How the Cloud, Expensive Hardcovers, Free eBooks & Windowing Could Save Big Publishing

Solving the Digital Book Crisis

By Lloyd Jassin

The business model in England in the the mid- to late-19th Century was to publish novels in three volumes.  Known as  "triple deckers" they were published at artificially high prices for subscription library sales, and the select few who were willing to a premium for a new release. Cheap reprints came later. Not much has changed in trade book publishing in last 150 years. Expensive hardcover first editions sold to libraries followed by cheap editions for the masses. 

Amazon & Google's Semi-Secret Agenda:  Sell Info About What People are Reading

 

Commercial publishing is doomed if the price of new books continues to fall and Amazon's Kindle Cloud and Apple's iCloud / iBook synch catches on.  And, prices will fall.  Why? Printing and publishing are no longer synonymous, and the perceived value of a digital book file is not very high.  Indeed, may I be as bold as to say that Amazon and Google are not really interested in selling books.  Their semi-secret agenda is to sell information about what people are reading.  It's about ads that are personalized to readers' prejudices and tastes.

 

Cheap and nasty pirated digital editions compete with full price digital downloads. The storm is coming.  Everything you need to know about digital publishing, the music business can teach you. Peer to peer sharing of digital downloads dealt a body blow to the record business. What little is left of the record business is controlled by Apple, who delivers a positively outrageous consumer experience.

 
It is my contention that anything that weakens the sale of bound books sold through traditional brick and mortar stores, threatens the traditional publishing model. However, traditional publishers have elected to publish print books and eBooks at the same time. With eBooks you don't have to negotiate with retailers to get them into stores, and consumers don't have to leave their homes. That seems destructive to both traditional book retailers and overhead-burdened book publishers.   

Cheap prices devalues literature. That's what the remarkable -- and successful -- campaign to adopt agency pricing was about.  Leonard Shatzkin (i.e., Shatzkin the Elder) said it best, "The retail price of any commodity should depend more on the value the buyer places on the product than on the cost to the producer."  So, how does the industry create the appearance of value?   

Windowing

In the movie business, a 'window' is the time between when a movie ends its run in movie theaters and begins its release on home video, television or elsewhere. When a studio considers shortening the time between theatrical release and home video release, they take into consideration the fact that they may be weakening ticket sales, as the audience for the movie may simply wait for the convenience of the less expensive home video release.

The motion picture industry understands that they have to balance the interests of theater owners and the home video market if they are to maintain both a healthy home video and theatrical market for their wares. I don't think the publishing industry is doing a very good job of balancing the interests of bookstores on the one hand, and Amazon and Apple on the other hand.

Neither home video release windows, or hardcover first windows, are popular with consumers. If you publish the eBook day-and-date with the pbooks, you will not expand your business -- except over the short term. The deteriorating status of hardcover, trade and mass market books, combined with piratical eBook versions isn't the end of the world, but, it is the beginning of the end of the existing publishing ecosystem. Putting books on retail shelves suggests discrimination. Each book is subject to negotiation. Digital is indiscriminate. It's about distribution to a mass market without intermediaries. 

 

Tethering the Reader

When will the alarm sound? Amazon and Apple are not your customers, they are your competitors. How do you compete with digital behemoths? With each pbook purchased at a local bookstore, or purchased online, include a free content access code that lets the consumer register that book and access the digital version online.  It will encourage the sale of the pbook and stimulate word of mouth.  Then hold back the digital only version for 60 or 90 days.

While consumers are reading your eBooks, you can be reading them, since you will have established a digital relationship with them.   Currently, Amazon and Apple, who are unwilling to share customer data with you, know your customer better than you do.  Ignoring that fact can be fatal to the publishing industry.   Publishers need to get to know  their customers better.  It's a B2C world.   A key reason for giving away an eBook with a pbook during the "first sale" window is to tether the reader to the publisher - not Amazon or Apple.   Publishers need to collect data on who is buying their books.  They need to own the customer.  It's no longer about the number of copies available.  It's about customer data, so you can sell them more stuff.  If you don't own your customer data, you don't own very much today.  Game over.       

