Bye Bye $9.99 and Price Competition in eBooks

The mantra for many ebookers over the past year or so was “get rid of agency pricing and bring back lower ebook prices based on competition.” These ebookers are ecstatic over the approval of the settlement terms in the Department of Justice’s lawsuit against five of the Agency 6 publishers and Apple by Judge Denise Cote on September 6, 2012.

I think it is way too early to celebrate and I think ebook prices of bestsellers will rise, not become lower.

To set the mood to say goodbye to $9.99, here is a song from the past — Don McLean singing his Bye Bye Miss American Pie:

Now that you’ve been entertained, let’s discuss why I think we can say goodbye to the $9.99 bestseller and to real price competition among the big publishing houses which control the majority of popular publishing today.

The first problem lies within the settlement agreement itself. As Judge Cote wrote (p. 10 of the Opinion & Order filed September 6, 2012), the publishers, although they cannot use agency pricing, which presumably means a return to the wholesale pricing of the preagency days, can “enter into contracts that prevent the retailer from selling a Settling Defendant’s e-books at a cumulative loss over the course of one year.” This is a threefold problem for consumers.

First, it means that publishers will be able to require Amazon (and/or Barnes & Noble and/or Apple and/or all other ebooksellers) to disclose both sales numbers and pricing, something that Amazon has been loathe to disclose even to its shareholders. Under the current system of no such requirement, a publisher knows how many of a title have been sold by Amazon because Amazon has to pay for each title sold. But what has not been known, and what every analyst wants to know, is whether the sales are profitable, not just how many units are sold. Analysts want to know whether Amazon has sold 1 million ebooks and made or lost $5 million from the ebook sales alone. And knowing that information, analysts can determine whether or not Kindle hardware sales are profitable — all information that Amazon has steadfastly refused to isolate.

This is problematic because if Amazon has to verify that over the entire line of, say, Macmillan ebooks it is making a profit — and note that it is over the entire Macmillan line, not over the combined lines of Macmillan and Simon & Schuster — Amazon will have to be very cautious about pricing. One cannot easily take a loss on a million-selling ebook in hopes that over the course of the next months it will sell enough ebooks from that publisher to end the year in profit. How likely is it that Amazon will take that gamble and reinstitute $9.99 pricing?

The second reason this is problematic for consumers is because the order essentially orders a return to the wholesale pricing scheme but sets no boundaries on that scheme. There is nothing to prevent the publishers from altering the discount rate or even giving a different discount rate to different ebooksellers. As part of its order, the court did away with the most-favored-nation clause, which said whatever terms you give X you must give me.

I know the response to this is that the publishers need Amazon more than Amazon needs the publishers. I think, however, that Amazon’s caving in to Macmillan when Macmillan demanded agency pricing demonstrates that it is the publishers who are in the catbird’s seat, not Amazon. Amazon is the seller of product and thus needs product to survive. Each of the Big 6 publishers controls a significant portion of the necessary product that Amazon cannot afford to do without. Besides, I expect that each of the publishers will come, independently, to the position of squeezing Amazon similarly, so Amazon will have little recourse, just as it had little recourse in the Macmillan dispute.

The third problem for consumers is that the answer to the worries of the publishers that brought about agency pricing is simply raising the list price of newly published books. The way publishers do this is to take an expected blockbuster and raise its price to the new price point and watch sales. If expected sales (or close thereto) occur, then the next expected blockbuster is given the same price point, and this is repeated until there is confidence that consumers are now expecting to pay the price point.

And this is already beginning. J.K. Rowling’s new book, The Casual Vacancy, a Little, Brown, imprint, has a new price point for a novel: $35. If you check Amazon and Barnes & Noble, you will find that the ebook price at both is $17.99 — a far cry from the previous bestseller price point of $9.99 at Amazon. And the $17.99 is a 49% discount off the list price, which means that the ebook is likely to be generating a 1% gross profit for the retailers, just barely meeting the condition in the settlement order. I see this as an indication that the ebooksellers are concerned about profitability over the entire Little, Brown ebook line over the coming year.

Under the agency system, it would have been expected that Rowling’s new ebook would carry a price no higher than $14.99.

There is also the question of whether Amazon has gotten used to actually making money on ebooks and is using the profit to subsidize the Kindle hardware. Nate Hoffelder raised this question in Did the Agency Model Lead to Cheap eReaders? at his The Digital Reader blog. Having made money on ebooks over the past year, how likely is it that Amazon will want to subsidize both the hardware and the content, perhaps taking a loss on both? At some point, Amazon has to show a profit to prevent shareholder rebellion. And now it has the perfect excuse to do so: Judge Cote’s approval of the settlement agreement that allows publishers to require Amazon to earn a profit on ebooks.

It is the combination of forces that have been unleashed by the approved settlement agreement that will result in no agency pricing for at least 2 years but, instead, higher prices for consumers and the end of the $9.99 bestseller price. We may occasionally see a bestseller being offered at the $9.99 price, but it will be the occasional bestseller, not all bestsellers as in the past. And if we watch prices, I think we will see list prices climb; it will be the rare bestseller that will have a list price below $30. Rowling is leading the way and if her book is a bestseller at $35, it won’t take long for other top-tier writers to insist on equal list pricing. That is how it happened in the past and how it will happen this time.

I may be wrong, but I doubt it. History does tend to repeat itself and the DOJ and Judge Cote have let loose a rising tide. Do you agree?

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Should Internet-Only Retailers Pay a “Showroom Tax”?

Not so long ago, Amazon encouraged consumers to go showroom shopping at local stores and then use a smartphone app to connect to Amazon to see if the item the consumer was interested in was available at Amazon for less. Essentially, Amazon was using brick-and-mortar (b&m) retailers as auxiliary showrooms. Needless to say, this didn’t go over well with the b&m retailers, especially the small, independent bookstores, and for good reason.

