Big Five publishers, it’s time for some tough love

ToughLoveSo, Andrew Updegrove has a blog post in which he expresses concern about the future of competition in publishing. (Found via The Passive Voice.) His thesis seems to be that traditional publishers exert a competitive pressure on Amazon—Amazon can’t lower the rates it pays self-publishing writers as long as traditional publishers represent some kind of alternative. He writes:

If Hatchette and the other big publishers are successful in holding off Amazon, then it’s pretty safe to assume that not much will change with the way they do business. But if Amazon wins, the traditional publishers will be under severe financial pressure. Given the fact that they have steadfastly refused to innovate or change thus far, it seems more likely to assume that they will react by dramatically cutting overhead than by exercising creativity.

And they’re certainly not going to react by raising royalties for authors, so the already increasing movement of published authors to self-publishing can only accelerate.


On the other hand, if Amazon wins, publishers will be under further price pressure, and will presumably provide fewer, and not more, services to authors. As more and more authors shift to Amazon, and as more and more publishers go out of business or downsize or become even more selective in who they take on, Amazon’s control of the terms under which authors are paid will dramatically increase.

You know what? No. Just…no.

Over the last eighty-odd years, the publishers who now comprise the Big Five have grown fat, lazy, and inefficient. Updegrove would have us believe that it’s the services publishers provide to authors that cost so much money, and hence would be cut back if publishers suffer further, but that’s not the case. If those services really were that expensive, how would self-publishing authors be able to afford to pay for those same services out of pocket when they want to publish their own books? Cutting back on them just wouldn’t save that much money. No, most big publisher overhead comes from something else entirely.

Look at the system of returns we have right now. It was implemented during the Great Depression, as a way to take some of the risk out of stocking books so that bookstores would be inclined to spend their hard-earned money to take a chance on something that might not sell. You can see how such an arrangement would be plausible in those bygone days of rock-bottom hardscrabble financial times. So why, then, after the Great Depression ended, did the publishers keep on running that same system for over eighty years afterward, through bust and boom alike?

To this very day, the Big Five publishers print more books than they need, send those books out willy-nilly, and then either allow the bookstores to destroy unsold copies for a refund or pay more money to ship the books back and sell them to remainders dealers, where they then compete for buyers with the full-priced versions of the same book still on store shelves!

(Funny thing is, Amazon actually reduced the amount of returns considerably, increasing publishers’ efficiency and hence profit margins, just because they didn’t have limited shelf space and pressure to cycle inventory through; they could afford to hold onto all the books they ordered until they sold. Now they’d like a little piece of that efficiency increase they created, which is why they’ve decided not to extend Hachette the favor of free warehousing, and hence why Hachette books are taking so long to order through Amazon. Hachette’s really not good at speedy shipping because it’s never had to be before.)

The Big Five publishers still have their swanky offices in New York City, literally the most expensive city in which to live in the entire USA. (They were originally founded there in order to be able to swipe books by such overseas notables as Charles Dickens off the ships and republish them without paying any royalties to the original author. Their attitude toward authors hasn’t changed much over the years, has it?) With a few exceptions, they still spend extra money to put DRM on their books, which nobody really even wants anyway. It’s ridiculous.

As e-books and self-published books have come up over the last fifteen years, the publishers have essentially fought them tooth and nail, trying desperately to hang onto their lucrative print business and keep it lucrative. They backed the wrong horse, and now that Amazon’s won, they want to send Amazon’s horse to the knackers.

They’ve shown no inclination toward doing anything to reduce their ridiculous overhead. They’ll even outright break the law if they have to to keep from having to change anything. They’re like a couch potato who’s been told he needs to lose weight for the sake of his heart but still wants to do nothing more than lounge around on the sofa watching TV and drinking beer instead. The writing has been on the wall for years now, but the publishers have determinedly kept looking away.

So you know what? Maybe it’s about time for some tough love. Let’s unplug the TV, padlock the fridge, and kick that bum out of the house and chase him around the block a few times for some exercise. If it’s going to take teetering on the brink of bankruptcy to make those publishers slim down, let’s drive them to that brink, and the sooner the better.

