The Law Of The Publishing Jungle

Today a class action lawsuit was filed in response to Amazon’s threat to remove the "Buy" buttons of publishers who refuse to sign up with their on-demand printing subsidiary, Booksurge. If certified, the class action will most likely include all publishers who use on demand printing to print their books for distribution. If it functions like the class action lawsuits involving credit card or telephone billing that we all find ourselves party to on a regular basis, publishers will automatically be included unless they opt out. The primary plaintiff in the suit is Booklocker.com, Inc., the company that first broke the silence about the heavy-handed tactics Booksurge was using against Lightning Source's larger publisher customers. Quoting from the complaint:

…to obtain injunctive and monetary relief against Amazon.com, Inc. (“Amazon”) with regard to an anticompetitive tying arrangement that violates section 1 of the Sherman Act, 15 U.S.C. § 1.

America is known the world over as a litigious society, and there is often a stigma attached to people in the publishing world who turn to the courts. But if you talk to entrepreneurs who have owned businesses for any amount of time, you'll soon find that businesses have limited options when dealing with legal problems. You can't call the cops if somebody infringes on your copyrights, breaks contractual obligations or doesn't pay their bills. A publisher can avoid litigation by ignoring small problems and hoping the mid-sized problems will resolve themselves, but a publisher that hides from large problems to avoid legal entanglement is just begging to go out of business.

Three years ago, the most popular page on my website disappeared from Google, and I lost over five hundred visitors (and potential customers) a day. After a stressful period of knocking my head against the wall, I found out that Google had indexed a page on the website of a large American company that had incorporated (verbatim) the draft version of a chapter from my book. Since their website had a higher trust ranking than my own, Google had apparently imposed a duplicate content penalty. The loss of five hundred potential customers a day was a direct threat to my business model, so I contacted that company and was told by a tight-lipped employee that I'd be hearing from their lawyer. We ended up in Federal court, and after two years of pre-trial maneuvering, settled the case. I even came out ahead, and I sure learned a lot about the way copyright law and the courts work.

Lawyers are the closest thing to business police in the American system. There's nothing new about business litigation, and what's more, it’s probably one of the hallmarks of a healthy society. I've been reading Scott's Waverly novels (I'm up to volume 20) and I was amused by an incident he writes about in the late 1700's. A Scottish farmer insists on suing his neighbor over grazing rights to a tiny parcel of land, despite the lawyer explaining to him that the legal costs would be far above the value of the grazing. The farmer persisted for the principle of the thing, and as the lawyer points out to a friend, if it had been fifty years earlier, they would have settled the issue with claymores or daggers.

Lawsuits are modern society’s replacement for blood feuds and murder in the street and anybody who yearns for the days when justice came from the barrel of a six-shooter is yearning for a time when justice was the exclusive right of the strong. The anti-trust laws on which the class action filing against Amazon rests are beyond my professional understanding, much less my ability explain, and it will be up to the court to determine whether the complaint has merit. But without the lawyers doing what they do for a living and filing the class action suit, the publishers using Lightning Source who are threatened by Amazon's moves would have no hope of a preventive injunction and little hope of prevailing otherwise.

For Amazon, litigation risk is just another line item in the corporate filing. It's business, not personal, and Amazon is quick enough to turn to the courts and the legislature when their own business model is at risk. For the publishers in the class, it's business as well, but much more than a line item or a minor change in strategy, as for many, Amazon represents the primary outlet for their books. For all of the parties involved, a class action lawsuit may not sound romantic, but it beats reaching for our guns.