Peter Brantley

A dispute broke out on Brantley’s list this morning and I’m in a distinct minority. Maybe a minority of only a bit more than one.

The brouhaha started with observations about ebook pricing, with some very disdainful remarks about Agency pricing in principle and the big publishers’ execution of it in particular. The complaint was “ebook prices are too high” and there was support for Amazon’s protest to the ebook consumers in the UK and even a statement that one should choose what to read based on whether it was priced by Agency rather than wholesale.

Of course, I’m in the camp that believes Agency pricing has, at least (and probably) temporarily, slowed the (still) inexorable downward spiral of ebook prices for branded (big author) books. It has also contributed to breaking Kindle’s hegemony over the ebook market which is not solely a function of deep discounting (it is a great device and a great shopping experience!) As of the last time I checked (two months ago), two Big Six publishers reported to me that the Kindle share for their titles had dropped from the mid-80s to the mid-50s. They no longer dread “the call”, which is the metaphor for the message they feared would come one day from their biggest account saying “I can’t pay $15 for what I sell for $10 anymore; I’m going to give you $5.”

Now, it is possible that the Nook and the iPad would have created a lot of this market erosion under any pricing regimen, but I doubt it. I have heard that Barnes & Noble told publishers last year that Amazon’s ebook pricing was going to kill them and reduce their ability to keep bookstores open if they had to compete with loss leaders in the ebook arena. And Apple still gives a good imitation of an outlet that won’t play except on their Agency terms.

But what really caused the thinkers on the list to take issue was me was my contention that it is logical for the major trade houses to try to keep ebook prices higher in defense of print. From my perspective, the core value proposition of the major houses is “putting books on shelves.” That is the function that requires scale, capital, and a legacy organization with a lot of know-how. If that’s right, the fate of the big publishers is inextricably linked to the fate of brick-and-mortar stores. So of course, they would try to preserve them.

Not all publishers are in the same boat. O’Reilly Media, for example, has told the world that its second largest account is its own aggregated ebook platform, Safari. Print is still important to them, but they’re not nearly as dependent on bookstores as the major trade houses are; they probably sell a higher percentage of even their print online than the big houses do. (They say that Amazon is the one account bigger for them than Safari.) Perhaps it will even be to O’Reilly’s competitive advantage as bookstores diminish, raising the relative value of the customers they can reach directly. O’Reilly is an outstanding example, but not a unique one.

But without bookstore shelves to fill, I fear the major publishers have very little to offer. In their own defense, they tend to fall back on “curation” as their strong suit, but I’m afraid their curation is B2B and the B they curate for is the book trade! They have very little curation “brand” with consumers. I know there are efforts to build marketing capabilities that benefit from scale, but nobody has ever made a convincing case to me that they can do that. Generating robust metadata could benefit from scale if there were real verticality — tagging around the same subject matter again and again — but big trade houses don’t have that.

Another digital head at a big house, responding to my quest for power in scale, pointed out that they’ve been spending scads of money on tax compliance and lawyers. Of course, part of the reason they spend that money is because they have a lot to lose. But it is also true that the tax compliance issues can be offered at scale by third parties. In the US, at least, an outfit called RoyaltyShare is doing just that for publishers trying to live up to the requirements of Agency selling.

We really have at least two trade publishing businesses at the moment, the big houses and everybody else. The big houses pay almost all the substantial advances; they pay the highest royalty rates (which is actually, when you think about it, more than a little bit odd); and they generally get the best terms from their intermediaries. Their executives probably put their pants on one leg at a time (to quote an old baseball line) but, otherwise, they don’t have much in common with everybody else.

When one studies the industry and tries to analyze behavior, it is critical to keep that distinction in mind. It is appropriate that Random House and HarperCollins have a different strategy than O’Reilly or F+W Media for ebook and print pricing and for marketing. They really have different businesses.

