Authors Guild Apparently Can't Avoid Throwing Away More Money: Appeals Google Books Fair Use Ruling

from the and-on-and-on-it-goes dept

We had hoped that, after nearly a decade of fighting and losing, the nearly complete trouncing of the Authors Guild's ridiculous arguments against Google's book scanning project (by a judge, Denny Chin, known for favoring copyright holders), that the Authors Guild and its proudly luddite leader, Scott Turow, might finally take a step back from the brink and recognize that maybe, just maybe, Google's book scanning project isn't as evil as the organization insists. But, back here in reality, the Authors Guild is going to keep on keeping on with wasting the various dues its authors pay to be members... as it has officially appealed the decision, guaranteeing the throwing of more money away on a stupid lawsuit that serves no purpose other than to make it clear to the world that the Authors Guild is anti-technology, anti-creativity and anti-innovation.

The lawsuit paints the organization as completely out of touch. Plenty of authors have pointed out how incredibly useful Google's book scanning project has been for the sake of research and discovering other books (many of which lead to purchases). Publishers have pointed out that having books scanned by Google increases sales. It's difficult to see what the Authors Guild is arguing for, other than "progress is bad."

Filed Under: book scanning, copyright, fair use, scott turow
Companies: authors guild, google

Google Gets Total Victory Over Authors Guild: Book Scanning Is Fair Use

from the about-freaking-time dept

This one has been a long time coming, but this morning, Judge Denny Chin (who actually has a long history of siding with copyright holders) found that Google's book scanning project is fair use. This is a huge victory in a variety of ways. Five years ago, we thought that Google made a huge mistake in dropping its fair use fight here, in trying to work out a "settlement," which would have harmed fair use by suggesting these kinds of things needed to be licensed, while also setting up a near de facto monopoly on digitizing books. Thankfully, that settlement got rejected, and the fair use argument went back into the courts. Actually, Judge Chin first focused on whether or not this should be allowed as a class action, but in a somewhat surprising move, the appeals court basically ignored that issue entirely and told Judge Chin to answer the fair use question first.

He's now done so and it's a fantastic victory for fair use. The ruling relies on last year's ruling in the similar HathiTrust lawsuit, in which the Authors Guild sued a bunch of universities for banding together to scan books in their libraries. There, the court pointed out that this was clear fair use, and Chin finds the same here with Google. He runs through the well-known "four factors" test, noting that Google's work "is highly transformative," comparing it to other cases, that have said Google's image search efforts are similarly fair use. But he goes further, noting how valuable the end result of scanning these books and making them searchable really is.

Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text -- the frequency of words and trends in their usage provide substantive information.

Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it "adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings."

Chin also rejects the idea that it can't be fair use just because Google is a commercial enterprise, noting that there are lots of commercial enterprises that rely on fair use, and also pointing out that it's not engaging in "direct commercialization of the copyrighted works," but those works lead to indirect commercial benefit. That's not enough to remove fair use, especially when "the fact is that Google Books serves several important educational purposes."

Chin also points out that these book scans do not act as a market replacement for the books, and actually says that the very argument that it does doesn't make sense.

Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already -- they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.

In fact, he points out:

To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.

It all comes together in making a very strong argument that Google's book scanning promotes the progress of the arts and sciences just like copyright is supposed to do.

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

This is a huge win for the public, for science, for research and for most authors who will undoubtedly benefit from expanded search and discovery of their works. The Authors Guild, led by luddite Scott Turow, not only look completely out of touch, but they've wasted nearly a decade and a tremendous amount of their members' money on a completely wasted effort to impede the progress of science and knowledge. Isn't it time the Authors Guild had a boss who was forward-looking, rather than trying to pretend he can bring back the world that existed in the 1980s? Even worse, Turow famously is a practicing attorney, as well as a best-selling author. So it's not even like he can claim he was suckered into this by bad lawyers. He should have known better.

Filed Under: book scanning, copyright, denny chin, fair use, scott turow
Companies: authors guild, google

Authors Guild Shuts Itself Off From Public Criticism, As People Realize It Represents Publishers, Not Authors

from the front-group dept

We've written numerous times about Scott Turow during his time as head of the Author's Guild, and the amazing thing to me is that despite the fact he's been getting blistering criticism from a variety of people -- including tons of authors -- he never, ever seems to even acknowledge the points of his critics, but continues to just say the same debunked crap over and over again. Last week, for example, we did a point-by-point debunking of his error-laden, factually inaccurate and totally misleading op-ed in which he argued that pretty much everything on the internet was harming authors. I was gratified to see our debunking picked up widely -- with many of the tweets in support of our response coming from authors (including a few best selling authors). It made me wonder what sort of organization Turow is running.

Best selling author Barry Eisler penned an interesting response to Turow on JA Konrath's blog, in which he pointed out that Turow's position has consistently been in favor of "Legacy Publishing," (i.e., the big five publishers in NY) rather than authors. A similar reply from author David Gaughran pointed out that Turow seems to be so focused on propping up the legacy publishers that he directly called for an antitrust investigation into price-fixing by those publishers to be dropped, regardless of the facts of the case. Yes, even though such price fixing would harm authors, Turow immediately sided with the publishers. Incredible.

