How a Non-Assignment Clause Can Destroy a Publishing Company's Valuation

When the owner of an independent publishing company wishes to sell their company they will

need to establish the value of the business they have built.  The yardstick that will be used is based on cash flow and, ultimately determined by the soundness of its author agreements.  Many start-ups are poorly financed, and in the beginning, the owners have neither the time nor the legal acumen to focus on their most important asset, their boilerplate author agreement.   At the outset of a publisher's career, this error can frustrate their ability to sell the company in later years.    

Problems often arise when publishers borrow agreements found online.  Lacking the necessary legal acumen, a start-up publisher may delete essential provisions that they do not fully understand.  For example, the assignment clause. 

 

Don't Let a Non-Assignment Clause Sink Your Ship

Experience is a hard school. To illustrate, Owen, a successful independent publisher with a backlist of 75 books, decides to sell his company. In his mid-50s, with no children to take over the business, his exit strategy is to bankroll the sale of his growing company into early retirement. As part of the due diligence process, he compiles all of the company’s author agreements, foreign translation licenses, and other important documents for a potential buyer to review. To his dismay, his attorney and broker call to say the deal had fallen through because the publishing agreement he filched off the Internet when money was tight contains a non-assignment clause.  The insidious clause reads, “Neither this agreement nor any right or obligation hereunder may be assigned or delegated, in whole or part, by either party without the prior express written consent of the other.”

What could have been a quick and very profitable business transaction requires the consent of all of Owen's authors, and in one instance, all of a deceased author's uncompromising heirs. And, the author of the crown jewel of Owen's backlist (which accounts for 50% of his gross annual revenue) will exploit the pending sale to renegotiate her contract -- a contract she desperately wants to get out of. 

While there are publishing programs at many universities and organizations such as the IBPA, you can only learn publishing by doing.  Since you are dealing with copyrights - intangible assets -- you must, at least, have an excellent foundation author-publisher agreement.   Then, through persistence and luck, you are in a position to make the most of the opportunities ahead.    

If you intend to sell your publishing company tomorrow, or 20-years from now, you need to pay attention to your author-publisher contract today. As Owen discovered, a well-drafted publishing agreement is a publisher’s most valuable asset.

Taking the boilerplate provisions for granted can also have severe consequences for authors.

Before signing a contract, it is important to understand what the contract says (not what the publisher says it says). In his autobiography, Twain lamented on his lack of legal acumen in negotiating a publishing contract with an onerous non-compete clause:

“I made my contract for The Innocents Abroad with American Publishing Company. Then after two or three months . . . it occurred to me that perhaps I was violating the contract, there being a clause forbidding me to publish books with any other firm during the term of a year or so. Of course that clause could not cover a book which had been published before the contract was made; anybody else would have known that. But I didn't know it, for I was not in the habit of knowing anything that was valuable and I was not in the habit of asking others for information.. It was my ignorant opinion that I was honor bound to suppress The Jumping Frog book and take it permanently out of print. [My publisher] as willing to accommodate me on these terms: that I should surrender to him, free of royalty, all bound and unbound copies which might be in New Company’s hands; also that I hand him eight hundred dollars cash; also that he supervise the breaking up the plates of the book…. One may perceive by these details that [my publisher] had some talent as a trader.” - Mark Twain

Had Twain been wiser, he would have hired a publishing attorney to help him navigate the competitive books clause in his contract.

Most publishing contracts today still contain Twain-like non-competition clauses that can prevent an author from publishing other books during the contract term. While no non-fiction publisher will strike its non-compete clause, if asked politely, most will offer the author a more palatable version of the clause than the one initially presented. In the case of fiction, the non-compete clause should be deleted. The literary result being the fiction publisher has to rely on the next book or option clause to protect its legitimate interests.

