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Save Barnes and Noble!

From The New York Times, via Passive Guy:

Barnes & Noble is in trouble. You hear that, in worried tones, when you talk to people in the book business. You feel it when you walk into one of the chain’s stores, a cluttered mix of gifts, games, DVDs (DVDs?) and books. And you really see the problems if you dig into the company’s financial statements.

Revenue from Nook, the company’s e-book device, has fallen more than 85 percent since 2012. Online sales of physical books have also plummeted. At the stores, where business was once holding up, it’s down about 10 percent over the past two years. Several stores — like my local one, in the Washington suburbs — have closed, and many have reduced staff.

The company’s leaders claim that they have a turnaround plan, based on smaller, more appealing stores focused on books, and I hope the plan works. It’s depressing to imagine that more than 600 Barnes & Noble stores might simply disappear — as already happened with Borders, in 2011. But the death of Barnes & Noble is now plausible.

. . . .

The full story revolves around government policy — in particular, Washington’s leniency, under both parties, toward technology giants that have come to resemble monopolies. These giants are popular, because they provide good products and service. But they have also become mighty enough to vanquish their competitors and create problems for society.

. . . .

 

For most of American history, the government viewed giant corporations of any kind as inherently problematic. Their size gave them too much power — to eliminate competition, raise prices, hold down wages and influence politics. So the government passed laws to restrain businesses and occasionally broke up the largest, like Standard Oil and AT&T.

In the 1970s, however, a new idea took hold: Size was not a problem so long as prices remained low. Bigness could even be good, because it promoted efficiency and thus lower prices. The legal scholar Robert Borkwas the most influential advocate for this view, and it soon guided the Supreme Court, the Reagan administration and pretty much every administration since.

But the theory has two huge flaws, as a new generation of scholars, like Lina Khan, is emphasizing. One, prices are not a broad enough measure of well-being. Wages, innovation and political power matter as well. If prices stay low but wages don’t grow — which is, roughly, what’s happened in recent decades — consumers aren’t better off. Two, regulators have focused on short-term prices, sometimes ignoring what can happen after a company drives out its rivals.

. . . .

The book business is looking like a case study. Amazon is taking over, yet has never run into antitrust scrutiny. It has reduced prices, after all. It sells many e-books for $9.99 and hardcover best sellers at a big discount. So what’s the problem?

Plenty. Amazon has been happy to lose money on books to build a loyal customer base, to which it can then sell everything else. “Amazon isn’t primarily concerned about books these days,” Oren Teicher, who runs an association of independent bookstores, told me. “They are far more focused on getting consumers into their ecosystem so they can sell them every other product under the sun.”

But the artificially low prices have created a raft of problems. Fewer books are commercially viable. Publishers are focusing on big-name writers. The number of professional authors has declined. The disappearance of Borders deprived dozens of communities of their only physical bookstore and led to a drop in book sales that looks permanent.

. . . .

“It’s in the interest of the book business,” Teicher says, “for Barnes & Noble not just to survive but to thrive.”

Link to the rest at The New York Times and thanks to Susan and others for the tip.

PG suggests the fundamental purpose of antitrust law is not to benefit the corporate losers in commercial competitions, but rather to benefit consumers by promoting competition in a variety of marketplaces.

These laws are not intended to punish successful competitors because of their size or to permit courts to choose winners and losers in the marketplace.

In an active marketplace, consumers will be benefited by the improvements in products or services and/or the lowering of prices that result when sellers are competing for the business of buyers. Each seller is focused on capturing and holding the loyalty of buyers by providing a more attractive product or service to those buyers. Buyers vote with their dollars, but no seller can assume that their customers today will be their customers tomorrow unless the sellers continue to attract and serve buyers with features the buyers desire tomorrow, whether they be price, selection, service, a better purchasing experience or whatever buyers value tomorrow.

Consumers are subject to the threat of substantial damage in a market that is not competitive because established sellers are relying on something other than the free choices of buyers to select the most attractive product or service by interfering with the competitive process.

How has Amazon beaten many of its competitors? Better prices, certainly, but also with better service (2-day delivery with Prime and real-time updates on delivery status, for example), a huge selection of goods, lots of customer reviews to provide additional information to prospective purchasers and easy returns and refunds if a product does not satisfy a customer.

As compared with physical stores like Barnes & Noble, an Amazon customer can choose from a far, far wider selection of books than any Barnes & Noble store carries. An Amazon customer can typically purchase books for lower prices than are offered at a Barnes & Noble store. An Amazon customer can purchase a book when a Barnes & Noble store is not open or not convenient to visit or staffed by sullen clerks working for little more than minimum wage.

