Category Archives: Excerpts
In republishing some of my articles I’ve been struck by how little has changed in the decade or two since they first saw the light of day. In some cases I’ve scarcely had to change a word. However, I’m afraid that the following piece will not stand the test of time. When you come to the end you’ll see why the sacred ritual known as the publishing lunch date may be doomed.
When the time comes for me to lay down my sword and armor and cross into the Great Beyond after a lifetime of combat with venal publishers, crooked movie producers, treacherous lawyers, and kvetchy authors, it is my fondest hope that the gods will reward me with perpetual publishing luncheons. What fardels would I not bear knowing that such a treat awaited me on the other side! Some agents and editors feel lunches are tedious obligations at best and duck out of them whenever they can. I find them incredibly exciting, frequently dramatic, and always enlightening: I have never come away from one without having learned something useful. And, if everything comes together perfectly, the occasion can be a transcendental experience both culinarily and literarily, a sublime blend of art, commerce, and hedonism.
Most outsiders (such as authors) have a dim or distorted idea of what is involved in publishing lunches. To them, these affairs are as mysterious as royalty statements and discount schedules. So come perch on the right lobe of my brain, which in agents is the segment devoted to luncheon dates, and observe the process from the ringing of the phone (which automatically makes me salivate) to the final, discreet burp.
First, you should know that it is usually the editor who extends the invitation, selects the restaurant, and pays the check. Exactly why that is, I’m not sure, for it is clear that both parties stand to benefit equally from the occasion. (Mind you, I’m not complaining!) *
Because it’s the editor who proposes and disposes, any agent who reverses roles and offers to take an editor to lunch is apt to earn many bonus points on the editor’s scorecard. When I worked for my first boss, literary agent Scott Meredith, he never permitted his staff to allow editors to treat them to lunch, I think because it implied a dependency that tarnished the agency’s image. I thought that was great, and I still do, but few agents can afford a steady diet (pardon the pun) of paying for editors, and if letting an editor pick up the tab suggests that the agent is dependent on him – well, in truth he is.
Editorial calendars tend to be filled for weeks and even months ahead with other lunches, editorial meetings, business trips, vacations, conferences, and conventions. So it is by no means unusual for lunch dates to be made far in advance, with the parties exploring dates for fifteen minutes before finding an open one. This practice makes one keenly and often disconcertingly aware of the rapid passage of time. A flip of your calendar, as you and your would-be luncheon partner seek an agreeable date, and you realize that another season has passed, another year. Here it is August, blazingly hot and swelteringly humid, and you are contemplating warm, heavy food, sweaters and furs, and talk of ski trips and Christmas books; in February, as bitter winds whistle past your windowpanes, you set a lunch date for a day when cherry and magnolia blossoms will strew the selfsame streets now carpeted with yard-high snowdrifts. It’s a strange feeling. Red-letter days in the publishing calendar signal another year fled from our lives: “I can’t make it in October, that’s the Frankfurt Book Fair”; “November’s no good, we have sales conference”; “Forget the last week in May – I have to get ready for the BEA convention.” The seasons cycle inexorably and you wax philosophical about the rolling years. Have I achieved anything important? Have I fulfilled my youthful goals? God grant me just one DaVinci Code before He takes me away!
Although your luncheon may be on some absurdly far-off day, the restaurant and precise hour are seldom selected until that very morning. Then, sometime around ten-thirty or eleven, your host or hostess calls you with the traditional phrase, “Are we on for today?” The time and place are then agreed upon. But not always easily. To wit:
“How does Italian sound to you?”
“Had it last night. Mexican?”
“I’m on a diet. There’s a great fish place around the corner from my office.”
“But that’s all the way on the other side of town from me. Well, okay, but can we make it twelve-thirty? I have an author coming up to my office at two.”
“That’s bad for me. I’ll be in a meeting all morning.”
And so it goes.
Sometimes there is more to these negotiations than two busy people trying to find common ground. Nothing serious, just a subtle game of chicken, like waiting till twelve-fifteen before phoning to confirm the lunch date, or jockeying for who is going to come to whose side of town: I am more powerful than you because I made you come to my side of town at an inconvenient hour and eat a cuisine that gives you heartburn.
Occasionally lunch dates are canceled, and canceled at the last minute. The reasons range from “I forgot to mark it in my calendar” to “I have pneumonia.” One morning, after waiting till noon, I phoned an editor to see if we were still on for lunch. “I’m afraid not,” she said. “I was just fired.” I told her I thought that was a very poor excuse for canceling a date and I took her to lunch myself.
As the cancelee of today may be the canceler of tomorrow, we all accept cancellations with a certain degree of equanimity. They can, however, prove frustrating. I can all but guarantee that on the day I don my best suit and most expensive silk tie in anticipation of a Lucullan orgy at a four-star restaurant with an editorial kingpin I’ve been wooing for months, the date will be canceled and I’ll end up glomming a ham and Swiss on rye at my desk – and getting mustard on my tie to boot. Conversely, the days one wears jeans and tee-shirt to the office are inevitably the days one gets an impromptu invitation to Grenouille or Le Cirque.
Your luncheon companions range from the most eminent and powerful editor to the callow rookie who has just been given a title and expense account and told to go meet agents. Some agents, particularly the more prominent ones, disdain invitations from freshman editors. Why waste time with subalterns without clout when you can pick up the phone anytime and get the head of the company? I personally find that attitude shortsighted. New editors are often the most enthusiastic, ambitious, and industrious, best attuned to trends to which the older guard may be oblivious – new music, hot electronic games, rising young film stars, embryonic fads, and so forth. There’s another reason for cultivating young editors: In this turbulent age of musical chairs and sudden upward mobility, the green kid I dine with in March may be a department head in April.
Where you eat is a function of many factors: the age, seniority, and expense account of the editor; location; the amount of time available; dietary considerations; the importance of the host; the importance of the guest; the importance of the business at hand. Obviously, for example, young editors must entertain more modestly than senior ones. Yet many senior editors, having seen the inside of every restaurant in New York City after decades on the luncheon circuit, are just as happy to grab a burger at a coffee shop or munch a sandwich in the park. One of the most memorable lunches I ever had was with Robert Gottlieb, then editor in chief of the distinguished house of Alfred Knopf. It consisted of vanilla yogurt, nuts and raisins, and an orange, eaten in his office – eaten, indeed, on the floor of his office, for every horizontal surface including the couch was covered with manuscripts. Gottlieb had courageously taken himself out of the luncheon game, professing it to be too time-consuming, expensive, and fattening. All of which is true, agents and editors remind each other as they study their menus and debate trading off the appetizer for dessert.
When a senior editor is courting an agent in the hopes of capturing a big-name author, you can expect a Drop Dead, Pull Out All the Stops, No Prisoners Taken luncheon, the kind most authors think occurs every day but which in fact happens quite rarely. Such affairs reverberate in memory till the end of time. I remember one laid on for a major client and myself at the Four Seasons. Every course from the quail egg appetizer to the ethereal flan dessert had been prearranged by our publisher-host. Captains and waiters, obviously tipped off to the preeminence of the guests, attended us with obsequies usually reserved for caliphs and maharajahs. Our host had but to nod and the staff was galvanized into action. And, as the presentation of a check would have been a base intrusion of crass mercantilism into so elevated an occasion, it was never brought out. I assume it was simply forwarded to the publisher’s accounting department for review at some later date.
While sumptuous repasts are certainly incomparably exciting, and the author unaccustomed to “the treatment” may well feed off the memories till he’s old and gray, I am far from convinced that they make much difference in influencing authors and agents. Such feasts seem much more appropriate for celebrating the closing of a major deal than for softening up reluctant objects of a publisher’s affections. Which is not to say they should stop trying.
Authors have a misconception that lunches are the time when deals are made. In my experience most deals are made on the phone; the lunches are devoted more to getting acquainted with editors and their companies. Although I used to feel that some kind of business should be accomplished during lunch or a short time afterward, I’ve come to realize that friendships struck at lunch may not pay off for years. Nevertheless, there is something theatrical about presenting an editor with a manuscript at the luncheon table. I remember one occasion when I brought a bulky manila envelope with me to a restaurant. Throughout lunch, the editor cast intrigued glances at it, and at last, toward dessert, she ran a covetous hand over it. “Is this something for me?”
“Oh Lord, no,” I said with a gulp, realizing I had inadvertently led her on. “These are shirts going back to Bloomingdale’s!”
Another common belief is that publishing lunches are rather boozy affairs. In truth, the dominant beverages for the last ten years or so have been wine, juice and sparkling soda water, and even the hallowed Marys are as apt to be Virgin as Bloody. On occasion, hard liquor is ordered, but sipped in moderation. As for the fabled two-martini lunch, I can truthfully say that in the last decade I can recall only one luncheon companion who ordered martinis, but since he was a confirmed alcoholic, the more he drank the more coherent he became. Because drunkenness is, among other things, a breach of manners (and manners are largely what publishing lunches are all about), editors and agents are extremely careful not to drink too much. I have seldom seen an editor become so much as tipsy at lunch. I wish I could say as much about authors, though in mitigation it must be said that they are usually a little nervous, unaccustomed to banquets on so lavish a scale.
Just what is ordered depends on the circumstances. Almost every editor in town has a diet book on his or her list and is experimenting with its advice. So there has been a distinct trend toward simple, highly nutritious cuisine, even in the elegant watering places where high-rolling publishing potentates hang out – all those places beginning with La and Le and Il. Exotic cuisines are usually avoided unless the editor and agent are old lunching companions and are willing to drop their guards a bit. With them I hit the Mexican, Brazilian, Thai, and Indian joints, drink beer (straight from the bottle) instead of wine, relax protocol and manners, and exchange confidences seldom heard at high table.
Although the agent-guest is encouraged to order anything he wants, if the editor is decidedly junior it is an act of cruelty to order the most expensive items on the menu, but I do know some agents who, if they are mad at a publisher, will take their petty revenge by hitting the company up for a five-course extravaganza with champagne, brandy, and cigars elaborate desserts.
