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Class Action Lawsuit Against Amazon and Publishers Misses the Mark

Posted By Juli Monroe On February 21, 2013 @ 12:52 pm In Amazon,legal,publishing | 5 Comments

According to the Huffington Post, three independent bookstores are filing a class action suit against Amazon and the “Big Six” publishers [1].

Alyson Decker of Blecher & Collins PC, lead counsel acting for the bookstores, described DRM as “a problem that affects many independent bookstores.” She said the complaint is still in the process of being served to Amazon and the publishers, and declined to state how it came about, or whether other bookstores had been approached to be party to the suit.

“We are seeking relief for independent brick-and-mortar bookstores so that they would be able to sell open-source and DRM-free books that could be used on the Kindle or other electronic ereaders,” Decker explained to The Huffington Post by telephone.

While I love the idea of getting rid of DRM, this suit has a number of problems. Go and take a look at it [2]. (We’ve also embedded it for you, below.) Cory Doctorow, in an update to the Huffington Post article [3], covers one of the problems.

That sounds great, but when you read the complaint, you find that what they mean by “open source” has nothing to do with open source. For some reason, they’re using “open source” as a synonym for “standardized” or “interoperable.” Which is to say, these booksellers don’t really care if the books are DRM-free, they just want them locked up using a DRM that the booksellers can also use.

There is no such thing as “open source” DRM—in the sense of a DRM designed to run on platforms that can be freely modified by their users. If a DRM was implemented in modifiable form, then the owners of DRM devices will change the DRM in order to disable it. DRM systems, including so-called “open” DRM systems, are always designed with some licensable element—a patent, a trademark, something (this is called “Hook IP”)—and in order to get the license, you have to sign an agreement promising that your implementation will be “robust” (i.e., implemented so that its owners can’t change it). This is pretty much the exact opposite of “open source.”

But that’s not all. They refer to the Amazon DRM scheme as “AZW.” AZW is Amazon’s file type. It has nothing to do with DRM. You can buy a non-DRMed .azw file from Amazon. Come on, guys, do your research.

Furthermore, they say that no Big Six publisher has entered into a contract with an independent bookstore. I doubt this has anything to do with DRM, and even if it did, I don’t think the legal system can force a company to sign a contract with another company.

Finally, I have to ding them on statistics. The suit claims that Amazon has both 60 percent of the dedicated e-reader market (plausible), and 60 percent of the small media tablet market. That last claim is ridiculous. To use the same percentage for both is silly. So I did my own fact checking. I found a recent report that Apple still has 44 percent of the tablet market [4], and that Amazon has 33 percent of the Android market [5]. Way less than 60 percent, guys.

Like Doctorow, I sympathize with the indie booksellers. Amazon has hurt their business, but I’m not convinced DRM is the reason. As much as I personally despise DRM, I don’t think the courts are going to strike it down. And even if they did, they aren’t likely to do it because of this lawsuit. Which is too bad. I’d love to see it gone, and I’ll cheer wildly and support anyone who can come up with a good reason to get rid of the stuff.


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5 Comments To "Class Action Lawsuit Against Amazon and Publishers Misses the Mark"

#1 Comment By Michael W. Perry On February 21, 2013 @ 9:43 pm

I wish these independent stores well, but I doubt the solution to their troubles lies in selling ebooks. That market is tailor-made for a few big online retailers and perhaps speciality outlets for specific genres, such as mystery or scifi.

The real problem with getting ebooks into a wide variety of outlets isn’t DRM. It’s the hassle of all competing and incompatible formats. For print, I can send a couple of PDFs to Lightning Source and get worldwide distribution. For ebooks, I individually send different sorts of files with accompanying data to Amazon, Apple and Smashwords. And despite my best efforts, what readers get will look different on each.

Adding another distributor to that mix, particular one that’s likely to never have more than a single-digit market share, simply doesn’t make sense. And I don’t even insist on DRM. No, DRM isn’t the issue. Formats and ease of distribution are. And the Big Six no more want to deal with issues of multiple, incompatible vendors than I do.

