Category Archives: Peter Brantley

Moving Up to a Bigger Musket

Peter Brantley -- November 12th, 2012
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Artillery at Fort Sumter
I just got back from the Charleston Conference – a lively mix of publishers and librarians discussing digital transitions in information access. It was the first time I attended, and I was struck by how many other friends in trade publishing were also there for the first time, ranging from Smashwords and Safari Books Online to the Frankfurt Book Fair. O’Reilly also organized a premier Tools of Change Charleston with Mitchell Davis, the local entrepreneur behind BookSurge and BiblioLabs.

One thing that immediately struck me was how much the conversation about trade publishing seems increasingly to leak into discussions about other sectors of publishing, including Charleston’s focus on academic and A&I resources. Part of that was intentional by the organizers, and part because it’s hard to open a newspaper without reading about the titanic shift towards Big 6 trade consolidation. The combination of Random House and Penguin seems inevitable to everyone, and most pundits and prognosticators agree that more combinations are on the way. Additionally, there seems to be strong concurrence that the merger’s primary achievement is to buttress a strong arm against the market power of Amazon, giving ever larger publishers more heft in negotiations, and heading off ultimatums from Amazon’s perceived monopsony power.

One critique of this trend is that there may be little benefit to making publishing businesses ever larger through M&A because internal coordination costs for larger firms grow faster than the benefits of output efficiencies. At Charleston, there was speculation that inevitably one would see a dissolution of the great houses, and a re-emergence of their imprints as stand alone publishers. In an age of networked production and ebook distribution, the strong countervailing argument against consolidation is that there is no better time for Alfred A. Knopf and Panthenon to take themselves out of megalithic houses and re-assert editorial and business independence. I must admit, as a literature geek I find this scenario romantically appealing, and I would love to see these noble brands born anew and ascendant.

However, I think that the opportunity for those organizations to resurface is gone. That’s not due to change in the brilliance of their staffs or their aspirations – it’s a result of wholesale changes in publishing. Once we start producing literature without traditional firms, even born-again, smaller and nimbler houses based on traditional publishing structures are not going to be successful. It will take an entirely different model of publishing to succeed – one that recognizes that the costs of literary production are plummeting; distribution occurs on the network; and that entry points into story-telling are growing increasingly diverse. New publishers are as likely to be independent videographers or game companies as trade houses, and a growing industry meme focuses on how likely it will be for film producers to commission books, rather than see traditional publishers managing 360 deals. With tools like Mozilla’s Popcorn, transmedia production is reaching the hands of technically unsophisticated creators.

Making strategic choices about optimal organizational form based on a desire to achieve effective market position against the dominant retailers of the existing industry will not be successful. Newly emergent publishing models are going to develop on the periphery of the existing publishing industry, often wholly independent of it, with both large and micro actors emerging to produce a wide range of new forms of content. The consultant Mike Shatzkin has persuasively argued that everything but traditional text narratives in trade is merely an experiment, and that’s a logical analysis. However, it’s not in trade that those experiments are going to be successful.

During the Charleston Conference, I grabbed a quiet morning and toured Fort Sumter, site of the start of the U.S. Civil War. One of the things I learned was that the war bridged a great transition in artillery technology, with field bombardments shifting to vastly more deadly and accurate rifled cannons. It seems a similar transition is amongst us within publishing. As armies in this war, Random House and Penguin have reached for a bigger musket to arm themselves in order to retain financial independence. Unfortunately, more innovative firms have started to adopt Kalashnikov AK-47s.

The Confederate Army abandoned Fort Sumter in February 1865, as Sherman swept his way through South Carolina.

Random House Did Not Mean Own, Exactly

Peter Brantley -- October 23rd, 2012
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Words have to be put in context. Last week, Skip Dye, Random House’s VP of Library and Academic Sales, was quoted in Library Journal as saying, “Random House’s often repeated, and always consistent position is this: when libraries buy their RH, Inc. ebooks from authorized library wholesalers, it is our position that they own them.” Along with many others, I had many questions about what RH meant by “own.” I wrote Mr. Dye directly, noting that the Internet Archive was able to cut a check as a registered California library to purchase books for Open Library. Mr. Dye returned my message, and yesterday we had a long conversation, running almost an hour. At the end of our discussion, I better understand how much ownership libraries have of Random House titles: Nada. Libraries don’t own anything. Continue reading →

Random Words of Ownership

Peter Brantley -- October 21st, 2012
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readz0r by Flickr user termie
This past week, Michael Kelley, the Editor in Chief of Library Journal, called attention to statements from Random House that suggest that libraries own the books they acquire from distributors such as Overdrive or 3M. Evidently, as far as Random is concerned, distributors are not compelled to enforce license agreements with libraries for Random House titles. Michael quotes Skip Dye, head of library relations at Random, “Random House’s often repeated, and always consistent position is this: when libraries buy their RH, Inc. ebooks from authorized library wholesalers, it is our position that they own them.” Skip goes on to say, “This is our business model: we sell copies of our ebooks to an approved list of library wholesalers, and those wholesalers are supposed to resell them to libraries. In our view, this purchase constitutes ownership of the book by the library. It is not a license.”

