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This week’s episode of The Simpsons is full of pleasing references to David Foster Wallace’s famous essay A Supposedly Fun Thing I’ll Never Do Again, first published in Harper’s as Shipping Out: On the (nearly lethal) comforts of a luxury cruise and expanded in the essay collection that bears its new and lasting title. 

The connections begin obviously enough with the episode title, the grammatically-fussier A Totally Fun Thing That Bart Will Never Do Again. DFW geeks may also notice that the four-fingered family narrowly avoid being shunted onto a sugar-free fitness cruise (“welcome to eight days and seven nights of push-ups and kale!”) aboard the grim Nadir, which was DFW’s ironym for the Zenith, the luxury liner he spends nearly 30,000 words (plus footnotes) hilariously eviscerating. 

Even more piquant is this quick cameo of the man himself, sitting behind Bart in his celebrated tuxedo T-shirt:

The Fleet Bar was also the site of Elegant Tea Time later that same day, where elderly female passengers wore long white stripper-gloves and pinkies protruded from cups, and where among my breaches of Elegant Tea Time etiquette apparently were: (a) imagining people would be amused by the tuxedo-design T-shirt I wore because I hadn’t taken seriously the Celebrity brochure’s instruction to bring a real tux on the Cruise…

…and:

I, dickhead that I am, decided in advance that the idea of Formalwear on a tropical vacation was absurd, and I steadfastly refused to buy or rent a tux and go through the hassle of trying to figure out how even to pack it. I was both right and wrong: yes, the Formalwear thing is absurd, but since every Nadirite except me went ahead and dressed up in absurd Formalwear on Formal nights, I—having, of course, ironically enough spurned a tux precisely because of absurdity-considerations—was the one who ends up looking absurd at Formal 5*C.R. suppers—painfully absurd in the tuxedo-motif T-shirt I wore on the first Formal night…

Since it appears only in the footnotes to the essay, the tuxedo T-shirt probably occupies a whole additional level of DFW geekery, so hats off to the Simpsons writers for their delightful tribute. There are almost certainly even more stratospheric references visible only to even more dedicated DFW geeks than me. 

For what it’s worth, DFW might not have been entirely happy to be even further immortalised here. As he told Wisconsin Public Radio’s Steve Paulson in 1997:

I think The Simpsons is important art. On the other hand, it’s also—in my opinion—relentlessly corrosive to the soul, and everything is parodied, and everything’s ridiculous. Maybe I’m old, but for my part I can be steeped in about an hour of it, and I sort of have to walk away and look at a flower or something. 

This blog only occasionally traffics in gossip and salacity, and I don’t want to make a bad situation any worse, but I’m so appalled by A Current Affair‘s appalling interview of the appalling Leanne Edelsten by the appalling Martin King that I am compelled to express my horror and outrage (why doesn’t appal have a noun?) the only way I know how. 

I’m not going to link to the report just in case that would even minutely increase some financially-relevant metric for that execrable program, which frequently tempts me to turn in my passport or at least disguise my accent, but never so much as now. 

Ms Edelsten is the ex-wife of disgraced “medical entrepreneur” and former owner of the Sydney Swans Geoffrey Edelsten, and also of Edelsten’s lawyer, which isn’t the least bit relevant. The other night she clambered down into the ACA cauldron of slime and announced that she had been involved in a long affair with a mystery figure who was revealed after a minute to be Australian writer and media commentator Clive James, who is a friend and neighbour of this blog (though this blog has never met him). There followed about fifteen godawful minutes of Martin King pretending disapproval of Ms Edelsten’s home-wrecking ways without even trying to contain his prurient glee, while Ms Edelsten repeated his every schoolyard question two or three times before answering in coy tidbits like someone trying to teach a dog some abominable trick. All this was padded out even further by cutaways to the places in Sydney they allegedly met and hooked up, with archive footage of every leer or knowing wink James ever delivered on television. 

