Joe Esposito

John Makinson, the global CEO of Penguin, was quoted in a Reuters article saying that the post-Christmas period in publishing coming up is “tougher to predict” than “any time that I can remember”. Asked what he sees in the immediate future, Makinson replied “dark clouds”.

Makinson’s concerns reflect one we have written about many times in this space: the rise of powerful ebook vendors who are tech behemoths essentially replacing the network of brick bookstores, many of which were free-standing independents. (This is true in the UK, where Makinson is based, as well as in the US, for which he is also responsible. It will also happen everywhere else.) He made a very cogent point when he said that publishing has been driven more by supply than demand. He was quoted as saying “consumer taste doesn’t actually change all that much but what does change is the availability of books in different channels.”

He’s completely correct. Up until 15 years ago (the dawn of Amazon), only books that were on store shelves had much chance at all to sell. The biggest and most successful publishers today are still the ones which ascended because of their power to put books on those shelves. It is not the publishers’ fault or doing that this is changing.

Longtime industry executive and consultant Joe Esposito wrote a post around the Borders bankruptcy that makes this general point: publishers are part of an ecosystem that is changing in ways they can’t control.

The growth in ebook sales is not an unbroken line pointing up. Industry stats suggest that sales may even have slowed a bit in September compared to August. But this is the time of year when we get the next step-increment change in the publishing reader-supply network. Starting in November, 2007, when Amazon put the Kindle on sale for the first time, the Christmas season has been when the huge leaps in device ebook reader distribution take place. That includes a huge ebook sales day on Christmas itself followed by a couple of months when ebook sales reach new peaks.

This is inevitably accompanied by bad news from the brick book trade. Last year’s first quarter included the bankruptcy filing of Borders. Stores fight hard to keep their doors open through the Christmas season but, with each passing year, if they’re not selling ebook reading devices, they find disappintment more often than salvation.

One bookstore owner I know has been doing a great job; the store held its own despite the overall slide in print. The bookseller told me that this year, through October, sales at the store were down 5%. Not bad. They were down 2% year-on-year last year. They were down 1% year-on-year in 2009. And they had a record year for sales in 2008.

There’s a pattern there. The percentage reduction is doubling each year. When I said, “so you’ll be down 10% next year and 20% the year after that, right?” Bookseller said, “probably.”

Almost no brick store can stand a sales loss of 20% and remain viable. Maybe one could make up the 20% by selling something else in addition to books. But maybe branching out into other lines of merchandise will cost more than it will generate.

Maybe they won’t be able to hold even that 5% reduction through Christmas. And maybe the 20% we see as two years away is even closer.

Anecdotal reports abound that stores that are near where there formerly was a Borders are seeing a lift in sales. One sales executive I know speculated that B&N would pick up half the Borders business. Since Borders sales were a high double-digit percentage of B&N’s sales, that should provide quite a lift. But because B&N’s store sales now include Nook devices, we aren’t able to analyze very readily from their announced results what the trend of their actual book sales in the stores (or online) is. According to Michael Cader’s report of their just-announced results, B&N tells us that “physical book sales declined”.

As the digital sales of straight text books — which are estimated by some to be 75% of bookstore sales — routinely climb past 30% of the total units, there’s just less and less print business to go around. Ebook sales seem to have doubled again in 2011 from what they were in 2010. There are high expectations this Christmas for ebook reader sales, newly fueled by color tablet-like devices from Kindle, Nook, and Kobo (all on sale at consumer electronics outlets as well as at bookstores and online). That suggests (to me) that 40% or 50% ebook sales shares might be common by early 2012.

Borders was somewhere around 10% of the print book business when they disappeared. More than 10% of the business will have shifted away from brick stores to ebooks and online sales in the year following their bankruptcy announcement.

So the lift from picking up Borders business is unlikely to replace what brick stores are losing to more customers switching to ebooks and online buying of print. And that squares with what B&N just told us about their most recent reporting.

We are seeing sales staff reorganizations all over town and in the UK as well. Fewer stores and less volume through them mandate smaller field sales organizations. One former high-ranking sales executive I know who is now a thriving consultant was telling me yesterday that finding an executive sales position in publishing today is a nearly impossible task.

If the ranks of sales reps and sales management are being thinned, how about the elaborate systems we have built to support them?

How much longer will we be publishing in “seasons”, which was a paradigm really built to serve a far-flung rep network that needed to gather to learn about new titles? It now seems like an anachronism, particularly when the biggest accounts buy from monthly lists. How much longer can that last? Sales conferences have been scaled back dramatically from what they were a decade or two ago. How long before they’re virtually defunct?

At least printing paper catalogs, which is a largely wasted expense these days has been retired by several companies. A bookseller I asked said Harper dispensed with paper catalogs already and she expects Random House and Macmillan to do so in 2012. I’ll bet the comment section of this post will attract others to say they have done so or are about to do so as well.

