John Sargent

It was just about two years ago that I appeared on a panel at a meeting of agents with, among others, Macmillan CEO John Sargent and Sargent made the point that maintaining ebook pricing and margins was one of the critical challenges facing publishers. Ebook sales were still hovering around one percent of the business. Or maybe two. Nowhere near five. Sargent was prescient.

It was about six months ago that I did a couple of posts on direct marketing techniques. I engaged a publishing friend named Neal Goff, whose background is mostly outside of trade books, to help me with those. I had him walk me through some fundamentals because I didn’t know them and, I feared, neither did the trade houses that were now — because of agency — required to set prices on their own books without the requisite expertise.

It was only last week that Random House announced it was shifting to agency pricing and I said I hoped they would be more ambitious about experimentation with price than their competitors in the arena had been.

All of these thoughts came together for me when I read this post on CNET that has two real wake-up calls in it for the big publishers.

One they are increasingly aware of: very cheap ebooks are selling very well and, with at least two major bestseller lists (The New York Times and USA Today) now counting ebook sales in units for their rankings, there is a real threat that the established business at established price points could be chased from the biggest market-maker there is. (It is important to note that the Times and USA Today methodologies are still a bit opaque and it is not clear how lower-price books are weighted. Some clear successes in the low-price realm haven’t shown up yet.)

The other point is more subtle. Individuals and little publishers are fiddling with price in ways to maximize bestseller positioning and revenues. The rules are complicated. Both Amazon and Barnes & Noble have programs that reward pricing above $2.99 by paying higher royalties. But it would certainly appear that there are many consumers who are limiting their shopping for ebooks to those that cost 99 cents or below. So some authors have learned that cutting their price increases unit sales to put them on a bestseller list, then raising their price results in more revenue. Apparently one very useful strategy for revenue maximization is to shuttle between prices.

The point that “cutting price boosts sales” isn’t exactly surprising, and it also isn’t exactly news. J.A. Konrath, perhaps the first established author to really start raking in shekels self-publishing through Amazon, has been experimenting with pricing and proving this point for a long time. Konrath’s data was charted for clarity by blogger Dave Slusher a few months ago. Konrath’s work and Slusher’s analysis of it further emphasizes the central point Neal Goff made to us. Experimentation matters. (Neal called it “testing.”)

Another author has demonstrated that cutting price is important, and promoting lower prices is also important.

Although I have heard one major publishing CEO suggest that the house is doing some fiddling with pricing, there was no suggestion there of controlled and monitored experimentation. And I believe it is safe to say, without doing any research, that no major publisher is doing that on a consistent and persistent basis, let alone algorithmically-programmed price management such as the major ebook retailers almost certainly do.

There is another hugely ironic point buried in the CNET story. It is built around the work of an author named Christopher Smith, who has mastered the shuttle-pricing technique. Turns out Smith has a new fan named Stephen King. King, of course, has not only published successfully with major houses for decades, he was one of the first great ebook experimenters around the turn of the century when he tried to do author-direct publishing of ebooks before there was a market. King’s blurb for Smith has been very helpful to the lesser-known, lower-priced author.

Might Smith return the favor for King by teaching him the revenue-maximization techniques he’s developed so King can get back into the self-publishing experimentation game? I think that possibility encapsulates the major publishers’ biggest nightmare. Publishers are going to have a devil of a time defending their 25% royalty rate into the future, which just feels intuitively unfair to authors. They can get away with it for the time being because print sales still matter. But they won’t for long and if publishers don’t use their scale to do a better job managing dynamic pricing to extract the maximum revenue from ebook sales than an author might do on his or her own, the challenge of retaining their top talent will become even more difficult.

There is a reasonable suggestion that publishers should be making in a hurry about bestseller lists in the ebook era. In print, books are separated by format (hardcover, trade paperback, mass-market) by The Times and identified by format by USA Today  so that apples-to-apples comparisons are possible for consumers. It is really a stacked deck to rank on unit sales alone any book at 99 cents and Ken Follett’s bestseller “Fall of Giants”  at $19.99. Format in print creates a reasonable proxy for price. I think price-tiered bestseller lists would be a stretch, but going to the movie studio “box office” concept would not. Publishers, while they still have clout as advertisers in media that promote bestseller lists, should suggest a “units times price” ranking as one that provides a more useful comparison for many consumers.

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Apologies in advance for a much-longer-than-usual post.

It is not like the publishers haven’t seen the ebook royalty fight coming. On a panel he and I were on together in March of 2009, John Sargent, the Chairman and CEO of Macmillan, identified ebook margins as the critical issue for publishers going forward. Even though ebook sales at that point were financially insignificant and the growth surge that we’ve seen in the past 15 months wasn’t yet evident, Sargent expressed the belief that ebooks would be the future and that publishers had to be diligent to preserve their margins in the digital environment.

There are three moving parts to the publishers’ margin equation for ebooks.

The one that I think Sargent was thinking most of at that time is ebook pricing. If “misguided” publishers or market forces drive down prices a great deal, that could threaten publishers as sales migrate to digital.

The second one, which was then and remains today a focus of publishers, is the potential consolidation of sales channels so that power moves from a multitude of publishers to a small number of, or perhaps a single dominant, point of contact with the customer. Until the Nook came along from B&N last winter and the iPad from Apple in the spring, Amazon and Kindle looked dangerously close to being able to dictate both pricing and margin in the ebook supply chain.

And third, of course, is the amount of the consumer spend that is taken by the authors: the royalty.

The ebook pricing and channel consolidation issues have been front and center for the past year, ever since Dominique Raccah of Sourcebooks put “windowing”, which had been tried before for ebooks, in the spotlight as her solution to the perceived damage deeply discounted ebooks could do to print book sales, particularly of the hardcover edition. After she announced that she was holding back the ebook for Bran Hambric, similar announcements came from other publishing houses. At that time, only a year ago, Amazon was the dominant ebook vendor with Kindle sales amounting to 80% or more of the ebook sales for narrative trade books.