Of course, there is no practical way to prevent such comparison shopping by consumers. A b&m retailer can fight back by no longer carrying any Amazon-branded merchandise, which is the approach Target took, but that will, for the most part, be an exercise in futility — how many Amazon-branded products are there and how many are sold by the b&m retailer? Perhaps a smarter approach would be to assess a “showroom tax” on products sold by Amazon (used here as a euphemism for Internet-only retailers) and passing the tax receipts on to the b&m retailers either directly or indirectly. Such a “tax” (I am using the term tax very loosely; a term such as surcharge or fee or service adjustment or other similar-concept euphemism works just as well) would have Amazon contributing to paying the costs of maintaining a b&m store without chasing customers away because they openly are comparison shopping (which, it has been reported, some independent bookstores have done).

There are a couple of ways that a showroom tax could work. (Although I use Amazon as the example, the idea is for any Internet-only retailer to be charged the tax, not just Amazon.) I think the easiest way it could work would be if the wholesalers/manufacturers of goods that are sold to both Internet-only and b&m retailers charged and collected the tax and either used the proceeds of the tax to lower the wholesale price of the same goods sold to b&m retailers or provided b&m retailers with a rebate equivalent to the amount of tax collected.

Essentially, it could work like this: If Amazon buys/sells 100 Sony TVs, Sony would collect the tax (say $1 per unit) from Amazon in addition to the wholesale price. Then when Target buys/sells 100 Sony TVs, it would either have $1 deducted from the wholesale price of each unit or it would pay the same wholesale price but receive a rebate of $1 per unit.

The alternative would be to really make it a national (federal) tax that is collected by the government and then distributed to b&m retailers by way of a tax break that is available only to b&m retailers.

I realize it is not as simple to do as I make it appear, that we are talking about a fixed pool of money that would have to be divided equitably, and the per-unit tax would need to be of a sufficient amount so as to be meaningful, but it could be done. I don’t want to nitpick details; it is the broader concept that is of interest at the moment.

The argument will certainly be made that b&m retailers are not worth saving if they cannot compete effectively; after all, there is a cadre of ebookers who currently take that position as regards b&m bookstores. Many of those who make that argument see nothing wrong with Internet-only retailers making use of the b&m stores as free showrooms; a few ebookers have boasted that that is exactly what they do: visit a local b&m bookstore to check out an item and then order it online because the price is less or they save sales tax.

The problems with the ineffective competition argument are that it (1) compares apples with oranges, that is, the playing field for b&m and Internet-only businesses is not — and cannot be, as currently contrived — level, and (2) it assumes that if all retail went Internet-only the consumer would be better served, a proposition that has neither been field-tested nor proven and on its face strikes me as inherently incorrect. It is easier to accept with certain products, like books and music, than with others, such as TVs. (If you couldn’t showroom shop TVs, how would you determine whether you like the picture and features better on the Panasonic than on the Samsung or Sony LCD TV?) Even companies like Apple and Leica have found that showrooms are important sales tools.

Companies like Amazon are able to reduce their costs, and thus offer a lower price to the consumer, because they do not have to support b&m storefronts in order to sell their goods — someone else already has a b&m storefront where those goods are displayed, and that someone else absorbs all the costs of the b&m store. I’m not suggesting that this advantage of the Internet-only retailer is illegal or immoral; instead I’m suggesting that even Internet-only retailers recognize the importance of showrooming, as witnessed by their encouraging consumers to showroom shop locally but buy online to save money.

Such consumer behavior cannot (and should not) be forbidden, In fact, it probably should be encouraged, but only if the playing field is leveled. It is impractical to devise methods to force currently Internet-only retailers to become also b&m retailers. Besides how many more b&m retailers selling the same merchandise do consumers need? The issue isn’t purchasing options, which now exist in abundance; the issue is spreading out the costs of showrooming among all those who rely on it.

Local b&m retailers would be able to compete better with Internet-only stores if their overhead costs weren’t burdened with the extra costs that are part and parcel of having a physical presence that is open to the public. Because the Internet-only retailers rely on the ability of the consumer to see the merchandise at a local b&m, the showrooming effect, it seems appropriate that the Internet-only stores should share the cost burden of maintaining the b&m showrooms.

In a way, Amazon demonstrates the correctness of this approach of cost-shifting/sharing. When a consumer buys an ebook from Amazon, Amazon charges a delivery fee to the author. Unlike some other ebook sellers, Amazon doesn’t absorb the costs of delivery as a cost of doing business; instead, it takes ancillary costs like delivery off the top and then does its split with the author/publisher. The consumer doesn’t directly see this, but it is a factor that goes into (or should go into) the author’s calculation of the ebook’s price. Whether fair or not, by not absorbing all of the delivery costs, Amazon is able to charge less for ebooks than competitors who do absorb some or all of the delivery costs.

Similarly, by not needing to have b&m showrooms, Amazon is able to sell products for less because its costs are less, yet it is able to also take advantage of the showroom effect because it can encourage consumers to check out a product hands on locally and then buy for less online.

It seems to me that under the circumstances, Internet-only stores should pay a showroom tax to help support the b&m showrooms they rely on and to help level the playing field from a cost/price perspective.

The Department of Justice vs. eBooks II

As I noted in the first part of this article (see The Department of Justice vs. eBooks I), the settlement proposed by the DOJ raises a lot of issues but doesn’t attack the central premise that agency pricing is okay.

I mentioned in part I that publishers could raise the list/wholesale prices of not-yet-published ebooks. But there is another option that could prove to be even more effective: Publishers are not obligated to give ebooksellers a 50% or higher discount as the wholesale price. Publishers could limit the wholesale discount to 30%, which would reflect the current 70-30 split that comes from agency pricing.

And there is nothing preventing publishers from limiting the format that an ebook can be sold in.

The point is, publishers do not have to think of themselves as helpless. I expect publishers will look at the situation as if they are helpless. They aren’t, but they need to be creative, something they are not known for. As the current debacle demonstrates, publishers are being led, they are not leading.

Let us not forget that the settlement proposed by the DOJ effectively separates book sales into two distinct markets: pbooks and ebooks. This could be important because one of the reasons the publishers gave for agency pricing is that they want to keep the brick and mortar stores alive. (It is worth noting that recent data show that even with the growth of ebooks, pbooks sales still account for 80% of all book sales.)