The old publishing sales-and-distribution ecosystem is disappearing but the new one is not built out yet. Publishers are, to greater and lesser degrees, converting to digital workflows, developing their metadata chops, collecting names, building vertical communities by genre and topic, collecting and analyzing ebook pricing data, building new models to work with authors and even self-publishers, and they’re still signing the books they want with royalty rates for ebooks of 25% of revenue.

These efforts have been financed by the margins being earned on sales of print and sales of digital that publishers were able to acquire because of their power to distribute print. In Esposito’s words, this cash provides “venture capital for the new all-digital businesses that all publishers are contemplating”. These annual step-increments of digital growth and brick store decline have so far been tolerable to most of the big players we’ve known for decades. (Borders was an exception, but we know Borders was not done in by digital change alone.)

The pace of the digital switchover is quickening. That will reduce the cash available to invest in building a new ecosystem at the same time the urgency of coming up with new answers is rising. It’s enough to make a sober executive, even at a very large, successful, smart, and innovative company, admit to serious concern for the industry’s future.

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An ebook of the first two years of The Shatzkin Files is now available and will be linked for the forseeable future from our left nav bar. This post is the introduction to the ebook, which explains how it came about.

My friend, Joe Esposito, first told me about blogs in the early part of the first decade of the 21st century before just about anybody else I knew had heard of them. I am not sure why it took me many years to start one of my own.

I’ve been training for this gig for a lifetime. My Dad insisted that I learn to touch-type when I started fooling around with a typewriter at the age of 8. (As he said, “either we teach him the right way, or he’ll teach himself the wrong way.”) Three months of twice-weekly lessons got me up to 42 words a minute on a manual typewriter, but trained my fingers to do the right thing so that today on a computer I can do about 3 times that speed. By the time I was 11, I was filing copy on a weekly basis on the Little League games for our local newspaper. I got paid too: 15 cents a column inch. The newspaper job actually continued for the next several years as I moved on to covering high school sports.

In my junior year of college, I started writing a weekly column I called The View from Underneath for the UCLA Daily Bruin. I don’t know how good it was or how many people read it, but it got me a certain amount of notoriety. Because of the column, I networked my way into the Bobby Kennedy presidential campaign and, after his death, a slot as an assistant to Pierre Salinger on the 1968 McGovern effort at the National Democratic Convention. (That was the one in Chicago that featured police against protestors in the streets and which villainized Chicago’s first Mayor Richard Daley to that generation of young liberal activist Americans.)

Between the end of The View from Underneath and the commencement of The Shatzkin Files blog, 40 years passed. I did plenty of writing in the meantime: some books (mostly about baseball), a bunch of articles about publishing in trade publications in many countries, and, starting in the mid-1990s, speeches on publishing and digital change delivered at industry forums and then preserved on my website. The posted speeches were a great boon to my professional career, making it possible to build credibility (and “brand”) among people who never attended these live events.

Others I know had blogged daily, or almost daily. Richard Charkin, now Managing Director of Bloomsbury, wrote every day when he was head of Macmillan. My friend Gwyn Headley, Managing Director of the stock agency fotoLibra, told me that when he started blogging, he did so with a list of 365 topics in hand so he’d always have something to choose from on a day he wasn’t feeling creative. Richard gave up his blog when he changed jobs and I don’t think Gwyn kept up the daily habit very long either.

In my case, I blogged six times the first two or three weeks, then five times the next few weeks, and it diminished from there to what is now a one or twice weekly post. It seems like it usually takes me about 1500 words to get in and out, although some posts run a bit longer. I find that I need to review what I’ve written at least three times a few hours apart after I think I’m done to make sure I’m happy with it. Occasionally, a post gets to that point and gets scrapped.

As I think must be normal with these things, the audience for the blog just grew. As of this writing, The Shatzkin Files has about 1700 subscribers who get the blog delivered as an email to their inbox. A number generally ranging from half that to twice that (and occasionally, quite a bit more) reads the posts on the site. The comment strings keep getting longer.

Fortunately, one of my regular readers is Cameron Drew, who, like me, came into the book business through the most honorable possible path: working for his father. I knew David Drew, one of the great book sales reps of my generation, long before I ever met Cameron. Since Cameron has gone to work for Kobo, the global ebook retailer spawned by Canadian retailer Indigo, he and I have seen each other at conferences and trade shows. He told me from the very beginning that he was a loyal Shatzkin Files reader.

Early in 2011, Cameron told me he often found it useful to refer back to previous posts of The Shatzkin Files but that doing so through the website was clunky and difficult. “Your stuff should be collected into an ebook,” he said. “If we did it at Kobo, would you give us a 30-day exclusive?”

I was extremely flattered. “I’ll happily give you 60 days,” I said.

And thus we have this ebook.