Not all foods are suitable for business luncheons. Though I adore sloppy items like lobster and ribs, it is usually inappropriate to order them, for there is no way one can be cool and nonchalant while sucking the liquid out of a lobster claw or picking a spare rib clean with fingernails and incisors.
Like those in other industries, publishing luncheons have a rhythm and flow that follow Aristotelian dramaturgical principles, from the quiet exposition through the developmental passages and on to the stirring climax. While the talk at the outset is small – the weather, the latest Big Apple catastrophe, your life story, “How I Got into Publishing” – it is seldom unrevealing to one alert for clues to one’s companion’s literary interests, status in the company, industry clout, negotiating skill, and other traits that may prove useful in future intercourse. Above all, there is gossip.
New York trade publishing is a very small town. Although Literary Market Place, the industry’s directory, contains thousands of names, my own short list of key contacts contain no more than three hundred names or so, and anything that happens to one of them is bound to affect my clients’ interests. Promotions, firings, resignations, romances, divorces – all are grist for the agent’s information mill in the perpetual process of assessing who’s got the power, who’s spending money, which way the market’s going, what the next hot trend is.
Thus, in due time talk drifts toward serious business. What good authors and projects is the agent handling? What’s the editor looking for? There is scarcely anything you can say that doesn’t serve as a springboard. The birth of my son inspired luncheon discussions leading to at least three books my agency subsequently developed; let that be a lesson to anyone asking me to produce wallet photos of my family.
Here, then, is what I love best of all about luncheons, for within seconds the conversation can shift from idle chatter to immense profundities, only moments later to shift again to money talk as the parties try to place a dollar value on the ideas under discussion.
Agent: Whew! Have you ever seen weather like this?
Editor: This is the third mild winter in a row. Do you think the climate is permanently moderating or something?
Agent: Possibly. This meteorologist I’ve been corresponding with thinks the pollutants in the air are seriously affecting world climate. The planet is overheating. The ice caps are melting.
Editor: Really? This meteorologist – um, is he writing a book perchance?
Agent: Funny you should ask. He’s halfway through one. He’s got great credentials and he’s promotable as hell. Looks a little like Brad Pitt.
Editor: I’d be interested in a book like that.
Agent: Would you be interested one hundred thousand worth?
Editor: Fifty thousand worth, maybe.
Agent: Fifty! The guy’s been on Oprah twice, for crying out loud!
Lunch is over. The editor pantomimes a scribble toward the captain, the time-honored gesture of summoning the check. There is no quarreling. The inviter pays, the invitee says thank you, and that’s usually that.
Goodness, it’s five minutes before three! Got to get back to the office. Loved every minute of it. Let’s do business. Let’s stay in touch. Let’s have lunch again soon!
– Richard Curtis
*PS: For a bitter post script to the above article, read End of World is at Hand! Agents Buying Lunch for Editors.
Let’s Have Lunch! was originally written for Locus, The Newspaper of the Science Fiction Field. It’s reprinted in How to be Your Own Literary Agent, published by Houghton Mifflin, Copyright © 1983, 1984, 1996, 2003 by Richard Curtis. All Rights Reserved.
Early in April a few years ago I got a call from a client who was preparing his income tax. This author wrote erotic fiction and wanted to know whether he could legitimately claim as a deduction his pharmacological treatment for a little affliction he had contracted in the course of “researching” one of his novels.
I told him I imagined the treatment would probably fall under medical deductions rather than research expenses, but the story does illustrate that even the most untrammeled literary spirits have to pay their obeisance to Uncle Sam sooner or later. With more and more authors incorporating, purchasing expensive computer equipment, seeking shelters for their taxable income, and in general being more businesslike in their approaches to the art and craft of literature, the accountant is becoming as important as the literary agent in guiding the destinies of writers.
The chances of a writer being audited by the Internal Revenue Service are a little better than those of the average working stiff because most writers are freelancers, and taxes on their income are not usually withheld as they are from persons on company payrolls. Thus, even though the odds that anybody will be audited are going down because of staff cutbacks at the IRS, a free-lancer’s tax return may be more provocative than that of someone who works for Boeing or IBM. Your best defense, should the fickle finger of the IRS single you out, is a well-kept set of records, primarily your canceled checks, your receipts, and a journal or ledger recording details of every transaction for which you are claiming a deduction, particularly those for which receipts are not ordinarily given, such as public transportation, certain tips, and the like.
There’s been a lot of talk lately about the decline of editing. These are fighting words.
The problem with evaluating this allegation is that everything editors do today is invidiously compared to the accomplishments of that quintessential master, Maxwell Perkins. Perkins practiced his art at the offices of Charles Scribner’s Sons from 1914 until late in the 1940s and midwifed the masterpieces of such immortals as Hemingway, Fitzgerald, and Wolfe. “Where are today’s Maxwell Perkinses?” is the plaintive cry of authors who discover horrifying grammatical, syntactical, factual, and typographical errors in their freshly minted books, or, worse, have them gleefully pointed out by friends and critics. Every such erratum is a rebuke to the hallowed memory of that figure who has been depicted as gracious, patient, erudite, nurturing, precise, demanding, polite, and modest, a man whose love of authors was exceeded only by his love of good and well-made books. Let’s assume that he truly did possess all of the virtues ascribed to him, and more if you wish. I have no desire to desecrate either his memory or his achievements.
I just don’t happen to think that “Where are today’s Maxwell Perkinses?” is a very good question. It oversimplifies editing both then and now, and fails to take into account the fact that today’s editors simply don’t perform the same tasks that their forebears did. I know a number of great editors working today, but they’re great in many significantly different ways from the great editors of yesteryear.
The paternalistic treatment of authors by editors in earlier times, however, produced its own set of inequities, for publishers took advantage of many authors who were too ignorant, shy, or well-bred to demand good terms of their editors. Knowing that most authors write for love, publishers tended to assume that they didn’t care about writing for money.
Resentment toward publishers over their exploitation of authors created the conditions for the rise to power of literary agents, and though new authors today are still at a disadvantage, the balance eventually shifts when they engage agents and become more successful. Good agents often insist on a large measure of control over the author-editor relationship, holding authors at arm’s length from their editors to protect them from being taken advantage of. And what has happened in the four or five decades since this transformation occurred is that the agents have begun to take over the role formerly played by editors.
Today’s agents nurture authors, work closely with them in the development of their work, perform a great many editorial tasks, and lend strong emotional and psychological support. And, perhaps most important of all, in a turbulent world of publishing mergers and takeovers and editorial musical chairs, agents have become the islands of stability and reliability that were once the province of editors. So, if the importance of editors in this respect has diminished, the loss has not necessarily affected authors for the worse.
My Life in Titles, or The Title Game, or Adventures of a Title Maven, or Titles: The Writer’s Indispensable Tool, or What’s in a Title?, or…
Among the immortal literary classics to be found on the bookshelves of every civilized person are such books as Trimalchio in West Egg, My Valley, Pumphre, and Tom-All-Alone’s the Ruined House.
Do you mean to say you’ve never heard of them?
Actually, those were the titles before the author or publisher thought better of them. You undoubtedly know them as The Great Gatsby, East of Eden, Babbitt, and Bleak House. It’s hard to know whether they would have endured despite their dreadful original titles, but it does make us wonder. In fact, book editor and author Andre Bernard wondered so much about titles that he produced a whole book about them, Now All We Need Is a Title: Famous Book Titles and How They Got That Way.
The first problem most authors face when commencing a book or story is what to call it. Many writers cannot start writing until the question of title is settled, for among its many functions, the title helps an author focus on the point of his tale, its theme, mood, tone of voice, and the nature of the audience that will be reading it. Each version of the title of this article represents a different solution to the challenge of how to approach this subject. Do I play it straight or cute? Grimly academic, pedantically classical, or cleverly metaphorical? Luckily, for purposes of illustration, I was able to use all of them. I doubt if we shall see such an opportunity again in our lifetime.
I am a connoisseur of very few things, but I do consider myself one on the subject of book titles. It is certainly not a form of expertise I deliberately set out to develop. But even if you have a tin ear, over decades of immersion you do become something of a maven in this sub-sub-sub-species of literary endeavor.
There are worse things one could be. The first impression you form of a book is the one evoked by its title, and its impact on you is no less significant than the one you form upon first setting your eye on a stranger. Your bond with a book commences with its title: your mind and heart are subliminally conditioned by a title to anticipate the book’s message and respond to its contents.
The title of a book is its most important sales feature; you are often intrigued or put off by its title long before you see its cover, study its jacket blurbs, or browse through its contents to decide whether or not you want to purchase it. It is therefore not hyperbolic to suggest that many consumers make their decision to buy a book or pass it up on the strength or weakness of its title. Perhaps you can’t tell a book by its cover, but by its title? I think you can.
Little wonder, then, that authors, editors, and agents spend an inordinate time seeking les mots justes for the titles of their books. I keep a file of terrific titles for which no books have yet been written, and when a client complains about being stumped for one, I haul out my list and see if I can make a match. When I was a freelance writer, I collaborated with Elizabeth Hogan on a Doubleday book describing the dangers of nuclear power plants that were then beginning to proliferate in the United States. We took our title from Robert Frost’s poem “Fire and Ice”: Those Who Favor Fire. We thought it was a brilliant choice.
Doubleday’s sales reps didn’t. Every publishing company sales department has a Vice President in Charge of Rejecting Great Titles and Substituting Mediocre Ones, and that’s how our book ended up being called Perils of the Peaceful Atom.
The original title went into my Terrific Titles file, however, and when, years later, my client Marta Randall turned in an apocalyptic novel for which she lacked an appropriate title, I resuscitated Those Who Favor Fire and suggested it to her, and this time it passed muster.
Actually, it’s not fair to make fun of the sales reps, for it is they after all who have to go out and sell the book to the accounts. If a sales rep is not confident that your title makes an immediate and forceful impact on the buyers – which translates into lost commissions for him – he is going to lobby his publisher to get it changed.