But the introduction of Barnes & Noble’s Nook device began to eat into Amazon’s hegemony last winter as 700 B&N stores started pushing a Kindle-type experience on their millions of customers. Then, in April, Apple introduced the iPad and changed the game two ways.

First of all, their tablet computing device, which can serve as a larger-than-a-cellphone screen for an ebook reader, started adding tens of thousands of new device-equipped potential book customers every day!

But along with the device competition, the iPad and its iBooks platform added a new business model called Agency. And, under Agency, the pricing of ebooks at retail theoretically becomes standardized across the web, not subject to discounting by individual retailers. This visibly upset Amazon, which appeared to pick a fight with Macmillan over the terms. It looked to those of us with no inside knowledge of their conversations to be an attempt to bully publishers to give up the Agency idea. In retrospect, this was perhaps a bad fight to have picked. Amazon’s threat was to stop selling the print editions of titles from those publishers who sold ebooks on Agency terms. Since five of the top six publishers were moving in that direction, and none of them blinked, Amazon had to, in their own words, “capitulate.” (On the other hand, we are not aware of any other publisher, beyond the Big Five, to whom they also capitulated, so the final score on this fight isn’t in yet.)

So it would seem that the big publishers have solidified two of the major components of their ebook margin. With their help, consolidation in the ebook channel has been reversed and they’ve taken critical steps to control prices to the consumer, while ebook sales have continued to rise at an accelerating pace.

But there remains this tricky question of royalties.

Agency pricing compounded the 25% problem from the authors’ and agents’ point of view because the base price for Agency books is 25% to 40% lower than it is for the old model, wholesale, so the authors’ share is commensurately reduced. Most agents liked the principle of getting uniform pricing, likely to create a healthier ebook marketplace, but were understandably miffed that their per-copy take could be reduced without any agreement required on their part. The publishers would no doubt point out that their take per ebook unit was going down as well. And Random House, still selling at wholesale, is no doubt making the point that their 25% amounts to substantially more per unit than the other guys’ 25%.

There had already been signs for a while that a lot of legacy backlist wasn’t being enticed by the royalty offers of its current publisher. Jane Friedman, formerly the CEO of HarperCollins and an important player on the New York publishing scene for four decades with a lot of very solid relationships, started a new publishing company called Open Road. Among her propositions was to secure ebook rights to some very well established backlist titles by offering a royalty of 50% of receipts while many of the big publishers were apparently holding the line at 25%. The early headline “get” for Open Road were novels by William Styron.

Then in December, S&S bestselling author Stephen Covey announced that he was putting some of his backlist into ebooks for a deal calling for more than 50% of receipts through Rosetta Books, which had litigated inconclusively with Random House about these matters a few years ago. Through Rosetta, Covey’s books were going to be exclusively offered for a time through Kindle. At the time that announcement was made, Nook hadn’t taken hold and iPad hadn’t come out and Kindle was the dominant platform in the market. A time-limited exclusive with them at that moment didn’t seem crazy.

Last week, the plot really thickened.

In retrospect, one could say that there were two preliminaries to the big news about the intentions of the agent Andrew Wylie.

On Tuesday Teleread carried the story that Knopf was pushing ahead to digitize more backlist. There appears never to have been a formal announcement of this, and it seemed a bit curious on a couple of counts. One is that Random House, of which Knopf is a part, has already digitized backlist for years. What could they have missed in their prior efforts? The other is that it always seemed that Random House’s digital efforts were corporate, not imprint-specific. Why would there be news about Knopf on its own?

Then my good friend Evan Schnittman published a post on his Black Plastic Glasses blog called “Pass the Gestalt, Please.” Evan’s point was simple and forcefully made. Ebooks don’t exist in a vacuum; they can’t be evaluated with stand-alone economics. Publishers acquire intellectual property and they monetize it every way they can. They make more from some formats and channels than they do from other formats and channels. But what matters in the end is how much total money they produce, for themselves and for their authors.

I have a problem jumping from the math Schnittman lays out to the characterization that agents are being unreasonable when they ask for a higher percentage of ebook receipts than they get of hardcover receipts. Schnittman argues that margin is irrelevant because the parties aren’t negotiating a profit-sharing deal. I’d say the receipts comparison that he draws is irrelevant. Hardcover receipts are offset by printing costs, handling costs, and spending for excess inventory that receipts on ebooks are not.

Schnittman’s post, which was debated as soon as it hit, turned out to be prologue to the events which then dominated conversation for the rest of the week.

By all public appearances, big publishers were being very stubborn about their 25% ebook royalty, even on very important backlist and more or less daring authors to do something about it.

On Wednesday morning, the plans of the Wylie office were dropped like a bomb, apparently by Amazon. (I am told by a source I trust that Amazon revealed the news and that Andrew Wylie himself was, and is, away on vacation. The Times, as you can see, didn’t report it that way.) It was announced that Wylie that had formed a new publishing company called Odyssey to handle some significant backlist  and — in an apparent middle finger to the entire publishing community — were putting the books into Amazon for a 2-year exclusive. Left unrevealed were what Wylie was paying the authors, what splits Amazon offered Wylie’s authors, and whether any money changed hands between Amazon and the new Odyssey entity. The announcement of Odyssey followed a long period where Wylie had complained publicly about publishers’ reluctance to pay what he (and many other agents) thought were reasonable ebook royalties for legacy backlist.

Response was quick. John Sargent, tongue deeply in cheek, welcomed Wylie to the community of publishers and suggested he should perhaps be paying AAP dues. Random House announced they would not be buying any books from the Wylie agency until this issue was resolved. And many people observed that signing an exclusive deal with Amazon when they’re losing market share quickly and are likely to lose more soon was questionable, not to mention whether there was a conflict of interest for an agent publishing his own clients’ books.

Without knowing what incentives Wylie got for his authors from Amazon in return for the exclusive, it is hard to be sure that it is a mistake (although it seems likely, given the current growth pattern of the ebook suppy chain.) But the conflict of interest for an agent charged with looking for the best possible deal for an author and then self-publishing, in the face of potential litigation, is transparent. And even if Random House is the only house that openly boycotts the agency, there’s an impact on all Wylie clients in return for a theoretical advantage for the ones being he will publish through Odyssey. One must imagine there are more than a few current authors with that office who are scratching their heads about what this might mean for them.