If you live in the world of trade book publishing — the publishing that has reached its audience primarily through bookstores for about 100 years — you know we are all in a different world than we were in when I began The Shatzkin Files blog in February, 2009. One of the early posts speculated that it might be  harder for Amazon to hold onto their stranglehold on ebook sales than their hegemony on online print sales. At the time, Kindle was extending its dominance of the ebook marketplace by enabling the Kindle owners to access their ebook content through the iPhone and other devices. And Amazon’s pricing policy of selling below their cost was beginning to scare publishers.

Then, around the first anniversary of the blog, Apple’s iPad and the iBookstore arrived on the scene, offering publishers the opportunity to implement the so-called “agency model,” under which the discounting of ebooks is effectively stopped. I attribute to that tactic, along with the introduction of the iPad, the Nook, Kobo and Google Editions, the stabilization of ebook distribution in a multi-retailer market with evolving global competition. So, two years later, it looks like that early post was right.

We’re going to see a lot more change in trade publishing in the years to come. I expect the next two years to present even greater challenges and more drastic change than the last two years have. Since The Shatzkin Files began, the extremely challenging times we’ve expected for bookstores have become very evident. Over the next two years, the extremely challenging times it has seemed to me must follow for general trade publishers will probably become equally evident.

One thing worth using this introduction to say is that I take no pleasure in the big publishers’ pain. It is a matter of professional pride to me to not allow my preferences to color my predictions. I love bookstores and libraries and consider the top management of the big trade houses to be intelligent, ethical, and creative people. I consider many of them friends. The fact that the transition from reading and distributing print to largely reading on screens and distributing print online makes much of their skill sets and business models obsolete is not their fault. Nor is the fact that preserving their old business, and the cash flow it still yields, sometimes interferes with inventing the new one.

There are serious initiatives in the big houses to acknowledge the importance of verticalization (mostly in genres), to create direct contact with audiences, and to employ scale in search engine optimization and in locating customer clusters online that it is hoped will enable a new version of the horizontal, big book publisher model to leap the chasm of change. At the same time, the big publishers are figuring out how to step back from the enormous overheads associated with doing business the way they have for the past 100 years. How much change is sufficient, and how fast is fast enough, are questions we’ll only know the answers to with the passage of time.

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The following post is a collaboration with my friend Joe Esposito, the CEO of GiantChair. The post was Joe’s idea, but I contributed enough to its completion to justify a claim of shared authorship. Joe has kindly agreed to allow this received wisdom to be delivered to the world through The Shatzkin Files.

As thunder roared above the mountaintop, God sat on a throne of light. She stroked her braid and contemplated her new shoes.

“Who goes there?” God shouted.

“It is but a poor publisher,” the tiny figure said.  “I have come for guidance in the treacherous ways of publishing in the digital age.  I have oodles of Googles, but no money in my pocket.  What dost thou command?”

“A poor publisher, eh?” God snorted, shaking the trees around them.  “That’s what the angels call a redundancy.”

“Oh, please, Lord.  Help me navigate the shoals of the noble Barnes and the forest where dwell the Amazons.  Take me beyond my borders to a realm of growth and economic success.  My very soul depends on my making buckets of money.”

God looked at the puny publisher and took pity on him.

“Do as I say,” God thundered, “and you will save your heavenly soul and a place for yourself in the value chain.”  She thus proceeded to lay down these precepts–but as God is timeless, they came in no particular order.

1. Thou shalt regard thy former competitor as thy future collaborator.

2. Thou shalt let no intermediary stop you from knowing your customer, nor stop your customer from knowing you.

3. Thou shalt publish no book intended for an audience outside your spheres of direct influence.

4. Thou shalt read Dr. Faustus in all its editions–Amazon, Barnes & Noble, Apple, and Google–and know that Mephistopheles always appears first as a helpmate.

5. Thou shalt not forsake thine own brand.

6. Thou shalt create new brands and master the power and importance of brands.

7. Thou shalt respect and value thy communities with the same devotion thou hath always given to copyrights.

8. Thou shalt recognize that metadata is everywhere and associating it meaningfully is thy job.

9. Thou shalt not fail to test a new marketing channel in order to protect an old one.

10. Thou shalt deliver thy content in every imaginable form that thy customers request or might require.

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We had a very successful debut annual conference for Digital Book World last January, even though we didn’t conceive the idea until June, put together a group of helpers (which we now call our Conference Council) until July, or draft the initial program until August. This year we’re way ahead of that schedule. We’ve put together a fabulous Council to advise us this year and we’re having a meeting of many of them next week to discuss the agenda and to start getting suggestions for speakers.

The Council gives us wide exposure and connections to the trade publishing industry. That way we make sure we don’t miss any ideas and we don’t miss knowing about any talented people whom our audience would want to hear.

We have several publishing company presidents and CEOs (Sara Domville of F+W, Marcus Leaver of Sterling, Maureen McMahon of Kaplan, Brian Napack of Macmillan, Dominique Raccah of Sourcebooks) and some presidents and CEOs from other companies and support organizations in the industry (Kristen McLean of the Association of Booksellers for Children, Tracey Armstrong of Copyright Clearance Center, Peter Clifton of Filedby, David Cully of Baker & Taylor, Joe Esposito of GiantChair, John Ingram of Ingram Content Companies, Scott Lubeck of The Book Industry Study Group, and Steve Potash of Overdrive Systems.)

