-page comic doesn’t exactly help matters, either. Mr. Kohn, you are not a special snowflake. There’s nothing about you or your arguments, no matter how persuasive they might be, that merits you more pages than every other amicus curae filer in this hearing has been granted.

And if you can make those arguments colloquially over the course of five pages of drawings with relatively little text, you could make them even better in five pages of legal prose. Everyone else filed their five pages without sneering at the judge in comic panels. Why didn’t you? Do you really think that’s going to make the judge receptive to your arguments?

And honestly, it’s not even that good of a comic. Three and a half out of the five pages consist of Kohn and (I assume) his wife merrily expositing to each other as talking heads on a park bench, with his novelist wife being granted (for the sake of being able to say “How right you are, Bob!”) considerably more in-depth legal knowledge than it seems to me is actually realistic for her to have.

Why did he do it? Perhaps he figured that the court wasn’t going to pay any attention to him no matter what he said and he might as well score points with the general public instead? Perhaps he expects the judge to reject it and he’ll then file his “real” five page brief but still reap the benefits of the additional publicity? Or maybe it just seemed like a good idea at the time? Whatever the reason, I don’t expect this grandstanding to give Kohn’s arguments much additional weight with the judge in any event.

Should Newspapers Raise Their Cover Prices?

newsstandShould newspapers raise their prices? I’ve been doubtful in the past. There’s no monopoly on facts, after all. If the New York Times wants to hide its content behind a paywall, you can just read the news from some other paper online instead. Sites like Google News exist to make that sort of thing possible.

But now, in The Guardian, Frédéric Filloux argues that the best way for newspapers to make a lot more of the revenue they desperately need right now is by raising their prices. He points to examples from a study of a number of newspapers that have had price hikes in the last few years, and experienced overall revenue increases because of it. While some of these examples aren’t terribly convincing (The New York Times raised its newsstand price by 33% from $1.50 to $2 in 2009 and increased its revenue by a whopping 2%), they do tend to suggest that newspaper demand may not be as elastic as I had thought.

Why is this the case? Apparently just about anyone who’s still loyally reading a newspaper by now will find it in himself to shell out a little extra to keep reading that paper if that’s what it takes. Newspapers are losing a lot more readers from the switch to digital than from the price increases, the study’s authors say, and prices haven’t yet reached the point where loyal readers will be inclined to go away. So newspapers still have room to crank up their prices and add some additional subscription revenue.

One thing the study doesn’t look at is the effect that these increases are having on advertising revenue. Is the additional subscription money offsetting any losses from concerned advertisers pulling out? Are there any concerned advertisers pulling out? It would be interesting to know, given that advertising will probably continue to have much more effect on papers than the offset from this subscription revenue.

And I also wonder just how long this “bank” of paper readers will stay around, given that many of them have to be members of the older generation already. As they die out, will younger readers replace them? Will there reach a point where raising prices is no longer cost-effective?

It should be interesting to find out.

Photo by sweaty photos.

Self-Publishing Writers Should Beware Percent-of-Royalty Publishers

scamtruckIs self-publishing too “hard”? Some people seem to think so, even as other people quite happily trundle along dealing with all the hard stuff. And, as with any case where something hard for one person is easy for someone else, businesses have sprung up to take advantage of that in return for a cut of the royalties. Such businesses may seem innocuous, but on her blog The Business Rusch, author Kristine Kathryn Rusch sounds the alarm bell about one such (carefully left unnamed) publishing business that seems to have ensnared a bestselling author friend of hers, taking 15% of royalties in return for handling the publication of her “self-published” books.

First of all, Rusch warns, this publisher’s terms of service empower it to take over the social network account of the author in question and use it for posting publicity statements—which would be fine, except the posts seem to mention the name of the service itself a lot more than they mention any of the author’s new or upcoming books. And they’re rife with spelling and grammatical errors, which no writer ever wants to have associated with herself. But that’s just the tip of the iceberg.

Rusch goes on to dissect the terms of service in detail, pointing out a number of traps to ensnare the unwary. There are several such traps, but what they boil down to is an attitude on the company’s part that “we can change whatever we want, and the only way you’ll notice is if you’re paying attention to our terms of service on the site.” In addition to 15% of royalties, it seems, the author is actually mortgaging her literary soul.

For example:

All provisions of this Agreement that, by their nature, are intended to survive the termination of this Agreement will survive.

The key phrase is “by their nature.” What the hell does that mean? It means that they don’t have to spell out which terms continue to apply. It means that in court they could argue that all the clauses in the contract, by their nature, still apply.

