A week after Amazon.com launched a program that could allow customers to view as much as 20% of a title, publishers expressed opinions that ranged from wary to enthusiastic, while legal authorities said the program presented a number of problems.
One of the most committed publishers to join the program is John Wiley. Dean Karrel, the publisher's v-p of trade sales, said the house is making available 5,000 titles, including reference works and cookbooks, thought to run the greatest risk of losing sales to online viewing."
We felt we had to give it a chance, given the success of Look Inside the Book," Karrel said, referring to the program's earlier phase. Still, he added, "we want to see which categories work and which don't." He said Wiley will closely monitor sales of these books.
But while Wiley is enthusiastic, one publisher that has been vocal in its concerns continued to worry. "I feel we have a duty to our authors to make sure that people can't read or repurpose their entire book," said Penguin CEO David Shanks. The new system "must be proven unfailingly safe" before Shanks would consider deepening what he described as his company's limited role in the program. Norton took it a step further, with spokesperson Louise Brockett saying the publisher had declined to participate entirely.
Other publishers, meanwhile, found themselves staking out a middle ground. Random House is said not to have provided cookbooks or other informational titles but did make available novels and narrative nonfiction.
Publishers' reactions were mostly mild, compared to other groups. The Authors Guild sent an e-mail to its members advising of potential copyright violations and said that the program posed a difficult choice—between the appeal of promotion and the risk of lost sales—as well as serious legal problems. "We've reviewed the contracts of major trade publishers and concluded that these publishers do not have the right to participate in this program without their authors' permission," wrote the Guild.
The Authors Guild ran its own tests and said it was disappointed with the results. "It took a member of our staff about 20 minutes to download and print 20% of a book," said the Guild's legal counsel, Kay Murray. "Five college students working on different computers could download an entire book, so for Amazon to say it's no more than a few pages—that's just wrong." Murray said the Guild is debating further action. If publishers agree to ask Amazon to take books down as soon as an author makes a request, she said, that would make such action unlikely. A few authors, Murray said, have already registered such wishes to their houses.
Publishers contacted by PW said they are watching Amazon's security measures closely, with one executive noting, "It's not just a question of whether it's a pain in the neck. It's a question of whether [users] can learn the trick and can download an entire book even if it is a pain in the neck."
Publishing legal expert Martin Garbus said he also found the absence of author permissions troubling. "It really makes you wonder whether they [Amazon] thought about this before they went ahead and did it," he said. Garbus said that there are exceptions to the rules about contract language—for example, if a repurposing is "part of the accepted culture of marketing a book," such as a reading—but that these exceptions seemed unlikely to apply to searchable text. He allowed that Amazon has waded into new technological territory and thus may have some leeway, a point made stronger by the fact that unlike other redistribution cases, Amazon never reveals more than five pages at a time. But, Garbus noted, most claims will reside in a "pre-Tasini world," where authors have a strong case if they challenge under old contract language, as they did in that landmark ruling about the redistribution of print media, requiring publishers to pay authors whose works were repurposed in electronic formats.
All of this raised the prospect of an Amazon clause in author contracts, or, if enough publishers resist, even a change in the program, which at least one expert said he didn't think was impossible. "The tuning here is something people aren't really talking about," said one publisher. "People forget that if something isn't working, Amazon could re-set it with a keystroke."