And what for authors is an inspired title may be seen in a very different light by the sales grunts slugging it out on the front line. Among the most common complaints publishers hear from sales reps are vagueness (“What the hell does Attitudes mean”?), insipidness (“Alien Attackers sounds like a million other science fiction novels”), and inappropriateness (“Zen and the Art of Motorcycle Maintenance sounds like it should go in the how-to section of a bookstore”). Sales reps are therefore the conservative party in any publisher’s legislature, and they usually control a majority vote. But if I love a title enough I will fight like a devil for it, even with my own authors. In 1984 my clients psychiatrist Stanley Turecki, M.D. and co-author Leslie Tonner delivered to Bantam Books a contracted book advising parents how to understand and manage particularly difficult children. The authors and I had spent a long Saturday poring over Bibles, Bartlett’s, and other reference books, and had at last distilled a splendid title drop by drop: Parents Under Siege.
It did not pass muster with Bantam’s Vice President in Charge of Rejecting Great Titles, and we ended up with – well, what else? – The Difficult Child. Talk about difficult children, I was so bitterly disappointed I almost threw a tantrum. But the sales department felt that there are times when a title should simply state, without poetic flourish, what a book is about, and this was one of them. We ultimately acceded to this line of reasoning, and several dozen printings later I must grudgingly admit that Sales had a good point. (In the 1996 edition of my book How to Be Your Own Literary Agent, in which this essay was published, I wrote, “If you’ve written a book for which the title Parents Under Siege is appropriate, take it, it’s yours.” I don’t know if authors James Garbarino and Claire Bedard read this invitation, but in 2001 they brought out a book with that every title.)
Brilliant titles are not always desirable, however, and may actually hurt sales if they point the potential book buyer in the wrong direction. This is particularly true in genre fiction. Every category of books has what might be described as its own characteristic title “profile,” a word or phrase that blatantly declares the book’s genre. An obvious example is detective fiction, where you have The Case of the . . . or something with the words “murder” or “death” in it. Although these catch phrases have become clichés, they help everybody down the line, from editors to bookstore buyers to consumers, to immediately classify the book and make the selection process easier. The title, in other words, is a key element of the package, and guarantees the slot in which the book is to be displayed. A title that deviates too far from its appropriate genre can be a liability, no matter how clever or mellifluous it may be. If you don’t think you’ve been mentally conditioned to respond to titles, take any mainstream title and marry it to a genre formula one and you’ll see what I mean. Pretend you’re a bookstore clerk and determine in which department you would display the following:
The Valley of the Dolls Sanction The Dragons of Valley of the Dolls Dollsworld Showdown at Valley of the Dolls Mistress of Dollsvale Love’s Virginal Valley of the Dolls The Dollsdale Horror A Woman of Uncertain Valley of the Dolls Murder on the Rue Valley of the Dolls
It works for nonfiction, too:
The Valley of the Dolls Syndrome Tighten Up Your Valley of the Dolls The Thirty-Day Valley of the Dolls Slimdown
Even in mainstream literature, titles can give confusing and misleading impressions, and the results can be funny. Zen and the Art of Motorcycle Maintenance really did get placed on how-to shelves, and the New York Times once ran an apology for referring to Evan Connell’s biography of Custer, Son of the Morning Star, as a novel. If you didn’t know better, you might very well place on the wrong shelves such ambiguously titled books as, Exit the Rainmaker, White Mischief, and The Dancing Wu Li Masters. It’s no laughing matter when these mix-ups cause lost sales, however.
Like everything else in modern culture, titles tend to go in and out of fashion. The revolutionary ’60s temporarily loosened strictures against long titles and book authors took their cue from the stage. Plays like Oh Dad, Poor Dad, Momma’s Hung You in the Closet and I’m Feelin’ So Sad, and The Effects of Gamma Rays on Man-in-the- Moon Marigolds had lengthy runs despite jawbreaking titles, and authors and publishers tried the same on books. Which is how we ended up with titles like, Been Down So Long It Looks Like Up to Me. The problem with titles longer than five words, however, is that they crowd the cover and must be reduced to an unacceptably small typeface. The counterrevolution restored short titles, and many best-selling authors went on to employ one-word titles to good effect. There’s nothing like Jaws or Roots to instill confidence in succinct titles!
Juvenile and young adult titles have become particularly inventive in the last few years, and it seems that the wackier they are, the more the kids love them. No more Treasure Island and Little Women for today’s boys and girls. They want Jelly Belly, There’s a Boy in the Girl’s Bathroom, Jacob Two Two Meets the Hooded Fang, Hershell Cobwell and the Miraculous Tattoo, How to Eat Fried Worms, Wonder Kid Meets the Lunch Snatcher, Can You Sue Your Parents for Malpractice?, The Alfred G. Graebner Memorial High School Handbook of Rules and Regulations, and the like.
Every publisher’s dream is to have a book that sells by the truckload on the strength of its title alone. Of course, it’s impossible to know with any accuracy what attracts buyers to a book. After reading The One Minute Manager or Swim with the Sharks, you may wonder whether the contents lived up to the brilliance of the titles. But you probably plunked money down at a bookstore to find out.
Most lucrative of all is the title that starts a copycat fad, such as 101 Uses for a Dead Cat, Real Men Don’t Eat Quiche, and Thin Thighs in Thirty Days. For years after publication of those books, publishers brought out variants on the titles to take advantage of the public’s infatuation. Imitation being the sincerest form of flattery, the ripoff titles merely fueled the success of the original ones. Patricia Matthews’s romance Love’s Avenging Heart launched a veritable flood of Love’s Something Somethings that did not subside for years.
Nonfiction writers are luckier than novelists because they often get a second chance in the form of a subtitle. If your title is a bit poetic or obscure, don’t worry, your subtitle will correct any ambiguities. What does Final Cut mean? It could signify anything until you couple it with author Steven Bach’s subtitle: Dreams and Disaster in the Making of “Heaven’s Gate.” Similarly, Merle Miller’s Plain Speaking doesn’t give one a clear idea of his book’s contents until you couple it with its subtitle, An Oral Biography of Harry S. Truman. Note that after you read the subtitle, your attention returns to the basic title, and you are now able to understand and appreciate it much better.
For authors struggling to come up with a good title, I advise you to make a long list of words and phrases that have any bearing, however remote, on your story. Some of these may come from the text itself: a description of your hero or heroine, a reference to the plot, theme, or action. Mix and match words until you arrive at the precise formula. If your title doesn’t jump out at you, go through your thesaurus for related words that might be more felicitous than the ones on your list. Or use the index of your Bartlett’s to locate passages in classical literature that succinctly, cogently, and lyrically evoke the appropriate image of your book.
Titling is an essential element of the writer’s craft and requires as much thought as plotting and characterization. Some authors do have a special genius for it, however. I have, for instance, always admired Gregory Benford’s ability to select monumental titles that capture the stupendous profundity of his stories of time and space: In the Ocean of Night, Beyond the Sea of Suns, Timescape, Against Infinity. You read his titles and you know this writer is grappling with nothing less than imponderables, immutables, and ultimates. If you are a romance fan you may find Janelle Taylor’s titles fatally irresistible: First Love Wild Love, Whispered Kisses, Sweet Savage Heart, Passions Wild and Free. The titles of Father Andrew Greeley’s books guarantee that you will be witnessing the torments of sinners: Thy Brother’s Wife, Patience of a Saint, The Cardinal Sins. And John Saul’s titles portend suspenseful tales of creepy kids: Suffer the Children, The Unloved, The Unwanted, When the Wind Blows. Some authors get a lot of mileage out of a title. Lawrence Sanders went through all the deadly sins for his titles, James Patterson through nursery rhymes, and Harry Kemelman’s mystery titles lured readers from one day of the week to another, starting with Friday, the Rabbi Slept Late.
Our love of great books is often enhanced by the great titles that go with them. How Green Was My Valley, From Here to Eternity, East of Eden, Crime and Punishment, One Hundred Years of Solitude, King Solomon’s Mines, Forever Amber, The Magic Mountain, Lord of the Flies – how often are unforgettable titles married to unforgettable books!
If, try as you may, you simply can’t come up with an apt title for your book, don’t despair, you’re in good company. Margaret Mitchell had a hard time coming up with anything more engaging than Tomorrow Is Another Day for her novel of the Civil War. Luckily, a better one did occur to her before the book went into production.
– Richard Curtis
This article was originally written for Locus, The Newspaper of the Science Fiction Field. It’s reprinted in How to be Your Own Literary Agent, published by Houghton Mifflin, Copyright © 1983, 1984, 1996, 2003 by Richard Curtis. All Rights Reserved.
Original post –
Paul Aiken, Executive Director of the Authors Guild, has issued an open letter to the chief of litigation in the Department of Justice’s antitrust division, expressing its opposition to the DOJ’s proposed settlement of the price-fixing charges against Apple and several major publishers. We reproduce it in full below.
Feel free to forward or comment. Here it is at our blog: http://tinyurl.com/7rffwdh
The Guild does not support the DOJ’s proposed e-book settlement. We believe it will allow Amazon to resume its predatory pricing practices, discouraging competition in the e-book marketplace. We thank those who have sent their comments on the settlement to the DOJ. Here is the Guild’s Tunney Act filing:
June 25, 2012
John R. Read, Esq.
Chief, Litigation III
Antitrust Division, United States Department of Justice
Washington, D.C. 20530
Re: United States v. Apple, Inc., et al., 12-cv-2826 (DLC) (SDNY).
Dear Mr. Read,
I’m writing to express the Authors Guild’s firm belief that the proposed settlement of the Justice Department’s lawsuit alleging that five publishers and Apple colluded to introduce agency pricing to the e-book market is not in the public interest. The settlement is flawed by an astonishing provision, specifically requiring three large publishers to allow e-book vendors to routinely sell e-books at below cost, so long as the vendors don’t lose money over the publisher’s entire list of e-books over the course of a year.
The proposal, by allowing targeted predatory pricing of e-books, would give governmental sanction to a practice long considered destructive to a free and fair market. It was precisely this practice – selling frontlist e-books at below cost to discourage and destroy competition – that helped Amazon capture a commanding 90% of the U.S. e-book market. Agency pricing, which the Justice Department believes was introduced through collusion, has allowed Amazon’s competitors to gain a foothold, driving Amazon’s market share down to 60% in two years.