Well, the b&m stores rely on pbook sales, not ebook sales. Even Barnes & Noble relies on pbook sales. The only major bookseller of pbooks that doesn’t have b&m storefronts is Amazon. If publishers want to help ensure that the b&m stores continue to be competitors to Amazon, the simple way to do so is to not only insist that every bookseller get the same wholesale discount (there is no law that requires volume discounting) but then to supplement the b&m stores with higher co-op payments for displays, which would enable them to have additional funds for discounting to compete pricewise with Amazon.

The law requires that similar parties be treated similarly. So if Amazon wanted co-op money, it would have to open b&m stores. In other words, publishers could help level the playing field without straying from the requirements of the DOJ settlement.

It has been stated on numerous blogs and forums that the key to fighting Amazon is to do away with DRM. Without DRM, people would navigate to the ebookseller with the best pricing and service. I do not think that is true in the absence of devices that can handle different formats. Most Kindle owners will continue to shop at Amazon because Kindles can’t handle ePub in the absence of conversion and side loading. Similarly, Nooks can’t handle Amazon’s proprietary format without conversion and side loading. The question isn’t whether converting and side loading are hard to do — they aren’t — but whether most ebookers would do so to save a dollar or two. I think not.

What Kindlers and Nookers always cite in defense of buying from Amazon or B&N, respectively, is the ease of buying and then seeing their purchase appear on their device effortlessly. Right now they could buy a lot of the indie books that they buy at Smashwords in the DRM-free format of their choice. But they don’t because then they would have to side load the ebooks; they aren’t automatically loaded onto their device. Why would habits change?

Ultimately, the real keys to ensuring competition remains are a single, uniform format that is device agnostic (and if DRM must be, then the DRM also be uniform) and agency pricing.

I can hear the uproar as I write about agency pricing, but consider that many of the electronic items we buy are either agency priced or have the same effect through resale price maintenance agreements. Every ad I see for an Apple iPad gives the same price. Every ad I see for a Kindle Touch lists the same price. Yet no one complains that there is no price competition for these items (where is the DOJ’s proconsumer department in these cases?); the complaints are all directed at ebooks.

Of course, the answer is that Kindles don’t compete with Kindles, they compete with Nooks and each vendor independently decided to set the prices. But it is the blind person who fails to see that there is really no difference in effect for the consumer and the purpose of the antitrust laws, ultimately, is to protect competition for the benefit of consumers. Whereas the DOJ recognizes that the Kindle and the Nook are not the same, it insists that the Stephen King and the Dean Koontz novels are the same, at least in book form.

And if the DOJ were really focusing on the effect on the consumer, it would take a look at the various formats and DRM schemes that lock most consumers into a particular eco system. How much more anticompetitive can one be than to capture an audience and make it difficult for them to stray elsewhere?

Here is another question: Where are the authors in this dogfight? The Author’s Guild has come out against the DOJ settlement, but where are the indie authors? Based on comments I read elsewhere, most indie authors are pleased by the settlement because it will make Amazon even stronger and the majority of their sales are at Amazon.

In the short-term view, the stronger Amazon is, the better it is for the indie author. But is that true for the long-term? I can only speculate, but based on Amazon’s attempting to squeeze publishers for more money, I think it is fair to expect that eventually it will turn to squeezing indie authors. The more dependant an indie author is on Amazon, the less the indie author can refuse whatever terms Amazon wishes to impose. And it must be remembered that Amazon owes its obligations to itself and its shareholders, not to its suppliers. Amazon is the Walmart of ebooks.

There is also one other potential negative effect to the settlement. If Amazon succeeds in establishing the $9.99 price point, indie authors who have not yet found a large audience for their books will be squeezed into even lower pricing than currently. More of their ebooks will be priced at 99¢ and free because the reading public will not see them as being worth more when one can by the well-established and well-known author for $9.99 or less.

How this will all turn out is of great interest to me. I am pleased that Macmillan and Penguin have the moxie to fight the DOJ settlement, as I do not think the settlement is in anyone’s best interest over the long-term. It may be of benefit over the short-term, but somewhere along the continuum, in the not-so-distant future, publishers, authors, and consumers will face a different reality.

What do you think?

The Department of Justice vs. eBooks I

As most of you already know, the U.S. Department of Justice (DOJ) has filed a lawsuit against Apple and 5 of the Big 6 publishers alleging collusion in the establishment of agency pricy pricing (see “Justice Dept. Sues Apple and Publishers Over E-Book Pricing; 3 Publishers Settle”). In several of the forums I participate in, ebookers are celebrating the expected lower ebook prices.

Yet, there are several things worth thinking about and noting. First, Random House, one of the Big 6 publishers, and Smashwords, the leading indie author distributor, both of which have agency pricing, are not named defendants in the DOJ lawsuit. That signals to me that the problem is not with agency pricing, but with the collusion aspects.

Second, the 3 publishers that settled with the DOJ, which settlement, it is worth noting, is not effective until approved by a court, are restricted from instituting agency pricing for 2 years, after which they can reassert agency pricing as long as they don’t agree over dinner to do so. This, too, indicates to me that agency pricing is not contrary to the law or necessarily thought to be anticonsumer by the DOJ.

The third notable matter is that the publisher with the greatest moxie, the one that first stood up to Amazon, Macmillan, is not settling with the DOJ and intends to fight, as do Penguin and Apple. That means that the DOJ case is not so strong that it cannot fail once tested. And should it fail, so will the settlement agreements with the 3 settlers fail. It appears that in Macmillan’s case, CEO John Sargent is alleged to have attended only 1 meeting with his fellow CEOs, which means that the DOJ will have to demonstrate that it was at that meeting that the collusion occurred, not an easy task unless the settlers will testify that that is when the collusion came to fruition and that Sargent was present when the decision was made. Hachette, one of the settlers, claims there was no collusion, so it makes me wonder how the DOJ will sustain its burden of proof. Allegations are one thing, proof is another. Simply that there was an opportunity to collude doesn’t prove there was collusion.