#2 Comment By Paul StJohn Mackintosh On February 22, 2013 @ 5:59 am

My first instinct is also to side with any assault on DRM. All the same, I agree that in this case the suit seems pretty confused, not least on file format versus DRM. Bookshops and small publishers are free to sell non-DRM’d Kindle-format books by themselves: Tartarus Press in the UK, for instance, already does a great job of this alongside DRM-free epubs. Fine, these aren’t offered through the Kindle Store, and the poor benighted reader has to work out how to actually sideload the damn things on to their machine, but they do have advantages – such as the file becomes your own, rather than controlled by Amazon. And meanwhile, Amazon also goes out of its way to open up its system to small publishers and self-publishers.

Any of these bookstores could start their own small e-press in their back office. Perhaps that’s the future they should be shooting for, instead of wasting time and money on these confused and distracting lawsuits. If their lawyer’s statement can be taken at face value, why are they sueing Amazon to do something they can do already?

#3 Comment By Frank Lowney On February 22, 2013 @ 9:13 am

Paul StJohn Mackintosh said, “Any of these bookstores could start their own small e-press in their back office.”
This is a really good point but often overlooked due, I suppose, to inertia of some sort. Without the capital-intensive requirements of print, anyone or any group can create and disseminate eBooks. Bookstores, writer collaboratives, professional and scholarly organizations or any group with a common interest in bringing a specific message or story to a specific audience.
We really don’t realize how free we are. We still, many of us, act as if the tyranny of print still binds us.

#4 Comment By Juli Monroe On February 22, 2013 @ 9:52 am

Excellent point, Paul. I had that niggling in the back of my head as I was writing the article but couldn’t quite bring it out to express it. (Not enough caffeine yesterday morning.) Thanks for saying it so well!

#5 Comment By Theresa Moore On March 12, 2013 @ 9:37 am

It is interesting to note that the independent bookstores are just as selfish as Amazon and other major chain stores when it comes to treating all books equally. They refuse to stock books published by independent authors, while claiming that there is not enough space. Well of course there isn’t. Publishers pay for the front shelves and other display space so that the independents are shoved into the back of the store. The issue is not DRM at all, but a consistent record by Amazon of holding large amounts of money earned from sales of the ebooks back from authors. They are not even sales, but fees to read the books on their Kindles, as well as other proprietary claims which give little consideration to authors. I have seen whole threads devoted to complaints from the authors themselves, in which they have seen their “sales” plummet to zero on the reports or interfered with by Amazon staff once they start making any real money. Others have seen their accounts frozen or suspended, or closed forever without any reason being given. In November of 2012 I finally closed my own account and pulled off all my ebooks from Amazon’s vast and cluttered website, and have found since that the other online book stores are no better at honoring the authors’ side of the contract. In this kind of anti-competitive atmosphere it is no wonder that many authors are giving up and fading into the woodwork, while the major publishers continue to dominate the bandwidth. If there should be any class action lawsuit, it should be against the seven instigators of the biggest scam on Earth for blocking competition from independent authors and publishers trying to earn an honest living from their work. We demand a free and open playing field.


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URL to article: http://www.teleread.com/amazon/class-action-lawsuit-against-amazon-and-publishers-misses-the-mark/

URLs in this post:

[1] class action suit against Amazon and the “Big Six” publishers: http://www.huffingtonpost.com/2013/02/20/drm-lawsuit-independent-bookstores-amazon_n_2727519.html

[2] take a look at it: http://www.scribd.com/doc/126461959/Class-Action-Complaint

[3] update to the Huffington Post article: http://boingboing.net/2013/02/20/indie-booksellers-sue-amazon-a.html

[4] Apple still has 44 percent of the tablet market: http://www.bloomberg.com/news/2013-01-31/samsung-gains-in-fourth-quarter-tablet-market-apple-keeps-lead.html

[5] Amazon has 33 percent of the Android market: http://thenextweb.com/mobile/2013/01/28/report-amazon-dominates-android-tablets-us-based-kindle-fires-alone-are-33-of-global-devices/

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