“George Washington”

Trying to explain publishing, or understand it, often remains a great challenge


I went to the In Re Books conference at New York Law School last Friday and Saturday in hopes of curing some of my ignorance about the law and publishing. I learned some things, including the facts about a very interesting case involving a book publisher, the associations of publishers and booksellers, and a large general retailer that took place over a century ago and anticipated a lot of what we’re seeing today as the other players in the industry battle the power of Amazon.

But I’m afraid my major takeaway was, once again, that the legal experts applying their antitrust theories to the industry don’t understand what they’re monkeying with or what the consequences will be of what they see as their progressive thinking. Steamrollering those luddite denizens of legacy publishing, who just provoke eye-rolling disdain by suggesting there is anything “special” about the ecosystem they’re part of and are trying to preserve, is just part of a clear-eyed understanding of the transitions caused by technology.

So perhaps we have symmetrical ignorance and will never understand each other.

The conference was lively and well organized. The speakers were articulate and well prepared. There were two panels I wish had taken place in a different order.

On the first day, the In Re Bookstores panel had an antitrust lawyer who fully supported the Justice Department’s case against the publishers, although he seemed to be attacking the Agency model itself, rather than the collusion which, as I understand it, was the core of the government’s case.

But it was only on the very last panel of the conference, on the second day, that two speakers created some meaningful context for the whole discussion. Author James Gleick made a clear and cogent case for the agency model. (Essentially: because there is no investment in inventory or shelf space by the retailers, it is more sensible to consider them “agents” of the publishers than retailing intermediaries equivalent to what we have for print, where substantial investments are required and are at risk.) And Professor John B. Thompson of Cambridge, author of “Merchants of Culture” who is, as far as I know, the single person who has spent the most time and effort learning about trade publishing and synthesizing a coherent view of it, made it clear that Anglo-American trade publishing has challenges which make it unlike other endeavors, even other book publishing endeavors.

So that gives me three things to elaborate on: the blatant misunderstandings about the industry and its concerns about the DoJ case which came from the bookstore panel; the old publishing case that is so resonant with current circumstances; and a reprise of Thompson’s cogent analysis.

The lawyers speaking on the bookselling panel (and lawyers were dominant on just about all the panels; this was, after all, an event staged by New York Law School) were dismissive of the argument that any special treatment for publishing was called for because of the nature of our business. Then they proceeded to get two things startlingly wrong:

1. They dismissed the idea that any “predatory pricing”, i.e. sales of books below cost, ever took place. There was a wee bit of wiggle room there, where they might have meant “in the aggregate” as opposed to “title-by-title”. But they never made that distinction clear and, if that’s what they meant, there was further explanation called for. One is left with the impression that they simply didn’t understand that Amazon was paying publishers $12 or $15 for ebooks they were selling for $9.99. (And, in fact, there were far more dramatic examples of loss-leading than that!)

2. They seemed to think that the concern on the part of those opposing the DoJ was that Amazon would only lower prices to gain market share and would then exercise predatory behavior by raising prices to a captured market. That, actually is not the concern. Or at least it isn’t mine.

As I tried to spell out in a talk in Washington last July, what is concerning is that Amazon will restructure the pricing of books so that the profit for publishers is squeezed out, robbing us of a publishing ecosystem that invests in unwritten books tens of thousands of times a year. My argument and fear is that a restructured ecosystem will deny us books like Walter Isaacson’s Steve Jobs biography or Ron Chernow’s George Washington. Books that take years to write and require hundreds of thousands of dollars of financing to be written will never see the light of day if publishers can’t earn a profit by investing in their creation.

This is an argument and a concern which the attorneys on the platform at this conference made explicitly clear they never entertained. I don’t think the ones in the DoJ did either. Perhaps this has no bearing on the law, but I wish they’d stop trying to tell us the concerns of the industry are just the same old crap coming from a different source when they haven’t taken on board what we’re actually saying.

