COPYCENSE

"Is Amazon.com becoming the Napster of the book business?

"The analogy may not be far off, say some observers of the used-book industry. Publishers, particularly textbook publishers, have long countered used-book sales by churning out new editions every couple of years. But the Web, particularly sites like Amazon and eBay, have given millions of consumers an easy way to find cheap books – often for under $1 – without paying royalty fees to publishers or authors."

Ladies and gentleman, this is a story without an issue. Neither a problem nor an emergency exists here; the publishing industry simply is not making as much money as it used to, and therefore it is asking the public to focus on a red-herring issue (the effect of online used book sales on profits) while trying to figure out how to protect the margins for its new, full-priced product.

Print publishers, like their record industry brethren, long have dominated creation and distribution channels. But over the last few decades, technology has advanced to the point where writers have more options for getting their work published, and consumers have more options for buying that work. Faced with this business reality, the industry has rolled out its public relations machine and created a false emergency — which includes using statistics of dubious value, like the Ipsos BookTrends figures noted in the Times article — to "prove" there is a "problem."

It is a shame that the Times and other news outlets continue to perpetuate these falsehoods. It is sloppy journalism at best.

The copyright law on this issue is crystal clear: the "first sale" doctrine, which is codified at Section 109(a) of United States Code Title 17, says that if you lawfully purchase a book, you own it and can resell it. Period, end of story. The Times article fails to mention this critical fact.

So when someone like Lorraine Shanley, a principal at Market Partners International, a publishing industry consultant, utters comments like "Used books are to consumer books as Napster was to the music industry," readers must realize that such comments are asinine. There is no legitimate comparison between the used book industry — where items are bought and sold in a perfectly legal secondary market — and illegal mass distribution of digital music files, where the songs or albums being re-distributed may or may not have been legally purchased.

The one thing that is different in today’s used book market — which is almost as old as the publishing industry itself — is that Amazon.com and other online merchants have used technology to facilitate the distribution of these items to consumers. There is no copyright violation, there is no illegality; it is solely and exclusively a business problem to which the publishers have been slow to react.

When the record industry resorted to this sort of propaganda, disinterested scholars published credible studies (.pdf) that proved that file sharing had little effect on record sales, and in some cases actually helped record sales. Perhaps the book publishing industry needs to do what the record companies already have done: study the secondary market in order to help the sales of its primary market.

There will be a residual effect of this Times article, though: it will be cited to once the publishers lobby Congress to begin chipping away at Section 109(a). When this happens — and trust me, it will happen — consumers should boycott all publishers that are involved in the effort.

Bob Tedeschi. Online Battle of Low-Cost Books. The New York Times. July 12, 2004.

(Editor’s Note: The Times allows free access to their stories on the Web for seven days before sending the stories to the paper’s fee-based Archive.)