Nothing is demeaning or unseemly about asking a publisher to modify specific contract terms. For example, if a book is tied to an existing brand or business, most publishers will tweak their boilerplate out of respect for the author's branding (or trademark) concerns. Book contracts typically give the publisher (not the author) the right to determine the work's title. If the book is an extension or outgrowth of the author’s existing business (e.g., Chicken Soup for the Soul®), asking for approval and ownership of the title – which also functions as a trademark – becomes a critical issue. But don't assume a publisher will change anything -- despite their assurances -- once the ink on your signature is dry. That's not how the Game of Authors is played. As negotiations are winding down, make sure you straighten out misunderstandings and memorialize what has been agreed to. Once a contract has been signed, the parties are under no obligation to vary the terms.

Why formal agreements are necessary.

The key to a good contract is clarity and understanding the business (not just legal) issues endemic to the publishing industry. Ambiguity and inconsistency are the two critical ingredients in litigation soup.

For authors, it is helpful to keep in mind that most contracts are not take-it-or-leave-it propositions. Be courteous. Be tactful. Knowing what to ask for is critical. Use an agent or attorney who understands the parameters of the typical publishing deal to negotiate your contract. Also, working through an agent or attorney allows an author to preserve her creative relationship with the editor or publishing house while her representative hammers out the business issues.

For publishers, an overly author-friendly contract can be problematic when it comes to selling their company. Perhaps, Michael Joseph, a UK publisher, said it best, “No publisher can afford to fall in love with literature.”

Keep in mind that the duration of most publishing contracts today are for the life of the copyright. If the book is financially successful, the publisher and the author (or author’s heirs) will be bound together for a very long time. The above examples should clarify that getting stuck with a bad contract is a long-term, perhaps, intractable problem. 

Related Blog Posts

 

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

 
Beyond the Blog (Resources)

Author Guild

Dramatists Guild

National Writers Union (NWU)

Romance Writers of America (RWA)

Science Fiction Writers of America (SFWA)

Society of Authors (UK)

Society of Children's Book Writers and Illustrators (SCBWI)

Text and Academic Authors Association (RWA)

Independent Book Publishers Association (IBPA)

Negotiating a Book Contract by Mark Levine

Twelve Common Copyright Permission Myths

1.       There's no copyright notice, so I don't need to ask for permission.

Not true. Since March 1, 1989 copyright notice has been optional.  Before that date, copyright notice was mandatory and a work published without a notice risked loss of copyright protection if not promptly and adequately corrected.

2.       If I give credit I don't need permission.

Not true. Giving credit means you can look at yourself in the mirror and say you are not a plagiarist.  However, attribution is not a defense to copyright infringement, which, unlike plagiarism, is a legal offense.  Copyright infringement is the violation of one of the exclusive rights granted to copyright owners.  By contrast, you can plagiarize material not protected by copyright simply by taking credit for it.

3.       Since I'm only using a few words I don't need permission.

Not necessarily.  How much you can borrow is a legal gray area. Sometimes even a small (but important) portion borrowed from a larger work can infringe.  Keeping with the view that copyright law should encourage creativity and innovation, not unduly suppress it, courts may excuse certain socially productive, but unauthorized uses.  Those uses are called fair uses.  Fair use is an argument against the rigid application of copyright law. It is determined on a case-by-case basis.  It considers what's been borrowed, how much was borrowed, how it was used, its importance, and the economic impact it has on the original.  If you borrow the "heart" of a work, it weighs against fair use.       
 

4.       I don't need permission because I'm going to adapt the original work.

No.  You can't make a work your own by adapting it.  Copyright law grants  copyrights owners the exclusive right to control modifications to their work.  If you add, or even delete,  material from someone's work without permission, you have created an unauthorized derivative work. 

5.       Since the work is in the public domain, I don't have to clear permissions.

Not necessarily.  A book or motion picture, for example, may have fallen into the public domain for technical reasons, but there may still be copyrights to contend with.  While a book may be in the public domain, photos or other materials that appear in the book may remain legally protected.  Similarly, the composer of an in-copyright soundtrack, to an otherwise public domain film, can restrict the exhibition of that film by claiming a right to the music within.  While copyright in a photograph of a celebrity may no longer be in effect, if the image of the celebrity is used for commercial purposes, it may violate the celebrity's right to derive financial benefits from her likeness. Similarly, the owner of an expired copyright may still be able to stop the commercial use of a related trademark, if the use falsely implies their support of the use.         