From my perspective, there’s plenty of justification on all sides of this argument. Although I didn’t like his math, Evan Schnittman is entirely correct to say that a publisher making a deal for a copyright plans to exploit it through all channels. In words I’ve heard often from John Schline of Penguin, “you don’t do a P&L on a format; you do a P&L on a title.” They’re right that the author negotiating a deal with them accepts a basket of compensation schemes for different channels in return for an advance. Logical fallacies can creep in when you take one element of it in isolation and say it “isn’t fair” (although, in practice, that’s exactly how contracts are negotiated.)

But the controllers of old copyrights — the Styron estate and Stephen Covey, among others, and apparently several other estates and authors represented by Andrew Wylie — are also right to believe that the ebook rights weren’t contemplated in the contracts for the books in question and that a publisher starting today to publish those books electronically will have a tiny cost base and relatively astronomical margins.

Certainly not all publishers are being stubborn about the 25% number in all negotiations. And agents usually feel they can’t talk about concessions they get publishers to make. One made it very clear to me that s/he was getting concessions from publishers on ebook royalty terms in the form of escalators, but would never say so out loud for fear of angering the customers of s/he’d wangled those concessions from.

(On the other hand, things might be changing fast. In a story I saw just as I was finishing this post, the Financial Times wonders if the Wylie plans don’t signal the conclusion of publishing as we have known it. In that story, superagent Amanda (Binky) Urban is quoted saying her ICM office is getting significant royalty concessions from major publishers, including Random House. Perhaps the Wylie story has changed the dynamic so that now publishers want all the agents to know they’re ready to be reasonable. I’m not aware of an agent having been quoted to that effect before, and it would seem highly unlikely that Urban said what she said without having consulted any house she would name in advance. All of that would anticipate the suggestion I’m making below.)

All public statements are, by definition, posturing.

But the arguments publishers have made publicly to this point have elided the fact that their negotiating position is not the same for these books as they are for a new book. When a new proposal is put in front of them for purchase today, whether they are offering $10,000, $100,000 or $1 million for the rights, they’re in a position to say “if you want my check, it comes attached to these royalty terms.” But they didn’t stipulate those terms when they published books 40 or 30 or 20 years ago, or even 10 years ago. At a minimum, they require agreement from the author on a royalty rate to publish the ebook today; they may need agreement from the author to publish the ebook at all.

Why would the publishers expect an author whose book has earned out long ago, who has no requirement to allow the publisher to publish the ebook and (at the very least) a case to make that they’re free to sell ebook rights elsewhere, to accept the same terms that are offered to authors not in that position?

Publishers may have trapped themselves by not articulating that distinction. Their public position seems to be that they can’t make a competitive deal on this backlist because it would create precedents for the new titles they’re negotiating for today. But it doesn’t have to. There’s a very simple, clear policy they could declare that would make this whole issue go away. Maybe there are one or two already acting this way, but it would be nice if even one publisher would just say this:

“Our policy for all new titles we sign up in the context of all our other standard terms is that we pay 25% royalty on ebooks. But for those books on our backlist which a) have earned out their advance and b) have ambiguity in their original contracts making it unclear what the royalty rate for an ebook should be, we will negotiate a higher royalty in recognition that a contractual element is being negotiated after the value of the copyright has been demonstrated in the marketplace and the risk profile has changed.”

Life is very complicated here. Every deal is different. There are costs and risks for authors and publishers trying to set up these separate ebook deals while a print backlist remains with a legacy publisher. The publisher might sue (although that opens up, for them, the danger that they’d lose, and the consequences of that could be dire.) At the very least, the author annoys the guys with the big checkbooks who are still the custodians of their print sales.

Although it is certainly possible that some authors or estates would want a publisher as talented as Jane Friedman remarketing their backlist, I still believe that if Open Road and others are offering 50%, publishers would find many authors receptive to avoiding the conflict if the publishers were offering 40%. But even if they had to pay 50% to some authors, the publishers would be doing themselves a favor by stating the position articulated above.

Each publisher has to do its own math about how many books of theirs would be affected and what openly paying 60-to-100 percent higher royalties on those books would cost them. Undoubtedly, it would also require them to make concessions to authors they’d roped in for the 25% royalty; certainly many of those have re-openers or most favored nation clauses of some kind in their contracts. That’s the downside. But there is a lot of upside. For one thing, Open Road and Rosetta and Wylie’s new imprint would be seriously weakened; except for Open Road, which has strong cachet with Jane Friedman at the helm, they might just disappear. For another, lots of great titles that could be selling robustly as ebooks if only they were available as ebooks would be producing revenue for the publishers (as well as the authors.) Significant legal costs and liabilities would evaporate. And they’d gain enormously in trust and goodwill with the agents, who are spending far too much time trying to figure out how to go around publishers for the best backlist they control, rather than how to work with them. The conversations I have had make me believe that most agents do not believe that most big publishers are willing to deal on the basis I’m outlining here, (although a lot of them will be calling the publishers tomorrow after they read Binky Urban’s quotes.)

Aside from the reduced per-copy royalties agents and authors are seeing from the Agency pricing, they are also afraid that robust ebook sales at the hardcover price are postponing the issuance of trade paperback editions, on which the 25% Agency royalty does exceed the normal 7% of retail paid on print. That makes them feel like they’re losing again.

It is a paradox that traditional contracts have legacy publishers — the ones who write the large advance checks — paying higher per-copy print royalties than many little publishers pay on hardcovers, even with the various high-discount clawbacks that have been built in over the years. The ebook-first publishers who do print will almost certainly pay lower print royalties than print-first publishers have, if they do hardcovers at all. Publishers will need a foundation of good will, but over time should be able to negotiate lower hardcover royalties in return for higher ebook royalties on new contracts. And that will make sense, because, ultimately, print sales are more expensive for publishers to deliver than ebook sales.

