Sunday, May 27, 2012

DOJ Settlement Comment (wip)

John Read
Chief Litigation III Section
Antitrust Division
US Department of Justice
450 5th Street, NW
Suite 4000
Washington DC 20530

Dear Mr. Read,

I write to offer a comment on the possible settlement of litigation against various publishers and Apple.

As an author, my grave concern is that the DOJ's case may have the unintended consequence of undermining authors' copyright in two ways.

1. Copyright owners (authors) have the exclusive right to set the price for which they will sell their work.

2. Copyright owners have the right to not use or exploit their copyright, for some or all of the term of the copyright.

It appears to me that there is an erosion both of those rights and protections for copyright owners, and also "an entrenched customer expectation" that authors should not be entitled to those rights.

My impression is that Amazon's effectively taxpayer-subsidized price of $9.99 is an imposed "fixed price. Moreover, authors who had pre-existing contracts with publishers had no opportunity to object to the retroactive imposition of other conditions such as Amazon's "account sharing" and "Lending" which effectively means that –allegedly-- in a few cases, one e-book is paid for and up to ten copies of that e-book could be "shared" through Amazon.

Forcing copyright owners to sell up to ten e-books for the price of one via Amazon is not what I call "price competition" and it is not in keeping with a copyright owner's right to control the sale and pricing of her own work.

Pressure has also apparently been applied to erode a copyright owners right not to release an e-book version of a paper book at the time of their own choosing.

VII 104 Part d. of the Settlement appears to grant Amazon the right to duplicate, publish and distribute electronic books at will, on Amazon's terms.

Should the original copyright owners, the authors, not be consulted about this assignment of their copyrights? What protections are envisaged for authors, if Amazon uses their intellectual property as loss leaders to promote Kindle sales and paid "Prime" memberships?

If the Court wishes to punish the Publishers, perhaps it would be better to return all e-book rights to all authors, and allow those authors to renegotiate their e-book rights either with the Publishers, or directly with Amazon, or with Google or Apple or Microsoft etc.

I believe that any restitution paid to e-book purchasers would set an unfortunate precedent. My opinion is that purchasers should not receive a windfall "restitution" for e-book purchases they made willingly and voluntarily. The customers were not deceived. They were not obliged to purchase e-books at the advertised price if that price was more than they were prepared to pay.

Restitution would send an unhelpful message to the public and to authors. Moreover, it would be costly to administer, and the individual payouts would be small.

Please consider instead, suggesting that any Settlement money (if the DOJ prevails) should be used to fund public education about copyright and copyright infringement, and/or action against copyright infringers of e-books.

This would be fair to the majority of members of the public who are honest and pay for their e-books, it would be fair to authors and publishers. And if piracy and plagiarism could be reduced, the true cost to publishers of e-books ought to come down. Everyone would win.

That said, as an author, I am extremely concerned by the implication that the DOJ should dictate the price range of e-books to authors and publishers regardless of other fixed costs that publishers and authors have to cover through legal sales, regardless of the length or the book, or the amount of time and effort that went into the content.

The DOJ should not be able to mandate that copyright owners assign publishing and other rights to Amazon without negotiation and consent.

Yours sincerely,

Rowena Cherry.

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