ACA then apparently brought Ms Edelsten to Cambridge and filmed her dropping in on James at the “squalid flat” where he has allegedly been banished. As we know, Clive James is now in his 70s and is (we hope) recovering from leukaemia. In the footage he looks pretty bewildered as he tries to have what looks like an intimate conversation with Ms Edelsten, who is leading him around by the arm like one of those nurses who kill all their patients for their pensions. It’s very hard to watch. 

“It’s not very nice for Leanne to discover where Clive is now living,” Martin King intones. “From this – to this, a dingy basement apartment in Cambridge.” The first this is the house pictured above, which is supposed to be Clive James’s house, but it isn’t. His house isn’t far away, but it’s not in this picture, or any of the pictures. The defensively shuttered windows shown in close-up aren’t his windows. Not that I think people’s actual houses and windows should be shown on television, but I’m not sure that showing the houses and windows of other people entirely is much better. Plus, if they’d shown the right house then I might have been able to see my own house on TV. On A Current Affair! But it wasn’t to be. 

If rest of the story is more accurate than the local geography then I’m not too thrilled with Clive James either, partly because his wife of four decades is by all accounts awesome and accomplished and is very movingly—if obliquely—described in his memoirs, but mostly because Ms Edelsten comes across as quite an objectionable person and the relationship as she describes it is toe-curling and hideous. But what standards of integrity and taste can we demand of our poets and critics, let alone the people who help us laugh at Japanese game shows? In short: why is this on television? No, don’t tell me, I know. 

In the wake of the Australian High Court decision in Roadshow Films v iiNet [2012] HCA 16, though not entirely apropos of it, Prof Stuart Green of the Rutgers School of Law tells the Australian Broadcasting Corporation that illegal downloading is more similar to the crime of trespass than of theft:

“To say that there was a trespass is traditionally understood to mean that there was a temporary use of someone’s property without permission,” he said. “If someone trespasses on your property it means that they’ve come uninvited but they haven’t deprived you of use. They haven’t deprived you of the basic possession of the property.

This is something I’ve been arguing in pubs and such for some time, so I’m glad to have at some academic support. If you copy my movie or book or whatever without permission, you’ve enjoyed something for free that the law says I can exclude you from or else charge you for as I see fit. What I hold is something like a property right, but it’s not so much like a right in tangible personal property—which can be stolen, destroyed or used up—as like a right in real property, which I own up to heaven and down to hell and come what may. 

Say I’ve got some land on a hill with a beautiful view. I might charge people to climb my hill and have a look—and if trespassers sneak in at night they’ve acted contrary to my right to charge or exclude them, but it’s a stretch to say that they’ve stolen anything from me. So it is with copyright infringement. It’s not the same as stealing a DVD off a shelf, where a retailer has paid for that DVD and now won’t be able to sell it to anyone else. It’s more like sneaking in to see a movie without paying, where the loss suffered is more amorphous and harder to quantify.

One difference between copyright infringement and trespass to land is that it’s not likely that literally millions of people would sneak up my hill at night, perhaps vastly outnumbering the people who paid, with almost nothing I could do to stop them. But I’m not sure that the empirical consequence of many repetitions of an individual act should be allowed to affect the legal nature of that act, or to call it anything other than what it is. 

Does it matter? I think it does. Intellectual property is valuable and the people who develop it deserve to be paid. But punishing breaches of copyright is never going to be as effective as persuading people not to infringe in the first place. And we won’t persuade them of anything by presenting them with bad arguments whose premises they instinctively feel to be false. Rather than the simple-but-wrong equation of copyright infringement with theft, I think it’s worth making slightly more complex and much more sustainable arguments. As Green has said previously:

So what are the lessons in all this? For starters, we should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind. Second, we should recognize that the criminal law is least effective—and least legitimate—when it is at odds with widely held moral intuitions.

Illegal downloading is, of course, a real problem. People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it’s reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn’t, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.

This is not merely a question of nomenclature. The label we apply to criminal acts matters crucially in terms of how we conceive of and stigmatize them. What we choose to call a given type of crime ultimately determines how it’s formulated and classified and, perhaps most important, how it will be punished. Treating different forms of property deprivation as different crimes may seem untidy, but that is the nature of criminal law.