Furthermore, the publisher doesn’t even provide all its services for that 15%—it charges add-on fees for copy editing and proofreading. And it holds onto the e-book files it creates, not sharing them with the author. And if the service finds the author is “in breach of [her] obligations” they can simply not pay her anything at all.

Rusch adds:

Nothing in this agreement holds the e-publishing service to anything. They don’t have to publish your books. They don’t have to return your books. They don’t have to pay you. They have no liability if they leave out twenty-five pages in the middle of one of your books or put someone else’s name “accidentally” as the author of that book.

They have no liability if they rewrite the entire book and keep it under your name.

And this is not the only such company, and indeed by how open it is in its terms of service (and the FAQ in which it encourages authors to read and understand them) may actually be one of the more respectable companies that occupy this niche. Scam artists prey on the vulnerable, Rusch reminds us, and in this time of sea-changing uncertainty a lot of authors are feeling vulnerable as hell right now.

Rusch advises writers who must pay for services to look for services that charge flat fees only and provide them with the completed work that they paid for—the finished e-book files of the books. And also to be sure they understand what they’re agreeing to when they sign or click through anything.

Of course, it seems as though fly-by-night operations have long preyed on writers. Even before self-publishing became “respectable,” vanity presses were trying to take anyone they could for whatever they could. Donald E. Westlake wrote about this as long ago as 1967 in his novel God Save the Mark. So in that respect this is nothing new.

But it seems that with every new twist of technology, someone comes up with a new way to use it to fleece people out of their money. Hopefully most self-publishing writers will take the time to recognize that so many shortcuts have tiger traps in them.

Photo by jepoirrier.

Will Amazon Put Ads on the Kindle Fire?

Kindle-Fire-handGiven what Nate has said about the risks of relying on Wall Street Journal stories for anything, it’s tempting to let this story pass, but all the same a piece in the Journal yesterday about the impending Kindle Fire launch piqued my interest. The Journal claims to have heard from inside sources that Amazon will be launching an ad-supported Kindle Fire to go with the ad-supported e-ink Kindles it already offered.

There has been talk of such possibly happening in the past, but this seems to be the first claim that it actually will happen rather than simple speculation. If this is true, and if Amazon (or CNet’s source) is counting an ad-supported version as a “separate” new device, it might explain why Nate was unable to find any FCC paperwork about a second Kindle Fire device—there isn’t one, because it’s the same device as one that already exists. Thus, the “slightly revamped version of the original tablet” from the CNet article might be “revamped” by adding ads to it so as to chop the price.

Slapping ads on the e-ink Kindles was a rather canny move on Amazon’s part. Among other things, it enabled Amazon to move the goal posts and force an apples-to-oranges comparison of its ereader prices: the ad-supported price became the new “default” price, making the Kindle appear that much cheaper than the cheapest non-ad-supported price its competitors could field. Furthermore, many (most?) people who tried the ad-supported tablets found they quite enjoyed the ads—Amazon placed them deftly and sensibly in ways that didn’t interfere with the experience of reading and thus were, for the most part, not annoying to consumers in the way that so many web ads are.

Could Amazon do the same thing with tablets? I wouldn’t have thought the company could do it so well with ereaders before it went and did it, so I’m not about to say no. And the Kindle Fire was already one of the least expensive tablets on the market. If Amazon could knock $50, or even $25, off the price with a few unobtrusive ads, it could make the Kindle Fire even more attractive to tablet fans on restricted budgets—especially if Amazon combines it with a price drop on the older Kindle Fire hardware when the new one comes in.

Digital Advertising and Preprint Advertising Shakeup Squeeze Print Newspapers Even Further

newspapers2Not all perils to print media are necessarily entirely digital. Sometimes those perils can come in the form of something that adds to digital’s effect. Veteran journalist and Silicon Valley CEO Alan D. Mutter has a post on his blog Reflections of a Newsosaur looking at a potentially huge loss of advertising revenue to newspapers brought on by a postal rate cut.

The ad revenues in question are for preprint advertising—all those ad circulars that fall out on the floor when you open your Sunday newspaper. One industry insider claimed that these ads account for 70% of Sunday revenues at the average newspaper. And not only are advertisers shifting away from circulars to digital advertising, but the US Postal Service just provided a rate cut to a direct-marketing company that will allow it to mail some preprint ads at a cost of 42% less than newspapers.