We Don't Read eBooks, they Read Us

In the dark ages, Irish monks tethered bibles by book chains to make them harder for the Viking marauders to make off with them.  It's still a good idea.   Sell access to books stored in the cloud, and you own your customer for life.  And, in the process, you sidestep messy DRM issues.  While Amazon, Apple and Google's digital efficiency is not aimed at just books, they are intent on destroying bookstores -- or reducing them to mere curiosities.  They know that books identify readers' likes and dislikes better than their location or what brand of vacuum cleaner they recently purchased.   While there's not a lot of money to be made selling books, there is a lot of money to be made collecting personalized information.      

Free Bonus eBook Included!  

While even free may be too much to pay for a book in the near future, all is not lost.  They key is to publish a bound book bundled -- at no extra cost -- with access to a digital version of the book stored on a remote server (which can be advertising supported).  Bundling a pBook with a free eBook is a  temporary bulwark, not a solution.  The real dilemma is how to create value, when, due to rampant piracy, purchasing a book becomes optional.  Ultimately, the battle for the future of the book, may be about how invested people are in physical objects.    

Cloud computing is on the cusp.  It's about access to your eBook, not ownership of it.  An eBook stored on a remove server can be read on a web browser across multiple devices without interference from Amazon or Apple.  No device or platform lock in.  It's device agnostic.  So, the silliness that accompanied the introduction of the late great Stanza reader will seem, well...silly.   It's about content, not dedicated reading devices, proprietary platforms or multifunction tablets.


For 500 years publishing was a top down, multiple uniform copy, "All Rights Reserved," "No Derivative Works," "You Buy it You Own it" business.  The digital world is not uniform.  In cyberspace no one can hear you scream "All Rights Reserved."

Amazon, Apple and Google are tussling for dominance of cloud computing.   Each has a cloud computing platform that will allow you access, not download books you purchase.   Storage not stores is the future of publishing.  Book publishing was a business built on copyright and the sale of physical copies.  Cloud computing is a business built on secure content stored on remote servers.  Books are owned.   ebooks are not, since, cloud computing is about access to data.   Today, customer data -- not content -- is king.

What Does Print Do Best?

The time is ripe for the traditional publishing industry to ask, "What does print do best?"   Guttenberg's significance was that he made books available in uniform multiple copies.   If done right, a printed book gives the printed word authority.   It also imbues intangible intellectual property with value.   Read the Borzoi Credo.   It  will show you how to compete with probabilistic algorithms and overwhelming probabilities.  While essential for a publisher to have a book available in bound and eBook form on pub date, let the scarcity of retail outlets work to your advantage.   Hold back the stand alone eBook and be nice to bookstore clerks and managers by giving a first shot at retail.   Hardcover first -- but with a twist.  Bundle an eBook with the book.  People who buy books in bookstores talk up books.  They are the same people who, for either love or literature, or social status, opted to purchase -- not rent -- expensive triple deckers in the Victorian era.


Some people just have to read a book when it comes out.   Others can wait several months. If someone must have a  book when it comes out, it can be purchased as pbook bundled with a browser-based eBook.   According to a recent online consumer research survey by Elastic Path, if a favorite author was released initially only in hardcover, 41% of readers would buy it, whereas 39% would wait for the eBook.  Like the home video home video distribution window,  the digital-only version should follow the release of the premium pbook (i.e., pbook bundled with "free" eBook) two to three months after initial release of the premium package sold through traditional bookstores.  pbook first would also address protests by booksellers who can't compete with Amazon, Apple and Google in the digital arena. 

For traditional publishers and traditional booksellers, a premium  "P" / "E" bundled edition is one strategy for fighting the digital book wars.  Yes, I'm talking about defending the system.   But, don't brand me as a supporter of the status quo.   Defending the system need not be at the expense of new business models.   Publishing entrepreneurs can start from scratch with e-subscription models, e-syndication models, e-advertising supported, short term licenses (e.g., Richard Nash's Cursor), and other models that leverage their copyright interests and/or the readers' eyeballs they aggregate.  How one extracts value from their  intellectual property assets (and readers) is up to them.  It's just a matter of how traditional publishers plan to ride out the storm.  