But, perhaps more telling is how the Authors Guild has now completely shut itself off from the outside world. Gaughrin also notes that right before Turow's NYT op-ed, he had also published a silly blog post about Amazon buying Goodreads, and got torn apart in the comments for the post. But if you look at the Author's Guild blog post about the NYT's oped, you'll see there are no comments and that "comments for this thread are now closed." Eisler notes that it was not always this way. In fact, he had submitted a comment to the blog post, apparently with a link to my piece, saying:

"That Scott Turow refuses to respond to this demolition of his facts, his knowledge of the law, and even his baseline logic tells you all you need to know about his integrity. And about the true function of the "Authors Guild" of which he is president."

Eisler received notification that his comment was "awaiting moderation," but obviously that comment never ran, and instead, the Authors Guild shut down comments entirely. It appears that not only are they unwilling to respond to the large number of authors who are complaining about how ridiculous Turow's position is, they also want to stick their hands over their eyes and ears to pretend it's not even happening. That's not leadership. That's cowardice.

In the meantime, even the libraries are punching back. The American Library Association responded to Turow, "taking issue" with his op-ed and pointing out how Turow is wrong about libraries and about the law.

The failure to respond speaks volumes. And it says that the Authors Guild does not represent authors at all, but rather the legacy publishers, and a very small number of authors who succeeded under the old system. Turow's actions have done massive damage to the perception and credibility of the Authors Guild. And the Guild's decision to stop hearing from critics, especially authors, is quite telling about how it views the world. It's amazing any modern author thinks it's worthwhile to be a member of such an organization.

Filed Under: authors, copyright, culture, publishers, response, scott turow
Companies: authors guild

Authors Guild's Scott Turow: The Supreme Court, Google, Ebooks, Libraries & Amazon Are All Destroying Authors

from the old-man-yells-at-cloud dept

We've written more than a few times about Scott Turow, a brilliant author, but an absolute disaster as the Luddite-driven head of the Authors' Guild. During his tenure, he's done a disservice to authors around the globe by basically attacking everything new and modern -- despite any opportunities it might provide -- and talked up the importance of going back to physical books and bookstores. He's an often uninformed champion of a past that never really existed and which has no place in modern society. He once claimed that Shakespeare wouldn't have been successful under today's copyright law because of piracy, ignoring the fact that copyright law didn't even exist in the age of Shakespeare. His anti-ebook rants are just kind of wacky.

However, in his latest NY Times op-ed, he's basically thrown all of his cluelessness together in a rambling mishmash of "and another thing", combined with his desire to get those nutty technology kids off his lawn. For the few thousand members of the Authors Guild, it's time you found someone who was actually a visionary to lead, rather than a technology-hating reactionary pining for a mythical time in the past.

First up, a confused reaction to the Supreme Court's protection of first sale rights in Kirtsaeng.

LAST month, the Supreme Court decided to allow the importation and resale of foreign editions of American works, which are often cheaper than domestic editions. Until now, courts have forbidden such activity as a violation of copyright. Not only does this ruling open the gates to a surge in cheap imports, but since they will be sold in a secondary market, authors won’t get royalties.

First of all, no, this was not a "change" in US law. Courts had not forbidden this particular situation in the past, because the specifics of this hadn't really been tested in the past other than a few recent cases with somewhat different fact patterns. The point of the Supreme Court's ruling was to reinforce what most people already believed the law to be: if you buy a book, you have the right to resell it.

As for the "surge" in cheap imports, let's wait and see. It might impact markets like textbooks, which are artificially inflated, but for regular books? It seems like a huge stretch to think that it would be cost effective to ship in foreign books just for resale. And, of course, secondary markets have existed for ages, and studies have shown that they actually help authors because it makes it less risky to buy a new book, since people know they can resell it. Turow admits that secondary markets have always existed, but then jumps to what this is all "really" about in his mind:

This may sound like a minor problem; authors already contend with an enormous domestic market for secondhand books. But it is the latest example of how the global electronic marketplace is rapidly depleting authors’ income streams. It seems almost every player — publishers, search engines, libraries, pirates and even some scholars — is vying for position at authors’ expense.

Yes, that's right. The Kirtsaeng decision isn't just about first sale, it's really about the evil "global electronic marketplace" sucking authors dry. Of course, Turow fails to mention that Kirtsaeng had next to nothing to do with the internet. Yes, Kirtsaeng ended up selling his books via eBay, but tons of books sell on eBay. That had no impact on the ruling at all. The issue in the ruling was about books legally purchased abroad, and Kirtsaeng did that without the internet -- he just had friends and family back in Thailand buying books for him. To blame that on "the global electronic marketplace" is just completely random and wrong. It seems like the kind of thing someone says when they just want to blame technology for everything. Turow has his anti-technology hammer, but he's got to stop seeing nails in absolutely everything.

Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The idea is that a diverse literary culture, created by authors whose livelihoods, and thus independence, can’t be threatened, is essential to democracy.

Turow is a lawyer. As such, I would expect him not to misrepresent what the Constitution says, but he's done so here. Authors are not "directly protected in the Constitution." The Constitution does not "instruct" Congress to create copyright to promote the progress. Article 1, Section 8 of the Constitution grants Congress specific powers concerning what it can do. It does not "instruct" Congress that it must do these things. The same section of the Constitution also gives Congress the ability to "grant letters of marque" to privateers ("pirates" on the high seas) to attack enemies. No one would ever argue that the Constitution "instructs" Congress to authorize pirates on the high seas to "attack and capture enemy vessels." In fact, Congress has not officially used this power since 1815. Similarly, there is no requirement that Congress "protect" authors in this manner, no matter how much Turow may pretend this is the case.