Both advertisers and shoppers are moving online, it seems—online discounts entice consumers away from brick-and-mortar stores, and brick-and-mortar stores buy more online advertisements to compensate. Best Buy cut its own preprint ad buying by 75%, or three quarters of a billion dollars, in 2011, while boosting online advertising by 40% to a mere $23 million. The Postal Service’s favorable rate cut could draw $1 billion in advertising away from newspaper publishers, while letting the cash-starved Postal Service scoop an additional $15 million in revenue from the added volume.

Will this encourage papers to move more toward digital publishing? Mutter points out:

Notwithstanding the stated intention of most publishers to migrate vigorously to digital publishing, printed papers remain the primary revenue source for the industry. Print advertising accounts for about two-thirds of sales, print circulation produces about a quarter of revenues and digital advertising generates only about 10% of revenues.

And ad revenues already fell month by month for this year—as they have been for eight years running—they’re now less than half what they were when newspaper ad revenues peaked in 2005. Unless papers can figure out how to make digital pay better, the rock and the hard place they’re in are going to squeeze closer and closer together until most of them go squish.

Photo by NS Newsflash.

Bought Agency Priced E-Books? $69 Million Settlement Pay-Out Is on the Way!

If you’re a US resident who bought any agency-priced e-books from one of the major e-book sellers and don’t live in Minnesota, rejoice! A $69 million settlement between 49 states (plus five territories) and three of the five agency publishers means you stand to receive at least 25 cents per e-book you bought. Woo-hoo, you’re in the money! (Minnesota opted out of the settlement.) Assuming the court approves, the publishers will pay out the money into a fund and e-book stores will start notifying their customers within 30 days.

The payout per agency-priced e-book bought will be valued at $1.32 if the book was a New York Times Bestseller at the time they bought it, 32 cents if had been a NYT Bestseller during the first year of its publication, and 25 cents for non-NYT Bestseller backlist titles. If you bought the books from Amazon, B&N, Kobo, or Apple, you’ll get an account credit unless you state you’d prefer a check; if you bought them from Google or Sony you’ll just get a check. And about $10 million of the settlement will be set aside for administrative costs. Any money remaining after everyone’s been compensated will go to literacy charities.

Of course, anyone who did buy an agency-priced book probably spent a lot more than 25 cents or even $1.32 more than they would have on it if it weren’t agency priced. And while there are still two non-settling publishers plus Apple to shake down for pennies, it’s doubtful that even if they doubled the payout it would still bring those prices down to pre-agency levels.

The bright side is that it will be a lot easier to find and compensate the people who qualify for the payouts, given that all the stores have computerized records of who bought what e-book. But in the end, all this really means is that you’ll get some store credit that might entice you to buy another book, and give the publishers more money. google-checkReally, class-action suits are generally worthless for anything except enriching lawyers. (For example, I got a 55-cent check a few weeks ago for something to do with Google AdWords ten years ago. 55 cents! Was it even worth the cost of sending that check out?)

So what do you plan to do with your 25 cents per e-book?

DoJ Anti-Trust Settlement Judge Permits Bob Kohn, Authors Guild to file Amicus Briefs

doj-buildingBlaise Pascal famously wrote, “The letter I have written today is longer than usual because I lacked the time to make it shorter.” Hopefully Royalty Share CEO Bob Kohn has plenty of time. The judge tasked with considering the Department of Justice’s proposed agency pricing price-fixing settlement for three of the Big Six and Agency Five publishers has told him he can submit an amicus brief spelling out his arguments opposing the settlement.

But rather than the 25-page monstrosity (PDF) he filed earlier this month, he has to cut it down to five pages, the same as everybody else is allowed. She permitted the five-page amicus brief (PDF) filed by the Authors Guild on August 15th to be filed unchanged. I guess you can’t blame a guy for trying.

The more legal maneuvering that takes place around this settlement, the more curious I become to see whether the judge really will rubber-stamp it or will send it back to the drawing board. Will she be impressed more by the DoJ’s legal arguments that entities who benefit from the status quo don’t merit consideration in matters of anti-trust? Or will she listen to those who insist that Amazon is the real villain and shouldn’t be allowed to connive its way to a monopoly?

Meanwhile, an article in yesterday’s Morning Coffee, taken from a stock trading newsletter, intrigues me. The author, Peter Larson—who admits that he’s investing in Barnes & Noble and short-selling Amazon—finds it very interesting that one party who has been curiously silent in the whole matter is Amazon itself. It filed no comments in the public comment period, nor has it filed any amicus briefs with the court. It seems to be content to let itself be talked about and argued over, without once speaking up to defend itself.