An Amazon customer can purchase books from independent authors instead of large corporate publishers exercising monopoly power by offering authors substantially identical terms and compensation as other corporate publishers do. When an Amazon customer makes such a purchase, she can do so knowing that much more of the price she pays for the book will be received by the individual author than would be the case if a purchase was made from a corporate publisher. A savvy purchaser will know that she is not subsidizing the victimization of authors by corporate publishers as has occurred on several occasions during recent memory.

 

 

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Tom Wolfe

Author Tom Wolfe has died.

From The Wall Street Journal:

Tom Wolfe, the best-selling alchemist of fiction and nonfiction who wrote “The Bonfire of the Vanities,” “The Right Stuff” and countless other novels and works of journalism, died of pneumonia in a New York hospital Monday, said his longtime agent Lynn Nesbit. He was 88 years old.

Mr. Wolfe was a creator of New Journalism, a bracing watershed in immersive reporting and visceral writing that removed the authorial distance and plunged readers into situations such as the early years of America’s space program.

In “The Bonfire of the Vanities,” he cast a scorching lens on the mores of New York City’s philanthropists during the flush years of the 1980s. A number of years later, his novel “A Man in Full” examined race relations and swashbuckling property developers in the South.

Mr. Wolfe’s scalding humor and creative language introduced into the lexicon expressions such as “Radical Chic” (when describing Leonard Bernstein mingling with activists in his Manhattan apartment) and “social x-ray” (a term for the Upper East Side hostesses whose anorexic frames masked social ambitions executed with Samson-level strength.)

Link to the rest at The Wall Street Journal

Here are a few quotes. Some are from Wolfe himself, others are statements his characters have made in his books.

I do novels a bit backward. I look for a situation, a milieu first, and then I wait to see who walks into it.

. . . .

I went to see the Beatles last month… And I heard 20,000 girls screaming together at the Beatles… and I couldn’t hear what they were screaming, either… But you don’t have to… They’re screaming Me! Me! Me! Me!… I’m Me!… That’s the cry of the ego, and that’s the cry of this rally!… Me! Me! Me! Me!… And that’s why wars get fought… ego… because enough people want to scream Pay attention to Me… Yep, you’re playing their game.

. . . .

I didn’t know what in the hell it was all about. Sometimes he spoke cryptically, in aphorisms. I told him I had heard he didn’t intend to do any more writing. Why? I said.

“I’d rather be a lightning rod than a seismograph,” he said.

. . . .

Sherman made the terrible discovery that men make about their fathers sooner or later… that the man before him was not an aging father but a boy, a boy much like himself, a boy who grew up and had a child of his own and, as best he could, out of a sense of duty and, perhaps love, adopted a role called Being a Father so that his child would have something mythical and infinitely important: a Protector, who would keep a lid on all the chaotic and catastrophic possibilities of life.

. . . .

He sounded like Jean-François Revel, a French socialist writer who talks about one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe.

. . . .

Everything was becoming allegorical, understood by the group mind, and especially this: “You’re either on the bus … or off the bus.”

. . . .

Las Vegas is the only town in the world whose skyline is made up neither of buildings, like New York, nor of trees, like Wilbraham, Massachusetts, but signs.

. . . .

My entire career, in fiction or nonfiction, I have reported and written about people who are not like me.

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Trademark Shenanigans: Weighing In On #Cockygate


Posted by Victoria Strauss for Writer Beware

If you’re a writer, and you hang out on Twitter and Facebook, you’ve probably heard about #cockygate.

If you haven’t….An author named Faleena Hopkins has registered two separate trademarks for the word “cocky”, which is used in all the titles of her multi-book romance series. One of the trademarks is a design mark (the word “cocky” in a stylized font, as seen above); the other is a word mark (just the word “cocky”). Both refer to “a series of downloadable e-books in the field of romance” and “a series of books in the field of romance.”

That description is significant. Because over the past week, Hopkins has begun threatening other romance writers who use “cocky” in their titles–even where those titles are not part of a series, or the word is not used in a series title–with legal action unless they re-title and re-publish their books.

Hopkins says (according to private messages that have been shared with me) that she’s “not after people’s livelihoods”. She also doesn’t think what she’s demanding is a big deal, because taking down and re-publishing a book is “very simple. So easy.” Of course this is a ridiculous claim–especially where writers have multiple editions on multiple platforms, not to mention financial investments in swag, advertising, websites, and other branding efforts.

There’s been plenty of coverage of this bizarre incident. Legal experts have weighed in as well. I spoke with trademark attorney Brad Frazer, who provided me with some clarifying information on a complex and confusing issue.