A more efficient publishing industry would be better for everyone. They could afford to pay authors higher royalties. They wouldn’t waste so much paper and fuel, so they’d be that much greener. Their books wouldn’t have to compete with remaindered versions of themselves, so they could be that much cheaper. (Though I’m probably fooling myself in thinking any saved money would go to paying authors more or making books cost less, rather than lining the publishing execs’ own greedy pockets, but oh well.)

But in order to get them there, something is going to have to overcome all that inertia. Whether you like Amazon or hate them, you have to admit Amazon is pushing the publishers to change, to break out of that inertia, to try new things to keep up. The farther Amazon pushes, the more likely they’re going to have to cut out things that actually do cost money, like the archaic returns system or their ritzy New York offices, to stay afloat.

But maybe the publishers are just too far gone. Maybe their system is too entrenched, and there’s nothing they can do to slim down enough in time to survive. Maybe it’s too late for them.

Then if that’s the case, turn off their life support and let them die.

There’s nothing about these huge, unwieldy beasts, most of them owned by foreign conglomerates in countries that don’t even necessarily like us that much, that should inspire our sympathy. They’re not sacred. We didn’t even have megaconglomerate publishers until a couple of decades ago, and yet somehow we managed to make it for hundreds of years without them. If the Big Five publishers do go under, is that going to mean the end of literature? Hell no. There are hundreds or thousands of other publishers of various sizes below the Big Five. The absence of those beasts from the top of the food chain will let others move up to fill that ecological niche.

People aren’t going to stop buying Stephen King books if Stephen King’s publisher goes under. Other publishers will be trampling each other in an effort to sign him. Ditto for the other bestselling authors. Other authors might decide to give self-publishing a try.

The publishers need to shape up or ship out. Let them either slim down or go out of business. Either way, we’ll end up with a much leaner, more efficient, greener ecosystem. Let’s stop enabling these wasteful, lazy corporate trolls who would rather break the law than change their ways.

Let’s give them some tough love.

About Chris Meadows (4158 Articles)
TeleRead Editor Chris Meadows has been writing for us--except for a brief interruption--since 2006. Son of two librarians, he has worked on a third-party help line for Best Buy and holds degrees in computer science and communications. He clearly personifies TeleRead's motto: "For geeks who love books--and book-lovers who love gadgets." Chris lives in Indianapolis and is active in the gamer community.

22 Comments on Big Five publishers, it’s time for some tough love

  1. Deborah Smith // July 6, 2014 at 5:15 pm //

    Once again, someone who has no idea what major publishers do, how they operate, what they provide for authors (breaking it down to a handful of menu services is absurd) and how the Amazon-Hachette negotiations will play out draws all the wrong conclusions.

    A few points: the big publishers aren’t going under.
    Major authors will not leave them to self-publish.
    Amazon is not fighting with major publishers in an altruistic effort to keep ebook prices low.
    Indies are not beholden to Amazon for anything other than an empty stall at the Amazon flea market, for which Amazon charges them a minimum of 30 percent per product sale, without providing any publishing services in return.

    Amazon is a business. Not a god sent to save you from traditional publishers. It has many attributes that are valuable to authors and publishers at this time, but also many drawbacks that may only limit authors’ choices in the future. Play carefully and don’t suck up.

  2. Whereas traditional publishers charge 82.5% to 87.5% per product sale, for services many writers these days could have done far more cheaply themselves. Seems like more and more of those writers are seeing where their bread is really buttered.

    You seem to have fallen into the classic trap of assuming I’m ascribing a motive to Amazon. I don’t think Amazon is my friend, or the physical incarnation of all that’s right and good in the world. I think their interests align with those of self-publishing writers and readers, and there’s no reason to assume they won’t stay in that alignment. I don’t care whether they’re doing that because they like me or because it makes them money just as long as they do it.