We have other senior level executives, many with specific digital responsibilities (Peter Balis of Wiley, Ken Brooks of Cengage, Mark Gompertz of Simon & Schuster, Madeline McIntosh of Random House, Thomas Minkus of the Frankfurt Book Fair, Larry Norton of Borders, Kate Rados of F+W Media, Charlie Redmayne of HarperCollins, Adam Salomone of Harvard Common Press, John Schline of Penguin, Evan Schnittman of Oxford University Press, Michael Tamblyn of Kobo, Maja Thomas of Hachette, and Tom Turvey of Google.)

We have agents (Sloan Harris of ICM, Simon Lipskar of Writer’s House, and Scott Waxman of the Waxman Agency) and industry consultants and commentators (Michael Cairns of Persona Non Data, Ted Hill of THA Consulting, and Lorraine Shanley of Market Partners International.) And because he is our media partner, we have help from Michael Cader of Publishers Marketplace as well. And we also get great input from others on the F+W team: David Nussbaum, David Blansfield, Cory Smith, Guy Gonzalez, and Matt Mullin.

So we have all the Big Six represented, as well as small publishers, industry-wide associations and service providers, wholesalers, digital distribution partners, retailers, and agents. All of these people have real input into the topic list and speakers. Many of them are joining us for a meeting next week to review our ideas for the program, which we previewed on this blog about a month ago.

Because Digital Book World tries to be at the cutting edge of trade publishing and digital change, we often face one or both of two challenges. Sometimes we believe something should be happening, or be about to happen, but we may not know where or whether the publishers leading the charge will talk about it. Several topics come to mind that fit that description: vertical efforts inside general trade houses; what houses are doing to adjust to reduced expectations for print sales in bookstores; how houses are gearing up or changing their sales efforts to compete in and serve a growing list of digital intermediaries; how enhanced ebook and ebook first creation change the traditional order of things in product development.

The other challenge we have to work around is when people can say things privately but not publicly. One topic that is very tough to talk about is ebook royalties, which is a major point of contention between publishers and leading agents at the moment. The big houses are pretty adamantly trying to hold the line (publicly) at a royalty of 25% of net receipts. But upstart publishers like Jane Friedman’s Open Road appear to be willing to pay 50%; publishing through Smashwords yields 85% (but sells the books without DRM, which would frequently scare the copyright owners of valuable properties); and self-publishing through a distributor would deliver a yield somewhere in between. (Remember: self-publishing ebooks carries no inventory risk.) In that environment, some agents are able to wring some concessions from some publishers. But the agent can’t talk about that without jeopardizing her ability to get concessions for her clients and no publisher will volunteer to reveal the isolated concession and start turning that into a policy.

Some things are just hard to discuss. Do booksellers, or even the publishers and wholesalers who supply them, want to talk about the possibility of their impending demise? But how can one plan for the future and ignore that elephant in the room? If a publisher suddenly sees the necessity of developing direct selling relationships with end users, after years of telling booksellers he was against it, does that publisher want to talk about those efforts in public?

When competitors participate in industry education initiatives, they must draw lines around what they will reveal and what they won’t. One ebook-responsible executive we know at a major house is persistently reluctant to reveal what he’s doing or what he’s thinking. But he has a boss, one who is proud of what he does and what their house does, who pushes him forward as a speaker.

Frankly, I think these challenges are greater for us than they are for other conferences on digital change that focus more on technology than they do on business practices. Very few publishers are masters of tech; usually they’re working with outside suppliers who are happy to share best practices. But business practices are different; they’re more sensitive. Sometimes the reluctance to share them is sound. Sometimes constraints are even legally required. Since our job is to focus on business practices, we’re glad to have relationships with very knowledgable players who will candidly engage with us on these challenges so we can figure out the best way to protect true proprietary knowledge but still disseminate valuable information.

We’re really proud of the illustrious group we have gotten to advise our efforts, and we get great value from them even though their first responsibility is to the company they work for. We feel confident that this group helps us cast a net that is wide and broad enough to assure us that any major development in the trade book world will hit our radar screen and that we’ll know if there are informed people willing to talk about it.

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Several very recent conversations have come together for me.

1. Joe Esposito, the new CEO of GiantChair, says metadata is the key to publishing in the future; he describes metadata as the modern equivalent of Allen Lane’s discovery that cheaper paperback books sold in mass merchant locations could boost book sales. Of course, Giant Chair is very much involved in metadata as a way to help publishers find marketers and customers.

2. F+W and Ingram have come together to make a deal enabling niche web sites to sell the full range of applicable ebooks to their community. Of course, finding “applicable” ebooks will be dependent on the quality of the metadata that publishers provide to Ingram. I really liked seeing this happen, because it is the first significant example of something I’ve predicted and advocated: that publishers who want to go after communities should sell the books of their competitors and that all web sites should deliver curated ebook stores of the titles of interest to their site visitors.