Even if the publishers pushing back manage to win this round with Wylie, and they well might, I don’t think the 25% royalty can hold for very long. As more and more of the business shifts to ebooks, companies without the legacy costs that big publishers have will find it easy to pay higher royalties than that and agents will keep doing the math about how many sales they can afford to lose and still end up ahead in dollars with a higher ebook royalty. As Amazon should have learned in their fight with Macmillan in January, it isn’t smart business to draw a line in the sand marking a position you ultimately can’t defend. I hope every big publisher in town will take that lesson on board, or, even better, that Urban’s remarks tell us that they already have.

In a dialogue with a couple of smart people in my “kitchen cabinet” between writing this piece and posting it, I was asked whether I thought the ebook should have a royalty “greater than the hardcover or less than the paperback.” My response was:

I don’t have an ideology about this. Applying logic alone, I would think a Harlequin or O’Reilly ebook author should get a lower percentage than a Big Six ebook author because the Harlequin and O’Reilly brands add to the online ebook sales power in ways the Big Six publisher brand does not. The same author and the same book wouldn’t sell as well if it were under another imprint. Fully applied, that approach would mean that every deal would be different, which is utterly impractical. I don’t like to advocate things that are impractical.

Publishers should try to make standard the lowest royalty that they can apply in the marketplace without making enemies of their trading partners. It just isn’t realistic to offer a brand name with a choice of where to go 25% in this day and age. It’s just bullheaded. My sense is that any house that offered a standard 25% to earnout and 35% thereafter would be fine for now, except with the biggest authors with whom they’ll have to negotiate escalators (or change the basis on which the not-intended-to-be-earned-out advance is calculated.) But all solutions here are temporary. The line won’t hold. When ebook sales get to 50% of the total (2014-15), even 50% is not going to cut it.

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Now I swear all this is true. As everybody knows, a very serious food fight broke out between Amazon and Macmillan late Friday night. All weekend Michael Cader led the way in ferreting out additional useful information and I spent most of today (Sunday) trying to write an analytical blogpost. I got it just about finished in the early afternoon, and the bottom line to what I’d written was “Amazon will not be able to sustain this.”

I decided to hold the post until after going to see Crazy Heart this afternoon and, when I came home, Amazon had already folded. But I had written a post that provided a lot of useful information, even if events had stolen my punchline.

So I’m giving it the once-over to edit it for the reality that Amazon has already announced that they will not continue to boycott Macmillan books.

It is received wisdom in Washington that when you have news you have to release but would prefer to have minimum impact, you release it on Friday afternoon. The latest tiff in the Amazon versus Big Publisher brouhaha went that idea one better; it appears to have broken in the middle of the Friday-to-Saturday night.

About midnight that evening, David Wilk alerted the Brantley list to a VentureBeat post that indicated that Macmillan titles were no longer available at Amazon.

By noon the following day, Brad Stone had posted a further explanation to the NY Times blog.

The VentureBeat post had no clue as to what was going on and even carried a link to a post from author John Scalzi suspecting a “glitch.” But Stone pinned down that the disappearance of the Macmillan titles was, indeed, retaliation for Macmillan’s move to the agency pricing model, first revealed by Michael Cader in Publishers Lunch and discussed on this blog last week.

Sometime late Saturday afternoon, Lunch posted a narrative explaining what was going on and including a paid insertion from Macmillan: a letter from Chairman and CEO John Sargent giving Macmillan’s account of what had transpired.

Which, as many people who care know by now (as I write this on Sunday morning and afternoon) is that Macmillan told Amazon about the new agency model, by which Amazon would actually get ebooks at lower prices than now but also by which Macmillan would set the prices to consumers. Amazon retaliated with what is, more or less, a “nuclear option.” Macmillan books are no longer on sale except through third party vendors (extending the ban to those dealers would open up yet another big can of worms for Amazon and they hardly need any more) and that includes Kindle. Most of the third party vendors are selling used books and no Macmillan books are being transacted directly by Amazon at all.

We have said on this blog, repeatedly, that publishers’ discounts to retailers would have to come down and that the windowing tactic (delaying ebooks from being available when the hardcover first comes out) was all about pricing control and nothing else.

What I want to accomplish in this post is to lay out clearly what is happening and then enumerate some key points about what’s going on: paradoxes and prospects.

Before the Agency Model (like “now”), publishers sell ebooks at about 50 off an often ridiculously high established price (“parity” is common; same price as a hardcover on a new book) to retailers who were setting the prices to the consumer themselves and, following Amazon’s lead, always discounting. The publishers are paying the authors royalties that are frequently 25% of net, which amounts to 12.5% of publisher declared retail. Some publishers pay 15% of retail; Sargent, in a previous letter to agents, indicated a desire to move from 25% of net to 20% of net, which would be 10% of retail.

The proposed Agency Model will have publishers setting a price lower than the established retail they had before but higher than the deep discounts Amazon led retailers to sell at. The publisher intends to  pay 30% of that established price to the retailer and 25% of either the full consumer price or of the 70% “net” (still to be determined) to the author. This means that the retailer will get a higher price from the consumer and a better margin than they realize now (even though a lower percentage of the “established” price). The author’s cut per copy could actually be reduced!

The wholesalers, Ingram and Content Reserve, often get the same discount as publishers. They handle the stores and libraries publishers serve don’t want to deal with directly. So those stores and libraries get less margin than the big ones publishers handle without an intermediary. One thing that was new to me that came out on the Ebook Supply Chain panel at Digital Book World is that publishers insisted on vetting the accounts that would be selling their books to make sure they didn’t violate territorial restrictions. So Ingram (and presumably Content Reserve) has to manage a granular control by title by publisher by account.

It is not at all clear how the Agency and price maintenance protocols get applied through wholesalers. Perhaps this means that smaller accounts and libraries just won’t have the newer titles that will only be released on the Agency basis (assuming that the scenario Sargent describes is what is also followed by other big publishers.)

This is a bizarre paradox, really. Macmillan actually proposed to sell Amazon the ebooks at what is, in effect, a lower wholesale price than Amazon gets now and their enforcement of a retail price puts more margin into Amazon’s pocket on every sale made than they earn now! And Amazon is fighting it.

