Yesterday, TeleRead published two thoughtful essays on the digital reselling issue (here, and here) from author Marilynn Byerly. I appreciate her desire to ensure that any used digital market is fair to authors. I don’t, however, think Amazon is—as she asserts—about to ‘break the law.’

Why not? Because while many have tried to interpret the current law to the best of their ability, it hasn’t been definitely established by a precedent-establishing case whether or not digital goods are subject to the first sale doctrine. But this is not a bad thing—it means a healthy discussion and debate can still occur, and that a fair system can be established in the marketplace so that everybody wins.

But here is my difficulty:

In so many articles I’ve read on this subject (including those by Marilynn), the argument is predicated on the supposition that digital goods and physical goods are two different things. And yet Marilynn and her ilk refuse to accept that if this supposition is accepted as fact, then customers are going to expect a different pricing model, too. (And no, such an expectation will not mean that customers are evil, terrible, author-hating people.)

I pay for my content, I do. But—and this is my whole issue—if publishers or retailers want my e-book to be just a license and not a sale, then they need to charge me license-level prices, period.

To charge me the same amount of money (or more, in some cases) that I’d pay for a paper book with the same content, and then to tell me that simply because of the format choice for which I paid the same amount of money, I have fewer rights!—that does not sit right with me.

Move to a lease model if you must, booksellers. But adjust your prices to reflect that:

(a) Your profit will be higher because every eyeball must pay, and …
(b) That your costs will be lower because you are not printing and shipping and storing inventory, and …
(c) That your customer is getting something different from paper: On the plus, the convenience of instant gratification. But on the minus, a lack of true ownership, and a restriction on recouping some of their money by being able to resell.

Fair is fair, yes? Marilynn, you’re asking for fairer treatment for authors. But customers, of course, need to be treated fairly, too.

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"I’m a journalist, a teacher and an e-book fiend. I work as a French teacher at a K-3 private school. I use drama, music, puppets, props and all manner of tech in my job, and I love it. I enjoy moving between all the classes and having a relationship with each child in the school. Kids are hilarious, and I enjoy watching them grow and learn. My current device of choice for reading is my Amazon Kindle Touch, but I have owned or used devices by Sony, Kobo, Aluratek and others. I also read on my tablet devices using the Kindle app, and I enjoy synching between them, so that I’m always up to date no matter where I am or what I have with me."


  1. The pricing issue will be settled by the market, not by whining about the prices. If the book is too expensive, DON’T BUY THE DAMN THING. Publishers will get the message.

    To say that all ebooks are overpriced is a gross exaggeration. Heck, my books which are published by reputable publishers are all inexpensive in comparison to big name authors. Some self-published authors have books that are sold for next to nothing, and, if you do your homework and read a sample, you won’t buy badly-written books that are overpriced at under a dollar.

    The least expensive part of a paper book is the paper, printing, ink, shipping, etc. The largest part of the expense is the infrastructure of editors, authors, and others who create the contents. These have to be paid for in the cost of the book.

    Plus, in some markets, ebooks are 50-70% of revenue now so the big publishers don’t want to price ebooks so low that they won’t have a viable business when paper becomes a minor part of the business.

    This business can’t be only about the reader, anymore than an ecology can only be about one part of the food chain.

  2. Well then, Marilynn, why can’t the market decide about the secondhand market too? Look, I am not saying authors don’t deserve to be paid—they do, and I can and do buy both print and digital content often. But I really feel that it’s unfair to try and have it both ways. Either print and digital are the same and they have the same infrastructure and the same revenue and the same rights issues for authors—and therefore, MY rights as customer are the same and I should be able to do as I wish with my purchases—or print and digital are different, I pay accordingly and I can’t do as I please. It can’t be both though. The same for authors but different for readers? Not fair. Pick one or the other.

    As for the ‘but your books cost less’ argument, that is a specious one and you know it. If the article was about your experience as an author and your personal experience, that would be one thing. But when you write about the industry as a whole, it’s fair to aggregate, as you did, and speak of generalities. Your specific situation isn’t what the issue is here.

  3. I was just using myself as an example. Lots of ebooks are cheaper than the big name/big publisher. Buy by price point as much as by quality.

    Market forces or readers don’t determine the law. Only the courts and, in the US, the Congress determine the law. Right now, the law says that digital content isn’t covered by “The First Sale Doctrine.” If you don’t like that, contact your congressman. (Yes, I know you are Canadian, but you get my point.)

    ReDigi is fighting for the right, via the courts, to sell used through a closed system.

    As a reader and an author, I hope they don’t win because it will be another serious wound in a profession that is pretty damn bloodless already. I’m a one novel a day reader right now since I’m not writing fiction or teaching, and I want new books.

