Kindle and the DOJ

Since I’m talking about the Kindle, I should give my opinion about the Department of Justice lawsuit against the big publishers. (Like you asked.) (So what? Who’s blog is this?)

Here’s the deal. The DOJ alleges that the big publishers colluded with Apple to develop an “Agency” pricing model that allowed them to raise prices on eBook titles beyond the $9.99 that Amazon was trying to establish as the normative price for new titles in its Kindle market.

The lawsuit will establish whether or not such collusion took place. But it doesn’t matter, according to people like the New York TimesDavid Carr:

Let’s stipulate that there may have been some manner of price-fixing here…. But … [f]rom the very beginning and with increasingly regularity, Amazon has used its market power to bully and dictate.

The Atlantic‘s Jordan Weissman agrees that guilt or innocence is missing the point:

The publishers come off as a smidgen less than sympathetic in this tale. The government’s filings are filled, for instance, with descriptions of hush hush dinners…. But…Amazon isn’t simply a garden variety retailer, or a helpless, well-meaning innovator. It’s the dominant force in books, and especially digital publishing.

It might be true they broke the law, in other words, but! since it’s Amazon, then it’s okay. (Remember the image of Lady Justice on courthouses with a special blindfold that lets her see whether the victim is Amazon?)

Nonsense. The reason Amazon has a near monopoly in the market is that its Kindle reads documents packaged in a proprietary format. Once I buy a couple of books published in Amazon’s Kindle format, I’m less and less inclined to buy books in Barnes and Noble’s competing format.

In the real world, we don’t have this problem because all books come in the same, nonproprietary format: words printed on paper. I can buy a book the Friends of the Library’s book sale and take go read it in the nice chairs at Barnes and Noble, or I can buy a book at Title Wave here in Anchorage and sell it on the Amazon used-book market when I’m done.

We could have that kind of flexibility in eBooks too, except that the publishers don’t want us too. So they put their books in formats that provide DRM (digital rights management) or copy protection. They don’t want you to be able to make copies of your books. That’s why the Kindle app on your computer can search (yay!) but can’t cut and paste even the smallest excerpt of a book.

The publishers are terrified that, if they sell you an eBook in an open format, you’ll make copies of it for all your friends.

Now, from the world of digital music, we have abundant evidence that there isn’t much market for pirated works when the variety and price of legitimate works is low enough. When CDs used to cost $17, people ripped them and passed USB drives full of MP3s around the dorm. But when you can buy the one song on the CD that you actually want, and it plays on all kinds of players, and it only costs a buck, most people are okay with just buying it.

For that matter, there’s evidence from the world of paper-and-ink books that people don’t make bootleg copies unless either the price (think: college textbooks) or the variety (think: out of print books) is a problem.

So the publishers could solve the problem immediately by offering their books through Barnes and Noble and Apple in an open format unencumbered with DRM. People would switch readers, and Amazon would have to provide support for the open format. That’s what Charlie Stross says, and he’s right.

But the publishing-industry dinosaurs are too stupid and greedy to act in their own best interest. That’s what John Gruber—who has been following on this, and whose links were my entry point into this controversy—says, and Gruber’s right, too.

But…there is no “but.” This is a problem the publishers made and they can unmake it whenever they want. In the meantime, they need to play by the rules.

God knows it would be easy enough for the publishers to get the rules changed: Congre$$ is alway$ ready to hop into bed with their old-media sugar-daddies and impose ever more restrictive imaginary property regimes, First Amendment be damned. Publishers could buy legislation that makes a mess of eBooks as readily as broadcasters did screwed up video.

We’re asked to look the other way while publishers collude to keep prices artificially high and the user experience and versatility low. We have to do that, you see, or Amazon might do to publishing what Steve Jobs did to the music business: drag it, kicking and squealing, into the 21st century.

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