By some strange coincidence, I decided to wrap up my take on Eugene Volokh’s series “The Future of Books Related to the Law” on the eve of CES 2010, a portentous event for those of us following the development of eReaders and slate computing technology. (My previous posts are here: No. 1, No. 2, No. 3, and No. 4.) Knowing that Professor Volokh’s series was written in part to flesh out ideas for the Foreward to Michigan Law Review’s 2010 Books Related to the Law issue (which won’t be out until April), I will be very interested in reading the finished piece, which will follow not only the vendor announcements at CES, but also Apple’s possible announcement of the iSlate and other mobile computing products on January 26th. This month should be pretty fun.
Post No. 5
In his fifth post, Prof. Volokh focuses our attention on the problem of lending electronic books. More specifically, if manufacturers and publishers want to move into the eBook space, they will have to figure out a way to compete with the library. Like Post Nos. 3 and 4, No. 5 assumes that vendors want to make their catalogs available as eBooks. As readers of my takes, you know that I disagree with this assumption, believing instead that most current legal publishers will enter the space kicking and screaming if they can’t bypass it altogether (which I believe we will).
There is no doubt that the explosion of eReaders has brought to light some significant issues with regard to a consumer’s rights, lending being one of them. And when we use the word “lending” here, we’re really talking about two different concepts: access and borrowing.
When the Barnes & Noble nook was announced, the LendMe feature had a lot of bloggers buzzing because it would allow the owner to “lend” the book (in the borrowing sense), as you would a physical copy, to any other friend who has a nook or is running the B&N eReader software (on PC, Mac OS, iPhone, or iPod Touch). This was heralded as a significant advancement over the current eReader leader, the Kindle. When the nook was released in October, the same bloggers seemed surprised to find that you could only lend the book if the publisher allowed for lending and then, only once for 14 days, ever. This limitation did not strike me as odd at all given the discussions I’ve had with other publishers about DRM issues.
I think what was more important (and strangely overlooked) about the nook announcement was the fact that B&N has designed (although I don’t think it is available yet) an eBook ecosystem—which will be accessible only by nook owners and only via Wi-Fi in the store—that allows you to “browse” electronic books in the same way as you would physical ones. This version of lending is about access. Whether this browse feature is limited in any significant way remains to be seen, but the fact of its existence suggests the technology is available to support in-library lending, and as a proof-of-concept, would arguably work for libraries as well, assuming publishers would grant such rights.
Unfortunately, Prof. Volokh does not clarify in Post No. 5 whether his lending system is meant in the accessing or borrowing sense, or both. I’m assuming that he would say libraries should allow you to check out and leave with an electronic book as well as accessing it in the library. As far as eReaders go, I think the borrowing system is much more problematic for publishers than the accessing system. The nook might be a good metaphor for this struggle. And if we conceptualize law libraries (like bookstores) as “third places,” then the accessing-only model makes perfect sense, and something publishers might work towards.
Post No. 5 goes on to explicitly state that everyone—libraries, users, and publishers—can “all profit from making it possible to lend e-books on much the same terms as libraries can now lend books.” How this is accomplished is less clear. Undoubtedly, an eBook ecosystem would save libraries money because it reduces the time and expense of maintaining stacks (which includes everything from procurement, payment, lending, shelving, etc.). From the publisher’s perspective, I would encourage this move if I could actually charge the library more, not less, for the eBooks and the ecosystem. Some percentage of the dollars saved on maintaining the stacks should come to me for helping the library eliminate the expense. This is the only way I can see publishers willing to create the system. There would still be a balance, however, with the library achieving a net reduction in costs.
In the end though, I think law publishers will skip over eReaders. I’ll acknowledge that some ePubs and pdf books will hit the virtual shelves, but there’s been too much investment in training law students and lawyers to look online. Our interaction with the law library is uniquely different than with the bookstore, and if I can provide the library with an effective web-based service that allows lending in both the access and borrowing sense (because DRM is more easily implemented via the web than over dozens of different eReaders), I will go that route instead.
As an aside, I recommend The Twenty-First Century Law Library for anyone interested in a recent discussion on digital trends in law library usage.
Post No. 6
Size, malleability, and interactivity. These are the three buzz words for Post No. 6 and they are meant to describe how eReaders will change the content of legal textbooks. From the publisher’s prospective, there isn’t much to debate here other than the ongoing disagreement that eBooks or even eReaders are leading this change. But I do have some additional thoughts.
Size does matter. There are definitely certain market segments (e.g., casebooks) where print page limits tend to be imposed. As Prof. Volokh states, there are “good reasons” for this, namely, weight, cost, and probably the number of signatures a hardback binding can take and still hold up over two to three years (although my old casebooks seemed to have faired pretty well over the last 17 years). In other segments though (e.g., treatises, practice manuals, codes), print page lengths have grown by leaps and bounds. Take a look at some of the code books Thomson West publishes these days, many of which come it at well over 2,000 pages and several pounds. The point to these observations is this: publishers have allowed books to grow where the market supports the additional size and cost. The ability to grow a book in these segments is unrelated to whether it is available electronically.