Larson proposes two possible reasons for Amazon’s silence—either it believes the settlement will be thrown out with or without its intervention, or Amazon is doing well enough with its Kindle sales now that it has no need for the sort of dramatic price cuts it did when the device was first introduced, and indeed now that the Kindle is (rumored to be) sold at a loss it no longer actually wants them. (Or both could be true.)

Whether those are true or Amazon has some other reason for its silence, I’m certainly willing to believe there is one. Jeff Bezos is known for his clever scheming, and Amazon never seems to do anything without a reason. It still remains to be seen what it is, and just how all this is going to play out.

Amazon and the Democratization of the Review

Paul Laity at The Guardian has a look at the recent paid review scandal on Amazon and what it might portend for the future of “traditional” reviews. Perhaps not surprisingly, even though the piece opens with a headline proposing that reader reviews might be “killing off the critic,” and even though it admits that only a tiny fraction of reader reviews are corrupted by payola or family-or-friendola, it concludes with a smug self-assuring pat on the back that, no, professional critics’ reviews are more reliable than Amazon reader reviews because they’re all professional and stuff.

I’ve seen this sort of thing before, in partisans of professional encyclopedias waxing smug because a study showed Wikipedia to have more factual errors per page than Encyclopedia Britannica. (Never mind that the Wikipedia articles were on average longer than Britannica’s so there were actually fewer errors per text length—and the errors were corrected as soon as they were noticed, while Britannica’s had to wait for the next edition.)

So Amazon reader reviews suffer from the tragedy of the commons. So what? Maybe they’re not up the standards of a “professional” review, but there sure are a lot more of them, including for thousands of self-published books most “professional” reviewers will never touch. Anyone with a lick of reading comprehension and discrimination will be able to separate the wheat from the chaff on his own anyway.

Frankly, I think people don’t give Amazon reviews enough credit. Really, we should be marveling at the democratization of the review. We don’t have to rely any more only on what the “experts” think. With Amazon, we can hear from anyone. Literally anyone, whether they bought the book at Amazon or not. Amazon doesn’t care if I bought it from them, or Barnes & Noble, or a used bookstore, or even haven’t bought it at all but want to say what I think about it.

You hear people calling from time to time for Amazon to disallow reviews from people who didn’t buy the product from them, but Amazon has so far been wise enough to realize that would be a suicidal move—just as Jeff Bezos was wise enough not to listen to the people who were horrified that the site allows negative reviews as well as positive. Much as people like to fear that it is, Amazon is not the only place an informed shopper might buy something. (Indeed, DeepDiscount is frequently cheaper than they on videos and offers free shipping with a lower minimum purchase besides.)

Restricting reviews only to people who bought something on Amazon would really cripple the ability of many products to get any reviews at all—and the more reviews any product gets, positive and negative, the more informed a decision any buyer will be able to make. The negative reviews give the positive ones credibility, and vice versa. In fact, one study suggested that Amazon reader reviews are, on average, as good as professional reviews.

And if some people leave one-star reviews of items they will never buy based on principle, who is to say such a review is any less valid than a five-star one of someone who liked it? The five-star reviewer is explaining why the work is valuable to him, and the one-star reviewer is explaining why the work is abhorrent to him. If it’s abhorrent based on something that leads him not actually to buy it, is that abhorrence really any less legitimate than the delight of someone who loves it? (Though, to be fair, there’s kind of a thin line between this sort of behavior and slacktivism.) Frequently the sort of people who leave one-star reviews don’t feel they can make their opinions felt effectively in any other venue. And anyone who actually bothers to read the reviews will soon be able to tell for himself which are “legitimate” or not.

When you think about it, where before Amazon was there any such review forum which attracted reviews by and reaches so many people? Even Laity admits that the majority of these reviews are most likely legitimate—and there are so many more of them than all the professional reviewers in the world could hope to publish. These reviews are a great resource for people looking at buying from Amazon, or for people looking at buying a particular item from a local shop or third party website. You can almost always find reviews for any work you want to consider, whereas professional reviews could range from fairly common to none at all. And if the reviews aren’t “professional,” they’re at least written by people who actually care about the product one way or another, rather than being paid to consider it.

Image from xkcd.

Newspapers Should Get to Know Their Customers…But Can They?

newspapersNewspapers’ digital problem is a bit more pointed than the problem of e-books. Much as publishers gripe about retailers selling e-books cheaper than they want them to, they are, at least, still getting paid for their e-books. Newspapers by and large have to choose between giving their electronic content away for free to sell advertising or charging a fee for their content but making it less valuable to advertisers—and losing money either way.