Bookstores make traditional publishers relevant.  Things are about to get cheap and nasty, and Amazon and 

Apple are intent on destroying the existing supply chain.

Support is needed for traditional booksellers.  Don't jeopardize those valuable retail relationships by releasing stand alone downloadable digital books day-and-date with physical books.  Bundle them.  Neither the big six publishers, nor their bookseller partners, can compete with Amazon, Apple and Google.  Embrace digital, but, don't undermine traditional booksellers.  

Enhanced e-Books 101: Simple Music Clearance Strategies

By Lloyd Jassin & Adam Ness

    Including music in an enhanced e-book or other multimedia work that combines more than one type of expression -- whether images, photographs, video or audio -- presents unique and challenging clearance or permission issues. Obtaining the right to use music in your production, generally, will require you to obtain permission or "clear rights" from two different parties, the owner of the song and the owner of the sound recording. And, if you fail to obtain proper clearances, harsh penalties under the Copyright Act include statutory damages of up to $150,000 per infringement. 

     While it may appear as if no one is paying for music today, if  the music you wish to include in an app or enhanced e-book is still under copyright, and the use doesn't qualify as a “fair use,” that music element will have to be removed.  This article provides an overview of  the issues involved in clearing music rights for multimedia projects.

     Multiple sets of rights must be cleared to use a piece of preexisting music because recorded music is subject to at least two copyrights.  As such, there is no “one stop shopping” when it comes to music clearance.  If you obtain permission for the owner of a particular sound recording, you still have to obtain permission whoever owns the copyright in the underlying song.   On a happy note, it is often easier to locate music rights holders than the holders of other creative elements, because of the existence of online music rights databases.   

     Allow sufficient time for the challenges unique to music clearance.  Clearing any type of rights takes time, and music rights holders are still skittish about “new media.” As a result they are often reluctant to grant rights for different technical platforms or media platforms.

     Copyright No. 1:  Rights in the Underlying Song

     The first copyright is in the musical composition itself, which consists of the underlying lyrics, melody and rhythm.  The songwriters generally assign their copyright to a music publisher, who then administers the issuance of what are called “videogram” and “synchronization” licenses to multimedia and other producers.  If you wish to use a musical composition in combination with moving images, you must obtain a synchronization or videogram  license from the music publisher.   Whereas a”synch” license is associated with film and television, when dealing with home video devices, including so-called “enhanced e-books” a videogram license is needed.  Interestingly, “synch” and “videogram” rights are not mentioned in the Copyright Act.You will also need permission from the music publisher if you wish to reproduce the sheet music or lyrics.  The best way to locate a music publisher (or songwriter) is to visit one of the performing rights society websites.  ASCAP (www.ascap.com), BMI (www.bmi.com) and SESAC (www.sesac.com) each maintain searchable online databases of song titles and composers, which lists publisher contact information.  Harry Fox also maintains a song database, but, it tends to be harder to navigate than the aforementioned sites.  However, it’s a safe bet that the songwriters belong to one of these three performing rights societies.  

     Fees are highly negotiable, and the price you are quoted will depend on the popularity of the song, the attractiveness of your project, the duration of the use, the license term, geographic scope of the license, the nature of the use (e.g., theme song, background use), and the platforms or devices licensed.  When negotiating for multimedia rights, remember that multimedia works are non-linear, containing pathways a user may never explore.   If the music you are licensing is unlikely to be heard, you may argue that the fee you are quoted should reflect that.  If you are negotiating with different music publishers, you may be held hostage to what is known as the most favored nations clause ("MFN").   Publishers and record companies include MFN's in their license agreements.  They are like insurance policies.  If another publisher receives more favorable terms than they do, this clause is triggered, and the publisher who was paid less, automatically becomes entitled to receive the more beneficial terms.
  