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Bookshout: Managing Bookshelves, Not Books

Peter Brantley -- October 17th, 2012
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books in a stackIn programming languages, there is a crucial concept called a “pointer.” A pointer is a reference to a location in memory where the value of an object, such as a variable or constant, is stored. One often chooses to perform operations on memory locations rather than on objects directly; one can even manipulate pointers to arrays of pointers. I struggled to grasp this concept when I was introduced to programming languages that relied on pointer logic, such as C. Working with older Fortran compilers, I didn’t understand why one might want to reference a variable’s contents instead of operating directly on it. Eventually, I intuited how insanely powerful this tool was, and I never questioned it again.

In the world of e-books, we are still living in the age of Fortran 77. We’re fixated on directly handling ebooks on our dedicated readers or mobile devices – irrespective of whether they are truly owned or only licensed – and we wrestle with the novel control the retailer exerts over digital books even after we purchase them. That’s understandable, given the basis of our prior experience with print books; it certainly suits ebook retailers, who want to continue to own the online relationship with the user. For libraries as well as individuals, having the option of putting one’s hands on the object – even if it is digital – reflects the emotional priorities of ownership as well as the presumably concomitant ability for libraries to preserve content as part of their mission.

The genesis of new companies like Bookshout point us in a new direction. Bookshout provides users with a vendor-neutral bookshelf where a reader can aggregate their content from different retailers onto a common platform. While there remain a lot of questions about how Bookshout will work at scale, it has the support of many publishers who endorse the ability of readers to move their books to a location of their choosing. The retailers – Amazon, Apple, and others – may be less thrilled at the potential circumvention of their heretofore proprietary relationship with purchasers of e-books. Continue reading →

Authors Guild v. HathiTrust: Closing the Case

Peter Brantley -- October 11th, 2012
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Firefighter G.F. Sevilles visiting classroom at Halloween, 1966 A Federal judge has found in favor of defendant HathiTrust’s (HT) request for summary judgment on Fair Use grounds against the Authors Guild (AG), delivering a victory for those seeking new uses for digitized material. The AG had filed suit against HathiTrust and several public universities alleging widespread copyright infringement through Hathi’s mass digitization project (MDP) with Google.

Judge Baer ruled that the MDP was transformative; the uses made of the digital copies for search, analysis, and facilitating access for the reading disabled all clearly fell within Fair Use. In his ruling, which eliminates the need for a jury trial, Baer’s language was emphatic: “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP … “.

Although the AG could appeal the HT ruling, PW contributor and legal scholar James Grimmelmann notes that the “opinion makes the case seem so lopsided that it makes the appeal into an uphill battle.” Judge Baer clearly felt that some of AG’s assertions – e.g., proclaiming that Section 108 worked precisely opposite the way it clearly states it works with Fair Use, were frivolous. Legal fees are routinely assessed against the losing party in copyright cases, and the AG should offer not to appeal the case in exchange for the defendants agreeing not to seek attorneys’ fees. Whether defendants would accept such a trade given the low odds of a successful appeal is open to question.

The Court’s straightforward and clean ruling provides the AG with very little room to maneuver in its continuing case against Google, which is currently stayed on a procedural issue at the Appeals Court. Notably, Judge Baer found that the AG, as an authors association, lacked the ability to represent its members’ individual copyright claims in AG v. HathiTrust. This suggests that only class action certification, which now must be upheld at Appeals, would permit it to have a compelling footprint in its case before Judge Chin.

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AAP and Google: Please take it outside

Peter Brantley -- October 10th, 2012
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reading politics by visual.dichotomyIn publishing, increasingly the enemy of my enemy is my friend, but as in the game of Clue, one needs to keep a scorecard handy to figure out who is the friend, and who the killer, in the Library versus the Conservatory.

One of the thinly disguised fault lines in the Google Book Search settlement was the latent tension between the authors, represented by the Authors Guild, and the publishers. The thorny issue of which party has prevailing digital rights to older backlist titles published at a time when contracts either neglected to mention, or weakly addressed, the future revenue possibilities of ebooks has consistently failed to be brought to ground. The conflict has spawned some of the most incestuous conflicts in publishing in recent years, either between traditional publishing groups and new publishing companies, e.g., Random House v. Rosetta Books, or between authors’ agents and publishers, e.g. Wylie v. Random House. In the Google Book Search settlement, arbitrating a distribution of revenues between authors and publishers from the books was such a cornerstone that it earned a pole position as the first appendix.