  3. It seems like we’re in violent agreement, then. I said that the big publishers won’t change and that they will therefore die, and you say exactly the same thing. The only difference between what you’ve written and what I’ve written is that you then go on to say let’s kill the publishers sooner rather than later, and I say that the same result will occur either way, it’s just a matter of timing. It seems that you’re reading my blog to say that we therefore need to help the publishers, but if you go back and re-read it you’ll say that no where do I say any such thing.

    There seems to be an incredible inability of people writing on this issue to get away from calling one side the good guys and the bad guys, and that anyone that doesn’t make this their central thesis must be pro-publisher – which, as you can tell from my blog entry, I’m obviously not.

    The point of my post is that authors should think about what happens after the big publishers lose. If some other force doesn’t come into the marketplace to provide competition to Amazon, authors will end up being paid even less than before. That’s not an argument to help publishers. It is a call to start worrying about the next battle after that.

    So let me say it one more time: people need to think what the value of competition and get past just being vindictive about how much they hate the publishers. Everyone would be much better off if in fact the publishers had some gumption and decided to go head to head with Amazon. If they did, we’d all be better off. Unfortunately, as I say in the out take you include above, I predict that this won’t happen.

    Authors better start thinking about what life is going to be like after the big publishers are gone, and Amazon has exactly *no* reason to pay authors more than 5% royalties, because they’ve won the war and achieved monopoly status. Once they’re the only game in town, it will be take it or leave it.

  4. Whereas I think it has ample reason to keep paying good royalties because if it doesn’t, someone else will come along and start paying better ones, and the self-publishing authors will have considerable incentive to get out and network and move all their readers over to those better-paying sellers. Never underestimate the power of self-publishing authors to get the word out. That’s what they’re good at, because it’s how they sell their books in the first place—they don’t rely on publishers to do it for them.

    (For example, there’s that petition/letter of Hugh Howey and friends’, which gathered over five thousand signatures in a matter of days—enough so that it outright forced major media, who had solely been reporting on Hachette’s side of the dispute, to pay attention.)

    Sure, competition has value. It would be nice if the publishers actually would compete. But they haven’t been. They can’t. They won’t. They’ve had fifteen years, and only started showing any interest in it after Amazon suddenly started eating their lunch. Their idea of “competing” is to break the law. I don’t think they even know how to compete anymore. It sure would be nice if they would, but I’m not holding my breath. But sooner or later it’ll reach that tipping point where they have to, or outright go out of business. I think it would be nice, and do less damage in the long run, if that tipping point could be reached sooner rather than later.

  5. William Ockham // July 6, 2014 at 6:28 pm //

    Once again, Deborah Smith drops a drive-by trolling comment that mischaracterizes the original post. I bet that once again she doesn’t have the guts to engage actual debate. Be that as it may, it is worth examining her points.

    The big publishers aren’t going under.

    Maybe or maybe not. They are acting like they face an existential threat. Big corporations don’t deliberately and openly violate the antitrust laws in the US and EU just for grins. They were and are terrified of low retail ebook prices. That is a fact. Deborah Smith could be more informed if she spent a little time looking at the information released in the Apple antitrust trial.

    Major authors will not leave them to self-published

    Carolyn Reidy, the CEO of Simon & Schuster, believed that low retail ebook prices for her company’s titles would lead to authors leaving S&S. I think Reidy knows Big 5 publishing better than Deborah Smith.

    The rest of her points are just idiotic strawman arguments. But, you know, if she can give me citations that shows anyone on the planet believes those things, I will refute them. I won’t hold my breath because she hasn’t yet engaged anyone in actual dialogue. She apparently just needs to see her own thoughts spread across the internet on any sites that aren’t sufficiently sycophantic towards legacy publishing.

  6. I’m just an avid reader trying to follow this whole fiasco, but an above statement caused me to comment.

    “Major authors will never leave them to self-publish.”

    I follow a lot of authors on facebook, some of which are pretty big names, & others who are on the rise. Although these big name authors still publish their new releases with publishing houses, they are also getting the rights back for their older novels, and self-publishing them. In fact most of the authors I read regularly self-publish some books, while traditionally publishing others. They are using both markets & seem to be doing well.