Frankly, it's bizarre that Turow would so misrepresent the Constitution, when he must know what he's saying is untrue. It really calls into question why the NY Times allows such blatantly false statements to go out under its name.

That culture is now at risk. The value of copyrights is being quickly depreciated, a crisis that hits hardest not best-selling authors like me, who have benefited from most of the recent changes in bookselling, but new and so-called midlist writers.

Take e-books. They are much less expensive for publishers to produce: there are no printing, warehousing or transportation costs, and unlike physical books, there is no risk that the retailer will return the book for full credit.

Note the implicit assumption: only publishers produce books. Turow, apparently, ignores the fact that these modern technological wonders (which he hates so much) have enabled an entire new world of massively successful self-published authors, who take advantage of this situation to realize that they don't need publishers, and the lower costs and ease of distribution makes things much easier. As Clay Shirky has said in the past, publishing is a button, not an industry. And, no, that doesn't mean that authors should all do it by themselves, but the challenges are in marketing, not in "publishing" or distribution any more (with respect to ebooks).

Also the idea of a literary culture at risk is laughable. More books are being published today than ever before. More people are reading books today than ever before. More people are writing books than ever before. Books that would never have been published in the past are regularly published today. There is an astounding wealth of cultural diversity in the literary world. Sure, some of it means a lot more competition for the small group of authors (only about 8,000 or so) that Turow represents... oh wait, I think we've perhaps touched on the reason that Turow is all upset by this. But, of course, more competition for that small group of authors does not mean the culture of books and literature is at risk at all. Quite the opposite.

But instead of using the savings to be more generous to authors, the six major publishing houses — five of which were sued last year by the Justice Department’s Antitrust Division for fixing e-book prices — all rigidly insist on clauses limiting e-book royalties to 25 percent of net receipts. That is roughly half of a traditional hardcover royalty.

Best-selling authors have the market power to negotiate a higher implicit e-book royalty in our advances, even if our publishers won’t admit it. But writers whose works sell less robustly find their earnings declining because of the new rate, a process that will accelerate as the market pivots more toward digital.

Again, this totally ignores the new reality. Authors who don't like this admittedly crappy deal from the big publishers can go to alternatives. They can self-publish. Or they can sign up with one of a new crop of digitally savvy publishers who are much more like partners than gatekeepers. No surprise that Turow doesn't even seem to know these things exist. Hell, just last week we were talking about a successful self-published author who leveraged his massive success into an extremely favorable deal with Simon and Schuster to handle physical book distribution. And a week later Scott Turow argues that only historical top sellers like himself can negotiate better rates with the Big 6 Publishers in NY? Wake up, Scott, there's a whole new world out there that you seem to be ignoring.

Barry Eisler famously turned down a half million dollar contract with a publisher, because he realized that the economics of going direct were much better. Plenty of authors are recognizing that they have leverage today where they used to have none. It seems odd that Turow doesn't even acknowledge this reality at all, instead assuming that authors are still locked into the system where the only way they can become published is by taking a bad deal with a publisher.

And there are many e-books on which authors and publishers, big and small, earn nothing at all. Numerous pirate sites, supported by advertising or subscription fees, have grown up offshore, offering new and old e-books free.

If you're an author earning nothing at all, then you've got bigger problems than technology. It probably means you're mired in obscurity and no one knows who the hell you are. On top of that, it means you've done nothing at all to connect with your fans. Because we've seen authors who actively encourage the piracy of their books, but who also work to connect with their fans, and have seen their sales go way up, because those fans want to support the authors. Also, as most people know (why doesn't Turow seem aware of this?) ebook "piracy" is a fairly small part of the market, in part because the initial market was dominated by the Amazon Kindle, and publishers smartly jumped on board. Yes, there is ebook piracy, but it's not like the music and movie business where the official sources basically ceded the entire market to piracy for years.

The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages.

Okay, this is just dumb. First of all, no one is searching for "Scott Turow free e-books" so this shouldn't be much of a concern. I did a Google Trends search on "Scott Turow free e-books" vs. "Scott Turow books" and it shows no one searches for "Scott Turow free e-books", so he doesn't have much to worry about. Frankly, he should probably be a hell of a lot more concerned that not too many people seem to be searching for "Scott Turow books" either. But the larger point here is that, even if people were searching for "Scott Turow free e-books," how would that matter that much? By the very fact that they're doing that particular search, they've more or less self-identified as people not interested in paying money for Scott Turow books, so they're not the market anyway.

If I stood on a corner telling people who asked where they could buy stolen goods and collected a small fee for it, I’d be on my way to jail. And yet even while search engines sail under mottos like “Don’t be evil,” they do the same thing.

This is silly on multiple levels. First of all, by his own numbers, Google (who uses "Don't be evil") had the least number of "bad" sites in the results according to Turow. I did the same search and actually found only a couple sites that possibly were infringing. Instead, I did see links to the Authors Guild, to Amazon, to Turow's Wikipedia page... and to an old Techdirt article about Turow's cluelessness. That said, you could argue that if Google is "being evil" here it's actually by not giving its users what they're looking for -- which is clearly "free e-books." If people were actually doing this search (and we've already shown they're not) then perhaps it really just meant that Turow should be offering his own damn free ebooks, since that's what people are looking for. Why not offer an early work as a free download to get people interested in his books? Hell if he's really worried about it, offer up the first five chapters of a book. I've read a few of his books, and they can really grab you. Let people read the first few chapters for free and I'd bet lots of people would pay a reasonable price for the full book.