Now, my assumption is that Prof. Volokh would like to use eReaders and eBooks as an argument for lifting page limits in the market segments where publishers continue to impose them. If so, then terrific. But rather than using eReaders as the supposed agent for change, I would prefer an attack on the print system itself, discussing the merits of good book design (when was the last time casebooks were redesigned?), paper selections, and the continuing need for hardbacks rather than pamphlets. There are a number of ways to increase size without a corresponding increase in bulk or cost. But I guess some publishers are just set in their ways.
eBooks are malleable, too bad eReaders aren’t. Custom-made text books and push updates. This is how eReaders will change the way we read. Wrong.
The ongoing (r)evolution seen in cloud services will lead this change, if we are to see one at all, which I doubt. There are some significant hurdles to overcome first though:
- Authors must be willing to adopt an iTunes model, namely, allowing the consumer to buy only slices of the whole product (in this case, a casebook versus an album). In other words, the author must be willing to accept a smaller percentage of revenue, presumably based on page count, and if it’s web-based, then there might be an argument for page views.
- Authors must be willing to move to an update-on-demand schedule, rather than a 12-month cycle. This could be ameliorated if the cloud service allows for community commentary on the publication, which can be informative and allows for more informal (but usually less complete) analysis.
- Authors and publishers must be willing to license work to cloud-based imprints. I refer here to “cloud-based imprints” because I don’t see custom-made casebook software being driven by Thomson West, Wolters Kluwer, or Lexis. This seems uniquely entrepreneurial to me. And if that is in fact true, given what I know about my industry, it should be next to impossible to overcome. The idea the Thomson West would license whole or even slices of the American or University Case Book Series to other imprints is laughable. Yes, Thomson and Lexis have a weird, symbiotic relationship when it comes to certain products, but the idea that the three largest publishers of academic casebooks and treatises would agree to slice information for custom-made text books for law students (or lawyers for that matter) is simply a dream.
I think if we are to see any change in the content of legal textbooks, it is only going to come from the authors, not the publishers or manufacturers of eReaders, who are solely concerned with getting as many trade books in the hands of the masses. The problem I’ve seen here is who goes first? I’ve seen too many startups come up with good ideas for publishing, only to fail because the persons who hold the rights to content refuse to change. And Prof. Volokh’s posts never seem to acknowledge this issue. For example, I have two well-known and highly respected professors editing a new product of ours, and both of them have a long-standing relationship (20+ years) with one of the big three publishers of academic books. Neither of them would be willing to move to a different system because the current one suits them just fine. It may not be perfect, but they produce what they need to teach. How do you overcome that? (Hint: a different generation and time. A long time that is.)
eBooks can be interactive, just not on an eReader. I love Prof. Volokh’s suggestion that eBooks be interactive, with quizzes, tests, etc. For over 15 years, we’ve published a student edition of one of our practice manuals that included study questions to help law students learn civil procedure. I’ve always wanted it to be interactive, and I think we are getting closer to that being a reality. Just not on an eReader.
As I survey the landscape of eReaders, it’s difficult to get a grasp on where the technology is headed. On the one hand, there are those manufacturers that are definitely heading towards more flexible, color, touch-based displays. And others, seem to be headed in the same direction as the nook, namely eInk with LCD. The point here is this: if there is any added functionality to eInk based eReaders, it will come through a Linux or Android-based LCD attached to the eReader, which will still remains largely a one-trick pony. That’s not to say that other manufacturers aren’t trying to deliver on interactive eInk devices. They are. But the nook and Alex eReader heralded a different design, both of which I suspect will be crushed by the Apple iSlate.
Post No. 7
This is my favorite post of Prof. Volokh’s series because it has nothing to do with eReaders. In Post No. 7, he explores how digital texts open the door for larger audiences (and potentially greater revenue for the author). And like the Post No. 6 (and a former minister of mine), he has three points to make: (1) expense limits readership, (2) expense limits book topics, and (3) the publisher’s value-added roles have been significantly diminished.
Expense limits readership. Yes and no. Expense can limit readership, but if the information is truly valuable to the market, they will pay for it. Really just depends on what your selling. Let’s take Prof. Volokh’s example of Richard Painter’s Getting the Government America Deserves: How Ethics Reform Can Make a Difference. Is this product more attractive to you at $30 rather than $70? What about $10, as Prof. Volokh suggests? Go ahead and thumb through the pages and gauge for yourself. For me, a wise lawyer-publisher once told me: you can’t sell ethics to lawyers. And I’ve never produced a book on ethics since. So 300 in total sales isn’t a shocker, and no matter how good the book, I don’t see it getting much above 1,000, even at a lower price.