    When it comes right down to it, readers are going to cheer for the side that doesn’t want to charge them $15.99 for a newly released ebook.

  7. Oscar Madison // July 6, 2014 at 10:43 pm //

    When it comes right down to it, readers are going to cheer for the side that doesn’t want to charge them $15.99 for a newly released ebook.

    After years of watching publishers demand hardcover prices for eBooks, even hanging on to those prices after paperback editions were out, demanding DRM, and generally treating readers like serfs, I’ve reached a policy.

    Publishers who respect readers, skip DRM, and keep prices in line with reality will be acquired from Amazon, B&N, and Bookstrand. Self-publishing authors, likewise.

    Publishers who use DRM at all, regardless of pricing policy, or publishers who think $13 is a fair price for an eBook (see Charles Stross’ Rhesus Chart, for example), I’ll shop in Tortuga or Port Royal, and be damned to them.

  8. “Whereas I think it has ample reason to keep paying good royalties because if it doesn’t, someone else will come along and start paying better ones”

    Chris, I see this argument a lot and I think it misses out on Amazon’s genius. By the time Amazon no longer needs the high royalty rates, they’ll have a second author-lock: The Audience. Considering Amazon’s emphasis on low prices for consumers, who could afford to both undercut amazon on price AND pay higher royalty rates at the same time? And that’s even before you consider that your existing customers book libraries will all be DRM-locked to their Amazon account.

    There’s not much point going elsewhere if you’re not going to have noone to sell to.

  9. Chris wrote: “If those services really were that expensive, how would self-publishing authors be able to afford to pay for those same services out of pocket when they want to publish their own books?”

    A great statement that has such little basis in fact that I am beginning to wonder, Chris, considering the vehemence with which you write your antipublisher posts, if you are on Amazon’s payroll.

    Most self-publishers do not — in case you missed it, let me repeat it — DO NOT pay for those services themselves. They don’t hire professional copyeditors; they don’t hire professional cover designers; they do not hire professional developmental editors; they do not hire professional indexers. You don’t have to go much further than MobileRead or LinkedIn or even the comments here at TeleRead to see self-publishing authors boasting about how they did it all themselves or had their Aunt Millie who taught the alphabet to kindergartners for 40 years edit their book or had their writer’s group crowd edit it — all for free.

    And for many of those who did hire an editor, you have to wonder how professional that editor was when they edited a 250-page manuscript for $200.

    There are lots of things that the big houses do wrong, but that doesn’t equate to Amazon or self-publishers doing them right.

    The other thing that really bothers me about your post is that you write as if you know from personal investigation the things that you are claiming to be fact, such as “They’ve shown no inclination toward doing anything to reduce their ridiculous overhead. They’ll even outright break the law if they have to to keep from having to change anything.” Apple may have been found to have broken the law, but the publishers were not. There is nothing illegal about agency pricing. The collusion was not proven against the publishers, only against Apple. And, even if you insist on drawing the conclusion that they broke the law because they colluded, the act of collusion is not a felony equivalent; it is more like a minor misdemeanor because the underlying act — agency pricing — is not illegal.

    And what do you really know about their overhead costs? I remember when a publisher I worked for considered leaving New York to move to Vermont where it could cut its costs considerably. They spent $100,000 on a study to determine whether they could/should make the move. I sat on the committee that reviewed the data and the consultant’s report. The move wasn’t made because although they would save on some overhead, other problems arose, such as the cost of obtaining and retaining employees with needed skills, the fact that major authors, whose book sales subsidized less popular authors didn’t want to travel to Vermont, and that at the time access to the needed credit markets from Vermont was difficult. Things are assuredly different today, but my point is that you make a blatant statement with no facts to support it. Not very professional reporting.

    Amazon is not the answer to all of civilization’s ills even if Bezos would want you to think so.

  10. Juli Monroe // July 7, 2014 at 8:46 am //

    @Rich, re: Publishers not breaking the law, only Apple. According to the judge’s ruling, Apple colluded with five major publishers. Collusion requires participation among the parties. Are you saying Apple colluded with itself? That doesn’t make sense.