Instead of understanding any of this, Turow falsely attacks search engines on multiple levels. First, he suggests they're at fault because people are looking for free ebooks (even if they're not actually doing so for his own books). He assumes that because he did that search, others must. Second, when those search engines actually try to deliver what these theoretical people want (despite the fact that Turow himself has failed to do so) he complains about it. Finally, he falsely suggests that the search engines are making money doing so. They're not. Search engines make money if people click on ads. If someone sees a free ebook and clicks on an organic link, the search engine isn't making any money. I recognize that Turow hates technology, but that's no excuse for being blatantly ignorant about it when spewing misrepresentations in the NY Times.

From there, he attacks Google's book scanning project.

Google says this is a “fair use” of the works, an exception to copyright, because it shows only snippets of the books in response to each search. Of course, over the course of thousands of searches, Google is using the whole book and selling ads each time, while sharing none of the revenue with the author or publisher.

The second sentence has nothing to do with the first sentence. It is fair use because they're only showing snippets at a time, and most of those searches lead people to places where they can buy the books. I just did a search on Google Books for "Scott Turow" and the top links is to an Amazon page listing out all of Turow's books for sale. You'd think he'd appreciate such things. But, then, he'd have to not be a technologically illiterate Luddite.

All of this also ignores that Google's book scanning is really just about creating a rather useful card catalog for books, making them easier to find. Over and over again, people who have actually looked at the issue (i.e., not Scott Turow) have found that Google books increases sales of books. Considering he was just complaining about authors not getting any money, you'd think this would be a good thing.

He drones on about Google scanning books for a while, and then... attacks libraries for wanting to lend out ebooks, insisting that if they can do that, no one will ever buy a book again.

Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device, a library card and an Internet connection. In this new reality, the only incentive to buy, rather than borrow, an e-book is the fact that the lent copy vanishes after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries.

One might also say "in this new reality," libraries are helping people access the wealth of information contained in books, just as they've always done. Who knew Scott Turow was so anti-library? It's kind of silly that maximalists and luddites keep jumping back to this trope. The idea that if you can get something for free, no one will ever pay for it. That's never been true and will never be true. All of the works that people pay for and download to their Kindles are already available for free on unauthorized sites. But tons of people pay. All of the music that people pay for and download to their iPods is already available for free on unauthorized sites. But tons of people pay. People will pay all the time for things they can get for free. Just check out the bottled water industry.

Turow then jumps back to attacking his other technological nemesis, Amazon, based on random speculation about a patent the company received:

An even more nightmarish version of the same problem emerged last month with the news that Amazon had a patent to resell e-books. Such a scheme will likely be ruled illegal. But if it is not, sales of new e-books will nose-dive, because an e-book, unlike a paper book, suffers no wear with each reading. Why would anyone ever buy a new book again?

Well, there's that trope again. Also, this ignores the ReDigi ruling, which has already said this is illegal, though that will be appealed. But, again, lots of people will still buy new ebooks, because they like to support authors. Also, it's likely that smart authors will embrace new and interesting business models in which this kind of thing isn't a problem. They can use Kickstarter to "pre-sell" the books and get support from fans. They can offer special benefits for fans who buy new books (such as membership in a fan club with other fans of that author). They can provide early previews or discounts on future or past works to those who buy first run copies of their new works. The list goes on and on -- and those are just the ones I came up with in the 30 seconds I spent thinking about it. Give me a full day to work on it, and the list would be in the dozens. But Turow, bizarrely, assumes that no one could possibly come up with any other reason.

And, from there, we go off onto a totally wacky tangent about Russia.

Last October, I visited Moscow and met with a group of authors who described the sad fate of writing as a livelihood in Russia. There is only a handful of publishers left, while e-publishing is savaged by instantaneous piracy that goes almost completely unpoliced. As a result, in the country of Tolstoy and Chekhov, few Russians, let alone Westerners, can name a contemporary Russian author whose work regularly affects the national conversation.

Note that he names Tolstoy and Chekhov -- two authors who both died more than a century ago. Could Turow easily name for us a Russian author from the 1940s who regularly affected the national conversation? How about the 1960s? 1980s? 1990s? No? Perhaps the problem isn't ebooks and piracy.

Meanwhile, as it so happens, not too long ago, we wrote a report on the content markets in various countries, including Russia. Turow might find it helpful, since he seems to be at a loss for actual data and facts in so many of his public statements on these issues. He can get a copy of The Sky is Rising 2 if he'd like. We offer it for free (the horror!). In it, he'd discover that the Russian book business is on the upswing. In the past fifteen years, the number of books published has increased by an impressive 266%, from just 33,623 in 1995 to 122,915 in 2011. That rate of growth exceeded all of the other countries we studied in Europe. It is true that the Russian market saw a decline in book revenue between 2008 and 2011 as the worldwide recession had an impact, but it has also recently seen the absolutely massive growth in the sale of ebook readers. As we've seen elsewhere, growth in ebook readers almost always acts as a leading indicator for later growth in ebook sales, because most readers connect easily to various authorized ebook stores, and the convenience factor leads to sales. One of the issues in Russia has been that many of the established players have been exceptionally slow in offering up authorized copies in the Russian market. If there are no authorized copies to buy, it shouldn't be a huge surprise to find out that people seek out alternatives.