The Justice Department has made clear that it intends to irreversibly reshape the literary market. Allowing Amazon to resume its predatory ways with e-books will likely accomplish that, but not in the way the Justice Department intends. The proposed settlement will almost certainly backfire and harm readers in the long run.
The Justice Department needs to rethink and revise its proposal: it can stop the alleged collusion without requiring publishers to allow Amazon to resume predatory pricing.
The Competitive Landscape: Amazon’s in Control
The Justice Department’s assessment of the literary market offers but a pinhole glimpse of the genuine competitive landscape. Its competitive impact statement fails to discuss the relationship between the print book market and the e-book market, for example, or the critical distinctions between the online book market and the brick-and-mortar market. Most importantly, it fails to mention Amazon’s monopolistic reach and reflexive anticompetitive habits, the dominant features of the current competitive landscape.
Nowhere does the Justice Department’s competitive impact statement discuss the components of Amazon’s monopolistic reach:
• that Amazon held 90% of the market for trade e-books prior to the introduction of the agency model in 2010, and that its e-book market share still stands at roughly 60%;
• that Amazon has long controlled about 75% of the online market for trade books in print form;
• that Amazon’s dominance of the online market for print books gives it control of the market for an estimated 90% of in-print titles, since only a sliver of in-print books (frontlist books and certain backlist titles) have substantial sales in brick-and-mortar stores;
• that Amazon, through its purchase of Audible.com, has control of the fast-growing downloadable audio book market; and
• that Amazon, through a series of acquisitions, has gained control of the online market for used books.
There simply is no growing segment of the book market that Amazon doesn’t dominate.
Even more troubling is the competitive impact statement’s failure to discuss how Amazon uses its command of the online book market and its deep pool of capital to undermine competition. The statement doesn’t point out:
• that Amazon achieved its $9.99 price for e-books from November 2007 through April 2010 (and through today, for many publishers) by selling frontlist titles at a loss, a classic anti-competitive tactic;
• that Amazon managed to undermine its brick-and-mortar competitors while maintaining profitability by selling only a select set of e-books at its below-cost $9.99 price point, focusing its predation on digital editions of the frontlist hardcover books that attract customers to its brick-and-mortar competitors;
• that Amazon removed buy buttons from thousands of “long-tail” books in 2008, in a successful effort to force author focused on-demand publishers to use Amazon’s costly printing service, a maneuver that continues to reduce royalties for thousands of authors, while preventing rivals from effectively competing with Amazon’s author-focused CreateSpace;
• that during Amazon’s showdown with Macmillan over e-book terms in 2010, it retaliated by removing buy buttons not just from Macmillan’s e-books (which would have been fair play in such a business dispute), but from the publisher’s print books as well, tying access to Amazon’s vital print book market to acceptance of Amazon’s preferred e-book terms (the complaint does blandly mention this, without noting the market-tying strategy);
• that Amazon has continuously used its market leverage, in the U.S. and abroad, to dictate terms to its suppliers by removing buy buttons, in at least one instance punishing a recalcitrant British publisher for more than a year;
• that when Amazon entered the e-lending market for public libraries in 2011, it struck an unprecedented deal with OverDrive, the leading e-lending service provider, requiring it to redirect borrowers from their local public library websites to Amazon’s own commercial website and servers, turning thousands of public library websites into virtual storefronts for Amazon, while compromising library patrons’ reading privacy;
• that Amazon, in November 2011, brought its predatory campaign to a new level with its Kindle Owners’ Lending Library, offering free e-books to gain a loss-leading competitive advantage for its new tablet, the Kindle Fire; and
• that Amazon has aggressively moved in the past seven months to protect its horizontal control of the online book market through a series of vertical acquisitions, buying exclusive rights to thousands of titles, including Ian Fleming’s James Bond books, Avalon Publishing, and Marshall Cavendish Children’s Books, leading to an unprecedented and dangerous balkanization of the literary marketplace.
Each of these acts represents behavior that should set off alarm bells in the Justice Department’s Antitrust Division. Assessing the effects of the proposed settlement without taking these into account is impossible.
Several of these points merit further description, to illustrate the myriad, creative ways in which Amazon leverages its market power to destroy competition.
Amazon, On-Demand Publishing: Making Room for CreateSpace
For years, the Authors Guild staff had heard whispers of Amazon’s buy-button removal tactic as a means of getting publishers to agree to new terms. In January 2008, during the Association of Writers and Writing Program’s annual conference, Amazon’s market-denying maneuver hit hundreds of Guild members, as it removed the buy buttons from more one thousand books in the Guild’s Backinprint.com program.
The Guild had launched Backinprint.com in the summer of 1999, allowing authors for the first time to republish their out-of-print books without incurring any set-up costs. (The Guild had negotiated an agreement with on-demand publisher iUniverse to prepare the books for on-demand printing.) The service was an immediate hit with members; within two years, more than 1,000 titles were available to readers again, including books by Mary McCarthy, Thornton Wilder, William F. Buckley, Jr., and Victor Navasky. The books, all of which had fallen out of print after being published by traditional U.S. publishers, are among the more than one million in-print books that make up bookselling’s “long-tail,” low sales-volume works that rarely appear on bookstore shelves. Long-tail books, more than any other, depend on virtual bookstores: Amazon largely defines their market.
Sales of all on-demand books grew steadily in the early 2000s. By 2005, sales of on-demand books had reached a new high. Backinprint titles sold 41,000 units that year. Amazon, the storefront for most on-demand sales, took notice. It purchased BookSurge, an on-demand printer, to compete with Lightning Source, the industry-leading on-demand printing service run by Ingram.
Three years later, however, few on-demand publishers had moved their printing to BookSurge. Small wonder, since it charged more for its printing services than Lightning Source and had a reputation of offering lower quality service. So Amazon turned to aggressive tactics to win market share, reportedly removing the buy buttons from all iUniverse titles during the 2008 AWP conference. Author Solutions, which had acquired iUniverse, saw its sales plummet. It quickly agreed to use BookSurge for its Amazon sales, and Amazon restored access to its millions of customers.
While a traumatic event for iUniverse, the episode went unnoticed in the book world, which was focused on Amazon’s November 2007 introduction of the Kindle, with its predatory pricing scheme for select frontlist books. Even our members with books in the program took no notice, because when Amazon removes a buy button from a book’s sales page, the sales page looks almost identical to a page for an out-of-print or out-of-stock book. Reports of Amazon’s strong-arming of on-demand publishers didn’t surface for more than a month, in March 2008, with reports in the Wall Street Journal and elsewhere.
Amazon got away with this gambit, suffering barely a scrape. On-demand publisher Booklocker did file a class action lawsuit in Maine against Amazon over the episode. After Amazon’s motion to dismiss failed, Amazon quietly settled the suit for a reported $300,000 in attorneys’ fees. Amazon has doubtless earned back those fees many times over. Thousands of authors continue to see their on-demand royalties reduced by ten to fifteen percent as a result of Amazon’s squeeze. (This wasn’t a maneuver justified by efficiencies that ultimately benefit consumers, incidentally. Amazon appears to sell the books at precisely the same price as other online retailers. Amazon just makes more money at it than they do.)
More importantly and profitably to Amazon, by forcing iUniverse and other author centered on-demand service providers to use BookSurge, Amazon severely constrained effective competition for its own author centered on-demand service provider, which became known as CreateSpace in 2009. Amazon’s vertical integration of on-demand printing eliminated the ability of iUniverse, PublishAmerica, XLibris and others to offer authors better royalties when selling through Amazon. CreateSpace appears to have thrived ever since.
Amazon’s Exercise of Its Buy Button “Nuclear Option”
In June 2008, Doreen Carvajal of the New York Times called buy-button removal “the literary equivalent of a nuclear option for rebellious publishers who balk at [Amazon’s] demands.” Ms. Carvajal was discussing Amazon’s removal of buy buttons in the United Kingdom from hundreds of Bloomsbury titles while in negotiations with the publisher.
The Authors Guild began preparing for the next incident, which everyone in the industry knew would come. Since stealth appeared to be a significant weapon for Amazon (authors may not notice, if the incident is over quickly enough, and publishers are fearful of blowing the whistle), the Guild hired developers to build a tool to e-mail authors when Amazon removed one of their buy buttons. When Amazon removed the buy buttons from Macmillan’s print and digital books in January 2010, the Guild launched the tool through a dedicated website, WhoMovedMyBuyButton.com.
Amazon’s buy button removal campaign persists unabated. Independent Publishers Group markets and distributes titles from independent publishing houses to the book trade at large. When IPG’s Amazon contract came up for renewal in 2012, Amazon pressured IPG for more favorable terms. When IPG resisted, Amazon took down all IPG e-books from its site. After X months, IPG came to terms, etc.
Amazon and E-Lending by Public Libraries
In September 2011, Amazon entered an arrangement with OverDrive, the largest supplier of e-books and audio books to public libraries, making possible e-book library lending through the Kindle device. OverDrive’s implementation of the Kindle lending program, pursuant to its agreement with Amazon, required it to redirect patrons to Amazon’s servers. A columnist for the Los Angeles Times compared it to “walking into your public library then finding yourself at the Target checkout counter.” No other e-book vendor has such an arrangement.
Amazon Pursues Its Own “Monopoly Over Its Titles:” the Balkanization of the Literary Marketplace
Since its e-terms battle with Macmillan in January 2010, during which Amazon protested that it had to “capitulate” due to Macmillan’s “monopoly over its titles,” Amazon has turned toward pursuing its own monopoly. With the launch of the Kindle Fire, Amazon’s drive to acquire exclusive rights to books, by acquiring publishers with substantial backlists and other arrangements, has taken on a new urgency.
