Dispatches from the Digital Revolution
I hope Jeff Bezos pays his lawyers well.
It’s only been two weeks since Amazon launched its Lending Library program and the drumbeats of impending litigation have already begun to sound. In what seems like a page straight out of Google’s own playbook (what do you meant we can’t scan and make publicly available copyrighted books?), Amazon apparently did not perceive any need to obtain permission from publishers and authors before making titles available in the library.According to Publisher’s Weekly, although Amazon initially stated it had reached a “variety of terms” with publishers to include their titles in the program, a considerable number of publishers did not reach any such agreements with the e-tailer. Some of them in fact did not know their books were available in the program until Amazon announced the launch.
In its defense, Amazon has held that it did not need to seek permission because it will pay publishers every time a book is borrowed from the library, effectively treating it as a sale. But is this actually the case? The Authors Guild on Tuesday released a memo stating that Amazon can get away with its Lending Library by “giving its boilerplate contract with these publishers a tortured reading.” In Amazon’s view, as long it pays publishers the wholesale price of books in the library, it can do what it will with them—even give them away. Of note, titles from agency model publishers, a.k.a. the Big Six, will not appear in the library as they maintain complete control over the pricing of their books.
Outrageous, I know, but should we expect anything less? Amazon has shown no signs of halting its brazen and calculated efforts to upend nearly every aspect of the publishing industry, though its motivation remains somewhat of a mystery. What kind of ego-infused beef does Bezos have with this once genteel cottage industry? It’s no secret that Amazon, since its very early days, has relied on books as loss leaders to sell the infinite array of other items available on the site, which now include Amazon’s own hardware, the Kindle and Kindle Fire. It’s difficult, at least from a publishing perspective, to view the Lending Library as anything other than the latest gimmick to attract more customers to Amazon Prime, which for $79 a year gets members free shipping, video streaming, and now the ability to “borrow” one free book per month.
But if we can remove ourselves from the concerns of devalued content, hijacked copyrights, and lost sales (in some cases Amazon has agreed to pay publishers a lump sum for the inclusion of titles in the library rather than denote downloads as sales), is the Lending Library an unbeatable deal for your average customer? For comparison’s sake, 12 books priced at the average Kindle ebook price of $9.99 costs just slightly under $120. So even if you join Amazon Prime and benefit from nothing else the program has to offer, you end up getting about four free books per year. If you’re an avid reader, what’s the argument against that? And come on, like you’re really not going to love that free shipping and video streaming? Even I am hard-pressed as a consumer (and, in the interest of full disclosure, occasional Kindle user) to find something wrong here.
But publishing is first and foremost a business and there is much to be concerned about.
How can authors be assured they will receive their due royalties?
Does the Lending Library even stand a chance without books from the Big Six, who sell under the agency model? Was it not the possibility of losing these titles that forced Amazon to accept the agency model?
There are supposedly approximately 5,000 titles available in the Lending Library, but many are self-published through Amazon’s self-publishing platform or from mid-sized publishers who lack the blockbuster title of the Big Six. Will the selection end up being a big disappointment?
Will all this recent attention compel publishers that sell wholesale to switch to agency?
Are there even grounds for legal action? Is it not entirely dependent on how a judge would interpret contracts between Amazon and publishers? Could it even, dare I say it, incite enough anger among publishers to put a stop to Amazon’s wheelings and dealings? That might be a stretch, but stay tuned…