It should be noted that when famed author Paulo Coelho decided to pirate his own book in Russia, it was because his publisher refused to offer a Russian translation. And what Coelho discovered was that sales of his book jumped from around 1,000 books to over 100,000 books because of his own decision to seed an unauthorized Russian translation. At the very least, this suggests that "piracy" isn't the problem and that, if handled well, authors can absolutely get people to buy, even when free works are available.

Scott Turow is clearly a smart individual. He's a fantastic author, whose books I've enjoyed for years. But it boggles my mind that he's so anti-technology based on ridiculous and ignorant claims, and that despite being called out on his ignorant statements for years, he chooses not to learn, but instead doubles down on those same ignorant statements by saying even more. It's doubly confusing that the NY Times sullies its own good name by allowing such obviously false statements to be published under its masthead.

Finally, the 8,000 or so authors (a mere fraction of the number of actual authors out there) who make up the Authors Guild are not served well by having someone as technologically reactionary as Turow leading them. It seems they'd be much better served by having a visionary leader who looks at ways to embrace new opportunities and who has realized that they can help to better promote, to connect with fans and to monetize their works. Having someone just yell about general progress, and try to ignorantly shoo the "kids" off his lawn over and over again, does them no favors.

Filed Under: authors, copyright, ebooks, first sale, libraries, scanning, scott turow, search engines, technology
Companies: amazon, authors guild, google

Our Gift To The Author's Guild: An Ad For Brick & Mortar Book Stores

from the community-service dept

Not long ago, Tim Cushing wrote about Author's Guild president Scott Turow's curious assertion that brick-and-mortar book stores are the future of the industry. I didn't think that sounded very likely, but I like a good book store as much as the next person-over-20, so I thought I'd join forces with Tim to give Turow some help in his campaign. We put our heads together and produced this period-appropriate advertisement, for Turow and anyone else to use in advancing the cause of brick-and-mortar. Enjoy!

Embed This:
<a href="https://www.techdirt.com/articles/20120321/17385918193/our-gift-to-authors-guild-ad-brick-mortar-book-stores.shtml"><img src="https://i.imgur.com/655w8.png" title="Brick And Mortar Bookshops by Leigh Beadon for techdirt.com" width="560" /></a>

Filed Under: antitrust, authors, brick and mortar, ebooks, price fixing, scott turow, whimsy

Author's Guild Boss On E-Book Price Fixing Allegations: But... But... Brick-And-Mortar!

from the you-rarely-find-so-much-'wrong'-all-in-one-place dept

No sooner had the Department of Justice announced its plan to investigate Apple and five of the Big Six publishers for e-book price-fixing than a representative of those benefiting most from this (alleged) collusion boldly stepped into the fray. Scott Turow, bestselling author and president of the Author's Guild, has issued one of the most profoundly self-serving and wrongheaded statements ever to grace the pages of a legacy industry's website. There's a ton to unpack here, so let's get right to it.

Scott Turow's statement is presumably issued on behalf of the Author's Guild, although there's no indication that any author other than Scott Turow was consulted. (You may remember the Author's Guild as the cheery people whose fear of technology led them to a successful claim that e-books utilizing text-to-speech violated a never-heard-of-before "audio right", in essence stating that reading purchased e-books aloud is illegal.)

Turow's burns through a whole lot of words to arrive at three basic conclusions:

1. Apple is good.
2. Amazon is evil.
3. The future of books is brick-and-mortar.

Let's take a look:

Yesterday's report that the Justice Department may be near filing an antitrust lawsuit against five large trade book publishers and Apple is grim news for everyone who cherishes a rich literary culture.

Obviously, the emphasis is on "rich." Rarely do resellers and publishers collude to lower prices. There are many out there who believe a rich culture can be synonymous with low-priced books, music, and other media, but obviously our opinions don't matter because we haven't written and sold enough books. (No, seriously. Read the comment thread on Turow's post.) Thankfully Barry Eisler and Joe Konrath, who have worked in the business and sold plenty of books, also completely dismantle Turow's arguments, especially his abuse of the word "culture."

Shouldn't those who cherish a rich literary culture prefer books at reasonable prices which allow that rich literary culture to be read by more people? All I can get from Turow's statement is: "the public must prefer their books to be more expensive." In what world is it "grim news" that our "rich literary culture" should be getting cheaper?

We have no way of knowing whether publishers colluded in adopting the agency model for e-book pricing. We do know that collusion wasn't necessary: given the chance, any rational publisher would have leapt at Apple's offer and clung to it like a life raft. Amazon was using e-book discounting to destroy bookselling, making it uneconomic for physical bookstores to keep their doors open.

You might have no way of "knowing," but the conclusions drawn by the DOJ don't look too pretty. Secondly, if "collusion wasn't necessary," then why do we have the appearance of collusion? Did the publishers not have anything better to do with their downtime than push prices around, mainly in an upward direction? Point the third: I thought it was Amazon who used deep discounts on physical books to kill off physical bookstores like Borders, and Barnes and Noble, who in turn killed off independent bookstores, or so the narrative goes. Now all of a sudden it's re-killing off physical bookstores with digital goods?

Just before Amazon introduced the Kindle, it convinced major publishers to break old practices and release books in digital form at the same time they released them as hardcovers.