Sargent’s note makes clear that the discount-off-retail pricing that has existed all along will still be offered, but that newer books wouldn’t be included in that offering. Those would be available only on Agency terms. What is not clear is whether Macmillan intends to continue the Agency terms past the nine-month “window” for new books. We’d guess they will for some accounts.

But that leads to another paradox because publishers unambiguously benefit if retailers sacrifice their own margin and discount when hardcover price maintenance and NY Times Bestseller list rankings are not at stake. Lower prices to consumers sell more copies. Presumably retailers will continue to want to compete on price and will do so when sales terms allow. But what does that do to the publishers’ challenge of “setting” prices for those accounts that want that done across the entire list?

Yet another paradox is the position of the agents. On the one hand, we have seen that many of those representing big authors see the same danger the big publishers do of inexpensive ebooks undercutting valuable hardcover sales and Times Bestseller rankings. On the other hand, publishers lowering established ebook prices and reducing their take from their intermediaries could often mean lower royalties for authors. But not necessarily.

If publishers are paying on “net receipts” (and many are) and if a) retail prices aren’t cut by as much as half (which they often won’t be) and b) if the publisher doesn’t deduct the Agency “commission” from its computation of net (sure to be debated), then the basis of the author’s royalty wouldn’t go down.

Quick summary: if you have a $25 list price ebook on which the author’s royalty is 25% of net, the author is now getting 25% of $12.50, or $3.125. If that book becomes a $15 ebook with a 30% commission, the author would get $3.75 (a nice increase) if the commission is not deducted first and $2.625 if it is (a sharp cut.) Of course, the $25 and $15 prices described here are notional and with different prices (as they say) “your results will vary.” If that notional book had been priced at $30 in hardcover, the author’s share would have been $4.50 and the ebook price change would clearly cost them something on every copy.

Author Charles Stross had a very insightful post on his blog, speaking from the perspective a gored ox (he has books published by Macmillan which have been taken down.) Stross makes clear that Amazon is miffed because their competitive strategy of driving away ebook competition through aggressive discounting will be foiled by publisher price-setting. Stross says:

Amazon are going to fight this one ruthlessly because if the publishers win, it destroys the profitability of their business and pushes prices down.

I’m not sure it “pushes prices down”; I think it actually pushes (ebook) prices up, at least temporarily. But the points Stross makes about Amazon wanting to achieve ebook hegemony and the Agency model being part of the publishers’ plan to beat that back and strengthen other players seem right to me.

We had a lot of this conversation last Spring before Sourcebooks’s windowing move with Bran Hambric, followed by Hachette with True Compass and HarperCollins with Going Rogue, pushed this tussle between Amazon and publishers to the forefront. In his analysis at that time, Cader made the point that publishers were actually helping Amazon undercut other retailers with their “parity” pricing; making the ebook retail the same price as the hardcover print retail. His logic was that the high prices increased Amazon’s advantage over other retailers because they could better afford to sell high-profile titles at a loss than their competition. Meanwhile, the publishers (and authors working on “net”) continue to get higher ebook revenues than the consumer spending would really entitle them to.

My first question when all this arose overnight on Friday was “why Macmillan?” Sargent’s note may have answered that question: because John was in Seattle on Thursday officially delivering Amazon the Agency Model news that we only assume is going to come to them from other publishers as well. One presumes that Amazon thinks that taking such drastic action as this might discourage the other publishers thinking about doing the same thing (and the iPad announcement on Wednesday would lead us to think that four of the remaining five Big Six players are indeed working out the details of a similar consumer-price-controlling sales model.)

And Amazon apparently figured out, as I was writing these words, that the only brand blown to smithereens by the nuclear option would be theirs. It is hard to imagine how extensive the brand damage could have been if Amazon delisted even one more major publisher along with Macmillan for even a couple of weeks. For a brand whose principal attributes are dependability and dedication to the consumer, it would have been catastrophic.

Amazon says now that the boycott is temporary and they were candid about the fact that they have no choice but to yield. They take a swipe at the publishers’ copyright-based “monopoly” on titles. But this was a really bungled response on every level. Amazon deserves credit for being smart enough to walk this thing back within 48 hours. Amazon may have to learn something new for them in the ebook space: how to be one of a number of players, not the only game in town.

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When I did my two recent posts on ebook pricing — first one proposing “debut pricing” and then one taking it back as not viable — I got a note from a major company CEO saying that, of course, no publisher could discuss pricing with me because of anti-trust concerns. At the same time, I have been trying to staff a panel for Digital Book World on ebook pricing and was told by one of my Board of Advisors, who is from another of the big companies, that I shouldn’t expect any publisher to be able to discuss that issue.

So it was mildly refreshing to see that Arnaud Nourry, the global CEO for Hachette Books, expressed some pretty strong opinions about ebook pricing to the Financial Times in an interview. Nourry said publicly what I have only heard expressed privately before: that the aggressive pricing by ebook retailers (led by Amazon) where they actually sold ebooks at a loss could come to no good end.

On Amazon’s current policy of selling many high-profile new releases at $9.99, FT quoted Nourry as saying: “That cannot last . . . Amazon is not in the business of losing money. So, one day, they are going to come to the publishers and say: ‘by the way, we are cutting the price we pay’. If that happens, after paying the authors, there will be nothing left for the publishers.”

Nourry also expresses concern about the reported one million public domain titles that Google is releasing as free ebooks. Although the article is wrong in its reporting that Amazon charges $9.99 “for all its e-books in the US” (Michael Cader has reported several times that many are higher than that and, of course, many are also lower), we can understand Nourry’s expressed concern that “all the rest will have to be sold at between zero and $9.99.”

I agree with Nourry’s characterization of the present condition as unhealthy and threatening, but I think things look a little better for him and his fellow large publishers than his comments would suggest. And as powerful as Amazon’s position in, there is reason to believe it is at a high-water mark in the ebook marketplace and that, at the very moment Barnes & Noble is stepping up, the conditions are perfect for a competitor.