There are other problems with the lawsuit. It has been too many years since I last practiced antitrust law (last time was nearly 30 years ago), so I’m not current on the state of the law and I admit that I’m not sure exactly what the DOJ must prove to prevail, but it is clear to me that the Republican-dominated U.S. Supreme Court doesn’t look favorably on these lawsuits. It was a Republican court that upheld resale price maintenance agreements, which has the same effect — setting a floor price below which goods cannot be sold — as the agency pricing system.

An interesting legal question, which may or may not be relevant to the DOJ lawsuit, is this: What constitutes the market? If all ebooks constitute the market, then ebooks are interchangeable commodities, an idea that is resisted by publishers and authors and even by many consumers. If the market is an individual title because you cannot substitute Dean Koontz for Stephen King, then wouldn’t the DOJ have to prove collusion among publishers to set the price for Stephen King, not collusion to set the mechanism for pricing of all ebooks? Of course, there are numerous variables to the market scenario, but they make for a fascinating legal chess game.

But all of this aside, the bottom line is that agency pricing is not illegal even in the eyes of the DOJ. Which leaves a lot of questions. For example, will Random House abandon agency pricing or continue with it? What about Smashwords? (Smashwords has already announced it will retain agency pricing and oppose the settlement agreement during the comment period.)

A more important question is this: Several of the Big 6 have — so far — refused to sign renewal contracts with Amazon because of demands made by Amazon. In the absence of agency pricing, will some or all of the Big 6 refuse to renew agreements with Amazon? Would such a refusal affect both pbooks and ebooks or just ebooks? If they do not renew the agreement, what can Amazon do about it?

The settlement agreement says that publishers cannot prevent a retailer from discounting the publishers ebooks except that it can require the retailer to make a profit across the publisher’s line. I find that an interesting proviso. Consider how secretive Amazon has been about how many ebooks it really has been selling. Amazon has only been forthcoming with broad numbers and in a few cases announcing that an author has joined the millions club. Will Amazon, who is not a party to the proceedings, voluntarily share sales information? I doubt it.

Yet the sharing of that information is necessary to make the exception meaningful. If the wholesale price, that is, the price the ebooksellers have to pay the publisher, of the new James Patterson ebook novel is $13 and Amazon sells it for $10 and sells 1 million ebook copies for a $3 million loss, somehow Amazon must sell enough other books in that publisher’s line to overcome the loss. How is that going to work?

Will Amazon offer the first 10,000 units of Patterson’s ebook for $10, the next 10,000 units for $16, the next 10,000 units for $13, and so on? Customers will be thrilled. Especially if they can buy the same ebook someplace else for $13 when Amazon wants $16.

Another problem with the settlement is that it does not — and cannot — establish a wholesale price for not-yet-published books. The DOJ could say that current agency-priced ebo0ks’ wholesale price is 70% of the current agency price, because that is what the publisher has been willing to accept. But what about future ebooks? The DOJ is not in a position to dictate individual pricing, so there is no reason why publishers cannot raise list prices to $30 and set wholesale prices at $15. The settlement speaks to discounting, not to setting of wholesale price.

There is more to say, but it needs to be said in another installment of this article, so this will be continued in my next post.

The Amazon Conundrum: Competition in eBooks

On several forums that I visit, there has been ongoing discussion about Amazon and monopolies and how no one need worry because if Amazon were a monopoly and did raise prices, a new competitor would instantly appear. The discussions often also evolved to criticising anti-Amazon posters for not having a solution to the problem, just whining about the problem.

I think those who do not see a potential problem with an Amazon ebook monopoly for authors, publishers, and consumers are simply fooling themselves. The ebook market is not like the TV market. Unlike TVs which all meet certain standards so that a Sony can be substituted for a Samsung, which can be substituted for a Panasonic, ebooks do not meet a set of standards and a Kindle-compliant ebook cannot be substituted for an ePub-compliant ebook without some finagling and without removing any DRM.

Consequently, should Amazon drive out of the ebook business its primary national competitors, the likelihood of someone coming along and overnight becoming a major competitor is nearly nil. Consider the cost of duplicating Amazon’s already-in-place infrastructure. Plus, how would a new competitor break the Amazon eco system? The only way competition might have a chance at surviving would be with Department of Justice intervention.

Picture the ebook marketplace with Sony, Apple, Kobo, and Barnes & Noble gone, leaving just Amazon. If Amazon raised its pricing to insure profitability (or, alternatively, followed the Walmart practice and instead kept pricing stable but squeezed authors and publishers), what could be done about it? Not much. To say that a new competitor would see an opportunity and exploit it is naive.

The new competitor would have to build a business from the ground up. How likely is it that Amazon would sit back for a few years to give such a company a chance to gain a foothold? How likely is it that venture capitalists would be willing to fund the necessary billions for such a venture? And if the new competitor was ebook focused, for how long do you think they could underprice Amazon? Remember that Amazon has other, well-established divisions that could support a money-losing book division, something that a new competitor wouldn’t have.

To think that with the fall of the current crop of competitors new competitors would rise that could compete with Amazon nationally is simply wishful thinking with no basis in reality. The response is that Walmart didn’t raise prices, but ignores that Walmart has strong national competition in companies like Costco, Kmart, and Target — once you eliminate Sony, Kobo, and B&N, Amazon doesn’t. Apple is currently a weak ebook competitor and no one thinks much of the Google ebookstore’s competitive status.

This problem with Amazon was brought about originally by publishers who didn’t look beyond their noses when giving Amazon significant product discounts in the early years. The problem is being compounded by the same publishers’ inaction and by authors scrambling to join the Amazon exclusivity club. If publishers and authors do not take steps to halt the rise of Amazon, there soon will be no outlet but Amazon for national exposure.

The question is what can publishers and authors do? For authors, the only option is not to give Amazon exclusivity and to actively promote other ebookstores where their books can be found. If you promote Amazon primarily, you are feeding the problem, not starving it.

Publishers really are in the stronger position to halt Amazon’s dominance; they just lack the willpower to do more than whine. Agency pricing (which is legal; the Department of Justice is investigating whether there was collusion to impose agency pricing, not whether agency pricing itself is legal) was a first step but as done by publishers, insufficient.

