Dispatches from the Digital Revolution

Will the indies succeed in making DRM illegal?


Last week, Book House of Stuyvesant Plaza, Fiction Addiction, and Posman Books—three independent bookstores who claim to represent “all independent brick-and-mortar bookstores who sell ebooks”—sued Amazon and the Big Six, claiming that Amazon and publishers have secret agreements wherein publishers allow restrictive Amazon-specific DRM to be put on their ebook files, ensuring that the ebooks can only be read on the Kindle and associated devices. This practice, combined with the Kindle’s popularity as an ereader, the lawsuit says, basically guarantees that an ebook customer will buy ebooks from Amazon rather than from their neighborhood bookstore, thus giving Amazon an unfair monopoly in the ebook market. The plaintiffs want Amazon and the Big Six convicted of violating the Sherman Antitrust Act, an injunction prohibiting Amazon from selling books with its DRM and requiring publishers to provide indies with ebooks with “open-source DRM” (which the suit says would allow for sale across devices), and another injunction prohibiting Amazon from selling DRM-specific devices. You can read the full suit here.

This is not the first time booksellers have come together to sue the publishing industry. In 1994, the American Booksellers Association sued six publishers over antitrust issues, claiming that the publishers were offering better prices and marketing co-op rates to the chains than they were to the indies. The ABA won, ushering in a new era of fixed, more transparent discount schedules and a closer eye on the way publishers do business.

So are we on the verge of another landmark decision like that one?

I’m not sure we are. Last time, the entire ABA took on the industry—the ABA, which, at the time, represented 4,552 bookstores. Granted, we don’t know who the above three stores asked to hop on board. But if individual stores are going to sue, that action would have more heft if the stores were the crème de la crème of the indie spread. Where is McNally Jackson? Elliot Bay? Powell’s? Politics & Prose?

There’s also the matter of the ebooks that indies do sell. “Currently,” the suit states,

none of the Big Six have entered into any agreements with any independent brick-and-mortar bookstores or independent collectives to sell their ebooks. Consequently, the vast majority of readers who wish to read an ebook published by the Big Six will purchase the ebook from Amazon.

None of the Big Six have entered into any agreements with indies to sell ebooks—what, then, is Kobo’s partnership with indies? Granted, it’s officially an agreement between the American Booksellers Association and Kobo and not bookstores and publishers, but publishers make their ebooks available on Kobo knowing that they’re stocking the virtual shelves of indies across the country.

There’s also the matter of vocabulary. Cory Doctorow points out that “open-source DRM” doesn’t actually mean what the bookstores think it means. Open-source things are modifiable by anyone who comes across them, which is pretty much the opposite of the definition of DRM. He says,

For some reason, they’re using “open source” as a synonym for “standardized” or “interoperable.” Which is to say, these booksellers don’t really care if the books are DRM-free, they just want them locked up using a DRM that the booksellers can also use.

It seems like I’m just debating semantics, but as Doctorow points out, misusing the terms central to your argument doesn’t bode too well for your argument’s outcome.

The case also argues that publishers have entered into this secret agreement with Amazon in order to, among other things, “fix prices”—despite the Department of Justice’s recent ruling that convicted many of these same publishers of colluding against Amazon to fix prices.

This case does have the power to redefine the way we think of ebooks and, if the three bookstores have their way, the way we sell ereaders. Despite my reservations, I understand the indies’ frustration. What weapon do you use to fight the behemoth that controls a reported 60% of your market? I’m just not sure they chose the right one this time.

What do you think? Do you think the indies will win?

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