The downward pressure on ebook prices has been apparent for some time. I reported that John Sargent, CEO of Macmillan, said at a panel discussion for agents (I was one of the panelists) several months ago that maintaining ebook margins was the key strategic concern for publishers over the next few years. Since Sargent made that statement, very shortly after the announcement of Kindle 2 and Kindle DX, we’ve had a reported surge in ebook sales, a host of new reader and retailer announcements, and the further entrenchment of the epub standard. These, combined with B&N’s entry into the market, are good news for publishers.

Epub is probably the publishers’ best defense against Amazon and the Kindle. With all other device manufacturers able to coalesce around a non-Amazon standard, we have a situation analogous to the VHS-Beta conflict of the 1980s and the Mac-Windows duke-out of the late 80s and early 90s. On one side, we have a standard that remains closed to enable “control” (Beta, Mac, Kindle.) On the other side, we have a wide-open standard to enable multi-player use (VHS, Windows, Epub.) In the two cases we know about because they are historical, the consensus was that the “loser” of the numbers race (Beta and Mac) provided a superior technological performance. Kindle does not seem to have even that element in its favor. Whether you use something larger that does e-ink (Kindle, Sony Reader) or something you’re carrying anyway that is backlit (the iPhone or any other smartphone) is a matter of personal preference. But does anybody doubt that a world full of hardware creators will soon make a device that is similar but demonstrably better than the Kindle?

Right now, Amazon has a huge head start on the narrative-reading consumer ebook market. By putting Kindles into the hands of (estimates are) 1 to 1.5 million of the heaviest book consumers, they jump-started ebook uptake and grabbed a huge lead in sales. Anecdotal information gathered from publishers and agents suggests to me that, right now, 70% of the ebook sales for most titles offered in Kindle and epub are Kindle. And a lot are still sold as pdf.

But Google just put a huge thumb on the scale by making one million public domain titles available in epub for free! Those can’t be read on a Kindle without a little bit of technological bridge-building. On the one hand, if Amazon makes that bridge-building transparent and shows that it is easy for people to load epub titles on the Kindle, they compromise the whole Kindle business model. But the perception of choice — and the relative number of titles that will show up under any consumer’s search — is attacking what has been one of Kindle’s greatest advantages: a bigger title selection.

Amazon made what looked from here like a major concession last winter when they released an iPhone app for Kindle. I am hesitant to read too much into my own behavior, but that was the catalyst for me to give my Kindle to my wife and do all my reading on my iPhone. So it was easy for me to switch over to B&N when they came back into the marketplace a month or two ago. And, you know what? The shopping experience is just as good as Kindle. My wife may buy Kindle books again, but I won’t. (The Kindle on iPhone mimics the worst fault of Kindle’s presentation on the device itself: it only presents justified lines, no ragged right!)

Of course, all this means that the blades and razors strategy is going too. When Sony launched the reader, it looked for all the world like they figured they’d make their money selling the books. That was Palm’s idea too nearly a decade ago. Amazon blew them away because they were real booksellers, which they parlayed into both more title availability (they had the contacts) and a better presentation.

It will be a big surprise to me if B&N and Indigo’s Shortcovers don’t rapidly become the dominant horizontal purveyors of epub-formatted titles. And every web site and blogger will sell ebooks in their niche (why not?) which will include offerings that might not make the full-line distribution system. The next question is how long it will take Amazon to start selling epub titles as aggressively as they sell Kindle and print books. Or make Kindle transparently epub-compliant, which amounts to the same thing. They’ll need to do one of the other to protect their overall franchise, but it might mean the end of a meteoric Kindle era (remember the Commodore 64?) when they do.

Oh, and one note on all that to Mr. Nourry. If I’m right about the overall situation, don’t worry about Amazon telling you they need more margin. Because they’re going to need your titles fully as much as you need their sales. Expect to start seeing movement on this first from the smaller publishers, some of which report that they have been pushed into relatively low-margin deals by Amazon. There will be competition among epub vendors; they’ll all want to have the biggest number of titles (and accept the challenge of curating and presenting that.) If you can get higher revenues by 25% or more in one channel, might you be tempted to try to “force” consumers to buy it there by withholding from the lower margin channel? You’d surely be tempted.

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Because of a couple of panels I spoke on last spring and because of the development of FiledBy, I have had more and more conversations lately with agents. They are part of the General Trade Publishing ecosystem. So their lives are getting more difficult and more complicated, like everybody else’s in Book Valley.

The agents’ concern is frequently expressed as “what do I tell my authors?”  Publishers are increasingly insistent that a prospective author have an internet platform to build on before they sign a book. Editors always wanted credentials to back up a writer’s authority on any subject; now they’d like to see that the writer has a following on that subject as well.

But agents are also concerned about themselves. The two most innovative imprint initiatives in recent memory — Bob Miller’s HarperStudio inside HarperCollins and Roger Cooper’s Vanguard inside Perseus — are built on the idea of reducing risk, paying the author a lower advance. Yes, they also promise a higher reward (higher royalty), but experienced agents know most books don’t earn anything beyond the advance.

Miller and Cooper are smart guys and it could well be that their imprints will have a higher percentage of earnouts than most. But, as smart guys, they wouldn’t be willing to pay more on the high side if they didn’t believe they were saving at least that much on the risk side.

The advance pool is probably shrinking. John Sargent, Macmillan’s CEO, said as much at a gathering of agents a couple of months ago when he explained that the de-leveraging that is taking place throughout the economy is also taking place in publishing. Big houses just won’t have the cash available to them that they used to, and that means less money for advances, less money for printing, and less money for promoting.

But in addition to shrinking, publishing advances are taking on much more of a power law configuration, with concentration at the top and a long tail of books getting less and less (and extended by mushrooming self-publishing where the “advance” is actually negative; it’s a cost!)

This is already having an effect. I have heard from people who know that larger agencies are now shopping among the smaller ones to buy them out. It takes more agents working to pay the same rent than it used to. And the smaller agents are finding it harder and harder to make a living so they’re ready to sell out a bit of their upside to get some stability. The small number of agents that have clients at the power end of a power law distribution are doing great; those who have traditionally made a living on making lots of second level deals are really suffering.