All of this recalls the old cliche: where you stand depends on where you sit. If you’re a big publisher, every move you make should consider the fate of brick-and-mortar bookstores and you should be doing everything you can to preserve them for as long as possible. That’s the first element of a survival strategy. The second element could be to try to be “last one standing”. Our client Ingram has demonstrated with two recent deals (with Macmillan and with Springer) how publishers can pull back from their massive bookstore-supporting infrastructures but, even so, a diminution in bookstore shelf space is going to force consolidation. Maybe big houses will merge their back offices (which is, in effect, what Ingram is offering as a third party) but I think it is more likely that we’ll see a lot of mergers in the next ten years.

The most important metric for big publishers to watch over the next few years is “total shelf space available for books in retail stores.” (I’ve even come up with a pretty simple way to track that and suggested it to one of the companies that could provide it.) That’s almost certainly not the most important metric for upstart and vertical publishers.

It is often said that the big mistake railroads made was not realizing they were in the transportation business, or they wouldn’t have let airlines pass them by. I don’t buy that; running a railroad in no way qualifies you to run an airline, let alone to invent one. One listmember in the discussion in which I appeared to convince nobody suggested that the big publishers should focus on how to be more upstart and more vertical. I am afraid that trying to be something that you’ve never been is a very hard path to follow.

All this means that you need to think about which publishers you’re talking to and about when you frame conversations. At Digital Book World, for example, we’ll have a panel on ebook distribution for small and midsized publishers. But we’ll also have some unique research about the ebook royalty deals being made which focuses on agents and big publishers. The experience of smaller publishers, who almost always pay higher royalties, would almost certainly just confuse the issue. Any “industry data” that doesn’t separate the bigs from the smalls has to be parsed very carefully or it could lead to wildly erroneous conclusions.

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The Wall Street Journal was the first to announce, on Monday, (behind a pay wall, but Google “Publisher Delays E-book Amid Debate On Pricing” and you’ll get it) that Sourcebooks CEO Dominique Raccah was holding back the ebook publication of a new hardcover YA novel, Bran Hambric, scheduled for release this September. Raccah’s explanation to the Journal was that she was trying to preserve the perception that the $27 hardcover price was reasonable. Since she knew that any ebook would hit the street at just under $10 (the Kindle promotional price is $9.99 and B&N has suggested that their promotional price will be $9.95), Raccah felt that sales of the hardcover would be undermined.

What was left unsaid in the Journal piece was that Raccah might have been leaving money on the table with this decision. After all, the publisher still sells ebooks on roughly equivalent terms to printed books and has lower costs. So, depending on the royalties Raccah is paying the author, she is (most likely) realizing more margin for Sourcebooks on the ebook sale than on the printed book sale, regardless of how the retailer prices it.

Even more startling (in this day and age) is the possibility that the author’s royalty is higher per copy on the hardcover, so Raccah might be protecting author royalties, to the extent that withholding the ebook restrained cannibalization and resulted in more hardcover sales. I mention that possibility because the agent for author Kaleb Nation is Richard Curtis, one of the most ebook-friendly agents in town (and, indeed, the owner of an ebook publisher called EReads), who was quoted in the Journal supporting Raccah’s decision.

On Wednesday, Motoko Rich and Brad Stone published a piece in the Times on the same story (in which I was very briefly quoted.) Rich and Stone added some nuance to the story. The Journal said that agent Robert Gottlieb resisted simultaneous ebook publication “when he can prevent it.” In the same graf, they said that only one book of the Times’s Top 15 fiction bestsellers was not available in the Kindle store. Of course, that doesn’t mean that the Kindle editions were available at any particular time in relation to the first release of the hardcover, just that they are available now.

The Times reporting went further than the Journal, speaking to several publishers of upcoming major books about their ebook timing plans. Doubleday hasn’t decided yet about Dan Brown’s book but acknowledges that the impact of ebook sales on the hardcover was a consideration. S&S won’t reveal their ebook release plan for Stephen King’s November novel, Under the Dome. Ditto from Hachette imprint “Twelve” on the Ted Kennedy autobiography, True Compass, coming on October 6.

So the fact that everybody is thinking hard about this is confirmed by the Times’s reporting.