  4. This whole argument smacks much like the vitriol spouted by romance writer Joanna Lindsey back in the 90’s. She wanted money from used bookstore sales of her books. Stating that it was her right as author to be paid for her work.
    She lost.
    I agree, let the market decide. And if I, in the market, chose not to buy or to sell – as a ebook reader who side-loads, what is to keep me from keeping my original download? So what if Amazon takes it away from the “library”? I still have my copy.
    A whole ‘nother kettle of fish.
    This will be interesting and entertaining but most likely the consumer will end up with the shaft in the end — again.

  5. Marilynn, I still feel like you are trying to have it both ways. You are saying that we as customers should just not buy books we don’t want to buy, but then you are blaming *your* situation on Amazon or Kobo or whomever, who sets all the terms. Well, who said you had to sign up with them? If you don’t like what they put on the purchase button, or what rights they give the buyer when they purchase, don’t sign with them. Sell your books yourself, as many authors do. Form your own webstore or collective. But if you are saying that it is beyond your ability as an individual to change the way things are, don’t expect your customers to do so either. Saying ‘well then, just don’t buy the books’ to them is no more helpful than the customer saying ‘well, just don’t sell through Amazon’ to you.

  6. Good points all. And something similar can be said about the orphan books controversy and the digitization of long out-of-print titles. The laws are a mess and nothing is being done to fix them. It is really that simple. Matters are in a mess because our laws are in a mess.

    And this isn’t just a new problem stemming from the arrival of digital books. The same confusion about licensing v. ownership has existing with respect to software for over thirty years.

    Long ago, I read an article that explains much of the reason for this. Before roughly the time of Watergate, Congress tried to be careful with the laws it passed, taking care to listen to all sides because all sides had voters behind them. It then carefully crafted laws that tried to balance those competing interests.

    But starting in the mid-seventies, the writer claimed, money began to speak louder than votes. As a result, Congress began to dump these responsibilities off on to bureaucrats.

    That’s why, for instance, we have the recent ridiculousness of the Librarian of Congress concluded that unlocking cell phones is illegal. Cell companies don’t want unlocking to be something their customers can demand and know that a specific law in their favor would outrage the public, so they (and Congress) are happy to see the responsibility for this sort of thing dumped (in this case) on a hapless, clueless bureaucrat.

    One result of this evasion is that problems don’t actually get dealt with in some definitive, ‘this but not that,’ fashion by Congress unless well-funded lobbyists get behind a change. Disney and a few others wanted copyright extension in the late 1990s and they quickly got it. Meanwhile our entire copyright law hasn’t been significantly amended since the late 1970s. We’ve had over forty years of technological change and Congress has done nothing.

    Why? Because it’s waiting for lobbyists with money to tell them what to do without some other set of lobbyists, also with money, not asking for the very opposite. No one in the software industry wanted that license versus ownership issue settled. They’re rather play self-serving games with their shrink-wrapped licenses. The result was no legislation and hence no legal background for a new controversy over reselling ebooks that’d be far more intense because an ebook is far easier to transfer than a software installation.

    Perhaps the one bit of good news is that, unlike shrink-wrapped licenses and the resale of used software, the resale of digital books with pit powerful interest groups against one another, most obviously Amazon v. publishers/authors, with readers caught in the middle.

    The downside, as I have said before, is that the current administration is run on the Chicago-machine model because that’s where many of them are from. The Chicago model is a particularly foul extension of the lobbyist model. The latter only means that, if you pay, you get favorable laws and policies. The Chicago model means that paid-off government officials become active tools on your behalf.

    Take construction for example. The lobbyist model means building codes so complex they favor large developers over small developers. That’s about all it does, and its one reason why homes are so pricey in California. But once those codes exist, they are equally enforced on everyone.

    The Chicago model goes far beyond that. Build badly but pay off the right politicians in Chicago, and your shoddy construction will get a pass from inspectors. Compete with one of those favored contractors without paying or, worse still, demand and end to corruption, and your well-done, code-compliant construction will get rejected, costing you millions. Some call that pay to play. To play in a business, you must pay. Understand that, and you know one reason why our economy remains mired in a recession.

    That’s also why you saw the current administration going after publishers for quite legal agency pricing (Apple and Amazon both use it in their apps store), while doing nothing as Amazon played the typical sell-below cost game with ebooks used by would be monopolists to destroy their competition. Classic monopolist behavior got a pass. The efforts of publishers to counter that illegal behavior with agency pricing got attacked. That’s the Chicago model.

    And in that context, even the fact that competing interests–big retailers such as Amazon v. major publishers–are calling for change, it’s quite unlikely that any changes we get will be healthy either for writers or readers. Competing big-money interests, if both make the expected political contributions, will simply cancel one another out. The mess will remain a mess.