In September 2011, Amazon’s acquired the exclusive digital rights to one hundred popular DC Comics graphic novels. If a customer wanted to read any of these on an e-device, it had to be on a Kindle Fire. Barnes & Noble, trying to break into the e-device market with its Nook, retaliated by pulling all print copies of DC Comics titles from its shelves. Books-a-Million, the third largest bookseller, followed suit. “As Amazon seeks over the next few years to expand its tablet line,” predicted the New York Times, “these collisions over content are likely to become routine.”
Amazon is moving quickly. In December, Amazon entered the children’s book market, acquiring more than 450 titles of Marshall Cavendish Children’s Books. In April, Amazon announced it had acquired the exclusive North American rights to publish Ian Fleming’s James Bond novels — in both digital and print formats. Earlier this month, Amazon expanded its holdings of genre fiction, purchasing the publisher Avalon Books and the exclusive rights to its 3,000-title backlist of romance, mystery and Western fiction.
Balkanization of the literary market is something new and deeply troubling. “Bookstores used to pride themselves on never removing any book from their shelves,” reported the Times, “but that tradition—born in battles over censorship—is fading as competitive struggles increase.” Awful as it is for our literary culture, the balkanization of the book market is but a logical extension of Amazon’s no-prisoners approach to competition.
The Kindle Owners’ Lending Library
Amazon lagged Barnes & Noble by a full year in developing an e-reading tablet. While Barnes & Noble prepared to roll out its second-generation tablet, Amazon prepared to introduce its first, the Kindle Fire. To gain an advantage, Amazon proposed to do something Barnes & Noble couldn’t afford to do: give away e-books, including front list e-books, for free.
So in November 2011, shortly before Amazon began shipping its Kindle Fire, Amazon also introduced its Kindle Owners’ Lending Library, which allowed Amazon Prime members to download onto their Kindles any of more than 5,000 titles, at the time of it was announced. Customers are limited to one book per month and one book at a time — when a new book is downloaded, the old one disappears from the Kindle.
Amazon approached the six largest U.S. trade book publishers to seek their participation in the program. By all accounts, each refused. Publishers weren’t eager to allow Amazon to undermine the economics of the e-book market, representing the lone bright spot for the industry. So books from the six largest trade publishers were not in the Lending Library program.
Amazon’s attempts to enlist the next tier of U.S. trade book publishers, major publishers that are slightly smaller than the Big Six, fared no better. Many, perhaps all, also refused. No matter. Amazon simply disregarded these publishers’ wishes, and enrolled many of their titles in the program anyway. Some of these publishers learned of Amazon’s unilateral decision as the first news stories about the program appeared.
The use of publishers’ books without permission was due to a tortured reading of its boilerplate contracts with publishers. Amazon decided that it didn’t need the publishers’ permission, because, as Amazon saw it, its contracts with these publishers merely required it to pay publishers the wholesale price of the books that Amazon Prime customers download. By reasoning this way, Amazon claimed it could sell e-books at any price, even giving them away, so long as publishers are paid.
From our understanding of Amazon’s standard contractual terms, this is nonsense — publishers did not surrender this level of control to the retailer. Amazon’s boilerplate terms specifically contemplate the sale of e-books—not giveaways, subscriptions, or lending. Amazon can make other uses of e-books only with the publishers consent. In other words, Amazon was boldly breaching its contracts with these publishers. This was an exercise of brute economic power: Amazon knew it could largely dictate terms to non-agency publishers, and it badly wanted to launch the Lending Library program with some notable titles.
So Amazon did just that, conscripting publishers into a predatory pricing business model that substituted cash for genuine innovation, further undermining the economics of brick-and-mortar bookstores along the way.
The Justice Department, through this settlement, would deliver the lists of three large publishers into Amazon’s predatory scheme. Unless competitors are willing to forego nearly all profits from these publishers, the Kindle will likely have an unmatchable competitive advantage.
Of all the possible remedies to the collusion the Justice Department alleges, requiring three large publishers to allow Amazon to sell e-books at a loss is among the most destructive of competition that one could imagine.
Amazon’s tactic of selective predatory pricing of frontlist e-books was far more anti-competitive than the Justice Department has acknowledged. It effectively cut brick-and-mortar retailers – logical participants in a bricks-and-clicks, showroom approach to marketing e-books – out of the game. The retailers would need a partner willing to invest substantial amounts to develop and market an e-reader, e-commerce site, and accompanying software. What partner would dare invest, with Amazon plainly willing to earn little or nothing from e-books? (Google’s commitment to independent bookstores always seemed half-hearted, and now it’s backing out.) From Amazon’s perspective, the best competitor is one that never dares enter the field.
Amazon has engaged in baldly anticompetitive practices for years. Its approach to destroying competition is sophisticated, data-driven, and endlessly creative. What other company would have thought to arm smart-phone users with a price-checking app then reward them for turning on their phones’ geo-location function and report pricing data to Amazon in the height of the holiday season? (Up to five dollars from Amazon, every time you deny your local retailer a sale. One Saturday only; limit three per Amazon customer.) It’s utterly brilliant, and a game only the richest of corporations can play.
Amazon really doesn’t need the Justice Department’s help. For the sake of free and fair competition, for the sake of readers who would like many companies to invest in better e-reading devices, software, and even in bookstores that one can visit on a weekend, please find another way to address the collusion you believe you’ve uncovered.
The above blog post was issued on Digital Book World as Guild Slams DOJ Action – “Will Harm Readers in the Long Run”
Case 1:12-cv-02826-UA Document 5 Filed 04/11/12 Page 1 of 22
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
HACHETTE BOOK GROUP, INC.,
HARPERCOLLINS PUBLISHERS L.L.C.,
VERLAGSGRUPPE GEORG VON
HOLTZBRINCK PUBLISHERS, LLC
THE PENGUIN GROUP,
A DIVISION OF PEARSON PLC,
PENGUIN GROUP (USA), INC., and
SIMON & SCHUSTER, INC.,
Civil Action No. 1:12-CV-2826
COMPETITIVE IMPACT STATEMENT Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. §§ 16(b)–(h), Plaintiff United States of America (“United States”) files this Competitive Impact Statement relating to the proposed Final Judgment against Defendants Hachette Book Group, Inc. (“Hachette”), HarperCollins Publishers L.L.C. (“HarperCollins”), and Simon & Schuster, Inc. (“Simon & Schuster”; collectively with Hachette and HarperCollins, “Settling Defendants”), submitted on April 11, 2012, for entry in this antitrust proceeding.
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I. NATURE AND PURPOSE OF THE PROCEEDING
On April 11, 2012, the United States filed a civil antitrust Complaint alleging that Apple, Inc. (“Apple”) and five of the six largest publishers in the United States (“Publisher Defendants”) restrained competition in the sale of electronic books (“e-books”), in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.
Shortly after filing the Complaint, the United States filed a proposed Final Judgment with respect to Settling Defendants. The proposed Final Judgment is described in more detail in Section III below. The United States and Settling Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA, unless the United States withdraws its consent. Entry of the proposed Final Judgment would terminate this action as to Settling Defendants, except that this Court would retain jurisdiction to construe, modify, and enforce the proposed Final Judgment and to punish violations thereof.1
The Complaint alleges that Publisher Defendants, concerned by Amazon.com, Inc. (“Amazon”)’s pricing of newly released and bestselling e-books at $9.99 or less, agreed among themselves and with Apple to raise the retail prices of e-books by taking control of e-book pricing from retailers. The effect of Defendants’ agreement has been to increase the price consumers pay for e-books, end price competition among e-book retailers, constrain innovation among e-book retailers, and entrench incumbent publishers’ favorable position in the sale and distribution of print books by slowing the migration from print books to e-books. The Complaint seeks injunctive relief to enjoin continuance and prevent recurrence of the violation.
1 The case against the remaining Defendants will continue. Those Defendants are Apple, Verlagsgruppe Georg von Holtzbrinck GmbH and Holtzbrinck Publishers, LLC d/b/a Macmillan (collectively, “Macmillan”), and The Penguin Group, a division of Pearson plc and Penguin Group (USA), Inc. (collectively, “Penguin”).
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II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION OF THE ANTITRUST LAWS
A. The E-Books Market
Technological advances have enabled the production, storage, distribution, and consumption of books in electronic format, lowering significantly the marginal costs to publishers of offering books for sale. E-books can be read on a variety of electronic devices, including dedicated devices (“e-readers”) such as Amazon’s Kindle or Barnes & Noble, Inc.’s Nook, tablet computers such as Apple’s iPad, desktop or laptop computers, and smartphones. E-book sales are growing, and e-books are increasingly popular with American consumers. E-books conservatively now constitute ten percent of general interest fiction and non-fiction books (commonly known as “trade” books) sold in the United States and are widely predicted to reach at least 25 percent of U.S. trade books sales within two to three years.
Until Defendants’ agreement took effect, publishers sold e-books under a wholesale model that had prevailed for decades in the sale of print books. Under this wholesale model, publishers typically sold copies of each title to retailers for a discount (usually around 50%) off the price printed on the physical edition of the book (the “list price”). Retailers, as owners of the books, were then free to determine the prices at which the books would be sold to consumers. Thus, while publishers might recommend prices, retailers could and frequently did compete for sales at prices significantly below list prices, to the benefit of consumers.
In 2007, Amazon became the first company to offer a significant selection of e-books to consumers when it launched its Kindle e-reader device. From the time of its Kindle launch, Amazon offered a portion of its e-books catalogue, primarily its newly released and New York Times-bestselling e-books, to consumers for $9.99. To compete with Amazon, other e-book retailers often matched or at least approached Amazon’s $9.99-or-less prices for e-book versions
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of many new releases and New York Times bestsellers. As a result of that competition, consumers benefited from Amazon’s $9.99-or-less e-book prices even when they purchased e-books from competing e-book retailers.
B. Illegal Agreement to Raise E-Book Prices
Publisher Defendants, however, feared that the Amazon-led $9.99 price for e-books would significantly threaten their long-term profits. Publisher Defendants feared $9.99 e-book prices would lead to the erosion over time of hardcover book prices and an accompanying decline in revenue. They also worried that if $9.99 solidified as consumers’ expected retail price for e-books, Amazon and other retailers would demand that publishers lower their wholesale prices, again compressing their profit margins. Publisher Defendants also feared that the $9.99 price would drive e-book popularity to such a degree that digital publishers could achieve sufficient scale to challenge the Publisher Defendants’ basic business model.