I’m looking forward to the anti-piracy ads to come: You wouldn’t sneak into a movie. You wouldn’t dodge a bridge toll. You wouldn’t just have a picnic in someone’s field. Downloading pirated films is conceptually a lot like trespass. Trespass is against the law. Piracy. It’s a crime. Just not that one. 

This may be enough to justify the entire Internet: inadvertent lines of iambic pentameter automatically harvested from Twitter, arranged into rhyming couplets and then into sonnets (well, groups of 7 couplets).

I fucking #love the wonder years. Okay?
I’m just an aggravated mess today. ????
In English………. Romeo and Juliet
Why isn’t Marijuana legal yet?

I have a practice. Party is in may
yew gotta operate the easy way
The angels sang a whiskey lullaby.
Another day another dollar sigh

Good morning =) ! Thankful for another day !
I’m bringing extra shirts & cooling spray
Another day another dollar #Grind
Eternal Sunshine of the Spotless Mind :)

My teachers playing climax .. OH OKAY.
Goodmorning!!!(: feeling good about today(:

Feature requests: iambic tetrameter (marvellous, swift meter) and Pushkin sonnets (ABAB CCDD EFFE GG). Thanks to the Boings.

An 800-pound one, obviously—but the rampaging, Manhattan-crushing terror of King Kong, or the misunderstood, nurturing crowd-pleaser of King Kong?

My always-switched-on agent was the first to forward me this piece by Charlie Stross about the giant e-tailer’s desire and ability to dominate the still-vulnerable e-book industry by controlling both the sale of e-books to the public and the purchase of those e-books from publishers—creating a monopoly in the downstream market and a monopsony in the upstream.

Stross argues that the publishers did just about everything in their power to put Amazon in this position in the first place, mostly by requiring Amazon to secure their e-books with digital rights management that locked the books to Amazon’s Kindle hardware:

By foolishly insisting on DRM, and then selling to Amazon on a wholesale basis, the publishers handed Amazon a monopoly on their customers—and thereby empowered a predatory monopsony.

I’m going to have to come back to the casual use of “predatory” here, but it’s not really necessary to Stross’s conclusion:

So, because Amazon had shoved a subsidized Kindle reader or a free Kindle iPhone app into their hands, and they’d bought a handful of books using it, the majority of customers found themselves locked in to the platform they’d started out on. Want to move to another platform? That’s hard; you lose all the books you’ve already bought, because you can’t take them with you.

Now, I also think DRM is wrong-headed and contemptible, and I make it a point never to buy any DRM-protected media unless I know that the tools exist for me to unlock it if I need to in the future. But many people don’t realise either that the DRM is there in the first place or that they can break it, and so they can easily find themselves constrained within a particular ecosystem, and that can have powerful anti-competitive effects.

However, as I hinted last time, I don’t believe that in Amazon’s case the effects are as strong as they used to be, or as many people still think. See for example Jordan Wiseman’s analysis in The Atlantic, somewhat hysterically headlined (though probably not by him) “The Justice Department Just Made Jeff Bezos Dictator-for-Life”:

Thanks to the use of DRM technology, most eBooks can only be read on a proprietary device. Amazon’s eBooks can only be read on a Kindle, or a Kindle app. Barnes & Noble’s books can only be read on a Nook. So the larger a library any one customer builds with a single retailer, the less likely it is they’ll ultimately switch.

The problem is that Wiseman and even Stross seem to blithely align Kindle devices and Kindle apps as if they’re the same thing, but they’re not.

When you could only read Kindle books on a physical Kindle, Amazon could afford to take a bath on best-sellers, and perhaps barely break even on overall e-book sales, knowing that everyone who bought a cheap Kindle book must also have bought a Kindle at a much healthier margin. This gave Amazon a competitive advantage over the few retailers of e-books who couldn’t subsidise their low prices with hardware sales, and helped to establish Amazon as the major presence in the sector.

But in response to the iPad, the iBookstore and the agency model, Amazon changed its strategy substantially. It now looks like it’s making the bulk of its money from selling e-books, not from selling Kindle hardware.

