November 6, 2012

Looking at publishing through the eyes of the law


Many issues were raised by the recent In Re Book conference, dealing with the law and books.

Mike Shatzkin of The Idea Logical Company also attended and raised some complicated questions about how the law interacts with publishing.

Shatzkin was particularly left with the impression that the lawyers on the panels misunderstood the nature of publishing, particularly in relation to the DOJ lawsuit.

He said,

1. They dismissed the idea that any “predatory pricing”, i.e. sales of books below cost, ever took place …

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.”

These particular points are part of a wider concern, — which Shatkin, and others in the industry share — that lawyers and their interpretation of the law is unsympathetic and at worst, ignorant of how publishing actually works.

This fear arises because, naturally, publishing sees itself as a unique industry, and one under threat from a changing market and the DOJ suit. Shatkin’s fears are exemplified by lines such as law professor Chris Sagers‘ of Cleveland State University, quoted by Jeff John Roberts on PaidContent as saying, “there’s never been a defendant sued for antitrust who didn’t think their market was special.”

Even if anti-trust lawyers do not in fact understand the industry, the fruits of publishing — the books — and to some extent how they are made, are unique in the eyes of the law. Copyright law is the gift that keeps on giving, encoding special rights and privileges, in order to procure financial recognition for the cultural importance of creativity.

This is not to say the law operates in a vacuum. The DOJ especially, is a political body, and that may impact on their actions. But the DOJ suit aside, it is not the role of the law to accord further privileges where none exist. And if you want more rights, you have to fight for them. If publishers want more, they’ll have to prove that, in the words of Roberts, publishing is a big enough “cultural externality” to warrant further protection via government regulation.

The law that the industry should be concerned about is not only anti-trust law, but also more urgently, copyright, which has already been stretched in an attempt to protect content in a digital framework. The catch-up the law has tried to play has led to misguided solutions such as DRM, codified in the Digital Millennium Copyright Act (DMCA). The DMCA was created in the United States specifically as a response to the fears of copyright owners about the internet.

In my opinion, this type of stretch will not benefit publishers. To paraphrase Marshall McLuhan, official print media’s legal culture strives to make the new languages and the new technologies do the work of the old to the detriment of the reader. Publishers should recognize that there is a cycle of mediation and re-mediation implicit in the culture of reading, and advocate for a legal change that takes this into account.

Publishing’s current problems with the law, in particular copyright, arise not because lawyers willfully misunderstand the facts of publishing, but rather because the letter of the law itself is woefully unsuited for our current state of affairs. It is not sufficiently adaptive.

The misguided DMCA came about because of lobbying from the music and film industries. But the industry of the written word has been around much longer and arguably has a richer position in our culture.

Publishers should become advocates for copyright reform, and not simply adapt to what the RIAA manages to pass.  Not to protect old business models, but with one eye on publishing’s importance to the public culture, and the other on a more flexible, rapidly approaching, future. (Hopefully one where we all still get paid.)



Ariel Bogle is a former publicist at Melville House.