In private meetings among their executives, Publisher Defendants complained about the “$9.99 problem” and the threat they perceived it posed to the publishing industry.2 Through these communications, each Publisher Defendant gained assurance that its competitors shared concern about Amazon’s $9.99 e-book pricing policy.
At the same time, each Publisher Defendant feared that if it attempted unilaterally to impose measures that would force Amazon to raise retail e-book prices, Amazon would resist. And each Publisher Defendant recognized that, even if it succeeded in raising retail prices for its e-books, if its competitor publishers’ e-books remained at the lower, competitive level, it would
2 Prior to the formation of and throughout Publisher Defendants’ agreement, their CEOs and other high-level executives frequently communicated with each other in both formal and informal settings. From these communications emerged a pattern of Publisher Defendants improperly exchanging confidential, competitively sensitive information.
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lose sales to other Publisher Defendants. Accordingly, Publisher Defendants agreed to act collectively to raise retail e-book prices.
To effectuate their agreement, Publisher Defendants considered a number of coordinated methods to force Amazon to raise e-book retail prices. For example, they explored creating purported joint ventures, with exclusive access to certain e-book titles. These joint ventures were intended not to compete with Amazon, but to convince it to raise its price above $9.99. Publisher Defendants intended these strategies to cause Amazon to capitulate on its $9.99 pricing practice. None of these strategies, though, ultimately proved successful in raising retail e-book prices.
It was Apple’s entry into the e-book business, however, that provided a perfect opportunity collectively to raise e-book prices. In December 2009, Apple approached each Publisher Defendant with news that it intended to sell e-books through its new iBookstore in conjunction with its forthcoming iPad device. Publisher Defendants and Apple soon recognized that they could work together to counter the Amazon-led $9.99 price.
In its initial discussions with Publisher Defendants, Apple assumed that it would enter as an e-book retailer under the wholesale model. At the suggestion of two Publisher Defendants, however, Apple began to consider selling e-books under the “agency model,” whereby the publishers would set the prices of e-books sold and Apple would take a 30% commission as the selling agent. In January 2010, Apple sent to each Publisher Defendant substantively identical term sheets that would form the basis of the nearly identical agency agreements that each Publisher Defendant would sign with Apple (“Apple Agency Agreements”). Apple informed the publishers that it had devised these term sheets after “talking to all the publishers.”
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The volume of Publisher Defendants’ communications among themselves intensified during the ensuing negotiation of the Apple Agency Agreements. Through frequent in-person meetings, phone calls, and electronic communications, Publisher Defendants, facilitated by Apple, assured each other of their mutual intent to reach agreement with Apple. After each round of negotiations with Apple over the terms of their agency agreements, Publisher Defendants’ CEOs immediately contacted each other to discuss strategy and verify where each stood with Apple. They also used Apple to verify their position vis-à-vis other Publisher Defendants. Penguin, for example, sought Apple’s assurance that it was “1 of 4 before signing”—an assurance that Apple provided. Two days later, Penguin and two other Publisher Defendants signed Apple Agency Agreements.
To the extent Publisher Defendants expressed doubts during the negotiations about whether to sign the Apple Agency Agreements, Apple persuaded the Publisher Defendants to stay with the others and sign up. For example, Apple CEO Steve Jobs wrote to an executive of one Publisher Defendant’s corporate parent that the publisher had only two choices apart from signing the Apple Agency Agreement: (i) accept the status quo (“Keep going with Amazon at $9.99”); or (ii) continue with the losing windowing policy (“Hold back your books from Amazon”). According to Jobs, the Apple deal offered the Publisher Defendants a superior alternative path to the higher retail e-book prices they sought: “Throw in with Apple and see if we can all make a go of this to create a real mainstream e-books market at $12.99 and $14.99.”
The Apple Agency Agreements contained two primary features that assured Publisher Defendants of their ability to wrest pricing control from retailers and raise e-book retail prices above $9.99. First, Apple insisted on including a Most Favored Nation clause (“MFN” or “Price MFN”) that required each publisher to guarantee that no other retailer could set prices lower than
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what the Publisher Defendant set for Apple, even if the Publisher Defendant did not control that other retailer’s ultimate consumer price. The effect of this MFN was twofold: it not only protected Apple from having to compete on retail price, but also dictated that to protect themselves from the MFN’s provisions, Publisher Defendants needed to remove from all other e-book retailers the ability to control retail price, including the ability to fund discounts or promotions out of the retailer’s own margins.3 Thus, the agreement eliminated retail price competition across all retailers selling Publisher Defendants’ e-books.
Second, the Apple Agency Agreements contained pricing tiers (ostensibly setting maximum prices) for e-books—virtually identical across the Publisher Defendants’ agreements—based on the list price of each e-book’s hardcover edition. Defendants understood that by using the price tiers, they were actually fixing the de facto prices for e-books. In fact, once the Apple Agency Agreements took effect, Publisher Defendants almost uniformly set e-book prices to maximum price levels allowed by each tier. Apple and Publisher Defendants were well aware that the impact of their agreement was to force other retailers off the wholesale model, eliminate retail price competition for e-books, allow publishers to raise e-book prices, and permanently to change the terms and pricing on which the e-book industry operated.
The negotiations between Apple and Publisher Defendants culminated in all five Publisher Defendants signing the Apple Agency Agreements within a three-day span, with the last Publisher Defendant signing on January 26, 2010. The next day, Apple announced the iPad at a launch event. At that event, then-Apple CEO Steve Jobs, responding to a reporter’s question about why customers should pay $14.99 for an iPad e-book when they could purchase that e-book for $9.99 from Amazon or Barnes & Noble, replied that “that won’t be the case. . . . The
3 Otherwise, the retail price MFN would cause Apple’s iBookstore prices to drop to match the best available retail price of each e-book, reducing the revenues to each Publisher Defendant and, indeed, defeating the very purpose of agreeing to the agency model: raising retail prices across all e-book retailers.
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prices will be the same.” Jobs later confirmed his understanding that the Apple Agency Agreements fulfilled the publishers’ desire to increase prices for consumers. He explained that, under the agreements, Apple would “go to [an] agency model, where [publishers] set the price, and we get our 30%, and yes, the customer pays a little more, but that’s what [publishers] want anyway.”
Starting the day after the iPad launch, Publisher Defendants, beginning with Macmillan, quickly acted to complete their scheme by imposing agency agreements on all of their other retailers. Initially, Amazon attempted to resist Macmillan’s efforts to force it to accept either the agency model or windowing of its e-books by refusing to sell Macmillan’s titles. Other Publisher Defendants, continuing their practice of communicating with each other, offered Macmillan’s CEO messages of encouragement and assurances of solidarity. For example, one Settling Defendant’s CEO e-mailed Macmillan’s CEO to tell him, “I can ensure you that you are not going to find your company alone in the battle.” Quickly, Amazon came to realize that all Publisher Defendants had committed themselves to take away any e-book retailer’s ability to compete on price. Just two days after it stopped selling Macmillan titles, Amazon capitulated and publicly announced that it had no choice but to accept the agency model.
After Amazon acquiesced to the agency model, all of Publisher Defendants’ major retailers quickly transitioned to the agency model for e-book sales. Retail price competition on e-books had been eliminated and the retail price of e-books had increased.
C. Effects of the Illegal Agreement
As a result of Defendants’ illegal agreement, consumers have paid higher prices for e-books than they would have paid in a market free of collusion. For example, the average price for Publisher Defendants’ e-books increased by over ten percent between the summer of 2009
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and the summer of 2010. On many adult trade e-books, consumers have witnessed an increase in retail prices between 30 and 50 percent. In some cases, the agency model dictates that the price of an e-book is higher than its corresponding trade paperback edition, despite the significant savings in printing and distributing costs offered by e-books.
Beyond this monetary harm to consumers, Defendants’ agreement has prevented e-book retailers from experimenting with innovative pricing strategies that could efficiently respond to consumer demand. Because retailer discounting is prohibited by the agency agreements, retailers have been prevented from introducing innovative sales models or promotions with respect to Publisher Defendants’ e-books, such as offering e-books under an “all-you-can-read” subscription model where consumers would pay a flat monthly fee.
III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT
The relief contained in the proposed Final Judgment is intended to provide prompt, certain and effective remedies that will begin to restore competition to the marketplace. The requirements and prohibitions will eliminate the Settling Defendants’ illegal conduct, prevent recurrence of the same or similar conduct, and establish robust antitrust compliance programs.
A. Required Conduct (Section IV)4
1. Sections IV.A and IV.B
To begin to restore competition to the e-books marketplace, the proposed Final Judgment requires the Settling Defendants to terminate immediately the Apple Agency Agreements that they used to collusively raise and stabilize e-book prices across the industry. Section IV.A of the proposed Final Judgment orders the Settling Defendants to terminate those contracts within seven days after this Court’s entry of the proposed Final Judgment. This requirement will permit
4 Sections I–III of the proposed Final Judgment contain a statement acknowledging the Court’s jurisdiction, definitions, and a statement of the scope of the proposed Final Judgment’s applicability.
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the contractual relationships between Apple and the Settling Defendants to be reset subject to competitive constraints.
The Apple Agency Agreements included MFN clauses that ensured Publisher Defendants would take away retail pricing control from all other e-book retailers. Accordingly, Section IV.B requires the termination of those contracts between a Settling Defendant and an e-book retailer that contain either (a) a restriction on an e-book retailer’s ability to set the retail price of any e-book, or (b) a Price MFN. Under the proposed Final Judgment, termination will occur as soon as each contract permits, starting 30 days after the Court enters the proposed Final Judgment.5 All of Settling Defendants’ contracts with major e-book retailers contain one of these provisions and would be terminated. Section IV.B also allows any retailer with such a contract the option to terminate its contract with the Settling Defendant on just 30 days notice. These provisions will ensure that most of Settling Defendants’ contracts that restrict the retailer from competing on price will be terminated within a short period.