Copyright No. 2: Rights in the Sound Recording

     The second copyright is in the sound recording itself. Sound recordings are generally owned by record companies, or, in some instances, by the artist. If you want to use an existing performance by a recording artist in your project, you will need a “master use” and “videogram” license from the record company or artist. In the case of an “app,” the combination master use / videogram license maybe referred to as a “multimedia” or “software” master use license. If you can't obtain the right to a particular recording of a song, consider a substitute recording by a less popular recording artist, or, create your own original recording.

     Streaming

     A public performance rights -- as opposed to synchronization rights -- is implicated when music is streamed from a website. If the listener or user clicks a button or link for a particular recording, and s/he hears the song, but a copy of the sound file isn't downloaded directly to the listener's music device, the music is being streamed.  If your website will stream music, you will need at least two licenses, i.e., one from a performance rights organization (i.e., ASCAP, BMI or SESAC),  and the other from the owner of the sound recording.

     SoundExchange manages payments for owners of sound recording rights (usually record companies), and should be contacted. Unlike synch licenses, ASCAP, BMI, SESAC and SoundExchange (http://www.soundexchage.com/) use standardized rights definitions, and issue licenses based on statutory rates set by Congress.

     Clearing music rights can be costly and time consuming.  There are no standardized rights definitions and fees vary tremendously   “Budget” options include commissioning music on a work for hire basis, and using low cost “production” or stock music.  If you have a complex clearance project, consider using a music clearance specialist.  They know the right people, and understand the industry’s customs and practices, and, thus, could move the process along more quickly than you.     

Resources

Kohn on Music Licensing: 4^th Edition, Al Kohn & Bob Kohn (the music licensing “bible”)

BZ Rights & Permissions, http://www.bzrights.com/ (music clearance professionals)

EMG Music Clearance, http://www.clearance.com/ (music clearance professionals)
U.S. Copyright Office, http://www.copyright.gov/

Will Amazon Launch a Cloud-Based Book Service?

Are Advertising & Subscription Revue the Next Big Thing in Book Publishing?  

I've never been one to shy away from predicting the future. If asked, I’d say in the next 24-months, Amazon's Cloud Drive, their controversial cloud based digital music locker, announced on March 29,

2011, will evolve  into a book service, with revenue generated by purchases, advertising and subscription revenue.  Lockers and "lock in" are good for digital businesses that are having difficulty figuring out how to sustain a business based on  piracy prone digital downloads.  Amazon, as a player in the music space, knows that only 16.5% of American internet users over the age of 13 purchased music in the third quarter of 2010.  If purchasing digital content is optional today, how do you make it worth someone's while to buy a down loadable book that is otherwise available on a torrent site?  The answer the music industry has come up with is convenience, quality and legal.   

Does Your Publishing Contract Reflect the Modern Face of Book Publishing?

I believe that what we are watching is Amazon rethinking the future of making money online. Kindle is a only a transitional reading device.   It's a stop along the way toward a multifunction tablet, which is, itself, a stop along the way toward a cloud based service -- a service that stores book and music files remotely.

Some believe the Kindle advertising model, announced last month, is a first step toward  a freemium business model.  Marry the freemium model with a cloud based book service, and you have advertising supported books.  You won't just being storing books that you purchased on Amazon's server, but, reading advertising supported ones.  The latter bears some similarity to the way Dickens sold his novels -- serially, in installments or parts over time.   The future of publishing is going to look more "tailored and personalized."   Until the FTC clamps down on America's patchwork quilt of pro-advertiser privacy laws, revenue will flow from targeted behavioral ads.   

As an aside, a cloud based digital book service is a grand idea for readers as they can gain access to their files from wherever they are, and read those files on  multiple devices, e.g., smart phones, tablets, and their PC's.

The ambiguous digital book future is getting clearer day-by-day. It's not about ebook reading devices, it's about monetizing ebook readers.  Amazon is poised and ready, as evidenced by their willingness to build a business by selling ebooks below what they paid for them.  Google is ready, too.   Free works for Amazon and Google.  It's just bad for publishers.    