But Cader, who as an industry expert and blogger has more scope and credibility to report unattributed information than reporters at WSJ or the Times, went further in Publishers Lunch on Thursday. He ridiculed the notion that Doubleday was (according to a spokesperson)  ”[more] worried about…security…than particular vendors” and he sees the motivation from publishers being to control the behemoth, Amazon. As Cader reports it, Kindle sales surged when the new device(s) came out, becoming as much as 50% or even 70% of Amazon’s sales of many important books.

Everybody (in the industry, but maybe not outside of it) knows that Amazon pays a standard discount for ebooks, which is about 50% off publisher suggested retail, and that Amazon actually takes a loss on a $25 or $27 hardcover book it sells through Kindle at $9.99 (as B&N will do if they follow through to sell books like this as ebooks for $9.95.) Nobody expects Amazon to do this forever although, as Cader points out, they are temporarily subsidized by the profit they make selling the Kindle devices. The widespread fear among the big publishers is that Amazon will soon demand lower prices for the books they put on Kindle so they can keep the $9.99 price point profitably.  As the Kindle unit sales grow, of course, the muscle behind such a potential demand would grow right along with it.

Cader makes the very important point that sales migrating to ebooks, and particularly to Kindle, weaken the brick-and-mortar channel that publishers depend on for most of their sales and profits. The Times reported that publishers could well be making bigger unit profits on each Kindle sale than on each printed book sale (a fact that I explained to them when I was interviewed and which appeared not to be clear to them before I did). Cader (who of course knew that without needing to be told by me or by the Times) makes the point that publishers do this because they are “looking out for what they believe to be their long-term interests — and are trying to protect the entire system of physical book retailing which supports the whole industry.”

While this was happening, Dominique Raccah posted her thoughts to Peter Brantley‘s Amazing List and Kassia Krozser, on that list and proprietor of the Booksquare blog, turned her space over to Dominique for a version of that post. Dominique made it clear that she considered what she was doing with Bran Hambric to be an experiment. Her focus was on a “sustainable author/publisher model”. She made the point (again, clear to most people in publishing but perhaps not to those outside) that the music business continues to present inapplicable analogies, but one of the most egregious is that authors should give it away like musicians to get performance bookings: in publishing, there are no performance bookings (and few t-shirt sales…)

Raccah made it clear that she supports early ebook releases and her house is going to a workflow that will enable that. But then she gets to what is really the heart of the matter. “Etailers are suggesting that the ‘right’ price point for an ebook is maximally $9.99.  And they are proselytizing the price $9.99.  We can’t control what retailers charge for books or ebooks.” The publisher’s choices are whether and when to make it available and whether to sell to any particular retailer.

From there she explains that exploiting formats with “windows” is an old book business strategy (hardcover, trade paperback, mass-market paperback) and a common film strategy (theatrical precedes DVD release, with TV licensing once part of that picture as well, but not anymore.) And she concludes by saying that publishers need to make these decisions on a book-by-book basis (“strategically”, she says, although I’d call that “tactically.”)

My quote, by the way, was to the effect that ebook readers and print book readers are increasingly separate markets, which I believe to be true but cannot prove. A C-level friend at a large house disagrees with me, as I’m sure many others do, and my evidence on this is highly anecdotal (including myself: I have read one printed book of the 50 or so I’ve read in the past 18 months.) But my friend would have no more evidence than I to support his contrary position, so publishers will have to make decisions without really knowing, for now, whether they can push a Kindle or Shortcovers or Ereader consumer back to paper by denying or delaying a book.

That concludes the summary. I have a few thoughts of my own to add on this. I’ll be posting those shortly, probably over the weekend. I hate going much over 1000 words on any single day, and I’m already past 1200.

An  earlier version of this post had a couple of errors misconneting agents and authors which have been repaired. So if somebody tells you about a mistake they saw that you can’t find, that’s what it’s all about. Thanks to Michael Cader for setting me straight.

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Thanks to Peter Brantley and his work spotting items of interest, I was pointed to a post in Wired which is an FAQ on the Google settlement. It is, as far as I can tell, an accurate summary that leads people through the issues in a way that discourages support for the settlement. But I focused on one particular question and answer:

That’s ridiculous. Isn’t there a better solution to the orphan works problem?