    You then go on to say that if we must insist on drawing the conclusion that they broke the law because of the collusion, we should only call it a misdemeanor. Chris never said they committed a felony, only that they broke the law. Even misdemeanors are crimes. Chris didn’t need to personally investigate that. Judge Cote and the courts did that, and it’s been written about enough to use as basis for an argument.

  11. Okay, so I try to avoid responding to inflammatory comments but I felt the urge to say something here.

    Richard, I would be the first to admit that not all self-published books are well written, well edited, proofread, formatted, or indeed have good covers. No doubt about it, there is poor quality material out there by the droves.

    A lot of self-published authors do their own covers and formatting. Many have learned to do these tasks well enough for the reader to be none the wiser. I believe that even among those who do their own cover and formatting, a large number use editors, beta readers, and proofreaders. Why? Because they approach their writing as a business and want to put out the best quality product that they can. They know that poor editing will hurt their careers long term. They are being professional. And if you are starting a new business, common sense dictates that it will need investment, ideally in terms of money but otherwise time to learn the skills that you cannot afford to pay for. The learning curve is steep.

    There are a number of self-published authors who do it all themselves, even their own editing and proofreading. Sure some “had their Aunt Millie who taught the alphabet to kindergartners for 40 years edit their book or had their writer’s group crowd edit it — all for free.” I happen to disagree with this point of view. However good a writer you think you are, EVERYONE needs a good editor or two.

    Now, I don’t know what you mean by the word professional as applied to copyeditors, cover designers, developmental editors, and indexers. Do you mean someone who has done a university level degree in that specific field or someone who has taken a diploma, accredited course, and has been working at it for several years?

    I am going to admit my ignorance here as to what an indexer does and whether every fiction author needs one. If by indexing you mean providing a navigable table of contents, then this gets done with formatting.

    The link to your name takes me to what I presume is your website, Freelance Editorial Services. I see that your staff come from a variety of different backgrounds, from journalism, to law and engineering. If you are classifying yourselves as professional, which I think you are, then I think most self-published authors are using professional people.

    I have two editors and two proofreaders. One of my editors got his degree in Writing, Literature, and Publishing from Emerson College in Boston. He is also a journalist and freelance writer. The other one graduated from Cambridge with a degree in Theology and Philosophy, was a business reporter, and went on to study editing and proofreading. They both offer a range of editing services, including full literary edits. I see them as professionals. And they charge more than $200 for a 250-page manuscript. But much, much less than a recent article by author Brian McClellan would suggest. My cover designer has a degree in engineering and quit his day job to become a full time business owner two years ago.

    Your general statement that MOST self-publishers do not pay for these services and hence are a bunch of amateur writers by default does a gross disservice to the growing number that are putting out great books. Great not only in terms of story quality, but formatting and cover design. And your statement is astonishingly insulting to a group of quite smart individuals who approach their writing as a business. A lot of self-published writers have other professional day jobs. I am a doctor specializing in neonatal intensive care. Without blowing my own trumpet, I think I’m relatively clever.

    Hugh Howey’s Author Earnings reports show that self-publishing authors are taking an increasing larger share of the book market and making the bestseller lists (genuine bestseller lists, as in number of books bought, rather than some of the paid-for systems that some traditional publishers have used). Traditional publishing would argue that it’s only 1% or less of incredibly successful self-published authors who make up those numbers. The same can be said of traditionally published authors as well. Hugh’s reports, as well as anecdotal stories from various blogs where self-publishing authors chat, show that a lot of these self-pub author earnings numbers are made up of what traditional publishing classify as their midlist. More and more are quitting their day job every single day.

    This tells me one thing, loud and clear. Readers don’t CARE how much the editing, proofreading, formatting, or cover design has cost. Oh they care that the story has been well written, edited, formatted, and presented, but they don’t CARE about the cost. They just want an engaging story that will give them a few hours of reading pleasure, presented in a nice enough package to catch their interest in the first place.