3. A list discusses whether the publisher has a role in the future, what it is, and how the spoils in a new world should be divided between the publisher and the author. One observer points to the nuances in royalty rates: the royalty implications of the wholesale model versus the agency model, whether or not the commission paid to the agent is or isn’t deducted from “receipts” for purposes of calculating royalties, and what the competitive implications are for publishers going after authors. This gives rise to the next question: are publishers differentiated on royalty rates alone, as though each publisher would sell the same number of books? And that gives rise to the next point: understanding, quality, and richness of metadata can determine how successfully publishers can sell a book.

4. One of the biggest issues for publishers in managing and providing quality metadata is associating all the works and editions of them for each author with that author, and while that challenge intensifies when they look at the author’s books published by others, the fact is that most current royalty systems have plenty of problems keeping track of the multiple titles and editions of any author that they themselves have published.

5. Filedby, the directory of author web sites I co-founded with Peter Clifton, has a new metadata clean-up service called Author Data Advantage that makes it simple and economical for publishers to organize their works and edition data properly tied to each author and to keep it that way as new works and editions are created. Filedby’s service, which any publisher can avail themselves of, can tie all the editions of a work together, relate them accurately to each author or other contributor, and provide each of the authors with a unique ID. That allows the publisher to tie the marketing, reviews, conversation, community, rights, and digital promotions back to the right work and the right author.

Metadata work for publishers is, really, a bottomless pit, since it is, in effect, “information about the book” and there is no limit to that. There will be no end to the categories of quality, interest, and association each book can have attached to it. How many books published in years past, for example, should now be associated with “Gulf oil spill?” If you published one discussing whether using chemical dispersants is a good idea or not, I think you’d probably want somebody googling “Gulf oil spill” to find it, wouldn’t you?

The list conversation referred to above was really about the difference in royalty rates offered by publishers and how the authors cents-per-copy is affected by the agency versus wholesale model. My own hunch is that this won’t matter much in the short run because dollars offered in the advance will still be far more important to the authors’ and agents’ decision than selling policies that can change between signing and publication. In the longer run, differences in the ways publishers handle metadata might be relatively more important because it will affect how many copies they sell.

In an earlier post, I made the point that we’re approaching the day that half the sales of new books will be made online. All the sales of books online are highly dependent on metadata. Very robust metadata can enable a book and author to get discovered when more minimal, even though correct, metadata would omit it from the conversation. Incorrect metadata can prevent a book from being found even if the customer knows pretty much what they’re looking for.

Metadata, what it is and how it affects discovery and sales, is a subject that every book professional will find increasingly important to understand and master in the days to come.

Last year I wrote a post suggesting that one way publishers might deal with piracy is by posting sabotaged files on offending sites, rather than just playing whack-a-mole. This triggered more than a few hostile reactions. I found it ironic to see yesterday that the new Stephanie Meyer ebook could be the occasion for software mischief-makers to come into conflict with copyright mischief-makers, using infected PDFs of a book many people want as a way to gain entree into people’s computers with malware. So now the hackers who want to attack your operating system are the allies of the publishers who want to discourage people from downloading ebooks from anything but clearly-authorized sites.

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The New York Times published two apparently unrelated articles over the weekend which address questions raised by the rise of digital content creation and distribution. One was an op-ed piece in the Saturday paper by author Mark Aronson about the challenge of collecting the permissions necessary to include copyrighted material in enhanced ebooks. On Sunday, the Magazine published a piece by Randy Cohen, “The Ethicist”, about the rights and wrongs of downloading a pirated book file in a situation where the file’s acquirer had already bought and paid for a copy of the book presented in the file.

These are both thoughtful pieces to which I hope to add some useful observations.

Aronson’s piece elaborates on the challenge facing authors and publishers who want to include useful material in enhanced ebooks, particularly for non-fiction. He is an experienced non-fiction writer who knows about the challenge of collecting permissions for material in his books. He’s right when he says that the problem really escalates for enhanced ebooks. Aronson’s focus is on material from the “archives of the world’s art (now managed by gimlet-eyed venture capitalists” and other material controlled by museums and academic libraries.

We have lived for a long time with a very cumbersome permissions world. To use a picture of a great painting or a museum’s invention or artifact requires painstaking individual requests for permission and negotiations (usually) by the author, who is charged by contract with delivering this material with permissions already secured to the publisher. The usage matrix has been pretty well defined for print: what kind of book; what size printing; what langagues or territories affected; what number of copies to be printed, but each licensor converts that data into its own pricing policy.

The amounts of money charged are collectively of great value to the licensors. Viewed on an individual project basis, though, they are sometimes painfully high for the author or publisher but small enough for the licensor that lengthy negotiation that could lead to concessions based on mutual self-interest occurs relatively seldom.