6.       My publisher will handle the permissions.

Probably not.  Most publishers place that burden of clearing and paying for permissions on the author's shoulders.   

7.       I can always obtain permission later.

Later may be too late.  Copyright owners have the unfettered right not to grant you permission.  It is better to know now than later, that a critical component of your work cannot be cleared for use.    

8.       Since I'm planning to use my work for nonprofit educational purposes, I don't need permission.

Not necessarily.  The issue isn't the user, it's the manner of use.  If the use is a commercial use -- and it falls outside the bounds of fair use -- even a nonprofit educational institution can be held liable for copyright infringement.  

9.       I don't need permission because the work I want to use is more than 75 years old.

Not necessarily.  In 1998, Congress added 20 years to most copyright terms.  For works published after January 1, 1978, copyright protection lasts for the life of the author plus another 70 years.  For a pre-1978 work by a sole author, the maximum term of copyright protection is 95 years from the date the work was published or registered.  For works created by an employee, specially commissioned works, and works published pseudonymously, the copyright term is even longer.

10.      The material I want to quote is from an out-of-print book.   Out-of-print means that the work is in the public domain.  Correct?

Not necessarily.  Out-of-print does not mean out-of-copyright.  When a book goes out-of-print, it is no longer commercially valuable.  While that may trigger an author's right to recapture her copyright, it doesn't eject the book into the public domain.  

11.      A Creative Commons ("CC") license means I can use the material without permission.  

Yes, but restrictions may apply.  A CC license allows certain uses for free. What those allowable uses vary.  Some CC licenses place restrictions on commercial and uncredited uses.  Some permit modifications, others may not.  To determine what is allowable, you must read the license carefully.  
  

12.    I found a photo on the Internet.  Since it was uncredited, I can use it in my book.    

Not true.  Neither the ease with which users can upload or download online content, nor the fact that content was posted anonymously on the internet, places it in the  public domain. 

Related:
A Primer on Fair Use

            Book Title Clearance & Trademark Registration Guide

LLOYD J.  JASSIN has practiced publishing, entertainment and trademark law for over two decades.  He is an adjunct professor at NYU Publishing Program, where he teaches a course on digital rights and permissions.  He is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  Contact: The Law Offices of Lloyd J. Jassin, 1501 Broadway 12th FL, New York, NY 10036 | (212) 354-4442 (tel.) | Jassin@copylaw.com | www.copylaw.org | Twitter

DISCLAIMER:  This article is not intended as legal advice.  Because the law is not static and one situation may differ from the next, the author assumes no responsibility for actions taken based on information contained in this article.  Be aware that the principles contained in this article are subject to exceptions and qualifications.  Thus, when in doubt, seek legal advice from an experienced copyright or media law attorney, or err on the side of caution, and obtain permission or an appropriate release.

Kill a Reader, Save Book Publishing (Satire)

Hashtag #Mushdoom

Can this book save the book
publishing industry?

Google promises that the quality of information found on the internet (whether on depression, or leasing a car) can be inferred through its search rankings.  However, often the author's credentials are unclear or inaccurate, or the commercial sponsorship of a site masked.  Currency of information is another problem. 

Despite these concerns, we rely on the internet to make important health and financial decisions. However, free information can be harmful information.  Like consumer health, the internet has put the health of commercial book publishing at risk.  Among other things, it has depressed the value of commercial nonfiction.  According to the Association of American Publishers (AAP) StatShot report for October 2012, nonfiction sales are down.  So, how does an ailing industry compete with free?  What would it take to get readers to flock back to stiff backed hardcovers, quality paperbacks, or download a pricey eBook? 