On GigaOm, Mathew Ingram has an interesting discussion of one way that newspapers might find a way out. Ingram thinks that newspapers need to become more like Facebook and less like Twitter. Instead of trying to focus on getting more users, the papers should try to make the users they have stick around longer and spend more time on the site—because the more time they spend, the more ads they will see, and the more interested they will be in coming back to the site repeatedly. They should get to know their readers, so they can offer what their readers want.

It also means that they would be more likely to buy other things from the paper than mere paywall access. If you get to know your readers and what they like, then you’ll know what they’d like to buy so you can sell it to them.

It’s certainly a nice idea, but I have my doubts newspapers could ever really pull it off. They were made for an entirely different purpose than social networking sites from the very beginning. You don’t go to a newspaper to keep up with what your friends are doing all day. But oddly enough, you can go to Facebook to read news—or at least, the news your friends find worthy of link sharing.

And prior to the Internet age, over centuries newspapers built an almost-entirely one-way culture. You read a newspaper to have them tell you stuff, and the only way you could respond was by sending a letter and hoping they felt it was worth publishing. That one-way nature is still a big chunk of newspapers’ DNA, and I think that seriously changing that is so far outside newspapers’ traditional specialty that many of them will have a hard time sorting it out.

But if any of them can manage it, the benefits pointed out by Ingram and the people he quotes could certainly make it easier for them to survive. They’re unquestionably worth trying for. The question is whether newspapers seriously will.

Photo by NS Newsflash.

Do Interactive Reading Projects Cope with Distraction Through Stimulation?

the-spaceEver since the Internet spawned the World Wide Web, there have been a lot more ways to read than linearly from start to finish. Over on The Literary Platform, Kat Sommers talks about a few experimental web projects on on-line arts service The Space in making reading interactive. The projects are the typical interactive text-based works—non-fiction pieces that serve as companion pieces to works of literature, allowing readers to explore the “cloud of ideas” at their own pace and in their own chosen directions. Not really a lot new there.

Perhaps more interesting to me is Sommers’s comparison of text to other media in the beginning, noting that text requires concentration while movies, music, and plays carry on whether you’re watching them or not (unless you hit pause).

A lot has been written about the impact the internet has had on our ability to concentrate – endlessly linking up previously distinct entities, it diverts our attention in a million different directions. There are two results: convenience, and an abundance of stuff. Industries from music to television and publishing are being comprehensively routed by the implications of this new distribution model, and audiences find it increasingly hard to concentrate on anything for very long at all.

She doesn’t really seem to do a good job of tying this to her discussion of the hypertext media projects, unless her contention is that we have to have the stimulation of being able to click on something to see something new to keep our attention on what we’re reading. If that’s the case, I can’t see that it bodes well for fiction reading in the future. Non-fiction lends itself a lot more readily to reading in shuffled order—facts are facts, regardless of which one you read before another one. Stories are less so.

Is this how reading is going to end? In an avalanche of distractions? Somehow, I doubt it. E-books, both self-published and traditional, are doing too well for reading to be in that much danger.

FAA May Soon Let Us Read E-Books During Take-Off … Or Not

At the moment, taxiing, takeoff, climb, approach, and landing are the parts of an airline flight where readers of traditional books can laugh in the face of e-book users—because those are the times when passengers are required to turn off personal electronics. But that may, hopefully, not be the case for much longer. Network World reports that the government is forming a new government-industry working group to reevaluate airline portable electronic device policies. (Found via Slashdot.) Cell phone use for voice calls in flight will still be off the table, however.

"We’re looking for information to help air carriers and operators decide if they can allow more widespread use of electronic devices in today’s aircraft," said Acting FAA Administrator Michael Huerta. "We also want solid safety data to make sure tomorrow’s aircraft designs are protected from interference."

It would be nice if something got less restrictive about flying these days—especially as ubiquitous as portable electronic devices have become over the last few years. Given that it sometimes seems as though everyone now has a smartphone, tablet, or ereader, these device restrictions are hitting an ever greater percentage of travelers these days.

But from my reading of the article, it seemed to me as if the recommendations could go either way—they could decide electronic devices are safe, or they could decide they’re still too risky. Or, of course, they could split their decisions based on type of device, though it would seem like ereaders ought to be safe, as long as their wifi and 3G are disabled for the flight. (Last December Nate looked at a NY Times study on how much interference the Kindle emitted.)

Regardless, the FAA will be posting a Request For Comments in the Federal Register tomorrow, seeking comments about various technical issues surrounding the restrictions. (They’re probably going to want something a bit more substantive than, “It sucks I have to turn off my ereader when we take off,” though.) Comments should be sent to [email protected].

image by Kevin.Fai