Because windowing is stupid. Especially in a digital world.

Then Amazon dropped its bombshell: as it announced the launch of the Kindle, publishers learned that Amazon would be selling countless frontlist e-books at a loss... Amazon's predatory pricing would shield it from e-book competitors that lacked Amazon's deep pockets.

Selling something as a loss-leader isn't new, it isn't "predatory", and it certainly isn't exclusive to Amazon. Retailers have been doing this for a long as retail has existed. It's no different than the local grocery store selling ultra-cheap cases of soda during the summer, in the hopes that you'll stock up on hamburgers, hot dogs, buns, chips, beer, etc. while you're there. Amazon selling e-books at a loss was a way to entice customers to purchase a fully-marked-up Kindle.

Critically, it also undermined the hardcover market that brick-and-mortar stores depend on. It was as if Netflix announced that it would stream new movies the same weekend they opened in theaters.

If your business is dependent on a product whose popularity has taken a nosedive over the past few years, perhaps it's time to rethink your product line rather than blame the market leader's foresight. And since when is it Amazon's job to prop up brick-and-mortar stores?

Amazon quickly captured the e-book market as well, bringing customers into its proprietary device-and-format walled garden (Sony, the prior e-book device leader, uses the open ePub format).

Oh, for the love of... Really? You hail Apple as the savior of the sinking USS Publishing Industry, and you somehow think you can still bash someone else's "walled garden" and "proprietary device-and-format?" Isn't it worth pointing out that one of the reasons Amazon has a closed, proprietary device-and-format is because the publishers demanded a locked up system for fear of "piracy"?

Two years after it introduced the Kindle, Amazon continued to take losses on a deep list of e-book titles, undercutting hardcover sales of the most popular frontlist titles at its brick and mortar competitors. Those losses paid huge dividends. By the end of 2009, Amazon held an estimated 90% of the rapidly growing e-book market.

Well, looks like you should have gotten in on the ground floor, rather than ruefully envying a market that you seemed to want no part of.

Enter Steve Jobs. Two years ago January, one month after B&N shipped its first Nook, Jobs introduced Apple's iPad, with its proven iTunes-and-apps agency model for digital content. Five of the largest publishers jumped on with Apple's model, even though it meant those publishers would make less money on every e-book they sold.

Enter Steve Jobs, creator of walled gardens and proprietary devices and formats. And look, the publishers jumped right in even though they were giving up a bigger chunk to the walled gardener. Wait. What are we arguing about? Oh, yeah. Amazon being more evil than price-fixing publishers. Got it.

Publishers had no real choice: it was seize the agency model or watch Amazon's discounting destroy their physical distribution chain. That's why we publicly backed Macmillan when Amazon tried to use its online print book dominance to enforce its preferred e-book sales terms, even though Apple's agency model also meant lower royalties for authors.

I'm sorry. You lost me, Turow. You want to discuss e-book pricing and yet we keep finding ourselves wandering the musty aisles of brick-and-mortar. And I'm sure your lower-tier guild members are thankful to you for ensuring that they receive less money in your preferred walled garden, while simultaneously sabotaging their future sales by using inflated e-book pricing to protect hardcover margins.

Our concern about bookstores isn't rooted in sentiment: bookstores are critical to modern bookselling. Marketing studies consistently show that readers are far more adventurous in their choice of books when in a bookstore than when shopping online. In bookstores, readers are open to trying new genres and new authors: it's by far the best way for new works to be discovered.

No. Your concern is rooted in unsustainable profit margins. And would it kill you to link to these "marketing studies" that "consistently" back up your rose-colored vision of bookstores as far as the eye can see?

Publishing shouldn't have to choose between bricks and clicks.

It rhymes! And it's a false dichotomy! Publishing doesn't have to choose between those options. It can still have both. What it can't have is a return to the days of pre-digital book sales and the lush markups of first-run hardcovers. If you're looking to increase sales, it helps if you don't price yourself out of the market, via "collusion" or "agency pricing" or just flat-out refusing to align your e-book prices with reality.

A robust book marketplace demands both bookstore showrooms to properly display new titles and online distribution for the convenience of customers.

Does it? If the marketplace you have now (you know, the one that seems light on bricks and/or mortar) isn't a result of "demand," than what is it? When you say "robust market", what you're really saying is "a market that favors major publishers". It has nothing to do with the actual robust market we have today, with millions of titles and hundreds of options for both customers and writers.

Apple thrives on this very model: a strong retail presence to display its high-touch products coupled with vigorous online distribution. While bookstores close, Apple has been busy opening more than 300 stores.

So... if Amazon just opened a few retail outlets to sell its Kindle and deeply-discounted e-books, everything would be cool? Is that it? The retail world needs more brick-and-mortar foisted upon it simply because The Prices Are Too Damn Low?

Like rock bands from the pre-Napster era, established authors can still draw a crowd, if not to a stadium, at least to a virtual shopping cart.

And this week's winner of the Godwin Achievement Award (Content Industries Edition) is Scott Turow! Between this and the gratuitious Netflix reference (the killer of brick-and-mortar movie rentals), Turow is only one dodgy metaphor away from sweeping the category!

For new authors, however, a difficult profession is poised to become much more difficult. The high royalties of direct publishing, for most, are more than offset by drastically smaller markets. And publishers won't risk capital where there's no reasonable prospect for reward. They will necessarily focus their capital on what works in an online environment: familiar works by familiar authors.

