Inkling Books’ Michael W. Perry on the DoJ’s E-Book Price-Fixing Settlement
September 12, 2012 | 12:17 pm
By Michael W. Perry
Yes, the judge in the Google Book Settlement clearly listened to what writers were saying, particularly [the approximately] 90 percent of them who wrote in opposition to it (including me). This judge seems less open to news from the trenches or the facts of the case.
Keep in mind that there’s another and more mature market that demonstrates just how effective agency pricing can be at keeping prices down and quality high. That’s the apps for Apple’s iDevices. One reason I opted for the latest iPad rather than a MacBook Air is the marvelously low prices for impressive iOS software. I just picked up a well-featured, beautifully laid out writing app (Notability). A similar app on a Mac would cost at least $30. This one was on sale for 99 cents and the list price is just $1.99. That’s agency pricing with the price set by the developer precisely like the iBookstore.
My own take is that this move is yet another example of the Chicagoification of the federal government in the last almost-four years. It’s a simple but vile scheme. Create lots of complex and often ambiguous rules, so many that anyone can be branded a criminal. Then apply those rules selectively to ‘encourage’ campaign contributions and crush opponents.
The owners of Gibson Guitar give to Republicans and they’ve been prosecuted on dubious grounds—violating Indian laws that India doesn’t consider violated. Their chief competitor gives to Democrats and is left alone (for the very same alleged crime! —Ed.) Gallup has had a similar clash with the Obama administration over their tracking of unemployment rates and is facing similarly dubious prosecution. And don’t forget the prominent big city Democrats who thought they could ban Chick-fil-a from their cities. They cannot do that, but watching Obama in action, they thought they could. This is nasty stuff.
That’s precisely how the Chicago machine works. If you’re a nobody, you can’t fight the machine. If you’re a somebody, you have a business or real estate in the city. All of a sudden your restaurant is violating a fire code and gets shut down. All of a sudden, you’re violating all sorts of regulations. You’re too buried in hassles and prosecutions to fight city hall.
The scary thing about this book settlement is that it applies a muddled set of pricing rules to at least some publishers and authors, opening the door for similar prosecutions of you and I. Do you want to take on the DOJ when even some of the Big Six publishers didn’t feel they had the resources to do so?
And that’s moving into political free speech.Take a very recent example: The Obama administration has leaked like a sieve in an effort to put a positive spin for itself on Bin Laden’s execution, including the names of Seal Team Six—putting their families at risk. But when one member of that team, Mark Owen, publishes No Easy Day, which has a less flattering look at Obama’s role, his prosecution is threatened. And the administration’s defense of that is almost Nixonesque. The president, Defense Secretary Panetta claims, can’t break the law.
And we should not think that the potential for political censorship is confined to Democrats. More that a few incumbent Republicans find it appealing. That’s why we had FECA–the Federal Election Campaign Act that was overturned by the Supreme Court in Citizens United.
Ponder for a moment what is the most valuable form of free speech. Like me you’ll probably come us with a list that includes:
* Political free speech as opposed to artistic, literary or religious. Artist can’t throw me in prison. Governments can.
* Speech directly connected to those running for political office. These are the people who’ll be running the government.
* Speech made just before elections when the impact is greatest.
* Speech by advocacy groups as opposed to general news outlets. And keep in mind that we know what POV advocacy groups represent. They’re at least being straight forward.
* Speech that is likely to be the most effective at reaching the most people, i. e. TV ads rather than long, serious books.
What I’ve listed is precisely what FECA banned. In fact, during the Supreme Court hearings, a debate developed over whether the act could be used to ban the publication of a book critical of a candidate just before an election. Opinion from those supporting FECA waffled one way and the other, but the general consensus from FECA supporters seemed to be that what they wanted to ban were effective ways to prevent advocacy groups from reaching the great mass of voters. Since a book is unlikely to have that impact, it didn’t have to be banned.
In short, FECA was an effort to target the most critical and effective forms of political free speech just before elections. Those in politics who supported it are the ones who need to be watched carefully. Most of us know who they are.
For my part, I want to live in a society where my opponents—as well as my friends—have the right to influence elections right up to election day, and by any peaceful means they choose. As Martin Niemoller, a German pastor said:
First they came for the communists,
and I didn’t speak out because I wasn’t a communist.
Then they came for the socialists,
and I didn’t speak out because I wasn’t a socialist.
Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.
Then they came for me,
and there was no one left to speak for me.
This fuss is not just about how books are priced. It’s about what rules the government can impose on the books we write and publish—meaning what rationale they can use to ‘come for us.’
In the end, this is a free speech issue. The price I set for my books is my business and not the government’s affair. Prosecuting me for using agency pricing is as much censorship, or at least potential censorship, as kicking down my door in the middle of the night or burning my books in a public square. All it takes is for laws to be selectively applied.
* * *
About the Author: Michael W. Perry was the editor of Chesterton on War and Peace: Battling the Ideas and Movements that led to Nazism and World War II. It won an award from the American Chesterton Society as the best G. K. Chesterton book of 2009.