What really needs to be done is for publishers to decide that their ebooks can only be sold in the ePub format and only with Adobe adept DRM (i.e., essentially social DRM like B&N uses). Once you break the Amazon closed eco system, everyone can compete on the same terms. Combine this with correct agency pricing, and the playing field becomes perfectly level. Now ebooksellers will have to compete on other factors, such as customer service.

If Sony’s ebookstore went under, it would go under because of other factors, factors that were within its control, rather than because of format wars.

The forcing of ePub and one type of DRM doesn’t directly address the exclusivity problem, but it could do so obliquely. If competitors to Amazon began to increase market share, the incentive to be Amazon exclusive would diminish.

One other thing to consider: I see no reason why, now that Amazon is a direct competitor of traditional publishers — it has established its own publishing houses to sign on authors for Amazon exclusives — traditional publishers can’t simply refuse to sell their books — both p and e — to Amazon. It seems to me to be illogical to require them to provide the means to fund their own funerals.

The longer the publishers dawdle in taking action against Amazon, the more power they devolve to Amazon. The point will soon arrive when publishers will be able to take no effective action against Amazon and we will be writing their obituaries.

The same is true of authors who sign up for Amazon exclusivity and who promote Amazon. There will soon come a time when the only game in town will be Amazon and you will be at Amazon’s mercy. You will find that no one will stand beside you should you decide to fight at that late point in time — publishers won’t because they will be powerless; consumers won’t because all they are interested in is lowest available price; other ebooksellers won’t because they will be nonexistent.

The time to fight to prevent monopolization of the ebook marketplace is now. The way to do it is to encourage publishers to only permit the sale of their ebooks in ePub format with a standard DRM and for authors to not give Amazon exclusivity. In the absence of such action, we can wear the lemming label.

eBook Exclusivity — A Good or Bad Idea?

The answer really is “it depends.” It depends on who you are and where you are in the ebook world.

Recently, Amazon started a program for its Prime members: they can borrow 1 ebook for free each month, choosing from a list of more than 30,000 titles (and the list is growing). The source of these ebooks appears to be the Kindle Direct Publishing (KDP) program. Amazon is encouraging self-publishing authors to participate in KDP. KDP will “lend” books in its program to Amazon’s Kindle Owners’ Lending Library, which is part of the Prime membership.

Amazon hasn’t ignored compensation, either. It has set up a pool of money ($500,000), which is the pool for the first month (Amazon plans to set aside $6 million for the 2012 pool). Every indie-author-participant whose book is borrowed will receive a share of the pool based on the number of times the book is borrowed as a share of total borrowings of all particpating ebooks. Presumably, if your book is borrowed 100 times and the total number of borrowings is 500,000, you would receive $1 for each borrowing (hopefully my math is correct). If, on the other hand, your book is lost in the ever-growing list and not borrowed at all, you will receive nothing except for whatever royalty you are due in the normal course of business with Amazon as a result of sales.

So far, so good — or so it would appear.

Let me say upfront that I am not a friend of Amazon. I disapprove of Amazon’s attempts to dominate the ebook market. But I do admire Amazon’s creativity. The one thing I truly feel confident in stating about Amazon is this: whatever Amazon does, it has carefully thought about how it will ultimately benefit Amazon and further Amazon’s dominance interests. In other words, Amazon is a business’ business. Unfortunately, a corollary to that equation is that what is good for Amazon may not be good for consumers and/or authors and publishers in the long-term. Amazon is proving adept at focusing everyone outside Amazon on the short-term and assuming that the long-term will be equally glorious. As the song goes, “It ain’t necessarily so.”

The deal with Amazon is this: The author/publisher agrees to give Amazon’s KDP exclusive rights to the ebook. The author/publisher agrees that the book will not be available at any place other than Amazon, not even the author’s own website, during the exclusivity term, which term runs for 90 days and is automatically extended unless the author/publisher takes affirmative action to withdraw from the program — with the long-term consequences of withdrawal not currently known.

Exclusivity both bothers me and worries me. It bothers me because Amazon’s environment is a closed environment (yes, I know one can strip the DRM but most consumers can’t and won’t, and I know that Amazon has application for nearly every reading device known to humankind, but that means that even though I’ve chosen Sony or Barnes & Noble over Amazon, Amazon is pressuring me to kowtow to it), unlike virtually every other ebook retailer (with the notable exception of Apple). To read an Amazon DRMed ebook, you must use an Amazon device or application; with most other ebook retailers all that matters is that your device be ePub capable. (And, yes, I do know that there is a DRM problem with B&N and even more so with Apple.) So the exclusivity program bothers me because Amazon is locking up authors and their books to the Amazon platform, whether I want to be on it or not.

Yet worse is what worries me about this program — all the unknowns. I know that Amazon’s big ebook authors — its million sellers like J.A. Konrath (whose books I have never read or bought) — signed on but what I don’t know is whether they signed on under the same terms as Sally Unknown has to sign. More importantly, however, is that Amazon is trying to get the Agency 6 to sign on and is rumored to be offering them a set fee for each borrowing, that is, they would not participate in the pooled money.

If the deal being offered the indie authors is such a sweetheart deal, why isn’t it the same deal as being offered to others? The mighty shaft is rising and it’s not aiming for the Agency 6!

I am also concerned that authors may feel they must join this program in order to stay within Amazon’s good graces. After all, for most authors currently, the bulk of their sales are via Amazon. Yet, there is something that indie authors need to look at, and do so carefully: how are their sales trending?

Jeff Bennington, a suspense writer, explains at his The Writing Bomb blog his decision to participate. Personally, I don’t find his arguments convincing. Bennington states he is joining because 97% of his books have sold via Amazon. One needs to back up a bit from giving that fact too much credence. For example, that number represents past sales not future sales. More important than past sales is the sales trend: has growth on Amazon plateaued while sales at B&N are growing at a 30% rate? What has the author done/not done to promote his book at the Sony store? Have all his promotion efforts been geared to Amazon?