E-book retailers, including Apple, will be able to negotiate new contracts with any Settling Defendant. But, as set forth in provisions described below, the proposed Final Judgment will ensure that the new contracts will not be set under the collusive conditions that produced the Apple Agency Agreements. Sections V.A–B of the proposed Final Judgment prohibit Settling Defendants, for at least two years, from including prohibitions on retailer discounting in new agreements with retailers. Additionally, a retailer can stagger the termination dates of its contracts to ensure that it is negotiating with only one Settling Defendant at a time to avoid joint conduct that could lead to a return to the collusively established previous outcome.
5 The proposed Final Judgment defines a “Price MFN” to include most favored nation clauses related to retail prices, wholesale prices, or commissions.
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2. Section IV.C
As part of their conspiracy to raise and stabilize e-book prices, the Publisher Defendants discussed forming joint ventures, the purpose of which was, as Publisher Defendants’ executives described it, “less to compete with Amazon as to force it to accept a price level higher than 9.99,” and to “defend against further price erosion.” To reduce the risk that future joint ventures involving Settling Defendants could eliminate competition among them, Section IV.C of the proposed Final Judgment requires a Settling Defendant to notify the Department of Justice before forming or modifying a joint venture between it and another publisher related to e-books. That provision sets forth a procedure for the Department of Justice to evaluate the potential anticompetitive effects of joint activity among Publisher Defendants at a sufficiently early stage to prevent harm to competition.
3. Section IV.D To ensure Settling Defendants’ compliance with the proposed Final Judgment, Section
IV.D requires Settling Defendants to provide to the United States each e-book agreement entered into with any e-book retailer on or after January 1, 2012, and to continue to provide those agreements to the United States on a quarterly basis.
B. Prohibited Conduct (Section V)
1. Sections V.A, V.B, and V.C
Sections V.A and V.B ensure that e-book retailers can compete on the price of e-books sold to consumers. Specifically, the proposed Final Judgment prohibits Settling Defendants from enforcing existing agreements with or entering new agreements containing two components of the Apple Agency Agreements that served as linchpins to their conspiracy—the ban on retailer
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discounting (eliminating all price competition among retailers) and the retail price-matching MFNs that ensured agency terms were exported to all e-book retailers.
Sections V.A and V.B of the proposed Final Judgment prohibit Settling Defendants, for two years after the filing of the Complaint, from entering new agreements with e-book retailers that restrict the retailers’ discretion over e-book pricing, including offering discounts, promotions, or other price reductions. These provisions do not dictate a particular business model, such as agency or wholesale, but prohibit Settling Defendants from forbidding a retailer from competing on price and using some of its commission to offer consumers a better value, either through a promotion or a discount. Under Section V.A, a Settling Defendant also must grant each e-book retailer with which it currently has an agreement the freedom to offer discounts or other e-book promotions for two years. With these provisions, most retailers will soon be able to discount e-books in order to compete for market share.
These measures prohibit Settling Defendants, for a two-year period, from completely removing e-book retailers’ discretion over retail prices. In light of current industry dynamics, including rapid innovation, a two-year period, in which Settling Defendants must provide pricing discretion to retailers, is sufficient to allow competition to return to the market.
Section V.C prohibits Settling Defendants, for five years, from entering into an agreement with an e-book retailer that contains a Price MFN. Defendants knew that the inclusion of the Price MFN in the Apple Agency Agreements would lead to the adoption of the agency model by all of Publisher Defendants’ e-book retailers. The proposed Final Judgment therefore broadly defines banned “Price MFNs” to include not only MFNs requiring publishers to match retail e-book prices across e-book retailers (the MFNs in the Apple Agency Agreements), but also MFNs requiring publishers to match the wholesale prices at which e12
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books are sold to e-book retailers, and MFNs requiring publishers to match the revenue share or commission given to other e-book retailers. Prohibiting these particular Price MFNs serves an important function to prevent Settling Defendants from using MFNs to achieve substantially the same result they effected here through their collusive agreements.
2. Section V.D
Section V.D prohibits Settling Defendants from retaliating against an e-book retailer based on the retailer’s e-book prices. Specifically, this Section prohibits a Settling Defendant from punishing an e-book retailer because the Settling Defendant disapproves of the retailer discounting or promoting e-books. This Section also prohibits a Settling Defendant from urging any other e-book publisher or e-book retailer to retaliate against an e-book retailer, as Penguin did. However, Section V.D expressly recognizes that, after the expiration of the two-year period described in Sections V.A and V.B, the anti-retaliation provision does not prohibit Settling Defendants from unilaterally entering into and enforcing agency agreements with e-book retailers that restrict a retailer’s ability to set or reduce e-book prices or offer promotions.
3. Sections V.E and V.F
Section V.E of the proposed Final Judgment broadly prohibits Settling Defendants from agreeing with each other or another e-book publisher to raise or set e-book retail prices or coordinate terms relating to the licensing, distribution, or sale of e-books. This Section bans the kind of agreements among Publisher Defendants that led to the anticompetitive increase in e-book prices.
Section V.F likewise prohibits Settling Defendants from directly or indirectly conveying confidential or competitively sensitive information to any other e-book publisher. Such information includes, but is not limited to, business plans and strategies, pricing strategies for
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books, terms in retailer agreements, or terms in author agreements. Banning such communications is critical here, where communications among publishing competitors were condoned by and carried out as common practice at the highest levels of the companies and led directly to the collusive agreement alleged in the Complaint. Because these communications occurred among some of the parent companies of the Publishing Defendants, Section V.F also applies to those parent company officers who directly control Settling Defendants’ business decisions. Settling Defendants are not prohibited from informing the buying public of the list prices of their books or engaging in ongoing legitimate distribution relationships with other publishers.
C. Permitted Conduct (Section VI)
Section VI.A of the proposed Final Judgment expressly permits Settling Defendants to compensate e-book retailers for services that they provide to publishers or consumers and help promote or sell more books. Section VI.A, for example, allows Settling Defendants to support brick-and-mortar retailers by directly paying for promotion or marketing efforts in those retailers’ stores.
Section VI.B permits a Settling Defendant to negotiate a commitment from an e-book retailer that a retailer’s aggregate expenditure on discounts and promotions of the Settling Defendant’s e-books will not exceed the retailer’s aggregate commission under an agency agreement in which the publisher sets the e-book price and the retailer is compensated through a commission. In particular, Section VI.B grants Settling Defendants the right to enter one-year agency agreements that also prevent e-book retailers from cumulatively selling that Settling Defendant’s e-books at a loss over the period of the contract. An e-book retailer that enters an agency agreement with a Settling Defendant under Section VI.B would be permitted to discount
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that Settling Defendant’s individual e-book titles by varying amounts (for example, some could be “buy one get one free,” some could be half off, and others could have no discount), as long as the total dollar amount spent on discounts or other promotions did not exceed in the aggregate the retailer’s full commission from the Settling Defendant over a one-year period. This provision, which works with Sections V.A and V.B (which enhance retailers’ ability to set e-book prices), allows a Settling Defendant to prevent a retailer selling its entire catalogue at a sustained loss. Absent the collusion here, the antitrust laws would normally permit a publisher unilaterally to negotiate for such protections.
D. Antitrust Compliance (Section VII)
As outlined in Section VII, as part of the compliance program, each Settling Defendant must designate an Antitrust Compliance Officer. The Antitrust Compliance Officer must distribute a copy of the proposed Final Judgment to the Settling Defendant’s officers, directors, and employees (and their successors) who engage in the licensing, distribution, or sale of e-books. The proposed Final Judgment further requires the Antitrust Compliance Officer to ensure that each such person receives training related to the proposed Final Judgment and the antitrust laws; to ensure certification by each such person of compliance with the terms of the proposed Final Judgment; to conduct an annual antitrust compliance audit; to be available to receive information concerning violations of the proposed Final Judgment and to take appropriate action to remedy any violations of the proposed Final Judgment; and to maintain a log of communications between officers and directors of Settling Defendants, involved in the development of strategies related to e-books, and any person associated with another Publisher Defendant, where that communication relates to the selling of books in any format in the United States.
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Appointment of an Antitrust Compliance Officer is necessary in this case given the extensive communication among competitors’ CEOs that facilitated Defendants’ agreement, among other things. The United States has required the submission of Settling Defendants’ e-book agreements to facilitate the monitoring of the e-book industry and to ensure compliance with the proposed Final Judgment.
To facilitate monitoring compliance with the proposed Final Judgment, Settling Defendants must make available, upon written request, records and documents in their possession, custody, or control relating to any matters contained in the proposed Final Judgment. Settling Defendants must also make available their personnel for interviews regarding such matters. In addition, Settling Defendants must, upon written request, prepare written reports relating to any of the matters contained in the proposed Final Judgment.
IV. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT
At several points during its investigation, the United States received from some Publisher Defendants proposals or suggestions that would have provided less relief than is contained in the proposed Final Judgment. These proposals and suggestions were rejected.
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against Settling Defendants. The United States believes that the relief contained in the proposed Final Judgment will more quickly restore retail price competition to consumers.
V. REMEDIES AVAILABLE TO PRIVATE LITIGANTS
Section 4 of the Clayton Act, 15 U.S.C. § 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable
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attorneys’ fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Publisher Defendants or Apple.
VI. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT
The United States and Settling Defendants have stipulated that the proposed Final Judgment may be entered by this Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry of the decree upon this Court’s determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of publication of this Competitive Impact Statement in the Federal Register, or the last date of publication in a newspaper of the summary of this Competitive Impact Statement, whichever is later.
All comments received during this period will be considered by the United States Department of Justice, which remains free to withdraw its consent to the proposed Final Judgment at any time prior to the Court’s entry of judgment. The comments and the responses of the United States will be filed with the Court and published in the Federal Register.