I tried to inject some of these facts and thoughts from the floor, as did a woman from a Big Six house who was similarly frustrated by the twisting of the reality to fit the antitrust narrative. The moderator cut me off from pressing the argument (which was appropriate; I hate it when people use the rubric of q&a to make their case from the floor at my conferences too!) But for the rest of the conference, at every break people from publishing houses kept thanking me for making the attempt to inject reality about our business into the discussion.

The old publishing case was Bobbs-Merrill versus Straus from the first decade of the 20th century. It seems that Macy’s, the department store that sold just about everything, also sold books at at discount. Bobbs-Merrill posted a notice in its books that the retail price was set at one dollar and that selling below that price constituted a violation of copyright. The Straus brothers, who owned Macy’s, insisted on selling these books for eighty-nine cents.

Both the trade association of publishers and the trade association of booksellers supported Bobbs-Merrill’s position, but the courts did not. There was a “horizontal” as opposed to “vertical” price-fixing angle explained from the stage that I didn’t fully grasp, but we can all appreciate both the irony and distinctions between this case and our present conversations.

Clearly, Macy’s was the Amazon of the time. They saw books as commodities — nothing special — and they simply extended their business model of offering lower prices to cover books. From the perspective of publishers, they were cheapening the perceived value of the intellectual property. From the booksellers’ point of view, they were subsidizing book sales with their ability to sell other things and clearly constituting a threat to what was then a very tiny bookselling network. So the entire publishing community of the time opposed the price reductions being offered by an interloper. In that way, they were creating the same price-fixing “problem” DoJ was “solving” with their lawsuit against Apple and the publishers.

But the difference, as explained by James Gleick a day later, was that the bookstores and Macy’s were, indeed, buying these books from the publishers (and, at that time, they might not have had a returns convention to cushion them from bad buying decisions) risking — or at least tying up — capital to provide stock to the public. In the case of ebooks, that isn’t true. No capital or shelf space (which also costs money) is tied up; all the retailer does is accept and display metadata and pay for the “goods” at some point after the customer pays for them. So the justification for the price-setting in the two cases is quite different.

Still, it was interesting seeing that history was — in a way — repeating itself 100 years later.

And now to Professor Thompson. He interviewed me a few years ago for his book “Merchants of Culture”, which has been out for a few years but which I’m just starting now to read. (Shame on me.) Thompson provided two absolutely fundamental pieces of information which could have been infinitely more helpful to the audience if they had come as the first thing on the program rather than the last.

1. The trade book business is quite different from other segments of the book business and has little in common, as a business, with school or college text or academic or professional publishing. Thompson made it clear that knowing one segment doesn’t mean you know another. After two days of hearing librarians complain that publishers were dissing their “biggest customers” because of the big houses’ concerns and restrictions on ebook sales to libraries, it was good to have somebody explain that publishers were different. In fact, libraries — relatively speaking — are not very large customers for general trade book publishers.

2. Thompson also emphasized — and this was critical insight coming, as it did, from the single speaker most knowledgeable about the transition trade publishing is making from print to digital reading — that nobody knows the future course of ebook adoption. Will it remain, as it is, in the 20% range for general trade reading? Will it go to 30%? 50%? The fact that nobody knows the answer to that question means that publishers’ policies have to accommodate uncertainty about a critical component of the publishers’ future commercial reality.

A couple of other points Thompson made bear repeating. One is that he sees big Anglo-American publishers fighting off threats to their margins. But he thinks the main source of margin erosion for American publishers is the agents, who exercise their power to drive up the cost of acquisition for the most desireable books; whereas for British publishers the source of the biggest problems are the big book retailers, particularly the supermarkets. It is ironic that America’s Robinson-Patman Act, which by requiring manufacturers to offer the same terms to like customers aims to protect small merchants, is actually the shield which protects American publishers from facing ever-escalating demands for margin from their largest accounts.