The short- to mid-term changes in trade publishing are going to be dramatic.  The music industry were the first movers in the digital space.   Just as technology improved musician's access to customers, it has decimated the music industry.

At the recent "Rethink Music" conference in Boston, one industry leader said cloud services must get past next year.  He was optimistic about Amazon Cloud Drive and Spotify.  His prediction was that the world's 160 million iTunes users will move to the cloud over the next five years.  Cloud services are on the cusp.   It's seems like Amazon is looking to develop a successful business model based on access to content -- not  ownership.   Streaming to one or multiple devices, the ability to sell ancillary services, and social networking features, make cloud based publishing a very exciting prospect.

The legal issues surround cloud and subscription services are plentiful.  They include antitrust concerns.  For example, there's the controversial question of whether Amazon, Google and Apple ("AGA") should own the content they distribute?   It is a good idea that they have a financial interest in the content they sell?   If prevented from doing so, perhaps, it would usher in a golden age of independent publishing. 

If Amazon uses its dominance to crush  the competition -- and there's no evidence that is their plan -- it would be bad for consumers, but good for Amazon.   Perhaps, someone should shake the antitrust cage, if for no other reason that to ensure Amazon, Google, Apple, get the message.   What's Amazing for Amazon, good for Google, or appropriate for Apple, is not necessarily good for you and I. 

Amazon's Evolving Role in Publishing: A Decade of Change

Introduction

On May 1, 2011, the publishing industry was shaken by the news that Amazon intended to use its enviable market power to launch its fourth publishing imprint. At the time, I commented that Amazon could perform all of the activities between the delivery of an edited manuscript and the delivery of finished books, thus bypassing the role of traditional publishers.

Now, over a decade later, it's crucial to revisit these observations and examine how the landscape has shifted. This updated article combines insights from 2011 with a fresh analysis of the current state of publishing, demonstrating both the prescience of earlier concerns and the emergence of new challenges.

Amazon's Evolving Role in Publishing: A Decade Later

The publishing industry has undergone significant changes since 2011, but many concerns about Amazon's market power and its impact on the book industry remain relevant. Let's revisit these issues and examine how they've evolved over the past decade.

The Consolidation of Amazon's Power

In 2011, we worried about Amazon launching new publishing imprints. Today, Amazon Publishing is a major player with 16 imprints across various genres. As of 2024, Amazon Publishing has expanded to include 17 imprints, releasing over 1,000 titles, everything from nonfiction, to fiction, to children's books.  

Amazon's power now extends beyond just books:

• Audible dominates the audiobook market
• Kindle Direct Publishing is the go-to platform for self-published authors
• Amazon Web Services (AWS) hosts many publishers' digital infrastructure.

The Evolving Bookselling Landscape

The "showrooming" effect predicted in 2011 has become a reality, with many customers browsing in physical stores but making their purchases online. However, the landscape has evolved in unexpected ways. Many large bookstore chains have faced significant challenges, with some closing their doors.

 Notable closures include:

• Borders Group, which liquidated its remaining 399 stores in 2011, just before the original article.
• Family Christian Stores, which closed all 240 locations in 2017 after 85 years in business.
• Book World, which shut down its 45 stores across the Midwest in 2017.
• Hastings Entertainment, which closed all 123 stores in 2016.

While many brick-and-mortar retailers have struggled or downsized in the face of e-commerce growth, Barnes & Noble has found success by focusing on local communities and smaller store formats. Under the leadership of CEO James Daunt, the company has revamped its business model, allowing individual store managers more autonomy in selecting books and creating a unique customer experience tailored to local tastes. Similarly, between 2020 and 2021, independent bookstore sales have grown 31.6 percent, to $633 million. 

Antitrust Concerns

Antitrust scrutiny of Amazon has intensified. In 2021, the company faced lawsuits alleging anticompetitive practices in e-book pricing. While no major regulatory actions have been taken against Amazon in the U.S. book market, the conversation around big tech's market power continues.