Compounding the problem for agents is the changing nature of publishing opportunity. While the sales and royalty potential of the book through the publisher is declining, other opportunities are opening up. There is a multiplicity of ebook channels that in the aggregate do not replace the revenue that print used to provide and doesn’t anymore. Chunks of books and material too short to be published as a book can be sold through them. Agents have for years been trying to split off audio rights to sell to Audible or Brilliance or Tantor Media. The opportunity to sell content to web sites seems to be emerging. But all of these deals require conceiving, pitching, closing, negotiating, and contract reviewing. For fifteen percent of what?

And further comlicating things is the ubiquitous self-publishing option. As self-publishing becomes part of the strategic approach to getting a “real” publisher (and it is), it adds a further complication to the business relationship between agent and writer. Is it fair for an agent to work with a writer on developing a proposal or a manuscript and then, when it fails to sell to a publisher, see that writer self-publish what amounts to a collaborative effort without owing anything to the agent? I think most agents would say, “NO!”

An agent for a book writer carries the same title as the agent for an actor or the agent for a performing musician but that’s a bit misleading. A book writer’s agent is really a business partner, more like the managerof an actor or musician. I see the writer and agent as two halves of a business: the writer creates the product and the agent handles the B2B relationships necessary to turn it into money.

When the book agent’s job, most of the time, was to find the biggest possible up-front payment for an author’s work, a straight commission deal made complete sense. With writer-pays options becoming not only more common and accessible, but more sensible as a commercial choice and, indeed, becoming part of the step-ladder to commercial success, it increasingly will not.

At a conference on “Giving It Away” in Toronto at which I spoke two weeks ago, Carolyn Pittis of HarperCollins was explicit that the publisher buying content and making money by selling it was “one model”, and she pointed out that there is a “fee for services” model as well. The inference I drew was “that’s not what we’re doing today, but every option is on the table for tomorrow.” Why not? Don’t we have to believe that one of the exit strategies for the investors in Author Solutions, the biggest rollup of self-publishing service companies, might be to sell to one of the Big Six who, despairing of the future of their publishing model, tries to buy their way into a new one?

I am old enough to remember that agent’s fees, now standard at 15% of revenue, once were 10% (like the agents in other businesses I referred to at the top.) When that change happened — was Scott Meredith the first? — many of the 10 percenters sneered at the change as exploitation. But eventually they all went that way. About 10 years ago, agent Richard Curtis started EReads, an ebook publishing company which gave his authors, and others, another choice besides throwing the ebook rights in for print publishers who, at that time, seldom exploited them. Curtis was also excoriated in some circles for generating a conflict of interest, which, indeed, it would have been if he steered his authors away from better ebook options with their publishers. (He doesn’t do that.) It would be like a doctor owning a medical testing business, for crying out loud! (And they do do that…)

A friend of mine in the financial business wrote a book 20 years ago and wanted to get an agent to sell it. He knew the advance would be low, but he also knew the book would add credibility to his business. He wanted it sold. An agent told him that the agency only handled books on which they thought the advance would be $25,000 or more, yielding a commission of $3,750 at the normal 15%. This friend told the agent, take the first $3,750. The agent took the book, sold it for $6,000, and everybody was happy. This kind of arrangement, as well as others where the agent actually charges a fee for helping an author manage self-publishing options, are going to have to become more common in the future. Let’s not be too judgmental about the pioneering agents who change the paradigm.

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There was a lot of lore in our family but one of my favorite bits of it was my father’s great pride at having hired the first two black office workers at Doubleday in the 1950s. This was particularly cheeky for the guy who was the only Jew in top management ranks. The way I always understood the story from him was that after the second one was hired Doubleday management said, “ok, Len. That’s enough.”

Dad died in 2002. In September, 2006, I was at a party with my two sisters and my mother. I didn’t know it then, but this was going to be the last party I would go to with my mother. She was diagnosed with pancreatic cancer about two weeks later and she died in January 2007. So what follows is a story very fortunate for the timing of its telling. I almost didn’t know it.

I was telling somebody at the party about Dad and the first two black employees of Doubleday in the 1950s. My sister Karen thought she noticed something wrong with the way I was presenting the story (I can’t now remember what) so we went off to find Mom to get it retold.

“Mom, what was the story with Dad being told by Doubleday that he couldn’t hire another black employee?”

My father’s memory used to have a lot of holes in it. Mom’s had none. She gave you the details like yesterday.

“You remember the summer we went to Cape Cod with the Tiloves and the Popkins?”

I’m pretty good, too. “Yes, that was 1959. Dad was reading an advance copy of Advise and Consent, which was just about to come out and he knew it was going to be a bestseller.”

“Your father did want to hire another black employee. And just before we went up to Cape Cod, he offered another young man a job. Then, while we were up there, he got a call from Louise Thomas, who was in charge of personnel at Doubleday telling him he had to rescind the offer.”

I had never heard this part. My sister Karen had never heard this part. My sister Nance wasn’t standing there at that moment but she had never heard this part either.

“So, Mom, what did he do.”

“Well, you know your father. He would never agree to something like that. He said he had made the offer and he absolutely would not rescind it.”

There was something very literal about my Mom. She had answered the question. So she stopped. We waited.

“Mom. What HAPPENED?”

“Oh, the young man turned down the offer. He didn’t take the job. So, nothing happened.”

My father was the luckiest guy on the planet. He didn’t have to compromise his principles and he didn’t have to go to war with his employers.

I actually met both of the men Dad hired before I knew any of this. The second of the two is Charles Harris, who has had a long and distinguished career in publishing. Charlie was the longtime director of Howard University Press and founder of Amistad. He was able to remind me that the groundbreaker was a man named Ed Simmons, who later owned a printing operation on Long Island. Charlie was able to provide a lot more detail that I didn’t know.

Simmons had an MBA from Harvard and was a veteran of World War II. (My dad wasn’t; he spent the war working on the Manhattan Project, but that’s another story.) Dad was in charge of manufacturing when he hired Simmons in about 1954 or 1955. Simmons left to buy the printer in 1958.