Yeahyeahyeah. This argument. "Now things will suck for the lower tier of creators because no one will know or care that they've made anything, least of all those in the business of curating and selling creative content. Woe is everybody, especially those that find themselves handcuffed to a disinterested publisher who won't promote their latest and won't allow them access to their own back catalog." This thing that you think only works in an "online environment," Scott? "Familar works by familiar authors?" That's the same thing that the major publishers have been doing for years. This isn't an unfortunate side effect of the digital era. Mainstream publishers push mainstream offerings.

The indies and the self-published are where the new, exciting things will happen. And they'll do it all without your precious walled-garden-of-choice, the one with the letter "i" in front of everything, crafted entirely out of brick, mortar and windows. They'll do it on their own. Or they'll find a few like-minded writers and start their own publishing house with strippers and blackjack! And they won't need your "protection" or "author's guild" or lousy pricing or ridiculous windows to do it. Hell, some of them might even find a way to rake in hundreds of thousands of dollars while never pricing anything above a "predatory" $2.99. Weird, I know. But these things do happen. And they happen without the "power" of the major publishing houses behind them.

Any final words, Scott?

Let's hope the reports are wrong, or that the Justice Department reconsiders. The irony bites hard: our government may be on the verge of killing real competition in order to save the appearance of competition.

This would be tragic for all of us who value books, and the culture they support.

I can't even parse that sentence. Are you implying that price fixing is "real competition?" Or are you saying that windows, e-books at hardcover prices and walled gardens are the "real competition" and any entity working outside those self-imposed confines is only offering the "appearance of competition?" Or does "real competition" only include those that are looking to see how high they can price their offerings? And anyone who fails to price accordingly should be investigated for "predatory pricing." Is that about the size of it?

Let me FTFY:

That would be tragic for THOSE OF US who OVERVALUE our LEGACY, CULTURE BE DAMNED.

Valuing something doesn't mean paying top dollar for it. Does the person who owns 30 hardback books purchased at full retail respect culture more than the person who has 30 lower-priced e-books on their reader? If you believe that, you've got to let it go. Trying to convince the rest of the world that the only way to "value" culture is to pay top-dollar isn't going dispel that aura of entitlement that seems to surround every legacy industry.

Everyone values books and supports culture in their own way. What you want, Scott, is control over all of it. You want to be able to set the prices, timetable and delivery system. Unfortunately, you no longer have that option. Whether or not the DOJ finds evidence of collusion is largely unimportant in the overall scheme of things. If it does, prices will fall to market levels faster and windowed releases will become rarities. Even if the DOJ clears Apple and the publishing houses of any wrongdoing, prices will fall and windowed releases will become rarities. It's already happening. The future belongs to other people and businesses who move faster, respond to change quicker and are free of the fears that have held legacy industries back. This "statement" of yours is nothing more than the bitter noise of someone waist deep in water, cursing the incoming tide.

Filed Under: antitrust, authors, brick and mortar, ebooks, price fixing, scott turow
Companies: amazon, apple, authors guild

Did Scott Turow Keep The Copyright On His NY Times Op-Ed About The Importance Of Copyright?

from the questions,-questions dept

We were among many different commentators who mocked the recent op-ed in the NY Times by Authors Guild boss (and best selling novelist) Scott Turow, in which he seemed to suggest that to incentivize the next Shakespeare, the world needs much stronger copyright laws. The day after that op-ed was published, Turow was at the Senate speaking out in favor of censorship in the form of the COICA law. This is somewhat startling, and if you're a member of the Authors Guild, you should be asking serious questions about an organization that supports censorship.

While many people pointed out the hilarious irony of Turow and his colleagues using Shakespeare as an example for stronger copyright laws -- since the Bard lived in an era without any copyright laws, and was famous for directly copying the works of many others -- some others noted a separate bit of irony. In taking to the pages of the NY Times to insist on the importance of copyright for authors, or warning that authors may not have incentives to write any more, some pointed out that the standard NY Times Op-Ed agreement involves handing over your copyright on the Op-Ed to the NY Times to do whatever it wants with it.

And, yet, this still seemed worth it to Mr. Turow. In other words, despite his explicit words talking up the importance of copyright as the key motivator for content creation, his implicit actions suggest he knows quite well that there are many, many other incentives to create, and many people -- including himself -- are willing to create even when they do not retain the copyright on their works. As the author of the above linked article, Wendy Kaminer, notes at the end of her piece:

When editors at the Times publish an op-ed stressing the cultural value of copyright protections, it's probably not your copyrights they have in mind.

Filed Under: copyright, scott turow

Would Shakespeare Have Survived Today's Copyright Laws?

from the seems-like-a-better-question dept

Last year, when author Scott Turow (whose books I actually liked very much) took over as head of the Authors Guild, we noted that his obsession with "piracy" was misplaced, and probably not in the best interests of the authors he represented. We also posted a compelling response to Turow. Rather than take the time to understand the arguments and the data on this subject, it appears that Turow and the Authors Guild are doubling down on the "but... but... piracy!" argument, along with a good heaping of "the government must do something!"

