To
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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