Simple.  A seriously injured mushroom hunting enthusiast led astray by an anonymous Wiki contributor who misidentified a poisonous mushroom as a "safe" and delicious substitute for store bought 'shrooms.   Bad information is never cheap.  That's the "Got Milk" message the AAP  should shout from the roof tops.  Blogs and Wikis kill!  AAP member publishers bring great ideas to life!   

A dead mushroom enthusiast would open the door for the AAP to extoll the virtues of curated mushroom non-fiction.

For Immediate Release.  If you are working on any stories regarding the recent mushroom poisoning deaths and health risks associated with un-curated information found on the Internet, we at that Association of American Publishers can provide a publishing industry expert for any relevant stories you are working on. Wikis kill. We 'bring great ideas to life."

Nancy Grace & Negligent Publication Law

The Ninth Circuit Court of Appeals recently defined the term "negligent publication" as "a narrow tort in which the publication of material encourages or instructs readers to engage in harmful conduct." The internet is rife with negligent information. The internet is a creepy, shadow universe of unverifiable facts, pedophiles, snake oil salesmen, substanceless self-promoters and sock puppets. Do I really believe this?  While there's truth in that statement, there are "flowers among the weeds."  

I can envision the news coverage.  During the "negligent publication" trial, television journalist, legal commentator, and cookbook author, Nancy Grace convicts the Wiki author in the court of public opinion. The hashtag "mushdoom" starts trending.  The show runs a crawl at the bottom of the split screen. "Did blogger kill 32-year-old mushroom hunting mom?" For quick commentator analysis the show cuts to a commercial publisher, who talks about the publisher as curator, author credentials, branded content.  "The reader's death was foreseeable, and wouldn't have happened but for a poorly researched Wikipedia article on edible mushrooms."  The message being, "You should carefully consider the source of the information."

If you felt a tap on your shoulder as you read the above  paragraph, likely it was the First Amendment wishing to remind you that books are not products, and, historically negligent publication cases have gotten little traction in the courts. But, the value of a negligent publication lawsuit isn't in getting a conviction, it's the promotional value -- getting readers to question what they read.  And, to gain an appreciation for the value of a book curated by a reputable publisher. Upon books by mainstream publishers you can rely. Blogs not so much.    

Trademark is the New Copyright

The tension between copyright and free speech, which the internet has exacerbated, has hurt traditional copyright monopolists.  The way I see it, trademark is the new copyright.  It is the key to competing with free. Just like antivirus software which scans for suspicious files and protects your computer, a trademark filters high risk information.  Without trademarks, John Oathout, author of Trademarks, says "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking." Regrettably, though, publishers have undervalued the goodwill associated with their colophons and imprints for years.

Alfred A. Knopf

If publishing houses wish to remain standing, their colophons and imprints need to stand for something.  Alfred A. Knopf (the man, not the imprint) was keenly aware of that proposition when he wrote The Borzoi Credo, a publishing manifesto which appeared in the November 1957 issue of The Atlantic Monthly.  It read, in part, "I believe that a publisher's imprint means something, and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less."

A Modest Proposal

If I were publisher of Peterson’s Field Guide to North American Mushrooms, I'd consider one severely ill (or, better yet, deceased), penny wise, but dollar foolish, mushroom enthusiast who relied to his detriment on a Wiki, manna from heaven.   

 Disclaimer:  This is a satire. A book published by a commercial publisher can be as dangerous to you health, wealth and well being as a blog written by a self-appointed expert, or a self-published book on a trending topic like safe self-surgery (#SSS).  As the authors of a study on the quality of web based information on the treatment of depression wrote, "The real challenge is to devise strategies that selectively eliminate the weeds but leave the flowers to bloom." Let the reader beware!


Resources

Alfred A. Knopf's Borzoi Credo. 