    And let’s not forget, there has been a recession. A lot of businesses have had to adapt to a harsher commercial environment in the last few years. The vast majority of readers are not so willing to fork out double figures for a hardcover edition or a paperback, let alone an ebook. I don’t think they ever were in the first place, they just didn’t have a choice before.

    If the traditional publishing industry is indeed paying in the 4 to 5 figures for services that a self-publisher can outsource for much, much less, this doesn’t mean the end products WILL be vastly different. There are many self-publishers who are demonstrating by their sales figures how much, much more attractive their products are compared to traditionally published ones. And yes, you could argue that self-published authors price “cheaply”, hence why they are selling more and to readers who are just after a bargain and who will never become true fans. I think you’d be wrong to make that assumption. If traditional publishing is indeed paying that much for those services, then one can understand why their products are priced so high. They have to make up those costs somewhere. See my comment above about a harsher commercial environment.

    I think we can agree that the current debates in the publishing industry have been volatile to say the least. Both sides are convinced that what they are saying is the absolute gospel truth. But my general experience from having self-published for a number of years is that one side is more willing to listen, learn, and adapt than the other. Most self-published authors I talk to DO NOT want to see traditional publishing disappear. They just want it to change and adapt.

    Incidentally, I work in the UK NHS Healthcare system. I have heard many horror stories from my clinical directors about the number of stupidly expensive studies and reports that have been commissioned by our Department of Health over the last 15 years. The costs of such reports and financial mismanagement have contributed to the gross debt that most NHS Trusts find themselves in today. Meanwhile, the private companies and reporting consultants involved have been making a healthy profit. So your statement that a New York publisher spent $100 000 on a study to determine whether they should move is one that I struggle to understand. I am not questioning the need for the report itself, just the astronomical cost, which no doubt was mostly the consultant’s fee. This, right here, is another instance where we differ in opinion. I can go to a fancy restaurant and order a $100 main course. I expect it to taste great. I suspect that a similar meal from a local joint costing $20 might not taste any different. Granted that this study was commissioned some time back, from your words, but it also makes Vermont sound like the back of nowhere. There is a world outside New York. It contains people who are literate, with degrees and professional jobs. The internet has also made it so that a lot of people can work a considerable geographical distance from their clients or employers. My editors are in Australia (he just moved there from Boston for a new job) and New Zealand respectively. My cover designer is in the US.

    A lot of us who are pro-Amazon in this current debate agree that “Amazon is not the answer to all of civilization’s ills even if Bezos would want you to think so.”

    Jeff Bezos is not our friend. Jeff Bezos is a businessman. It’s just that Amazon’s business model has been exceedingly good to self-published authors. And traditional authors as well, who despite the protests from some of their more elite members, don’t appear to have pulled their books off the largest distribution platform in the world. The expression “put your money where your mouth is” comes to mind here.

    Amazon is allowing many self-published and hybrid authors to make a living from their writing. The fact that they can make a living means that there is a demand.

    Does this mean Amazon’s business model will remain good for self-published authors in the future? No one knows the answer to that question. We can speculate all we want, but no one knows. But, at this very moment in time, is the traditional publishing industry in trouble? Yes. Does it treat the majority of its authors appalling with punishing contracts? Yes. Does it need to adapt and innovate to survive the storm of changes that are beyond its control? Yes.

    Is Amazon the lesser of two evils? Hell yes.

  12. MarylandBill // July 7, 2014 at 11:07 am //

    I will agree that there are some independent books that are poorly edited, in fact quite a few are. If poorly edited books began and ended with independents, Rich might have a valid point. That being said, I am sure quite a few of us have encountered books published by the Big 5 that have not even been copy edited prior to printing, let alone had any serious attempt to edit a manuscript with lots of potential into something truly worth reading.

    I would also point out that some of the services that Rich alludes to (i.e., development editors and indexers) are hardly services needed by most fiction authors (which is what I think most of us are really talking about when we are talking about authors going the indie route).