There are so many factors that go into readership, I don’t think it is possible to isolate just one and say, “ah-ha!” that’s it. Related to this line of thinking, Jay Wexler’s video comparing his law review article on public schools teaching religion to Stephen Prothero’s book on the same subject highlights other elements to readership: publishers, marketing, and timing.
Expense limits book topics. Yes, and digital-only platforms should allow (and for some has allowed) publishers to expand their catalogs with titles whose audience was too narrow and too expensive to reach in print. The cost of acquiring such customers is always a factor in taking on a new print project. But while I agree with Prof. Volokh’s assessment, I’m disappointed that he suggests other publishers should find ways of getting their titles (print or otherwise) on Westlaw or Lexis. He suggests, rather simplistically, that we could “presumably work out deals with Westlaw and Lexis through which those services can include the books in their databases, much as they do law reviews.” As one who has actually talked to both organizations for many years about doing that very thing, I can assure you that the deals don’t really favor the smaller publisher. But I don’t think Prof. Volokh really cares about this as it is really seems to be just a matter of convenience for him to get access to everything on one or the other platform (which by the way, aren’t on eReaders for those of you paying attention).
Publisher’s value-added roles diminished. What? Prof. Volokh just got done saying other publishers should put their electronic books on Westlaw or Lexis, which last I checked were publishers. As if that weren’t enough, publishers are reduced to such tasks as:
- Selecting good books (imprint is a stamp of approval).
- Editing.
- Typesetting.
- Printing.
- Distribution.
- Marketing.
According to Prof. Volokh, technology has diminished the publishers role to #’s 1 and 6 because the advent of “modern word processing,” freelance copyeditors, and the digital medium (eliminates printing).
Modern word processing. Because we don’t operate like most publishers (we write, edit, and verify all of our content), it’s hard to say what “most publishers” do (but I have seen all their processes, so I am familiar). But after having read Post Nos. 1 through 6, I’m not sure Prof. Volokh appreciates the term (or cost) of modern word processing. If he’s talking about word processors like MS Word, then no author is going to be able to deliver on the metadata rich documentation suggested in his earlier posts. For that, the author will need a robust XML editor and a printing engine, such as XPP, to compose all that goodness. But that’s a cost (and learning curve) that probably exceeds most legal academics and lawyers. Hell, it exceeds my understanding, which is why I have a programming team that does nothing but create editing tools for producing electronic documents. Now, the author could bypass all of this and go straight to India to have the content converted, but he’ll have to understand what it is he wants and be willing to pay for it (not to mention who to talk to).
Copyeditors. Now, there’s a suggestion that freelance copyeditors might take a percentage of a book in lieu of payment. We retain about 4-5 outside copyeditors (in addition to the many we have in-house), and while I’ve never offered such a deal to them, most aren’t the type to do work essentially for free (i.e., the expectation of being paid once the book is done). They tend to be more cash-in-hand type folks. So, that’s another cost the author is going to have to come up with (usually around $30/hour for a decent editor, more if you want someone who knows something about what you’re writing).
Distribution. Lastly, the digital medium. It does eliminate printing, but you’re going to have to find a way to sell your book. You could go the Amazon route, but you’ll have to give up somewhere in the neighborhood of 60% or more on MSRP, which may be fine since you’ve cut out the middle man. There are plenty of other sites out there offering digital books for sale, but it’s customers you want, and it’s customers you’ll pay for.
In the end, I think publishers are still necessary for a great many things. I’m not suggesting that Web 2.0 hasn’t narrowed the gap between publishers and authors because it has. But there is still a tremendous number of things (and costs incurred) that publishers do that authors don’t, and there’s a reason for that division of labor.
Post No. 8
Probably the longest of all the posts, No. 8 is, at its core, an open letter that reads as follows:
Dear Prestigious Law Journals,
Please consider publishing academic textbooks and other scholarly works in electronic format. We’re fairly certain that advancements in digital publishing and the rapid proliferation of eReaders has made this easier. If you don’t, we are afraid that the traditional publishers (read: Thomson Reuters, Lexis, Aspen) won’t be compelled to move into this space. And then what?
Thanks,
Prof. Volokh
Seven posts on where we’re headed with eBooks and eReaders, a decade of experience with digital books and eReaders, and it all boils down to the imprimatur? And perhaps this penultimate post makes sense as it’s going to be published in a law journal. But I’m glad I never listened to people like Prof. Volokh when I got started in this business 16 years ago, otherwise I wouldn’t be nearly as happy as I am now.
Post No. 9
In the last post of the series, Prof. Volokh summarizes what he sees as the future for textbooks and scholarly books. As I hinted in the lead paragraph to this post, I believe most lawyers, law students, and academics will skip over eReaders. I think slate computing is going to help shift the focus from hardware to services. And in this shift, we will finally be able to talk about something only a few are really giving much thought to: how will we read in the future?
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