Winder v. GP Putnam's Sons (9th Cir. 1991) (Federal Appeals Court Decision concerning mushroom enthusiast who became seriously ill picking and eating mushrooms after reading The Encyclopedia of Mushrooms) 

Quality of web based information on treatment of depression: cross sectional survey Griffiths, K., Christensen, H.

How You (and Your Heirs) Can Terminate Contracts & Reclaim Copyrights

A Passing Opportunity to Break Bad Book & Songwriter Agreements

The year is 2022, and the copyright termination bomb is ticking loudly for book and music publishers. Designed to protect authors of older works, who, in hindsight, signed away their rights for inadequate compensation, Congress devised a "reset" button that allows them to reclaim their  copyrights. This powerful right trumps written agreements, even agreements that state they are in perpetuity.  Typically, when served with a notice of termination, a publisher will attempt to  negotiate a re-grant of rights. However, if  those negotiations fail, the copyright owner regains control of their copyrights.  

The Devil is in the Details  

Notices of termination can be served and recorded up to ten years before the termination date you've selected. The latest a notice can be served is two years before the termination date you've selected. A missed deadline is a lost opportunity.  

For older works (explained below), when to send a notice of termination turns on when the copyright was secured. For post-1977 works, when the work was published, or the agreement or license signed, determines the termination date. 

Important! Because of the complexity surrounding the termination of contracts and licenses, you should seek legal help regaining ownership of your copyrights.  

Pre-1978 Works: the "56-Year Rule"

Under section 304(c) of the Copyright Act, pre-1978 grants may be terminated during a five-year window beginning 56-years after the date copyright was secured. This allows authors to benefit from laws that extended the copyright term from 56-years to 95-years. To terminate a publishing contract or other grant of rights, the author, or their heirs, must file a notice of termination within the time limits specified by the Copyright Act.  Notices must be sent and recorded with the Copyright Office between two and ten years before the termination date selected. For example, if copyright in a work was secured in 1964, the window for sending a notice of termination closes in 2022. If not served and recorded, the agreement will continue for the term of the original agreement. 

Post-1977 Works: the "35 Year Rule"

A different calculus applies to post-1977 works. Like pre-1978 works, termination notices must be sent between two and ten years before the termination date selected. However, the window for sending a notice of termination opens the earlier of 35-years from the date of the work was published, or 40-years from the date the agreement granting rights was signed. 

The 35-year rule only applies to grants of copyrights signed on or after January 1, 1978 by the author.  It does not apply to grants or licenses signed by the author's heirs. As long as the work being terminated is not a “work made for hire,” the right of termination cannot be waived. 

Make a Date

The date termination takes effect is determined by the author or their heirs.  However, the process is not considered complete until a legally acceptable termination notice is recorded with the Copyright Office, which must be recorded before the termination date.    

Example 1: Suppose a book publishing contract was signed in 1988, then the termination date must fall between 2023 and 2028. The latest notice of termination can be served and recorded is 2026 -- two years before the last available termination date. Before the stated termination date, an author, for example, can negotiate for a better deal with his original publisher, or, make a new deal with a new publisher upon termination.

Example 2 below, illustrates how statutory successors (not those named in an author's will) were able to reclaim a full 67-years of copyright of pre-1978 copyrights, under very specific circumstances.            

Example 2. Prior to 1978, copyright duration was split into two 28-year terms.  Before to the expiration of the initial 28-year term, to prevent a work from falling into the public domain, a renewal application had to be filed.   Miles Davis, the jazz icon, died in 1991, before the end of the 28th year of copyright of his revolutionary 1970-album Bitches Brew. Because he died before the 28th year of copyright, his renewal term rights in the song Bitches Brew vested automatically in his four children according to the Copyright Act -- cutting off  a nephew mentioned in his will. Today, his sons (two of whom were not included in their father's will) and his daughters, jointly control the copyright to Bitches Brew and other songs. Here, the Copyright Act rewrote both Miles Davis' will and his agreements with his music publisher.

Termination Checklist

Don't Delay.  If you do nothing, the termination window will close and not reopen.