Ultimately, the exclusivity arrangement will hurt lesser-known authors for several reasons: (1) once on the exclusivity bandwagon, it will be difficult to get off (not only must one take affirmative steps to get off, but one has to overcome the fear factor of doing so). (2) Amazon dominates the U.S. market but does it dominate elsewhere? As I understand it, the exclusivity is worldwide. (3) Authors face the same problem in KDP that they face outside KDP — who knows of them or about their book? If KDP already has more than 50,000 participating titles, what are the odds of someone picking your book over another book? (4) If Amazon is successful in getting the Agency 6 to participate and that participation includes the top-tier authors — the Stephen Kings and Clive Cusslers and Ruth Rendells of the publishing world — how likely is it that someone will pick Sally Unknown’s ebook to read for free as opposed to one of Stephen King’s ebooks, especially when the reader can only borrow 1 ebook a month?

What exactly is the indie author getting by participating — not what does the indie author hope to get by participating? All I see that is definite are benefits flowing to Amazon, which has put itself in a no-lose situation; it is wishful thinking and hopes that flows to indie authors.

One other issue matters, I think. What KDP indie-author-participants earn is based on the percentage their sales represent of all sales (unlike the Agency 6 who get paid a set amount each time a book is “borrowed” and who knows what the million ebook club members get). Who has the right and is going to audit the program to verify that the numbers are correct? As far as I can tell, authors are not given the right to audit the entire program, which seems to me to be fundamental to determining whether exclusivity with Amazon is the right move for your book. When Amazon sends you a check for $10, how do you know that it shouldn’t be for $100 if you cannot audit the whole program? And if this is such an up-and-up sweetheart deal for the indie author, then why can’t an indie author or a group of indie authors audit the program? I guess it all boils down to believing “Amazon is my friend and will do me no harm.”

As I noted earlier, I am not a friend of Amazon. I fear what will happen when the only choice for buying an ebook is Amazon, and Amazon is doing everything it can to hasten that day. It is worrisome when indie authors are willing to jump on Amazon’s bandwagon without looking in depth at Amazon’s KDP program and its exclusivity arrangements and the red flags that should be arising. Instead of joining the herd and singing the mantra “Amazon is my friend, I need not worry,” indie authors should be singing the mantra “Amazon is Amazon’s friend, and I do need to worry.”

Indie authors — and all publishers and authors — need to think and look long-term and not be seduced by the possible but uncertain short-term. The waters are shark infested.

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A Book Is a Book — Or Is It?

If we look back to the beginning of the agency model in ebooks, which began a little more than one year ago, we can find the publishers’ claimed rationale for changing models (which occurred with a mighty push from Apple): to protect ebooks from becoming mere commodities and to prevent consumers from establishing a mindset that $9.99 is the right price point. Okay, that was the rationale, coupled with a fear of Amazon becoming too powerful, that was bandied about. The question is: Were publishers successful in preventing the commoditization of books?

The reports from the Agency 6 indicate that ebooks are rapidly becoming a significant source of revenue for publishers, perhaps even their primary growth area. Latest reports show growth in ebook sales (Barnes & Noble reports 140% rise in digital sales; Hachette reports ebooks as 20% of U.S. sales and 5% of worldwide sales; Penguin and Simon & Schuster report digital as 14% and 15% of revenue, respectively; Bertelsmann/Random House reports digital sales in the first six months of 2011 as exceeding all digital sales in 2010);  and a significant decline in mass market paperbacks (down 14%). Profits are up slightly, even though volume appears to be down somewhat. All of which seems to favor the notion that the publishers did the right thing.

What we don’t know, of course, is how the sales are breaking down by price point. I can relate anecdotal evidence that the agency pricing scheme is a failure on several levels, but no data has been released that enables a careful analysis.

I’ve mentioned it before, yet it is still true: Whereas before agency pricing I bought a lot of hardcover books and ebooks from the Big 6 publishers, my purchases have declined since the institution of agency. Whereas I used to visit my local Barnes & Noble at least once a week and buy a few books each time, it has been nearly five months since I last visited the store and bought an Agency 6-published book.

If the Agency 6 intended by their action to make me accept spending more than $9.99 for an ebook, they have failed — and failed miserably — because I am pretty unwilling to accept even $9.99, let alone a higher price point, as the sweet price point. Instead, I’ve gotten used to the indie author price points of $5 and less, with less being the dominant word.

I still occasionally “buy” an Agency 6 book, when they offer it for less than $5 or offer a bundle, such as three ebooks for $9.99, but more often when they offer an ebook for free. Agency pricing has backfired not only with me but with nearly all of my acquaintances who buy ebooks. The principal hurdle for the Agency 6 to overcome is the lack of physicality of the ebook.

Even though I and my friends have transitioned to ebooks and much prefer reading on our electronic devices to reading the pbook version, we have not made the price transition, and it is that transition that the publishers need (want?) us to make. Yet it is the publishers who have made the problem worse.

Publishers do not accept the idea that a book is a book is a book, regardless of whether it is electronic or print. In contrast, consumers like me have always thought that a book is a book is a book, regardless of form. We understand the difference between a hardcover and a paperback because we can both see and feel those differences; consequently, over decades we have become accustomed to paying more for a hardcover than for a paperback, perceiving — rightly or wrongly — greater value in a hardcover than in a paperback. (In fact, it was this perceived disparity that brought about the rise of the trade paperback. The trade paperback is perceived by consumers as offering less physical quality than a hardcover but more than a mass market paperback, and thus worth a price between the two.) But we continue to have difficulty wrapping our heads around the idea that, even though it lacks physicality, the ebook is worth more than the paperback and the hardcover (ever note how many times the ebook price is higher than the hardcover price or so close to it that there is little price differential?) at worst, and worth more than the paperback and only slightly less than the hardcover at best, or that it is worth the same as the trade paperback.

Because we have difficulty wrapping our heads around the agency pricing continuum, we have spent more time and money buying indie books, which seem to be priced more logically. Thus, I suspect that our experience is the experience of many ebookers; that is, we buy more indie ebooks than agency ebooks (with some exception).