The first Kindles were priced far higher than their estimated build costs, but every Kindle since the launch of the iPad and the agency model has been priced close to marginal cost or even below it—these are the “subsidized” Kindles Stross is talking about; it’s clear that either the books or the hardware can be subsidised, but they can’t both subsidise each other.

Kindle reader apps are now available for the PC, the Mac, the iPad, iPhone and iPod Touch, and for Android phones and tablets. Amazon doesn’t say how many Kindles have been sold, but it did brag that it had shifted “well over 1 million” each week for December 2011. By contrast, Apple sold three million new iPads in the four days following launch. And every iPad is potentially a Kindle reader: right now the Kindle app is the seventh-most-downloaded free iPad app, five places above Apple’s own iBooks app. It doesn’t seem too much of a stretch to conclude that more people read Kindle books on iPads than on Kindles; and in fact they read more Kindle books on their iPads than they read iBooks.

This suggests to me that hardware lock-in isn’t what it used to be. Yes, you’re still using Amazon’s platform, but who cares? You can use it on any computer and just about any tablet that you’re likely to buy. Yes, your Kindle books will forever be accessed through your Kindle app and not your iBooks app, but that’s not such a high price to pay—many people have more than one bookshelf in their homes. It’s not as good as an open, DRM-free standard, but it’s not true to say that you can’t easily take your books to another platform (unless you’re trying to move from the Apple ecosystem).

Amazon can still price below cost, of course, but under the new arrangements it can’t expect to make up the resulting losses from hardware sales. It will quickly lose actual money—unless it can drive all its competitors out of the market, and keep them out long enough to raise prices high enough to make up its earlier losses. This is much harder than it sounds, and has led some economists to wonder whether predatory pricing is actually a real thing that ever works. And when one of the competitors you’re trying to drive out is Apple—which still sells all its hardware at a substantial margin, and could subsidise iBooks if it wanted— it’s even harder.

I also don’t think Amazon can return to its old strategy of high-margin hardware and unprofitable e-books that are only available on that hardware. By my wild guess, millions of Kindle books have been sold to people who don’t own any Kindle hardware at all, and I don’t see how Amazon can cut them loose now—either by withdrawing their apps altogether or refusing to sell them any new books. So many gallons of ink and e-ink have been lately spent explaining why Amazon is a predatory monster precisely because most customers like Amazon—for its cheap prices, yes, but also for its above-average customer service. For most people—seeing as there are more customers than suppliers around—Amazon still looks like the good guy in this fight, while the publishers are coming off as sneaky or clueless. If public opinion were to turn against Amazon—as it surely would if it suddenly cut off everyone’s non-Kindle Kindle books—I think it would be in much more trouble than it is.

Amazon might still return to a dominant position in e-book acquisition and retailing—if it ever relinquished that position—but it won’t be because of DRM or predatory pricing; from now on, it will have to be through scale economies and giving customers what they want. What that might mean for the future of publishing and even writing is, I think, anybody’s guess.

More than two years ago (but shamefully still on the same blog page as this entry) we spoke of the imminent launch of the iPad and iBookstore and their consequences for e-book pricing and distribution. I noted that Steve Jobs seemed eerily sanguine about competing with Amazon and its heavyweight Kindle Store despite projected iBook prices being 30% to 50% higher than their Kindle equivalents. “The prices will be the same,” Steve predicted breezily.

And he was right. Amazon’s famous $9.99 new releases and bestsellers are no more, and now most new trade books cost $12.99—the same as they do on the iBookstore, and indeed on the Nook Store, the Kobo Store, and whatever Google is calling its e-bookstore this week. How did Steve know? According to the US Department of Justice, it’s because Apple had already agreed with the major publishers to engineer an industry-wide shift from the traditional wholesale-retail model to a new agency model that would allow publishers to set retail prices directly, paying distributors a uniform 30% commission instead of charging a wholesale price.