Harris was hired in 1956 to work in what was called the Operations Research Department (of DOUBLEDAY!), which my father headed as Director of Research. (And that’s anotherstory.) George Blagowidow was the manager of the department, but Dad (George’s boss) hired Charlie while Blagowidow was off on vacation (Dad wasn’t much of a respecter of protocol.)

Harris reports that Dad and Blagowidow encouraged him to go to NYU Graduate School and major in statistics and Doubleday paid the tuition.

I asked Charlie if he knew he was “pioneering.” He said no, but he realized it after a few months. My father never discussed it with him; not did anybody else. Charlie had arrived in NY, just discharged from the U.S. Army where he had been one of the few African American officers to graduate from Infantry School at Fort Benning. Charlie said that my father had recruited through Ray Rivera of The Urban League and Rivera arranged the interview for Charlie with Dad. After the interview, Dad walked Charlie down to Personnel and told them he wanted to hire him.

Charlie said, “that was August 12, 1956. I reported to work the next day.”

My father left Doubleday in 1961. Harris became an editor there about the time Dad left, but was encouraged for the next several years by Nelson Doubleday and John Sargent. And one job later,  Harris went to Random House and was working again with former Doubleday colleagues Jason Epstein and Dick Kislik. It was nice to get this ending to the story. The fact that Harris’s career thrived at Doubleday for several years after my father left speaks well for everybody.

I am a student of baseball history and while pulling together my thoughts for this piece I really thought for the first time about what Dad did in the context of Branch Rickey and Jackie Robinson. This was all happening while Robinson was still an active player, before any civil rights bills had passed, at a time when public segregation was the practice in a quarter of the country.

I spent more hours in conversation with my father than I have with anybody else in my life, except possibly my wife. It’s really too bad we didn’t talk about this more.

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I was flattered to be asked to speak to the AAR last night as part of a very distinguished group. My fellow panelists were John Sargent, CEO of Macmillan; Morgan Entrekin, the CEO of Atlantic Monthly Press; the agent Larry Kirshbaum, who was CEO of TimeWarner’s book division (now Hachette Book Group);  and Susan Katz, the CEO of Harper’s juvenile division. The topic was the “future of publishing.” We each got ten minutes to introduce our thoughts about “the future of publishing”. I went feeling the need to make three points:

1. The shift from horizontal to vertical is inexorable, unstoppable. People need to understand what that means and, as uncomfortable as it is for many leaders of today’s trade, they need to start adjusting their business to meet that shift. I wasn’t expecting any agreement, or even any recognition of this fact, from my fellow panelists. It’s still sort of my own private little point in trade publishing circles (but I’ll keep making it).

2. The impression I was getting from our BISG research for “Shifting Sales Channels” is that a) big publishers are feeling the pain more than smaller ones, b) people are seeing backlist erosion they hadn’t seen before (although that was contradicted at a lunch I had yesterday with a publisher who follows BookScan numbers closely and said backlist was holding pretty firm); and that the pain was much worse in Q408 than in Q109. Publishers are feeling excess pain at the moment, of course, because they’re taking returns from the Fall against smaller frontlist buys. But, in any case, books are down a lot less than a lot of other discretionary things.

Short conclusion: books may not be recession-proof, but they might be recession-resistant.

3. Trade Books live in an ecosystem. The publishers and agents in the room last night were mostly in the business of fiction and narrative non-fiction and juveniles. But if sales of travel books, craft books, and cookbooks go down, it hurts the stores. And if a store loses 10% or 15% of its business, it could close. Whatever publishers are seeing in growth of online sales, they should never forget that retailers give priceless exposure of their books, and only fullline bookstores give that exposure to just about all their books. The agents and writers and publishers can be just as smart as they’ve ever been, but if the bookstore shelf space shrinks, and it is doing that, the results will not be the same as they’ve always been.

All of my fellow panelists had useful contributions to make but I took most note of John Sargent’s points. He made it clear that big publishers are in troubled times. He pointed out that all big publishers work with borrowed money and want to be working with less of it. So they’ll be “de-leveraging.” That means smaller advances to authors, smaller printings, and tighter financial controls all around. He also reported that Macmillan had invested many more millions in ebook infrastructure last year than they had realized in ebook sales (in response to suggestions from some, including publisher-turned-agent Kirshbaum, that perhaps ebook royalties should rise.)

I made one point at the end that I was a bit surprised seemed new to just about everybody. Very few had taken on board that the difficulties in the trade book business are partly due to the Long Tail: the fact that Amazon’s retailing and Ingram’s Lightning Print (particularly) is making it easy for people to buy books that would have been dead a decade or two ago is just increasing the competition for every book that is newly published tomorrow. (And, of course, throw used books in there too, part of the Long Tail and largely enabled by Amazon.)

This is the same phenomenon that has made it harder for new bands to break out for years: a kid today can still “discover” the Beatles or Bob Dylan and have dozens of songs to listen to and learn without any regard to what is “new”, because the Beatles and Dylan are new to them! We haven’t (yet) had the situation where a multi-book novelist from the 1880s or the 1930s becomes a new addiction, but we’re bound to eventually. And in the meantime, all those Long Tail units are just making the slope to success a little steeper for every new book.

I also told the agents (and, because I did, I want to tell you) about a brand new business I’m involved in called Filedby which, I’m happy to say, is addressing the Long Tail question from another direction. Filedby is now live with a web page for 1.8 million authors — every single one with a live ISBN in the US or Canada. The pages, already mounted, are “claimable” by the authors, providing a big head start on a personalized web page that Filedby has provided largely through  automation. We see an enormous opportunity in helping authors help themselves. There are a lot of them not getting much help from their publishers. Frankly, except for Morgan Entrekin — who explictly spoke about working the internet finding the audiences for books that would sell between 6,000 and 25,000 copies — nobody was offering much hope that the publishers would be doing more for the authors in the days to come. Everybody seems to be looking to authors to do more for themselves. I think my co-founder Peter Clifton and I picked a very good time to be starting this business.

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