Yes. For one, Congress could step up and pass a law about orphan works. But the last time Congress passed a substantial law about the length of copyrights it extended them for 20 more years — keeping more and more books from reaching the public domain. Don’t expect much help here.

This a neat summary of the problem with the whole Booksearch settlement debate. The ONLY better solution to the orphan works problem is for Congress to do the right thing. The author of THIS piece sure didn’t try to come up with anything else. Since that is so, the debate about the settlement should focus on two questions:

1. If Congress does nothing, are we better off with the settlement or with the status quo ante (no settlement and a continuing lawsuit where the plaintiffs are the parties in the settlement, NOT the public and NOT the libraries and NOT the orphan owners — ha! — and not anybody else?)

2. Are we more likely to generate constructive action from Congress in the environment we’d have after the settlement is rejected (status quo ante) or where we’ll all be if  it is accepted?

The now 7-month long debate about the settlement is highly asymmetric. Those advocating it are forced to defend something specific, as if it were the last word (which it isn’t.) Those opposing it are forced to defend nothing. For those who believe the settlement should be rejected, the questions I believe are relevant:

1. Do you have any suggestion of an alternative solution OTHER than Congress passing sensible new copyright law covering orphans?

2. If not, can you explain why it is any more likely that Congress will do that now, or if the settlement is rejected, than in the half-century just past?

As far as I can tell, and I have been asking, there is no solution to the orphan works problem except by changing the copyright law, if this settlement is rejected. And, of course, the is only the most partial solution. Congress has not only failed to act on this question; to my knowledge  not one Congressman or Senator has even expressed an opinion about the Google settlement or the orphan works question in general.

So, this settlement aside, there is apparently no solution BUT Congress and there is no solution likely to be coming FROM Congress. So the cost of denying Google the notional economic monopoly over some unknown quantity of previously buried intellectual property is to also deny it to everybody else. At least until this lawsuit wends its way through trial and appeals.

There is an irony in the current debate which has gone unremarked upon in any of the material I have seen. No polls have been taken on the subject, but appreciating the irony will depend on agreeing with me that there has been more opposition to the settlement from the library community than from publishers. That’s my very strong impression. 

The entire corpus of scanned orphan works comes from library collections. Now the library community expresses the fear that Google, having obtained a “monopoly” on many of these scanned works through the settlement, will charge extortionate prices to libraries for access to the database beyond the one free terminal per library negotiated in the settlement. But at the time the Google library program was announced, it was publishers who were up in arms about whether the libraries – which were getting copies of the scans that Google was creating of their books with different “rights grants” from Google for what could be done with the scans Google had paid for – were exceeding fair use in their partnership with Google. If there hadn’t been deals between libraries and Google, there would have been no in-copyright material scanned, no lawsuit, and no settlement.

Of the people I have talked to who are opposed to the settlement, all agreed that a better solution could only come through a change in the copyight law. One particularly strong opponent said he believed that would be made more likely by rejection than by acceptance.  I don’t agree with him and he offered no logical support for that opinion.

Another, agreeing that we’d need an Act of Congress and wouldn’t be likely to get one, said that “not all problems have answers” and that orphan works might be one of those. And, anyway, he argues, the aggregate value of all the orphans was hardly worth the time and energy the industry is spending discussing them. He diverges from some fellow opponents who are offended by the dollar windfall presumably coming to Google from the sale of rights to the database of scans. 

This opponent of the settlement is arguing that the value to society of getting the “fair use” questions that arise in this case settled by a court is greater than the value of liberating several million books for consumption. That is a discussion worth having. It is not depending on things that won’t happen to make its case. Most of the arguments against the settlement don’t have that virtue.

And there is one more irony surrounding this debate. While the settlement is waiting for approval or disapproval from the judge, the registering of copyright claimants for the orphans continues. There have been no results announced, but I am led to believe that the number of c/r owners coming out of the woodword, because of the settlement, is much larger than anybody expected. This is, of course, shrinking the potential bonanza to Google and is also accomplishing what years of effort to influence Congress has failed to do: substantially reducing the number of orphan works.

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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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