Note that neither of [Hopkins’ trademarks] is, for example, “a trademark on the word ‘COCKY’ as used in book titles.” The registrations cover a book series, and this is made evident if one looks at the 9-page specimen of use she submitted to the Trademark Office to support the registration: http://tsdr.uspto.gov/documentviewer?caseId=sn87604968&docId=ORC20180416120311#docIndex=9&page=1. Note that “Cocky” appears in each of the titles in a manner that connotes that the book is printed as part of the “Cocky”-brand book series. Indeed, without the fact the word is used as part of a book series, it is unlikely Hop Hop Productions [Hopkins’ company] could have obtained the registrations.

This is because–and this is critical–in order for a trademark to exist and be registrable and enforceable, it must perform a “source identification function.” Here, Hop Hop was able to convince the Trademark Office that it has, since June of 2016, used the word “Cocky” to indicate the SOURCE of a series of romance books, and thus it was able to get it registered. There likely had to be a series of books for Hop Hop to convince the Trademark Office that the word “Cocky” performed this source identification function—one book with “Cocky” in the title would likely not have been enough to convince the Trademark Office, especially given that Hop Hop has ostensibly used the mark for less than two years. Just like when people see “Harlequin” on a book, they think of Harlequin Enterprises as the SOURCE of that book because “Harlequin” indicates more than just a book title. It indicates the SOURCE. See http://tsdr.uspto.gov/documentviewer?caseId=sn72184920&docId=ORC20081030112630#docIndex=10&page=1.

Because source identification is necessary to create and register a trademark, in order for there to be trademark INFRINGEMENT, as Hop Hop has apparently alleged in certain cases, the allegedly infringing “thing” must also be performing a source identification function. Thus, not all uses of a word perform a source identification function, and if there is no such use, there likely can be no trademark infringement.

For example, imagine I titled my book, “The Apple Tree and the Pheasant.” Would a consumer realistically believe that Apple Computer was the source of that book? No. Or, imagine I titled my book, “The Harlequin Pleased the King.” Based strictly on that use of the word “harlequin,” would a consumer think that Harlequin Enterprises was the source of my book? No, and thus no trademark infringement.

This is supported by what is called in trademark law the “classic fair use defense.” It is well-settled that you may use a third party’s trademark in the ordinary, English-language sense of the word, and as long as it was not performing a confusing, source-identification function, there is likely no trademark infringement. For example, if I wrote a story about King Neptune and his trident and I titled it, “King Neptune’s Powerful Trident,” if I got sued by the owner of the “Trident” trademark (see http://tsdr.uspto.gov/documentviewer?caseId=sn71653425&docId=ORC20110315095116#docIndex=18&page=1), I would have a very good classic fair use defense in that lawsuit since I am using the word “trident” in its normal, English-language construction (see https://www.merriam-webster.com/dictionary/trident) and NOT TO INDICATE THE SOURCE OF THE BOOK.

Thus, if you have one book and it is titled, for example, “The Gardener was a Cocky Lad,” I invite you to ask: is your use of the word “cocky” performing a source identification function such that people would be confused into thinking that Hop Hop was the source of your book? Is it being used only in a classic fair use sense to describe the gardener in your story as cocky, as defined by Webster? (See https://www.merriam-webster.com/dictionary/cocky)

Now, trademark law is very fact specific, and each case must be decided on its relative merits. There may be some cases in which use of the word “Cocky” in a book title does create a likelihood that a consumer would be confused into believing that Hop Hop was the source of that book. But that is the test. Without that likelihood of consumer confusion, proving trademark infringement is very difficult. But please consider these factors if you receive an allegation of trademark infringement as to your book titles.

Most legal commentary that I’ve read on l’affaire Cocky seems to agree that Hopkins’ trademarks wouldn’t stand up to a legal challenge. But authors who receive her threats–which admittedly are scary–may not realize this, or be able to afford legal counsel (at least some authors have already re-titled their books). Also, more concerningly, Hopkins is sending takedown requests to Amazon, which appears to be complying in at least some cases. Once Amazon takes down your book in response to a challenge, getting it reinstated is a nightmare.

Romance Writers of America is gathering information to consult an IP lawyer, and is asking that RWA members who’ve gotten a threat letter from Hopkins contact Carol Ritter (carol.ritter@rwa.org). Also, a petition has been filed with the US Patent and Trademark Office to cancel Hopkins’ word mark (the design mark, with “cocky” in a stylized font, is apparently a copyright violation by Hopkins).

And two lawyers at a prestitious IP law firm have offered to work pro bono on a legal challenge.

Meanwhile, the #cockygate hashtag has been joined by #byefeleena. And Hopkins is taking refuge in that old, old claim of Writers Acting Badly: I’m being bullied!

Let there be ridicule.

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Quick Link – The Aspiring Writer: Impostor Syndrome

Quick links, bringing you great articles on writing from all over the web. What makes someone a “writer”? Do you sometimes feel like a fake and are just waiting for people to notice? J.F. Gibson has a great piece about dealing with imposter syndrome as a writer. Check it out! You will feel better! ~ […]

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