On the face of it, this was never an astounding deal for publishers or authors: if the old wholesale price for a new release was $10 or more (so that Amazon’s $9.99 broke even or lost money, as has always been argued) then taking $9.09 on a $12.99 title doesn’t seem like much of an improvement. But it seems the publishers were more worried about customers getting used to the $9.99 price point and being reluctant to pay any more than that for either e-books or printed books into the future. As a result, they’ve been willing to sacrifice some short-term revenues—and allegedly limit retail prices to the tiers agreed with Apple—in order to wrest control of the emerging e-book market from a powerful Amazon.

I’m a bit conflicted about all of this since I like basically all of the parties involved. As an itinerant reader I like e-books as well as print books, and I sure liked Amazon’s lower prices. I also like Apple hardware, and have a ton of Kindle books on my iPad. As a writer I like publishers and want them to make money and keep publishing books and paying advances—though I would rather see them competing among themselves to innovate in the emerging market instead of just coordinating to prop up print sales. And as a sometime competition lawyer I like the Antitrust Division of the Department of Justice and am not at all sure that the best answer to a dominant Amazon is the elimination of retail price competition.

Anyway, Hachette, Simon & Schuster and HarperCollins have all settled with the DoJ, and will have to renegotiate with Apple and stop preventing other retailers from discounting e-books to undercut the iBookstore. This is essentially a renunciation of the agency model, since an agent who can set the retail price isn’t really much of an agent. Macmillan—the first to force the agency model on Amazon—and Penguin have refused to settle, and Apple has denied everything. The world’s biggest trade bookseller, Random House, quietly adopted the agency model in February 2011 but has escaped the DoJ’s wrath and is referred to only obliquely in the filing as “the holdout publisher” and “the non-defendant publisher” bullied by the other five and Apple for not going agency sooner.

What happens if the DoJ wins or settles with the remaining publishers and the agency model is consigned to a footnote? The publishers and Authors Guild president Scott Turow argue that Amazon will return to its below-cost pricing and kill all other electronic and print outlets. I’m not convinced that this will happen, partly because it’s not clear to what extent Amazon’s pricing was ever properly predatory, and partly because things have changed considerably in the past two years.

Going in the face of the conventional wisdom, the DoJ asserts, presumably on information from Amazon, that:

From the time of its launch, Amazon’s e-book distribution business has been consistently profitable, even when substantially discounting some newly released and bestselling titles.

I’m going to assume that Amazon isn’t sneakily accounting Kindle hardware sales into its “e-book distribution business” and conclude that, even if Amazon did sell new releases and New York Times best-sellers at or slightly below the wholesale price it paid to publishers, it could still turn a profit overall by charging comfortably more than the wholesale cost on other books—the slightly older or more specialist titles that make up its immensely long tail. You can see this strategy at any physical bookshop.

The kick from Kindle hardware must have been a factor, but I wonder whether this would still be such a big deal if the wholesale-retail model were to return now. Remember that for the first two years of the Kindle Store, you could only read a Kindle book on an actual Kindle—unless you went to the trouble of decrypting and converting it to read on your computer or sideload onto another e-reader. In very late 2009 Amazon released its Kindle Reader for PC, and since then has provided its own apps for almost every major mobile and desktop operating system, as well as the Kindle Cloud Reader that lets you read your Kindle books on any browser.

As a result, there’s no longer any guarantee that a loss on a Kindle title will be offset by any sale of Kindle hardware: instead, cheap Kindle books are just as likely to drive iPad sales (whereas you can’t read an iBook on any non-Apple device without significant hackery). At any rate, Amazon’s ability to subsidise e-books from hardware sales is no greater than Apple’s or Barnes & Noble’s. Amazon’s expansion beyond the Kindle may well have been a response to the new agency arrangement, but it’s hard to see them going back on it now.

The agency arrangements have certainly fostered new competitors to Amazon and levelled the field somewhat. But without retail price competition and the ability of retailers to experiment with new models, this is not a competitive system in any substantive sense—Scott Turow’s “the government may be on the verge of killing real competition in order to save the appearance of competition” is catchy but empty. The agency model, whether it resulted from a conspiracy or not, may have been a useful transitional arrangement in a fragile emerging market, but I don’t think it’s healthy in the long run. I want to see what happens next.