Turow, along with Authors Guild executive director Paul Aiken and Authors Guild board member (and apparent Shakespeare expert) James Shapiro, have an op-ed piece in the NY Times that a whole bunch of you have been sending in, in which they assert that Shakespeare might not have been able to survive the web era, because of all of this "piracy." The argument is quite a bit stretched, but see if you can follow me: because playwrights had physical scarcity, in that they could keep people out of the playhouses unless people paid to enter, it allowed playwrighting to flourish. They call this a "cultural paywall." Then there's some sort of bizarre leap about how copyright is really the same thing. It's not. And, then it leaps to something about how stricter copyright laws are, ipso facto, better. The evidence for this? Shhhh, don't bother the Authors Guild bosses with logic! And, of course, the inevitable punchline is the idea that Shakespeare wouldn't have survived in this online era with all this piracy and stuff.

Of course, it's difficult to think of a worse example than Shakespeare for this argument (and sort of bizarre that Shapiro would sign off on an op-ed that so thoroughly misrepresents Shakespeare). Of course, as most of you know, an awful lot of Shakespeare's works are copies (sometimes directly) of earlier works. Sometimes they're derivative, but other times, he copied wholesale from others. So the bigger question might not be if Shakespeare could survive all the file sharing going on today, but whether or not he'd be able to produce any of his classic works, since they'd all be tied up in lawsuits over copyright infringement.

Furthermore, the reason Shakespeare was able to make money by selling tickets was because seats in a theater are a real scarcity, and selling real -- not artificial -- scarcities is still a damn good business model today. Shakespeare could still make a killing on Broadway. Or he could go into the movie business and sell tickets to seats in theaters. There are plenty of real scarcities he could focus on. Jumping from real scarcities to artificial scarcities such as copyright, suggests that Turow and the others at the Authors Guild still don't even quite understand what they're arguing for.

Separately, it's disheartening to see Turow -- who really should be seeking out actual evidence -- dismiss anyone who has that evidence by writing them off as "a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress." First of all, it's not just "a handful," and these folks aren't just coming up with "counterintuitive theories," they're often looking at what the actual data says -- something Turow apparently refuses to do.

Paul Friedman, who isn't just a law professor, but also has a long history practicing law, has a nice response to Turow in which he cites the always entertaining Judge Alex Kozinski in warning folks of the dangers of overly fetishizing stronger intellectual property laws as something that must be good. What makes it even more amusing is that Kozinski uses Turow's most famous book to make his point.

That said, a growing percentage of the population is realizing that this obsession with "stronger copyrights must be good" makes less and less sense. And as the Authors Guild continues to have out-of-touch, fact-challenged people lead it, it's only going to serve to drive younger authors away from the Guild. Smart authors today recognize the maxim that obscurity is a much bigger threat than piracy, and many have come to figure out that piracy is nothing to fear if you have a smart business model.

If Turow and the Authors Guild really wanted to help authors, they'd focus on helping them understand new business models, rather than supporting ever more draconian laws that will do nothing to help and plenty to hurt.

Filed Under: copyright, internet, james shapiro, paul aiken, paywalls, scott turow, shakespeare
Companies: authors guild

An Open Letter To Scott Turow About Not Freaking Out About Book 'Piracy'

from the you're-doing-it-wrong dept

We recently noted that author Scott Turow had been elected as President of the Authors Guild, where his initial focus seemed to be all about the evils of file sharing. Thankfully, some are trying to talk some sense into Turow. Michael Scott points us to a fantastic open letter to Turow, from Brian O'Leary, about why his kneejerk reaction isn't helping, and that he should be focused on understanding unauthorized file sharing, and what impacts it has (both good and bad), before jumping to the conclusion that it's evil and must be stopped at all costs. Here's just an excerpt, though you should read the whole thing:

First, though: I am not a pirate.  I value intellectual property and believe its prudent defense can return value to its creators.  But I've also come to believe, in this increasingly digital landscape, that the greater threat to many authors is obscurity, not piracy.

....

That's why we started studying the impact of piracy on paid sales almost two years ago.  On an admittedly limited sample... we've found an apparent correlation between piracy and subsequent growth in paid sales.

Now, you recently told GalleyCat's Jason Boog that "...the larger problem for us is the pirating of books".  I ask, simply, "How do you know?"

There are no reliable studies of the impact of piracy in the book business.  Because our sample set is limited, I include our own work to date in that bucket.  The studies that are cited most often are based on sampling techniques that try to track the instance of piracy, then apply an assumed number for "substitution rates" (lost sales).

The Government Accounting Office recently "assessed the assessments" of digital piracy and found them all lacking.  That's not the final word, but it's an indication that conclusions drawn on the limited data available are premature, at least.

In talking with GalleyCat, you went on to say that "(piracy) has killed large parts of the music industry." But, the music industry is not dead, and there are studies that suggest that the more likely shift in buying patterns occurred when vinyl owners finished replacing treasured albums with CDs.

As replacement sales declined, purchase patterns also shifted from whole albums to individual songs.  This was a trend that the music industry actively resisted, in the end fostering the piracy it wanted to prevent.  The lesson here could be more readily distilled as: "Don't take actions (like delaying the release of e-books) that frustrate consumer demand."

There's much more in the full letter, and it's well worth the read. O'Leary suggests not that Turow ignores the issue, but that he takes a more open-minded, data- and evidence-driven approach to responding to this market issue. That is, don't immediately assume the best response is "stopping" unauthorized copies, but collect some data to figure out how to best respond to the market situation. Hopefully Turow will actually pay attention and maybe rethink his position.

Filed Under: books, ebooks, scott turow
Companies: authors guild