The Agency 6, however, can point to the rise in revenues, and sometimes even in net income, they are experiencing, which is occurring even in the face of declining volume numbers and is attributable to increased ebook sales at the higher agency price. It is mixing, I think, apples and oranges in the sense that I suspect the biggest growth in volume and dollars is occurring in the indie/non-Agency 6 ebook market, not in the Agency 6 market. So the question not being asked or answered is this: What would the Agency 6 ebook sales volume and profits be if they had let the market do the pricing? Would their growth be significantly higher than what is being reported and would their net income be more marginal?

Also not asked and answered is what effect the commoditization has on consumer buying habits. Ultimately, will this cause even hardcover sales to decline significantly? This takes us back to the questions raised earlier in Clashing Perspectives: Coming Home to Roost and leaves us in the same place.

I used to “revere” books that I purchased. After all, I paid a lot of money for a hardcover and I treated it reverently. Take one off my library shelf and it appears in virtually the same condition as when I bought it. I wouldn’t let my children borrow one of the books until they learned how to handle them gently and carefully. None of this matters with my ebooks. Even if an ebook is accidentally deleted and the bits and bytes written over, I can replace it for free from my backup and have it in the same condition as when I bought it. There is no need to be reverent. Thus, the ebook is viewed as a commodity — a book is a book is a book.

Never Give a Sucker an Even Break!

In 1936, in the movie Poppy, W.C. Fields tells his daughter, “If we should ever separate, my little plum, I want to give you just one bit of fatherly advice: Never give a sucker an even break!” It appears that Apple has adopted it as its motto for the 21st century, at least in regards to ebooks and publishers.

I’ve got to give credit where credit is due, and Apple deserves credit for great design. Apple’s approach is like wrapping a Volkswagen Beetle in a Lamborghini shell and proclaiming the new car to be a $100,000 car. Apple gives you a great shell but the components are often mediocre at best. And when a design flaw is caught out, the usual response seems to be it’s the customer’s fault — never give a sucker an even break!

Let’s face it — the iPad is really a so-so device. Pretty to look at, but not a great computing experience, especially when compared to notebooks that permit multitasking. Perhaps this will be cured in the forthcoming version 2, but even if it is, Apple still will be a company that treats its customers and partners as suckers — suckers who will part with hard-earned dollars in exchange for good design, mediocre performance, and anticonsumer restrictions. Just consider Apple’s recent insistence on getting a cut on all ebook sales.

The initial culprit in the current ebook fiasco was Amazon who spread its tentacles to far too quickly, giving Apple the opening it needed to give false hope to publishers and consumers that there would be another, better way. Regular readers of my blog may recall my post from 9 months ago, The Decline & Fall of the Agency 5, in which I wrote:

April 2011 is the month to prepare for armageddon in ebookdom. It is when the 2010 agency model pricing scheme will be buried by publishing’s 2010 savior, Steve Jobs and Apple. You read it here first.

All the stars and moons and planets will align and the caterwaul of panic will be heard throughout ebookdom, because that is when the Agency 5 — Macmillan, Simon & Schuster, HarperCollins, Penguin, and Hachette – will realize they have been snookered by the snooker master.

…

In April 2011, publishers will discover that the iBookstore is a losing proposition. Oh, Apple will have sold many millions of iPads, fulfilling expectations for a successful tablet, but the buyers, it will soon be discovered, either aren’t buying ebooks at all (maybe 1 or 2) or what they are buying they are buying from Amazon or Barnes & Noble or Smashwords.…

Well, I wasn’t spot-on, but pretty darn close. iPads did sell millions and the iBookstore is a loser. iPad owners who are buying ebooks, emagazines, and enewspapers are buying them through the Amazon, Barnes & Noble, Kobo, and publisher apps, not from the iBookstore. But Apple has moved to close down any pipeline that bypasses the iBookstore by making it impossible for those apps to remain in the Apple iOS system.

So, tell me again how much of a friend Steve Jobs and Apple are to publishing and to readers. How did Apple become the publishers’ white knight? How did Apple save publishers from the clutches of Amazon?

Publishers certainly have had their comeuppance. What was supposed to save the industry has turned out to be less a saving grace and more of another poke in the eye. The Agency 5 can sit back and be satisfied that what ebooks they are selling they are selling at their dictated price. But if they look at Random House’s ebook sales (remember that Random House was the only one of the big 6 not to embrace agency), they must look with jealous eyes.

So how did Apple’s “generous” offer in April 2010 help the Agency 5? It appears to have put them against the proverbial wall and offered them a rotten carrot — never give a sucker an even break! The Agency 5 will have to pay yet again (i.e., in addition to lower sales for going the agency route) for siding with Steve Jobs when the various ebook apps, including the Amazon, B&N, and Kobo apps, disappear from the iOS. Because of their greed and reluctance to embrace ebooks, the Agency 5 have shot themselves in the foot yet again. They bet on Apple and the iBookstore and the only winner was Apple.

The harder it is for people to buy ebooks, the fewer ebooks they will buy. Yes, I know the Agency 5 would prefer to sell fewer ebooks, but they are already doing that. This latest Apple move simply makes it more difficult for a large segment of the reading market to buy ebooks, a segment that no publisher can afford to ignore in the long run. It seems that no matter what the Agency 5 do in their attempt to thwart the rise of ebooks or to control pricing and sales, someone is waiting to prove to them that they really are fools for not embracing ebooks and trying to exploit the new market to its fullest — never give a sucker an even break!

On many levels I am glad to see the Agency 5 suffer from this blow; it seems to be fair payback for Macmillan’s and Simon & Schuster’s refusal to sell ebooks to libraries and for HarperCollins’ new change to library licensing terms that restrict the number of times an ebook can be lent even though libraries are paying 60+% more for an ebook version than for the hardcover version of the same book. (One example: A library can buy John Grisham’s The Confession in hardcover for $17.37 and lend it out hundreds of times. In ebook, a single license costs $28.95 and if the new HarperCollins license terms were applied, it could be lent only 26 times. In addition, while libraries have to pay $28.95 for an ebook version, the consumer, whose taxes support libraries, can buy the ebook version for $9.99.) It also seems fair payback for the outrageous pricing the Agency 5 have imposed on their ebooks.