Therefore, it is no surprise that the primary authors groups – the National Writers Union (NWU), the American Society of Journalists and Authors (ASJA), and the Science Fiction and Fantasy Writers of America (SFWA) – have united with the Authors Guild to decry the recently announced settlement between publishers and Google, which effectively ends the McGraw-Hill et al. lawsuit against the Google Books Library project. There is a touch of dark humor lurking, as the three groups making this announcement – the NWU, ASJA, and the SWFA – were vociferously in conflict with the Authors Guild through their participation in the Open Book Alliance while the Authors Guild was a party to the settlement proposals. Now that the settlement has been dashed, they are free again to common cause against the publishers. Continue reading →

AAP: Call Me Maybe

Peter Brantley -- October 5th, 2012
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Almost seven years ago to the day that the five of the largest publishers in the world filed a suit in a U.S. district court against Google, the AAP and Google announced that the parties have agreed to settle their litigation. Although publishing announcements seem tethered to the penumbra of the Frankfurt Book Fair, this is not “stop the presses” material: the publishers have been negotiating with Google for some time, even while the Authors Guild determinedly presses their class action engagement. But what is surprising, perhaps, is that so little has been apparently achieved by the publishers through these long years of uncertainty.

Publishers are left to opt-out of Google’s library-obtained dataset, and can now participate in commercializing older titles that Google has never ceased digitizing both in the U.S. and abroad, even if the rate of library digitization may be slowing. Acceptance of an underwhelming result which leaves nothing changed on the ground, as legal scholar James Grimmelmann of New York Law School notes, marks a pivot from 2007 when the suit was launched with a fulsome and righteous salvo: “Publishers bring this action to prevent the continuing, irreparable, and imminent harm that Publishers are suffering, will continue to suffer, and expect to suffer due to Google’s willful infringement, to further its own commercial purposes, of the exclusive rights of copyright that Publishers enjoy in various books …”.

Well, so much for that. Continue reading →

Working Around the Publishing Industry

Peter Brantley -- October 1st, 2012
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Folio from the Talmud
Swissnex, a private/public effort of the Swiss government, has hosted some amazing salons with Science Online Bay Area on new forms of publishing. This past Thursday night, they brought together several cutting edge protagonists creating the next generation of scholarly communication in “Innovations in Academic Publishing and Peer Review.” A web of exciting new companies is rapidly emerging, each reinventing an aspect of how we share the results of science.

The speakers – Pete Binfield of PeerJ; Kristen Fisher Ratan of PLoS One; Sarah Greene of Cancer Commons; and Dan Whaley of Hypothes.is – disputed forms of peer review, time to publication, membership models, and alternative metrics for evaluation. Yet despite the raucousness of experimentation in the future of academic publishing, the sense in San Francisco was of a world entirely different than the traditional linear paradigm that heretofore defined scientific communication. Pete Binfield observed that open access is on path to become the dominant model of academic publishing in about five years. And, as Kristen Fisher Ratan noted, scientists are increasingly working around the existing publishing industry to share their work with others – a sharing that is both more open, and more interactive, than ever before. Continue reading →

Royal Library: Public Interests Over Private

Peter Brantley -- September 27th, 2012
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Revue der SportenThe Royal Library of the Netherlands, the Koninklijke Bibliotheek (KB), has announced the release of a digital collection of magazines and journals from the period 1850-1940. Although many of these materials have uncertain and cloudy rights status, the KB has decided to make these rare materials available online on an “opt-out” basis for rightsholders. In an open letter, Managing Director Bas Savenije explains (in English via Google Translate), “[w]e want the public interest in access to this cultural heritage to prevail over the private interests of potential copyright holders.”

The KB worked with this collection for several reasons. Magazines from this decade are vulnerable because the paper stock was poor, and over decades, the issues have received significant handling and are wearing out. The titles are often highly specialized, and targeted limited audiences. Formally, Dutch copyright law would have kept these titles from public view for countless more years. Copyright for published magazines is valid for 70 years after the date of publication and has therefore expired, but many contributing authors would have held their own copyrights, which would persist for 70 years after their death. Most of these authors are now dead, and the copyright would have passed onto multiple heirs. Continue reading →

Imagining Enron: CROs and Collective Licensing

Peter Brantley -- September 24th, 2012
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Ever since the Google Book Search (GBS) settlement, interest in collective licensing of books has mushroomed. Now, a recent international survey by Jonathan Band, PLLC of Policy Bandwidth, “Cautionary Tales About Collective Rights Organizations,” suggests that the agencies responsible for managing collective licenses, Collective Rights Organizations (CROs), are prone to drifting into overreach, accounting mismanagement, and occasionally fraud due to a lack of sufficient oversight and safeguards. Judging from Band’s study, the establishment of a CRO appears all too often tantamount to creating an opportunity for hanky-panky and the kind of fiscal sleight of hand that the Enron scandal made infamous. Continue reading →