Data and Privacy

The concern about Amazon monetizing reader data has only grown more relevant. With the rise of e-books and Kindle devices, Amazon has unprecedented insight into reading habits. Publishers and authors should continue to advocate for reader privacy and transparency in data collection practices.

The Rise of Subscription Models

Kindle Unlimited, launched in 2014, has become a significant player in how readers consume books. This subscription model presents new challenges for publishers and authors in terms of compensation and discoverability.

Looking Ahead

As we move forward, publishers and authors should focus on:

• Diversifying distribution channels
• Leveraging direct-to-consumer relationships
• Advocating for fair competition and transparent practices in the digital marketplace
• Exploring new technologies like blockchain for rights management and royalty tracking

The publishing industry must continue to adapt to the digital landscape while working to ensure that no single entity wields excessive control over the marketplace of ideas.

Writing About the Dead: A Legal Survival Guide for Authors

Under U.S. law, the dead cannot be defamed. However, those in their shadow—particularly family members or associates connected to alleged misdeeds—may still pursue legal action if they believe their own reputations have been harmed. 

While there's always the time-honored writerly approach of simply waiting for problematic subjects to pass away, most writers need more immediate guidance.This article offers practical strategies for minimizing legal risk when writing about the deceased and those who survive them.

Defamation requires you to check four boxes: (1) a false statement of fact, (2) publication to a third party, (3) identification of the person or entity, and (4) resulting harm to reputation. Constitutional defamation law balances reputation protection with First Amendment free speech rights.

The level of fault required depends primarily on whether the plaintiff is a public figure, limited-purpose public figure, or private figure. Public figures must prove actual malice (knowledge of falsity or reckless disregard for truth), while private figures generally need only prove negligence, though some states require actual malice even for private figures when the speech involves matters of public concern. Media defendants may receive additional constitutional protections in certain contexts. Truth serves as a complete defense against defamation claims.

1. Know the Legal Limits. If a defamation lawsuit is filed before a person’s death, their estate may continue to pursue the claim after they’ve passed away. This is because the legal cause of action was already initiated while the individual was alive, and it becomes part of the estate’s assets. The estate essentially steps into the shoes of the deceased for purposes of continuing the litigation. 

2.  Survivors Can Sue: If your portrayal of the deceased indirectly harms the reputation of a living person who stood in the deceased's shadow—such as a spouse, child, or business associate—they may have grounds for a defamation or false light claim. False light claims don't require proving falsity—they focus on whether the portrayal, while possibly true, creates a misleading impression that would be highly offensive to a reasonable person.

3. Fictionalize with Care. Fictionalizing in a memoir or difficult personal story can be appropriate to convey emotional truths, protect privacy, or clarify events without compromising the story’s integrity. Keep in mind that courts consider whether a person is identifiable, not just named. So, beyond changing names, you must alter identifying details to prevent readers from reasonably linking characters to real people. Transparency about fictionalization—through prefatory notes or disclaimers—is crucial. Most importantly, fictionalization should never distort or misrepresent key facts that would alter the story’s overall truth or message.

4. Use Disclaimers Strategically. While not bulletproof, a prominent disclaimer stating that your work is fiction or that certain elements are fictionalized may help deter claims by the living. 

5. Truth Is Your Best Defense.  If you’re writing nonfiction, verify all factual claims. Verifiable truth is an absolute defense to defamation, so keep keep your documentation in an accessible place in case your work is challenged.

6. Watch for Criminal Libel Statutes.  A handful of states, including Colorado and Georgia, have criminal libel laws that allow prosecution for statements that “blacken the memory” of the dead.  While these laws are seldom enforced, and have faced constitutional challenges due to free speech protections, they still pose a risk in sensitive cases.

If your work involves real people—especially in memoirs, biographies, or investigative nonfiction—consult a publishing attorney before publication.

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Related Articles 

• Legal Consequences of Using Real People in Fiction
• When Can I Legally Use, Repurpose and Publish Without Permission? 
• How to Choose a Book Title and Not Get Sued
  

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