Last week, the district court released its opinion in United States v. Bertelsmann, an antitrust case concerning a proposed merger between Penguin Random House (“PRH”) and Simon & Schuster (“S&S”), which the court blocked (an “amended opinion” was released earlier this week, but the two documents only differ in their concluding language). Authors Alliance has been covering this case on our blog for the past year, and we were eager to read Judge Pan’s full opinion now that redactions had been made and the opinion made public. This post gives an overview of the opinion; shares our thoughts about what Judge Pan got right, got wrong, and left out; and discusses what the case could mean for the vast majority of authors who are not represented in the discussion.
Background
The Department of Justice initiated this antitrust proceeding after PRH and S&S announced that they intended to merge, with Bertelsmann, PRH’s parent company, purchasing S&S from its parent company, Paramount Global. The trade publishing industry has long been dominated by a few large publishing houses which have merged and consolidated over time. Today, the trade industry is dominated by the “Big Five” publishers: PRH, S&S, HarperCollins, Hachette Book Group, and Macmillan. And a sub-section of the trade publishing industry, “anticipated top sellers,” is the focus of the government’s argument and Judge Pan’s opinion. This market segment is defined as books for which authors receive an advance of $250,000 or higher (a book advance is an up-front payment made to authors when they publish a book, and often the only money these authors receive for their works).
The main thrust of Judge Pan’s opinion is simple: the proposed merger would have led to lower advances for authors of anticipated top sellers, and the market harm that would flow from the decreased competition in the industry is substantial enough that the merger can not go forward under U.S. antitrust law. To arrive at this conclusion, the court considered testimony from a variety of publishing industry insiders, experts in economics, and authors.
Defining the Market
Trade publishing houses are those that distribute books on a national scale and sell them in non-specialized channels, like at general interest bookstores or on Amazon. It stands in contrast to self-publishing, academic publishing, and publishing with specialized boutique presses. But changes in how we read and how books are distributed has complicated these distinctions. For example, university presses are sometimes considered to be non-trade publishers, despite the fact that many also publish trade books. University presses are particularly well poised to publish books that bridge the gap between the scholarly and the popular—Harvard University Press’s publication of Thomas Picketty’s Capital in the 21st Century is one example, and it was an unexpected bestseller. Similarly, Amazon sells trade books alongside other types of books. The Authors Alliance Guide to Understanding Open Access is available as a print book on Amazon, but it is one we released under an open access license, and is far from a trade book. Consumers increasingly buy books online as brick and mortar bookstores across the country close or downsize, and the Amazon marketplace obscures the distinction between trade publishing and other types of publishing.
Within trade publishing, there is a small segment of books which are seen as “hot,” which the DOJ calls anticipated top sellers. While PRH argued that this distinction was pulled out of whole cloth, the popular “Publisher’s Marketplace,” a subscription-based service for those in the industry, uses certain terms (essentially code words) to indicate the size of the advance in a book deal when they are announced. “Deals under $50,000 are ‘nice,’ those up to $100,000 are ‘very nice,’ those up to $250,000 are ‘good,’ those up to $500,000 are ‘significant,’ and larger deals are ‘major.””
For the market for anticipated top sellers (trade books with advances of $250,000 or higher), the Big Five collectively control 91% of the market share. In contrast, for books where an author receives an advance under $250,000, the Big Five control just 55% of the market, with non-Big Five trade publishers publishing a significant portion of trade books in this category. Post-merger, the combined PRH and S&S were expected to have a 49% share of the market for anticipated bestsellers, according to expert testimony—more than the rest of the Big Five put together. For these reasons, the merger was determined to be improper as a matter of antitrust.
Beyond Anticipated Top Sellers
While Judge Pan’s opinion is measured, thoughtful, and reaches (from our perspective) the correct result, the broader context of the publishing industry shows how narrow the subset of authors in this market is, and how some authors were left out. The market the court considered in this case is “a submarket of the broader publishing market for all trade books.” In its pre-trial brief, PRH asserted that “[s]ome 57,000 to 64,00 books are published in the [U.S.] each year by one of more than 500 different publishing houses” and “another 10,000-20,000 are self published.” It is unclear whether the first number includes academic books and other non-trade titles. “[A]nticipated top-selling books” account for just 2% of “all books published by commercial publishers” (again, it is unclear what “commercial publishers” means in this context), and an even smaller share of all books published in the U.S. in a given year (a difficult statistic to pin down, but somewhere between 300,000 and 1,000,000 books per calendar year, depending on who you ask).
It is not just that the authors that are the topic of this discussion are unique in the high advances they receive for their books, it is that the business of publishing a book is fundamentally different for these authors than less commercially successful authors. And this is what is missing from Judge Pan’s opinion: the economic system of Big Five book acquisitions for anticipated top sellers is totally unlike many authors’ experiences getting their work published. While many authors struggle to find a publisher willing to publish their book, and more still struggle to convince their publisher to do so on terms that are acceptable to them, anticipated top sellers are generally the subject of book auctions, whereby editors bid on the rights to a manuscript in an auction held by an author’s literary agent. It is important to keep in mind that for a vast majority of working authors, these auctions do not take place.
The language in the opinion shows how it generalizes the experiences of commercially successful trade authors to authors more broadly, doing a disservice to the multitude of authors whose book deals do not look like the transactions it describes. Judge Pan states that “[a]uthors are generally represented by literary agents, who use their judgment and experience to find the best home for publishing a book.” Literary agents play an important role in the publishing ecosystem, and serve as intermediaries for some authors to help them develop their manuscripts and get the best deal possible. But the author-agent relationship is also a financial one: agents receive a “commission” of around 15% of all monies paid to the author. It stands to reason that an author who cares more about their work reaching a broad audience than receiving a large advance, or even an advance at all, is much less likely to be represented by an agent. And these authors too care about finding the right home for their work, getting a book deal with favorable terms, and feeling confident that their publisher is invested in their work. Making the publishing industry less diverse, with fewer houses overall, is just as detrimental to these authors as it is to top-selling ones.
What is troubling about the decision is not that it focuses in on a certain type of author and certain type of book—the question of what the relevant “market” is in antitrust cases is a complicated one—but that the vision of authorship and publication it presents as typical does not reflect the lived experiences of most authors. The dominant narrative that “authors” are famous people who make a living from their writing, primarily through the high advances they receive from trade publishers, simply does not bear out in today’s information economy.
Overall, the decision in this case is in many ways a boon for authors who care about a vibrant and diverse publishing ecosystem—whether they are authors of anticipated top sellers or authors who forgo compensation and publish open access. When publishing houses consolidate, fewer books are published, and fewer authors can publish with these publishers. This could lead less commercially successful trade authors to turn to other publishers (whether small trade publishers, university presses, or boutique publishers), who would then be forced to take on fewer books by less commercially successful authors. Self-publishing is an option for authors no longer able to find publishers willing to take their work on, but self-published authors earned 58% less than traditionally published authors as of 2017, and this decrease could lead some authors to abandon their writing projects altogether. These downstream effects may be speculative, but they deserve attention: this is almost certainly not the last we will hear about anticompetitive behavior in the publishing industry, and the effects of this behavior on non-top selling authors also matter. We hope that future judges considering these thorny questions will remember that authors are not a monolith, yet all are affected by drastic changes to the publishing ecosystem.