Written comments should be submitted to:
John Read, Chief
Litigation III Section
U.S. Department of Justice
450 5th Street, NW, Suite 4000
Washington, DC 20530
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The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for modification, interpretation, or enforcement of the Final Judgment
VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. § 16(e)(1). In making that determination, the court is directed to consider:
the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
15 U.S.C. § 16(e)(1)(A) & (B); see generally United States v. KeySpan Corp., 763 F. Supp. 2d 633, 637–38 (S.D.N.Y. 2011) (WHP) (discussing Tunney Act standards); United States v. SBC Commc’ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing standards for public interest determination). In considering these statutory factors, the court’s inquiry is necessarily a limited one as the United States is entitled to “broad discretion to settle with the Defendant within the reaches of the public interest.” United States v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995).
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Under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the United States’ complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. See Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the relief secured by the decree, the court’s function is “not to determine whether the proposed [d]ecree results in the balance of rights and liabilities that is the one that will best serve society, but only to ensure that the resulting settlement is within the reaches of the public interest.” KeySpan, 763 F. Supp. 2d at 637 (quoting United States v. Alex Brown & Sons, Inc., 963 F. Supp. 235, 238 (S.D.N.Y. 1997)) (internal quotations omitted). In making this determination, “[t]he [c]ourt is not permitted to reject the proposed remedies merely because the court believes other remedies are preferable. [Rather], the relevant inquiry is whether there is a factual foundation for the government’s decision such that its conclusions regarding the proposed settlement are reasonable.” Id. at 637–38 (quoting United States v. Abitibi–Consolidated Inc., 584 F. Supp. 2d 162, 165 (D.D.C. 2008).6 The government’s predictions about the efficacy of its remedies are entitled to deference.7
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is ‘within the reaches of public interest.’” United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting
6 United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981) (“The balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General.”). See generally Microsoft, 56 F.3d at 1461 (discussing whether “the remedies [obtained in the decree are] so inconsonant with the allegations charged as to fall outside of the ‘reaches of the public interest’”). 7 Microsoft, 56 F.3d at 1461 (noting the need for courts to be “deferential to the government’s predictions as to the effect of the proposed remedies”); United States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant due respect to the United States’ prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case).
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United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff’d sub nom. Maryland
v. United States, 460 U.S. 1001 (1983); see also United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent decree even though the court would have imposed a greater remedy). To meet this standard, the United States “need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms.” SBC Commc’ns, 489 F. Supp. 2d at 17.
Moreover, the court’s role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.” Microsoft, 56 F.3d at 1459; KeySpan, 763 F. Supp. 2d at 638 (“A court must limit its review to the issues in the complaint . . . .”). Because the “court’s authority to review the decree depends entirely on the government’s exercising its prosecutorial discretion by bringing a case in the first place,” it follows that “the court is only authorized to review the decree itself,” and not to “effectively redraft the complaint” to inquire into other matters that the United States did not pursue. Microsoft, 56 F.3d at 1459–60.
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. § 16(e)(2). This language effectuates what Congress intended when it enacted the Tunney Act in 1974, as Senator Tunney explained: “[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” 119 Cong. Rec. 24,598 (1973) (statement of Senator Tunney).
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Rather, the procedure for the public interest determination is left to the discretion of the court,
with the recognition that the court’s “scope of review remains sharply proscribed by precedent
and the nature of Tunney Act proceedings.” SBC Commc’ns, 489 F. Supp. 2d at 11.8
VIII. DETERMINATIVE DOCUMENTS
There are no determinative materials or documents within the meaning of the APPA that
were considered by the United States in formulating the proposed Final Judgment.
Dated: April 11, 2012
FOR PLAINTIFF THE UNITED STATES OF AMERICA
s/ Daniel McCuaig_________________ Daniel McCuaig Nathan P. Sutton Mary Beth McGee Owen M. Kendler William H. Jones Stephen T. Fairchild
Attorneys for the United States United States Department of Justice Antitrust Division Litigation III 450 Fifth Street, NW, Suite 4000 Washington, DC 20530
8 See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting that the “Tunney Act expressly allows the court to make its public interest determination on the basis of the competitive impact statement and response to comments alone”).
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CERTIFICATE OF SERVICE
I, Stephen T. Fairchild, hereby certify that on April 11, 2012, I caused a true and correct copy of the foregoing Stipulation and attached Proposed Final Judgment to be
served via electronic mail on:
For Defendant Apple, Inc.: Richard Parker O’Melveny & Myers LLP 1625 Eye Street, NW Washington, DC 20006 email@example.com
For Defendant Hachette Book Group, Inc.: Paul Yde Freshfields Bruckhaus Deringer LLP 701 Pennsylvania Avenue, NW Suite 600 Washington, DC 20004-2692 firstname.lastname@example.org
For Defendant HarperCollins Publishers L.L.C.: Clifford H. Aronson Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036-6522 email@example.com
For Defendants Verlagsgruppe Georg von Holtzbrinck GmbH & Holtzbrinck Publishers, LLC d/b/a Macmillan: Joel M. Mitnick Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 firstname.lastname@example.org
For Defendants The Penguin Group, A Division of Pearson PLC & Penguin Group (USA) Inc.: Daniel F. McInnis Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, NW Washington, DC 20036-1564 email@example.com
For Defendant Simon & Schuster, Inc.: Helene D. Jaffe Proskauer Rose LLP Eleven Times Square New York, NY 10036-8299 firstname.lastname@example.org
s/ Stephen T. Fairchild Stephen T. Fairchild United States Department of Justice Antitrust Division 450 Fifth Street, NW, Suite 4000 Washington, D.C. 20530
171 East 74th Street
New York, NY 10021
January 17, 2012
For Immediate Release
E-Reads Acquires Brian Aldiss Backlist
E-Reads, a leading independent e-book publisher and a powerhouse in fantasy and science fiction, has acquired US e-book and print rights to fifteen titles by British science fiction Grandmaster Brian Aldiss, winner of two Hugo Awards, a Nebula Award and a John W. Campbell Memorial Award. Included in the trove are his Helliconia trilogy, the Squire quartet, and such other classics as Greybeard, Dark Light Years, and Galaxies like Grains of Sand. E-Reads will also publish a new work, Finches of Mars.
The reissue program will begin with fifteen titles, but E-Reads has an option to acquire the balance of Aldiss’s enormous output. The author is writing new introductions.
The deal was handled by John R. Douglas of E-Reads and Robin Straus of the Robin Straus Agency, Aldiss’s United States literary agent. Says Douglas, “I’ve been reading Aldiss for more than forty years and had the pleasure of working on the original publication of some of his works. It’s a privilege and delight to bring his books back as e-books. And to publish an original work of his – Finches of Mars – is a huge bonus.”
Brian W. Aldiss (http://brianaldiss.co.uk/) was born in Norfolk, England in 1925. Over a long and distinguished writing career, he has published award-winning science, bestselling popular fiction including the three-volume Horatio Stubbs saga and the four-volume The Squire Quartet and many other iconic and pioneering works including the Helliconia Trilogy. His most famous story, Super-Toys Last All Summer Long, was adapted for film by Stanley Kubrick and produced and directed after Kubrick’s death by Steven Spielberg as A.I. Artificial Intelligence.
E-Reads (www.ereads.com), founded in 2000 by Richard Curtis, is a leading publisher of backlist fiction in such genres as fantasy, science fiction, romance, mysteries and thrillers. Brian Aldiss will be in the company of such masters of fantasy and science fiction published by E-Reads as Piers Anthony, Greg Bear, Jeff Bredenberg, Jeffrey Carver, John DeChancie, William C. Dietz, Dave Duncan, George Alec Effinger, Harlan Ellison, Alan Dean Foster, James Gunn, Fritz Leiber, R. A. McAvoy, John Norman, Rudy Rucker, Pamela Sargent, Dan Simmons and George Zebrowski.
For information, contact John Douglas, 212 772 7363, email@example.com
Robin Straus, 212 472 3282, firstname.lastname@example.org
We asked Dave Duncan to write something for us about Lord of the Fire Lands, the middle novel in his King’s Blades trilogy. When he did he revealed a secret that many readers may find incomprehensible but every professional writer will recognize.
When asked how I write, I always stress the importance of knowing the ending of a book before writing the beginning. There are exceptions, though, and Lord of the Fire Lands was certainly one of them.
In its first version, it ended with the treaty negotiations, a scene that is still there. I was working well ahead of my submission deadline back then, so I put the MS aside to marinate while I worked on something else. When I came back to it to apply a final polish, I decided that the ending was too abrupt. So I wrote some more. That didn’t work. I tried again, with the same result. And again.
At that point Radgar, who is probably the most complex character ever to emerge from my word processor, completely took over. I have had characters awaken to a life of their own and try to upstage everyone else—Katanji in “The Seventh Sword” series, for example—but none quite as vividly as Radgar did then. He dictated the ending you will now find.
“You can’t do that!” I protested. “It’s barbaric. Moreover, you are completely ruining the final book.”
“The third book is your problem,” he replied, “and I certainly am a barbarian. This is my story, and this is how it must end.”
I argued as much as I dared, but Radgar was both armed and exceedingly dangerous, as you will see. Eventually he convinced me that this was indeed how he would act. The proof was that I did not need to change anything that had happened earlier, so “his” ending was correct for his story. I didn’t approve, but I had to let it stand. I took the dog for a long walk and worked out how I could salvage the rest of the trilogy. When the hardcover came out, I received so many protests from readers that we added a warning in the mass market edition, to the effect that you could read any book in the series, but not two, or you would have to read all three.
+ + +
The second series, “Chronicles of the King’s Blades” is also available in its entirety; these three books follow the Blades’ adventures after the reign of King Ambrose: Paragon Lost, Impossible Odds, and The Jaguar Knights.**
I also wrote a trilogy of YA novellas, “The King’s Daggers”, which E-Reads has re-issued as a single novel, The Monster War. That fills a story gap in the first series. So now you have all seven to look forward to.
PS: The Blades have been translated into at least seven other languages. Take a look at the cover of the French edition of The Gilded Chain and you will see how they struck a chord in the land of d’Artagnan.
November 23, 2011
** Also available as HarperCollins e-books