Along come ebooks and enhanced ebooks (and, for that matter, web presentations of material in books which might be for promotional purposes.) In many cases, publishers have simply foregone the illustrated material for the digital presentation because securing the rights is either too painful or too expensive a process. The process that publishing has lived with in the print world needs to be fixed, says Aronson, and then we can move on to do something about how this can work better for digital content delivery as well.

So, far, I agree with him. It is the specifics of his remedy with which I’d suggest some modification.

Aronson’s suggeston for print is that the Author’s Guild and Association of American Publishers combined (coincidentally or not, the two entities who are the plaintiffs and negotiators of the Google Books settlement currently pending) establish a “grid of standard rates” and then “compel rights holders to confirm to industry norms.”

Two problems with that. One is that the AG and AAP are really not in the business of securing licenses for publishers. The entity that is in that business is Copyright Clearance Center, the CCC (and, full disclosure: our client.) What Aronson is suggesting is actually a hybrid of two kinds of licensing that CCC enables: “collective” licensing, such as is done for photocopying where companies agree to allow their material to be copied, CCC collects annual licensing fees from corporations and other entities, and shares them based on surveys of actual usage; and individual licenses granted by a copyright-owner for use on the c/r owner’s terms. In the latter case, CCC facilitates many of the transactions but doesn’t tell the rightsholder what to charge (or conversely, tell the licensor what to pay.)

CCC is positioned better than any other entity to attack this problem, but it’s much harder to implement such a simple solution for printed books. The differences in value of different copyrighted material can be vast and the rightsholders know that. The owners of the most valuable material are going to be reluctant to license it for an “average” fee and there is nothing the AG or AAP or CCC could do to compel or persuade them to act against their own interests.

Rightsholders know that when a book is created and printed, many tens, perhaps hundreds, of thousands of dollars of investment are involved. They want their fair share which, from their perspective, would be “what the traffic would bear”, not an arbitrary, standard amount.

But the enhanced ebook problem that triggered Aronson’s piece, and for which he offers the additional “solution” of payments based on actual sales (i.e. downloads), might actually be amenable to a collective-based licensing solution (but still a hybrid.)

In the case of enhanced ebooks, the marketplace is going to be much more challenging. There will be many more rights requests because relief from the minimum investments in printing will put far more creative works into play. And at the same time, the pool of potential licensors is growing by leaps and bounds as we move toward a digital camera in the hands of every cell phone user. Because the barriers to entry for ebooks, enhanced or otherwise, are so much lower than for press-run books, these will reach a point (if they haven’t already) where the cost of the transaction — reaching the right person, connecting with them, describing the potential licensed use and negotiating the price — is going to be more than it is worth, regardless of the licensing fee. And these costs will effectively be driving down the licensing fee.

Imagine if each bar had to negotiate with each songwriter to put their tune in the jukebox. That’s a considerably less complicated problem than the one we’ll have with images and text licenses for ebooks, and still it can only be solved with a collective licensing solution from BMI or ASCAP, which deliver a service close to what CCC does for photocopying.

So we see applying a hybrid similar to what Aronson describes, but with some nuanced differences. The future we’d imagine is for CCC to start gathering rights for a reservoir of content that can be licensed on a standardized basis for ebooks and web use, with the understanding that the fee for each individual use is going to be low enough that it wouldn’t have been worth the transaction cost on both sides to have negotiated it. The most valuable material would remain outside that reservoir (because the rightsholders wouldn’t agree to put it in) and would, therefore, be bypassed by most licensors when they put their products together. So if you hold your stuff out you can sell it for more each time, but you’re likely to sell it less often.

Aronson’s explicit concern is that only the “most popular subjects” will be covered in enhanced ebooks under the present regime. The solution suggested here would probably appeal to the owners of material on the least popular subjects; those that are rarely licensed now and where anything that would encourage more widespread use would be attractive.

It is also important to remember that digital presentations have a capability print doesn’t: they can deliver the reader directly to the digital doorstep of the licensor with a link. If you run an obscure museum with an obscure collection of art and artifacts, a linked licensed image could deliver you traffic and customers very effectively. A program such as what we’re envisioning here could make the link a standard component of the licensing arrangement.

The bottom line on this story is that I agree with Aronson that we need a new model for permissions in the digital world or important creativity and commerce will be choked. But we have to start with the pool of material that is of the least individual value in order to start at all. As that pool grows and is used increasingly, the incentive will grow for rightsholders to place more and more of their material in it.

As for the Ethicist…

The question arose because somebody who bought the 1,074-page new Stephen King novel didn’t want to carry it around on a trip and found the publisher had not yet issued an ebook. This person, who says they “generally disapprove of illegal downloads” felt they were okay in this case because they had previously bought the book and the publisher wasn’t facilitating their need for a digital copy.

The Ethicist agreed.