    Final thought on overhead. Perhaps the publisher decided it was not cost effective to move to Vermont, but I am not sure that invalidates the arguments about publishers remaining located in New York City because it is not just about the publishers being located in New York City, but them being located in Manhattan (for the Big Five, being located in Mid-town and lower Manhattan). Sure there might be tax and credit issues moving to Vermont, but can we really argue the same would be true if they moved to Brooklyn? And would authors and talent flee the publisher just because they moved across the Hudson?

  13. Chris, apologies for my super long comment. It sure was a doozie!

  14. @Juli — Perhaps this is only a lawyer’s distinction, but the settlement with the publishers did not include the admission of any guilt or any pleading guilty to collusion. That Judge Cote found that Apple colluded and that logically collusion requires at least 2, does not mean that the publishers colluded under the law. The publishers were not found guilty of breaking the law. You (generally, not you, Juli) are drawing a conclusion that has no legal basis. It is guilt by inference.

  15. Then who, pray tell, did Apple collude with?

  16. “I remember when a publisher I worked for considered leaving New York to move to Vermont where it could cut its costs considerably. They spent $100,000 on a study to determine whether they could/should make the move.”

    This one comment by Richard trying to defend publisher overheads really says it all.

  17. Deborah Smith is just bitter, William.

    Some of her best BelleBridge-published authors are privately telling friends they plan to self-publish their next book.

  18. Timothy Wilhoit // July 7, 2014 at 2:41 pm //

    @ Richard
    “The collusion was not proven against the publishers, only against Apple.”
    You might want to peruse Judge Cote’s 160 page opinion. The role of the “publisher defendants” in the Agency collusion is meticulously recounted. Legally speaking, the “publisher defendants” admitted no guilt. However, if they had been in the dock with Apple, they would have been found liable and would each now have their own antitrust monitor (at their expense, of course). The colluding publishers are being closely watched by the DoJ (reference the WSJ’s story about the DoJ sending letters to three of the publisher defendants a few weeks ago.) If the DoJ finds concrete evidence they’re talking about pricing with one another, they will be back in court.

  19. William Ockham // July 7, 2014 at 7:06 pm //

    Read the opinion. The publishers were absolutely found guilty of breaking the law. That was a precondition of Apple’s guilt. The fact that they settled doesn’t change the fact that broke the law. And if your read the evidence closely, you will see that they did it willfully and knowingly. At the Apple trial, two of the publisher CEOs flat out lied in court and were called out for it by the judge. The five publisher-defendants engaged in a criminal conspiracy that costs American consumers millions of dollars. The fact that all those CEOs still have their jobs is powerful evidence that the breaking the law was their corporate strategy. The fact that it is somehow considered impolite to point out that the biggest publishers in this country are run by a bunch of lying criminals bothers me.

  20. William: To be fair, they weren’t “found guilty,” because that’s a legal term. I intentionally didn’t use it to avoid confusion. They were found to have acted in collusion, in a way that broke the law—the judge declared this to be a fact. But since they settled without admitting guilt, they couldn’t be “found guilty.” It’s like they took a plea bargain to avoid prosecution.

    But just because you can weasel out of being declared guilty doesn’t mean you couldn’t be found by an investigation to have acted in a way that broke the law.

  21. Timothy Wilhoit // July 7, 2014 at 8:38 pm //

    Chris: Yes, “guilty” wouldn’t be the right word to use in a civil case. I believe “found liable” should be the right terminology. It only requires a preponderance of evidence to be found liable in a civil case rather than “beyond a shadow of a doubt” to be found guilty in a criminal case. The DoJ wasn’t interested in sending people to jail; they wanted the collusion to cease and damages to be assessed/paid back to the people who suffered loss…the customers. Besides, only requiring a preponderance of evidence is an easier case to win. 😀

  22. William Ockham // July 7, 2014 at 9:16 pm //


    If I were in court, I wouldn’t use the term. But they don’t own the English language. In real life, when a federal judge rules that you broke the law, that makes you guilty according to the common meaning of the word. But I respect your choice.

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