And Thompson showed a chart tracking the percentage of sales that were ebooks for trade publishers, year by year. The numbers were:

2006 0.1%
2007 0.5%
2008 1%
2009 3%
2010 8%
2011 20%

So the multiple from prior year sales is:

2006-07 5x
2007-08 2x
2008-09 3x
2009-10 2.7x
2010-11 2.5x

The indications are that when we get the report on 2012, it will be about 30%, or 0.5x.

No wonder Thompson makes it plain that we don’t know what’s ahead of us. Did you think that the rate of switchover would drop by 80% this year over last? I didn’t.

The big news of the past few days, of course, is the proposed new Penguin Random House entity. I think the only surprise here is that it has taken so long for a Big Six merger to occur since the last one (which was when Bertelsmann, owners of Bantam Doubleday Dell, bought Random House in 1999). My back-of-the-envelope arithmetic says that PRH is bigger than the other four of the formerly Big Six combined. So I’d expect to see further mergers, but the title of “biggest trade publisher in the world” is secure for the foreseeable future.

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The ebook marketplace could definitely confuse the average consumer


There are no links in this post. I refer to searches done in several ebookstores, but the pages reporting results would be dynamic, so creating a link wouldn’t assure you’d see the same results as I saw. You can replicate the searches and you may or may not see the same thing because the facts might change.

Here’s what the ebook marketplace looks like without agency pricing.

Having just polished off Phil Pepe’s “61” about Roger Maris’s great home run season of 50 years ago, I was ready for my next read. No book has gotten more press on my radar over the past week than the new memoir from Jacqueline Kennedy, transcriptions of interviews she did with historian Arthur Schlesinger just a few months after JFK’s assassination. That looked like a good next choice for me.

(I have learned through the exercise described herein that the book is actually billed as “by Caroline Kennedy”, who controlled the property, edited it, and contracted for its publication and also “by Michael Beschloss”, the historian who wrote the introduction.)

Although I have several readers loaded on my ereading device (the iPhone), I have found myself recently defaulting to the Kindle store because it is the best place for me to browse. It allows me to search very granularly by category and sub-category (which the others don’t) and to array the choices in inverse order of publication (which the others don’t, or if they do, they don’t make it obvious enough how). That’s how I found “61” and “The House That Ruth Built”, my two most recent reads in baseball history (my favorite subject.)

However, when you know you want a very specific book, all the ebook services are pretty much equivalent. They all let you search by title or author and deliver what you’re looking for. Since I like to spread my reading around to keep up with what the various experiences are like, I decided to search Nook first for “Jacqueline Kennedy”.

And the search engine found 22 items matching my search, the first two of which were what I was looking for.

Sort of.

Match number 1 was the book I wanted (“Jacqueline Kennedy: Historic Conversations on Life with John F. Kennedy” by Caroline Kennedy), but only available for pre-order, delivery taking place on January 3, 2012. The list price is $29.99 and the NOOK price is $9.99. Obviously, not agency, Apparently B&N will accept about a $5 bath on each copy, presuming they get these $29.99 ebooks at 50% off from the publisher, Hyperion.

But I want to read it now!

Match number 2 is the same book. However it is a “NOOK Book Enhanced (eBook)”. It is available right now. The list price is $60.00 and the NOOK price is $32! That’s thirty-two dollars! List price of SIXTY dollars? WTF?

Let’s note here that B&N is apparently making very little margin on this, if they’re paying 50% to Hyperion. But since I’m the biggest spendthrift I know on ebooks (I happily bought and read both “Fall of Giants” and “George Washington” from Penguin for $19.99 without blinking; some years ago I bought an ebook bio of Grover Cleveland for $28) and this price stops me, I wonder if anybody would buy it.

So I kept shopping.

My next stop was Google eBooks. The book I’m after was not in the first two pages of results returned in a search under “Jacqueline Kennedy”. (However, there was one book called “Inventing a Voice: The Rhetoric of American First Ladies of the Twentieth Century” that is on sale for $42.36 and another called “The Kennedy Family: an American dynasty, a bibliography with indexes” for $55.20).

So I tried Kobo. By the time I got to the bottom of the first page of results, we were on to other Jacquelines. And the book I wanted, the one getting all the publicity, wasn’t shown.

