Ebooks and the Long Arm of the Law


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Lately, it seems that every other article about ebooks is news about a new lawsuit. Ebooks have a series of legal ramifications inherent to the format, problems that did not exist (or did but to a far lesser degree) in other book formats. Collusion, piracy, and who owns the right to publish what are just a few of the legal boondoggles that ebook publishers and authors are currently facing.

Collusion and price fixing: In March 2012, it was revealed that the U.S. Department of Justice was planning to sue Apple and five of the biggest U.S. publishers for conspiring to raise prices on ebooks through the agency pricing model. Just days later, Scott Turow, president of The Authors Guild, issued an open letter denouncing the government’s decision to prosecute publishers. Others, however, feel differently about agency pricing and agree that it artificially inflates retail pricing. Few, however, agree that it’s an actionable offense.

Figuring out the retail pricing is a big part of any new business, but when your digital product has physical counterparts, pricing becomes even harder. It’s not comparing apples to oranges; it’s more like comparing McIntosh apples to Granny Smith apples. And there’s no quick fix to this problem. Price ebooks too high and you risk alienating your customers and pushing them to piracy (see next paragraph); price them too low and you cut into already thin margins and risk cannibalizing sales from other formats.

Piracy: In the ’80s and ’90s, academic publishers were faced with the growing problem of photocopying. The advent of ebooks has made copying as easy as clicking Select All on the drop-down menu. Digital rights management (DRM) can be overridden, and some people just scan whole books. Piracy is big business these days. There are some people who justify their illegal purchases by saying well, if the publisher isn’t offering ebooks, only pirate sites are, then what choice do I have? Well, you could buy a paper copy.

Cost is another excuse. Pirate sites are generally less expensive than legitimate sites. Well, of course they are. They’re selling stolen content, and the author and publisher aren’t seeing a dime.

Even self-published authors are being hit. There have been several recent cases of stolen erotica up for sale on Amazon. The content was pretty much just copied and pasted from other authors. Eagle-eyed readers noticed it, and authors and publishers contacted Amazon. The pirated ebooks were removed, but it’s impossible to monitor every ebook posted for sale.

So what can be done to stop the pirates? Publishers go after unauthorized ebook sites, but it seems as soon as one is shut down another one pops up. An educated and ethical consumer is really the best way to combat them, along with making ebooks easily available from legitimate sites.

Rights issues: In publishing contracts these days, ebook rights are negotiated and listed along with all other subsidiary rights. The contract clearly spells out whether or not the paper book publisher can publish the ebook version. But up until about eight to 10 years ago, ebook rights weren’t mentioned in contracts—because they didn’t exist. Many publishers feel that since they’ve done all the work to make a book successful, it is without question that they have the ebook rights for those books, even if it wasn’t explicitly spelled out in the older contracts. Some authors and agents, however, feel differently.

While most older contracts’ ebook rights have been settled amicably, there are a few that have not, such as Jean Craighead George’s Julie of the Wolves. The book’s rights are currently in dispute between HarperCollins Publishers and Open Road Integrated Media, Inc. As ebook sales continue to grow and become an even larger portion of overall book sales, and as more and more older books are being converted to digital formats, chances are good that the number of disputes like this one is going to increase.

Book publishing has seen many legal wrangles in its long history, but most were about the content contained within the pages. Ebooks have created a whole slew of new problems centered on their very format. I’d say publishers, authors, agents, retailers, and consumers all need to have a say in where we go from here, a dialogue wherein everyone’s needs and concerns can be discussed and addressed and which could lead us to mutually beneficial solutions to the ebook conundrums—except that might just get the Department of Justice after all of us.


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