Review Old Files.  Assemble publishing agreements, and other grant of rights,  including film option agreements in one place. Make a list of titles, contract and publication dates before meeting with an attorney. 

Don't sign anything without consulting an attorney. It's easy to inadvertently exhaust your termination right by regranting rights to your publisher. That is what happened to Christopher Robin who re-granted rights to Winnie-the-Pooh to Disney in 1983.  The re-grant right cut off his heir's right terminate the original 1930 publishing agreement signed by A.A. Milne.  

Negotiate.  If you would like to negotiate improved terms, hire an attorney.  Keep in mind there is no such thing as a standard agreement. Advances, royalty rates, the scope of the rights grant, duration of the agreement, and the right to create new works based on the old, are all on the table. 

Don't Assume Your Estate Planning Attorney Understands Any of This.   Suffice it to say, due to its complexity, and the absence of clear judicial guidance, it's not surprising that agents, as well as many trusts and estates attorneys, are not conversant in the ins and outs of copyright termination. For that reason, we are happy to work cooperatively with your trusts and estates attorney or literary agent.  

Maneuvering the Other Complexities
There is also a whole emotional side to copyright termination. These are not just business and financial decisions, but decisions that may involve family members, and the revisiting of past relationships. Fortunately, the invisible copyright "reset" button found in virtually every copyright grant or license, and certain wills, also has the potential to set right injured relationships -- provided the focus is on the future, not past injustices.  

We Can Help You Reclaim Your Copyright 
Contact us. We work with both authors and heirs to (i) identify if a copyright is eligible for termination; (ii) determine who are the parties who hold the termination right; (iii) calculate termination and notice of termination dates; and (iv) prepare, serve, and record notices of termination.  

NOTICE: This article discusses general legal issues of interest and is not designed to give any specific legal advice about any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

 
Contact:  Jassin@copylaw.com or at (212) 354-4442. Law Offices of Lloyd J. Jassin, The Paramount Bldg., 1501 Broadway, Floor 12, New York, NY 10036.

(c) 2022. Lloyd J. Jassin

Amazon & Google Agree to Antitrust Consent Decrees

2018 Publishing Predictions

My 2013 predictions mainly concern the year 2018. Why?  It's easy to predict the near term (unless you are trying to accurately predict where the markets will go over the course of one year).  Also, the practical utility of a short term prediction is limited.  When the air raid siren has sounded, it's too late to build a shelter.  Predicting the mid term allows time to adjust behaviors and positions.  And, as a celebrity seer once said to me, "If you engage in fortune telling, foretell the mid-term.  That gives them time to forget your inaccurate or mistaken predictions."   His other advice was to "predict outcomes not details."  On that one, I've broken with accepted prophetic practice. 

[Suggested musical accompaniment:  Robert Plant & Alison Kraus' version of the late great Allen Toussaint's Fortune Teller.  Video embedded at end of post.]

Prediction 1

FTC Cuts Amazon & Google Down to Size

(New York) November 22, 2018.  The FTC concerned about

Depiction of FTC Attack on Google

vertical integration (control of content production and distribution) will prohibit Amazon and Google from having a monetary interest in content they distribute or display.  Amazon and Google will agree to consent decrees, whereby Amazon* is forced to spin off its Simon & Schuster, Avalon, Dorchester, Sony Records and Showtime divisions.  Likewise, in response to accusations it abused its market power, i.e. the ability to control price or reduce competition, in internet searches,   Google will agree to divest its Google Maps, JK Lasser Tax Institute, Automobile Club of America, Zagat and ESPN divisions. In a complicated formula to be worked out by FTC and European regulators, within 90 days of the decree, Google will be ordered to start sharing proceeds of revenues derived from sale of personal data of users who click a new "Monetize Me"  button.  Neither Google nor United Parcel Service (UPS)  will be willing to comment on how the  consent decrees will impact their proposed merger.  Lloyd Jassin will be quoted as saying, "Privacy is the new copyright."