This position outraged my friend, the literary agent Richard Curtis who, on his eReads blog, takes strong exception. Quoting Richard’s two most emphatic paragraphs:

These dirtbags now have a champion in Randy Cohen. Go on, help yourself. The author and publisher have been paid once and don’t need to be paid for another edition of the same book.  While you’re at it, rip off the book club and the mass market paperback editions.

Cohen’s exculpation of this morally challenged idiot buying an e-book from a pirate site is the equivalent of condoning the purchase of black market goods from a fence. Does anybody know what Talmudic tractate he consulted to justify stealing – to describe it as “illegal” but not “immoral?” If so, we invite you to submit chapter and verse.

Personally, I find the characterization “stealing” overblown (obvious to me, but I might well be provoked to explain more by commenters to this post) and the distinction between “ethical” and “legal” perfectly comprehensible.

The Ethicist’s piece already acknowledged Richard’s point of view. Cohen interviewed and quoted his own friend, Jamie Raab of Grand Central Publishing (Hachette) who said:

“Anyone who downloads a pirated e-book has, in effect, stolen the intellectual property of an author and publisher. To condone this is to condone theft.”

I see this as a digital transition problem (it won’t be long before an ebook edition is available for every book for which a print book is available) and, if the author is suffering in this case (and I’m not sure there’s any demonstration here that the author is), it is partly the fault of the publisher whose policies haven’t matured sufficiently to deliver a cash customer what they want to buy.

Would Raab or Curtis have taken a different position if the King book purchaser in question had scanned his or her own copy to make a digital file to carry in their ereader? Or would they consider that a legitimate “first sale” right? (And what would a court say?) It is hard for me to understand how the King reader who, after all, paid more for the print copy than they would have for an ebook if the publisher had made an ebook available should be characterized as a “thief” (Raab) or a “dirtbag” (Curtis.)

Joe Esposito and I wrote a piece almost four years ago strongly suggesting that publishers should declare a clear policy about the digital rights conveyed with the purchase of a print book. We wrote the piece in the earliest period of contention about what Google was doing scanning books, so our point was made from a library-centric perspective. But we anticipated problems like this one and we concluded our piece this way:

Developed, articulated policies about digital licensing are a much better way to protect publishers’ interests than lawsuits against marketing channels. The next decade or two will see the relationship between digital and printed content dramatically recast. Publishers can embrace that relationship, or watch it—and themselves—fall apart.

I’d say that the publisher and author would be standing on much firmer ground to complain if there were a stated policy about the digital rights that are conferred with a print purchase. The mere act of creating this policy would force a publisher to think through situations exactly like this one, which I really don’t think many have.

Where we stand now is that laws and policies written before any of these issues were contemplated (or possible) are transparently inadequate and insensitive to current reality. As a guy who accepts the necessity of DRM specifically to discourage casual sharing that could seriously undermine the commercial basis of publishing, I’m on board with the idea that we in the industry want to steer people away from piracy. But I don’t think we’re going to win many friends, or many arguments, putting no policy in place to cover these situations and then villifying paying customers who try to address their own legitimate needs.

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Michael Cairns blogged yesterday about a deal SharedBook has just made with ourenergypolicy.org to use an annotation technology SharedBook has. SharedBook is a client and I spent some time this morning getting updated by CEO Caroline Vanderlip about this new technology.

This is wikipedia-type capability with a spin that publishers and authors will really like. With wikipedia, the edits and annotations from “the crowd” (or from whomever is allowed to mess with the wiki) actually change and revise the content itself. With SharedBook’s annotation technology, the original published content remains locked, and the changes are appended as footnotes! The footnotes can be associated to a chunk, a paragraph, a word, a symbol, a diagram, a picture. Whatever you like. And using the capability to manipulate content into a one-off book that SharedBook is known for, a reader can order up a printed book with whichever of the footnotes the reader wants in their own copy of the book. They’re then numbered consecutively and gathered at the back of the book.

The possibilities here are endless. A professor could pepper a textbook with his or her own annotations. Or the class could use the technology to add their own annotations. A professional organization can (as ourenergypolicy.org will) restrict annotations to approved experts; then the “reader” can select which of those to include in their own unique version of the book. A mystery writer or sci fi writer could use this technology to capture thoughts from other writers or fans. 

The “platform book” concept described by Joe Esposito might be handled differently using this technology, but perhaps that would be for the better. Certainly any author who believes in his or her own rendition, but also believes in the value of crowd-sourced input, would be more comfortable with SharedBook’s annotation technology than with a wiki.

Caroline told me today that it was this annotation technology that first attracted her to the company five years ago. At the time, she found it impossible to explain the benefits to any publisher. Thanks to wikipedia, that’s no longer a problem.

It is easy to imagine this annotation technology becoming an important tool in moving us toward a much more dynamic concept of what a book can be.

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Some of the recent conversation about ebook fair use sparked by the Kindle-and-audio incident made me recall that Joe Esposito and I had written about this problem in Publishers Weekly more than two years ago.