I almost never use the iBookstore because the selection is more limited. But I decided to try it for this. I found something cool immediately: it gave me an auto-complete choice for “Jacqueline Kennedy” when I had typed a few letters of her first name. Helpful on an iPhone.

Here I found a variation of what I’d found on NOOK. The first listing was for the plain vanilla ebook, only for pre-order for January 3, 2012 delivery, for $14.99. (iBookstore, unlike NOOK, doesn’t list a publisher’s list price.)

The second listing labeled “Jacqueline Kennedy The Enhanced Edition” offered that book for $19.99, also without telling me what the publisher’s list price was.

One thing was odd. iBookstore says that the “print length” of the enhanced edition is 400 pages and the print length of the vanilla edition is 256 pages! Since I thought most of the enhancement was video and audio, that’s a bit of a headscratcher too.

So, finally, I went to Kindle. The number one listing there, available now, was “Jacqueline Kennedy (Kindle Edition with Audio/Video)” for $9.99. The book’s page says the list price is $60 and the Kindle price is a saving of 83%. (Of course, I bought it, and I can tell you that my iPhone progress bar says there are 349 pages in the book!)

What that suggests is that Amazon could be subsidizing sales of this book to the tune of a massive $20 per copy sold! (Next time I’m with a person from Amazon, the cup of coffee is on me.) I’m assuming that Amazon is paying half that $60 retail price to Hyperion.

People’s deals are private and I don’t claim inside knowledge, but my understanding is that all publishers sell to Apple on what amount to agency terms (publisher sets a price with Apple and Apple remits 70% of it) but that part of the commitment is that iBookstore can lower its price to meet competition and adjust remittances accordingly. Perhaps what happened here is that Hyperion set its Apple price at $19.99, figuring that nobody else (meaning Kindle or NOOK, in this case, since apparently Google and Kobo don’t have the enhanced book and aren’t listing the vanilla one for future sale) would drop the price more than that. But Kindle did. So, if I’m right about terms, iBookstore will shortly see this, cut its price to $9.99, and Hyperion will find themselves getting 70% of $9.99 from Apple rather than 70% of $19.99. And still Kindle and NOOK will be paying $30 a copy with Amazon Kindle choosing to lose $20 a copy to sell them and B&N NOOK choosing not to subsidize and probably hardly selling any.

Amazon’s strategy before agency was to aggressively discount the most high-profile books, the ones that the reading public would most often search for, in order to send the strong signal that their prices are the lowest and to force less-affluent competitors to engage in costly price competition. In this case, that strategy is being applied successfully, although both iBookstore and NOOK can respond. Whether one thinks it is a good thing or a bad thing that the deepest-pocketed retailer can spend $20 a copy on a big book to promote a price perception depends on your point of view but this clearly demonstrates what the publishers, the retailers, and the consumers face when a high-profile, high-demand book is sold without the price discipline of agency terms.

Clearly, something has to change here. Perhaps Google and Kobo aren’t listing this title because they can’t or don’t want to sell an enhanced ebook. Perhaps Hyperion didn’t offer it to them. We know that Apple insists on agency-like terms and Amazon is just as determined to stick with wholesale terms. My understanding is that B&N will work either way although they have made public statements that seem to support agency. In cases like this, though, I’d expect B&N to pursue the same terms as Apple gets (which, because it includes publisher price control, Amazon doesn’t want). B&N certainly doesn’t want to be selling an ebook for $32 their competitors are selling for ten and twenty dollars less than that and they also don’t want to lose $20 a copy on a high-volume title. (Perhaps by the time you read this, there will have been price adjustments already made.)

But if B&N and Apple both had terms that allowed them to cut to Amazon’s discounted price and just pay less for each ebook, it is hard to see how Amazon could accept that!

I am sorry there is no way to present this as anything other than confusing. Maybe one of the service providers or experts at our “eBooks for Everyone Else” show will be able to explain it better!

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