It is clear to me that with each misstep that the Agency 5 takes, the more likely it is that increasing numbers of ebookers will remove DRM and share ebooks. When you make an enemy of someone whose good wishes you need, you invite them to retaliate as best they can. In the case of the Agency 5, the best way to retaliate is to not buy their books, or if you buy them, to remove the DRM and share them.

When will publishers ever learn?

Where Have All the Publishers Gone?

The following “poem” can be sung to the tune of Where Have All the Flowers Gone by Pete Seeger.

Where have all the publishers gone?
Since ebooks came to be.
Where have all the publishers gone?
Since Apple befriended them.
Where have all the publishers gone?
Steve Jobs fooled every one.

They’ve gone to find salvation elsewhere,
They’ve gone to find another savior.
Oh, when will publishers ever learn?
Oh, when will publishers ever learn?

Where have all the newspapers gone?
Since epapers came to be.
Where have all the newspapers gone?
Since Apple befriended them.
Where have all the newspapers gone?
Steve Jobs fooled every one.

They’ve gone to find salvation elsewhere,
They’ve gone to find another savior.
Oh, when will newspapers ever learn?
Oh, when will newspapers ever learn?

Where have all the iPad readers gone?
Since ebooks came to be.
Where have all the iPad readers gone?
Since Apple befriended them.
Where have all the iPad readers gone?
Steve Jobs fooled every one.

They’ve gone to find salvation elsewhere,
They’ve gone to find another savior.
Oh, when will iPad readers ever learn?
Oh, when will iPad readers ever learn?

Oh, when will the hopeful ever learn?
Oh, when will the hopeful ever learn?
That Apple is for Apple and not for everyone!

The Google Wars: Taking the First Step

The first salvo in the Google Wars occurred with Google’s opening of its long-awaited, but greatly disappointing Google Books. In yesterday’s post, Will You be a Googler?, I suggested how things might be, a Christmas of the Future so to speak. But if Google plans to be a real presence in the digital book world with something more than poorly scanned public domain books, it needs to put on its battle gear and get moving toward the front lines now. What follows is one suggestion for first battle orders.

What is it that Google has that no other competitor to Amazon (i.e., no other pbook or ebook competitor) has? Well, there are several things, but most important are the name Google, which is both a noun and a verb and thus ubiquitous in the online world, and the financial resources to do battle on equal terms. The former we need do nothing about; the latter we need to spend.

Let’s move beyond the basics that Google needs to address — the poorly designed Google Books website. That is easily cured; Google can hire any computer-literate high schooler and get a better design. What is not so easily cured is Google’s lack of reputation as the place to go for books. And that is the area of greatest need.

In one online discussion, someone asked whether the Kindle has become the kleenex of ereading devices; kleenex in the sense of a generic name for all devices. I know that when people see me reading on my Sony, the first question asked is, “Is that a Kindle?” How valuable to Amazon is that association of Amazon-Kindle-ebooks?

So step one for Google is to adopt a hardware device as a Google device and for that I nominate the Sony PRS-950. A partnership between Google and Sony is the way to go because the Sony gives more reading real estate and superior ergonomics and build quality when compared to the Kindle. But simply adopting the 950 is not enough.

As part of the adoption process several things need to happen, the most important being these:

• Sony needs to rewrite the firmware so as to open up the Internet capabilities of the 950 to more than just the Sony ebookstore
• Google needs to create a modified version of its Chrome browser to work on the 950
• Google needs to underwrite part of the cost of the Sony 950 so that it can be sold competitively priced to the Kindle
• Google needs to arrange for the Sony 950 to be usable anywhere in the world

Given a choice between a Sony 950 and a Kindle 3G, with easy-to-use ebookstores with similar content available, I think people would choose the Google-Sony 950 more frequently than the Kindle.

Yet that is only the start. Google needs to attack Amazon where it is most vulnerable, which is in book selection. Right now it is clear that the difference between the Amazon and Google (and Barnes & Noble and Kobo) ebookstores is the difference between Tweedledee and Tweedledum. Yes, there may be scattered titles that one has and the others do not, but for the most part, each has an identical inventory available. (Pricing is a different matter and not one that needs to be addressed at this point.)

But Google can give Amazon a run for its money in exclusives — and it should. Remember when Amazon announced that certain forthcoming books from popular authors would be available exclusively at Amazon for 6 months to 1 year? We haven’t heard a lot about that recently but it is time to stoke the exclusivity war with Google plunging in. And Google offers something that Amazon doesn’t and can’t — search engine ranking. Entry in Google Books can be made to appear in the number 1 position on a search results page.

If I were Google, I would approach the top 25 authors in multiple categories — romance, fantasy, science fiction, historical novels, etc. — and offer an exclusive Google Books deal (I can think of lots of terms that would be appealing to authors to induce them to sign on, but we can save that discussion for another day).

I would also offer an inducement to readers to buy the Google-Sony 950. Buy one and pick 10 ebooks from our vast catalog of ebooks. If the agency folk scream about it, reverse the order: Buy 10 ebooks and get the reader with our compliments.

One more thing I would do in the this initial battle, and that is create exclusive ebook packages. The packages could be special omnibus editions of a single author’s work or it could be a themed collection that combines a major author’s work with similar type works from indie authors. I actually prefer the latter because it would expose readers to more authors. But imagine being able to buy a Dean Koontz backlist title along with 6 similar-genre titles written buy indie authors for the price of the Dean Koontz title. Granted this would require a lot of cooperation among authors but such a scenario could be a win-win for the indie authors, Dean Koontz, and Google, as well as for consumers.

Special omnibus editions would fit within the Agency 5’s hopes to sustain a viable competitor to Amazon. There is no reason, for example, why the first 3 novels written by Tom Clancy, for example, couldn’t be packaged into a single, special, Google Omnibus where readers could buy 3 for the price of 1 or 2. It is in the interests of publishers to help create a real competitor to Amazon, especially now that they should be recognizing that Apple isn’t the answer and is unlikely to ever be the solution as opposed to a future problem.

At least this would be a start down the competitive pathway. Will Google do anything more than what it has done (i.e., announce and open Google Books) remains to be seen, but this is the one hope right now of creating competition in the book world.