We had a different catalyst for our thinking; at the time, we were wondering what the rules should be for libraries (or anybody else) to make, possess, or use a digital copy of a work they had acquired in print. The subject of concern then was the Google Library program: the partnership between some major research institutions and Google that delivered content (some of it in copyright) to Google to scan in return for digital copies for the libraries to keep. 

At the time, Joe and I observed that Google and the libraries had no direction from the copyright owners about what digital rights came conveyed when they bought a physical copy because no publisher was making any clear statement of what they believed they sold in the transaction.

Since then, the ACAP project actually tried to develop a standard for communicating rights like this electronically, mostly on behalf of the newspaper industry, not book publishers. The standard for communication is, of course, a separate problem from determining what rights can legitimately or sensibly be asserted. And the newspaper problem is perhaps more complex. With newspapers, much of the value being purveyed is closely linked to timeliness. Forty years ago, The Rolling Stones sang “who wants yesterday’s papers? Nobody in the world”. They wouldn’t have said that about “yesterday’s books.”

What concerned publishers was the possibility that a Google scan could end up on a library server and be shared with a whole campus, network of campuses, a state, or even the entire public. Even imagination-challenged publishers could envision a day when one sold copy could satisfy a large network of demand now purchasing hundreds or even thousands of copies. What concerned Esposito and me was that publishers weren’t taking charge of their destiny. They were being made uncomfortable by what they saw as erosion of their rights, but they weren’t making any explicit statement about what they believed their rights to be.

I hope Yogi will consider it fair use to say that the Kindle-and-audio flap is deja vu all over again. The Authors Guild, with no audible objections (pun appropriate if not intended) from publishers, complain that the application of TTS technology to a legitimately sold electronic text constitutes a rights violation. If that particular limitation on the license granted with an ebook ever occurred to an author or publisher before, I’m not aware of it.

In the digerati community, there is frustration with the GBS settlement because it short-circuited a legal test and definition of “fair use.” Of course, Google and the publishers and the authors are each operating in their own interests, not society’s (by their definition of society’s or the digerati’s, neither of which might be ours), and the settlement apparently satisfies their interests. But at least before the settlement, Google made its position of what constituted “fair use” clear, with policies about when they would use snippets versus when they’d show larger blocks of text. Publishers were never so transparent. If they want to be credible as they fight for their rights in the future, now is the time to think these questions through and stake out ground that makes sense to defend.

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When Joe Esposito first told me about blogs in about 2001 or so, there were very few. Michael Cader had PublishersLunch, but if Michael knew that it was an emailed blog, he didn’t tell me. And then blogs “happened”, as things do: gradually, then suddenly. And now I’m late to have one of my own. Really late.

I’ll admit that I fiddled with this a couple of times before. I started up at least twice, maybe it was three times. I decided I’d try it for a while, see if I could get into the pattern of writing regularly, and then reveal it to the world when I’d piled up a month or two of posts. But I never GOT to a month or two of posts. And because I was keeping what I was doing a secret, I had no traffic, no comments, and none of the rewards of interaction which provide the motivation to keep going. So I didn’t keep going.

I admired my friends Gwyn Headley and Michael Cairns for starting their blogs and sticking with them. Gwyn started by making a list of 365 things he could blog about, so he could refer to his list every morning if he needed to. It would take me five years to make a list of 365 things I could blog about.

But I’ve been getting some signs that “now’s the time.”

One follows from having been on Peter Brantley‘s mailing list for a couple of years. Twenty, thirty times a week, Peter sends us a link to something he’s found about publishing and digital change and invites comment. The posts and comments have increasingly sparked a response from me that amounts to a blog post. Once in a while Peter would ask me to extend a comment as a post to one of his blogs, PubFrontier. Then last week David Rothman flattered me by turning another Brantley list comment into a post on his Teleread.

Then, thanks to my friend Laura Dawson, I hired a really smart woman named Tess Strand Alipour and her partner Hamid Alipour to help me optimize traffic to idealog.com. They rebuilt the site so the speeches can accept comments, which was never the case before. They did other things that have boosted our traffic by a gazillion percent in the past two months. And they’ve told me that traffic will get even better if I post whatever I have to say to my OWN site rather than always to other people’s.

And then two weeks ago I started using Twitter. I was a bit slow to get it, but Tools of Change accelerated the process for me. The complementarity of Twitter and a blog seem pretty apparent.

On top of that, I’m involved with a large number of exciting new initiatives even in these troubling times. Filedbyauthor, a new venture I’m co-founder of being headed by my longtime friend and colleague, Peter Clifton, will be live with a web page for every author with an active ISBN in another month or so. FotoLibra, an open-source photo stock agency based in the UK that I’ve been involved with since its founding a few years ago, has achieved orbital velocity. We’re working out details, to be announced shortly, to take our StartWithXML project to London soon. We’re doing a research project on “Shifting Sales Channels” with BISG that has an online survey component and will culminate with the Making Information Pay conference on May 9.

So there should be plenty to write about.

Please write back.

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