"Protecting competition in the digital marketplace is a high priority for the FTC," will say Bureau of Competition Director Richard Feinstein. "This order will ensure that vigorous competition continues in the worldwide online market for entertainment and information products, and that consumers are not faced with reduced innovation as a result of digital favoritism and dwindling access to markets for independent publishers and other independent content producers." 

"The Internet is better served with less regulation," David Crane, a Google-friendly legal scholar will be quoted as saying. "This violates nearly every tenet of laissez faire capitalism.   What Google is doing is good business.  It's not exclusionary.  While Google is invaluable, it's not essential.  Stop complaining about your inability to compete. Start competing."   

*Why the FTC Took Amazon & Google Apart: An Antitrust Analysis: By 2016, the FTC determined that Amazon and Google had turned their backs on their original missions of openness and innovation. The platforms, via exclusionary tactics, have  become toxic to healthy innovation. Responding to real or perceived external threats, both companies had abused their market power by raising barriers to entry,  making it difficult for potential new entrants as well as large companies to compete.   It started in earnest in June 2012, when Amazon Publishing acquired category publishers Avalon and Dorchester. Four years later, Forrester Research reported that 70% of America's online shoppers began their search for a product at Amazon. Google which tied search to advertising, controlled 70% of America's advertising sales by 2016, and was rumored to be in talks with UPS about a possible merger. That same year, the EU fined Google $500M Euros for cooking search results, i.e., favoring its own content over the content of others. Book publishers and more so, film and television studios and the interactive gaming industry had become a threat to Amazon. They could withhold products, or, in the case of studios and the interactive gaming industry, increase license fees at the end of a license term. Google, now a mature business, simply lost its way. The FTC determined it was time to regulate the platforms. But they needed to make their case.  Amazon had shown an unsavory willingness to withhold technological innovations from suppliers and vendors for its own advantage. Using its position of dominance, it often disabled "buy now" and "buy" buttons to address threats from its publishing suppliers. But, it wasn't just about books. Similar tactics were used to punish suppliers and deny threats to entry in gaming, music, publishing, motion pictures, kitchenware, infant diapers and formula, and shoes. Hoping to mimic the trading template created by Amazon, Google eyed UPS as a way to fill in the gaps in creating a fully integrated trading company. Amazon and Google's entrepreneurial audacity were tolerated until they exhibited parallel habits of willful exclusion of others - otherwise known as conscious parallelism in the rubric of antitrust law. After being scrutinized for possible antitrust violations for several years, the FTC determined that they ceased to be the instruments  of innovation; so the FTC cut them down to size. Reflecting on the Apple "Agency Pricing" consent decrees of 2012 - 2013, a former Justice Department attorney (anonymously) observed that "Price fixing cases were easy to sell, both politically and as a coherent story. There were clear villains. Apple. Big publishing. The consumer felt it in their wallets. The price of eBooks went up. When former innovators go bad, those are the tough cases. When do you bring an enforcement action? It's a matter of timing. The FTC waited until they believed innovation and openness had taken a back seat to discriminatory practices."

Prediction 2 
 
Google Wins Fair Use Battle *

If you are looking for something short-term, something 2013'ish, I predict that Google wins (or The Authors Guild settles) the fair use litigation commenced in 2005; that Google does not seek attorney fees or otherwise act punitively.  Is the mass digitization of  books a good thing?  Yes, unless Google favors its own content over yours.  See, 2018 predictions above. 

*Update: Yep, it came to pass.  On October 16, 2015 the U.S Court of Appeals for the Second Circuit affirmed a 2013 lower court ruling that Google’s library book scanning project was protected by fair use and was not copyright infringement.


Resources 

Looking Back on My 2008 Predictions (blog post) (Lloyd Jassin):  I urge you to to look at the end of the post, where I score my 2008 predictions.  The growth of the independent book sector, which was predicted, as well as Google's search engine preference for its own content, are just two or four major predictions that have become reality.    

Three Versions of Fortune Teller