    And that’s why, in my earlier post, I suggested that authors should work with those who take the interests of writers into account (i.e. Smashwords) and those ebook retailers who’re less well positioned to benefit from ebook resale (i.e. Apple and B&N), to establish contractual terms that cover resell issues in ways that don’t require Congress to act and that don’t shaft authors, most of who are already struggling to make a living off their craft.

    One final note. Those who read and whose tastes extend beyond the lucrative writers of mass-trash really need to show more interest in seeing authors they like well rewarded for their long labors. If you want more such books, you need to be willing to pay. Right now I juggle three part-time jobs to cover my writing.

    And for those who like only that mass trash, quite frankly I could care less how much you pay. Perhaps having to pay an outrageous $20 for an ebook from a writer as dreadful as John Gresham–I recently tried one of his novels and gave up in disgust after a few chapters–might motivate you to discover people who actually know how to write.

  7. Joanna, I’m saying that you can’t damn and hurt the writer when they are trapped by circumstances beyond their control.

    I’m an ebook pioneer. My first novel was published by a epublisher in the late Nineties. At that time, Fictionwise and ereader hardware didn’t exist. My publisher, Hard Shell Word Factory, sold from their website. Then Fictionwise and the Rocketbook came along, and even though our website’s books were cheaper, the readers went to the distributor sites. For every book I sold from HSWF’s site, I sold a hundred at the distributor sites.

    To this day, I’ve never talked to an author, self-pubbed or otherwise, who doesn’t sell a vast majority of their digital books from places like Amazon.

    Sure, I could pull my books with my publishers since they aren’t suicidal enough to stop using Amazon and friends. I guess I could spend hundreds if not thousands of dollars to pull those books and published them myself to lose money on them, but I’m not suicidal either. Plus, I simply don’t have the energy to deal with that anymore.

    Instead, I don’t buy from sites I don’t approve of like Amazon, and I don’t use the Amazon link when I promote my books.

    And don’t buy the expensive books is a perfectly adequate suggestion. Books with very few exceptions are luxuries. You won’t die or become sick if you don’t get the newest Stephen King novel. A cheaper novel by Scott Nicholson who now self-pubs is a perfectly good exchange in time and enjoyment.

  8. Marilynn, I wish you could see the other side enough to grant readers at minimum the same respect you ask for yourself. You are ‘trapped by circumstances beyond your control?’ So are we. Books are luxuries for us? So are they for you. Nobody ever died from having to take a day job to support their art, did they? You say you are pro-writer and then you instruct me to simply stop buying books from your fellow artists if I am unhappy with the terms of the marketplace, rather than try to advocate for a system that’s truly fair to everyone? How is that going to help anybody?

    I am not the bad guy here. I pay for my stuff. And I could pay even more if a better balance was struck between author, retailer and reader than what we have now. I do vote with my wallet and support the good guys, but there are authors who could have had my money and don’t for reasons that could be tweaked so easily. You seem a little too willing to throw those authors under the bus in favour of your own self-interest.

  9. Joanna, I can advocate all I want, and I have over various reader and writer issues, but money talks considerably louder than I or anyone else does. That’s why I say not to put your book buying money into books you consider overpriced. That, beyond legal change, is the only way to improve things as far as prices.

    That’s not disrespecting the reader, that’s simple economic fact.

    As to self-interest, I haven’t had a book out in almost ten years. Since I haven’t been able to promote the books I do have out because of personal and health issues, my sales are pathetic. I don’t make enough to pay my writer expenses.

    I make my money in other ways as I have through my entire writing career.

    I’ve been here as a contributing member for around eight years, and I’ve never had the first bump in traffic to my website or my blog except to some of my copyright articles, and most of those visits are to leave insults about my views. No one has ever checked out my books, let alone bought one.

    If being here or this topic was self-interest only, I’d be an idiot to bother since this only sucks out time and energy.

    I do this to help other writers, to educate readers, and to keep publishing healthy.

  10. My suggestion would be that in order to share an eBook, instead of the current form with DRM or the opposite of no DRM, would be to have an “unlock” code in each eBook that could be accessed by either the sender or receiver of an eBook by paying a small fee such as $3.. The fee would be divided between the author and the publisher to some ratio. While the fee would not be the same as if the book was purchased/licensed, it would bring in income vs the book not being purchased/licensed.

  11. If there is no legal method for lending and reselling ebooks, customers will just do it anyway.

    It’s pretty simple to strip the DRM from any ebook and just send a copy to a friend. And the tools for dominos will only get simpler with time. (Right now, unfortunately, grabbing a pirated copy is even easier)

    The only way to prevent that from becoming widely practiced is to create a DRM system that actually gives the consumers reasonable rights, and which is easier to use than circumvent. No one seems interested in doing that.

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