This Week’s Column:

Books on Trial

by Dennis Loy Johnson

29 April 2001 — A federal trial that came to an abrupt end in San Francisco last Thursday could greatly influence not only what you pay for books, but what kind of books get published.

Another federal trial that ended the next day in Atlanta decreed that a particular book would be blocked from publication entirely.

And next month, a federal trial in New York could give new definition to the very word "book."

As if in microcosm of the rest of society, the book business is being changed by the rise of mega–corporations and new technology. It's being made further tumultuous by issues of consumerism and individual rights that can't keep up. And the spate of court cases may have just put the tumult into hyperdrive.

Chances are you've heard only about the Atlanta case, because it harkens to the movies and to sex and to shallow claims of hot–button issues like racism. Also, because it's easier to explain.

To wit: The estate of Gone With the Wind author Margaret Mitchell was suing Houghton Mifflin to stop them from publishing The Wind Done Gone, by Alice Randall, a re-telling of Mitchell's book from a slave's point–of–view.

The Mitchell estate claimed copyright infringement — only they can authorize sequels. Houghton said it wasn't a sequel, it was a legally–protected parody. Randall said she was saddened about "obstacles for a black woman to tell her story . . . "

But the Mitchell estate has a history of suing anybody who makes "unauthorized" use of GWTW characters — they've previously halted publication of a satire in France, and shut down an Atlanta stage show called "Scarlet Fever." They even restrict writers they've authorized — Scarlet: The Sequel author Alexandra Ripley was told no explicit sex and no miscegenation (rules Randall apparently breaks on page one). And author Pat Conroy found the trust so restrictive he walked out on a gazillion dollar sequel deal.

No, while the Mitchell estate shows racial insensitivity by trying to muzzle Randall from pointing out that GWTW's depiction of African–Americans is troubling, the trust is actually operating from a fiduciary standpoint — they're trying to stop Randall from lessening the value of their franchise. For them, this wasn't really a case about race, it was a case about money.

It was, in short, a clear-–cut case of profit–motive versus freedom of speech, which is why most observers were surprised by Judge Charles Pannell's decision to block publication of The Wind Done Gone.

But anybody who paid attention in high school English could see Pannell's decision has some holes in it. He said Randall's book wasn't a parody because it wasn't funny. But humor isn't necessarily an ingredient of parody (the phrase "parody of justice" comes to mind). He said "The Wind Done Gone" was "derivative" and "copies the heart of 'Gone With the Wind's' characters and scenes." But how do you write a parody without being "derivative," or very precisely referring to the "heart" of the thing being parodied? Then, of course, there's the title of Randall's book. This isn't a parody? It's enough to make you want to knock on Pannell's head to see if there's anybody home in there.

But Houghton Mifflin has already announced it will appeal, and given the lameness of Pannell's decision, one would think it will be reversed. In the meantime, perhaps historian Arthur Schlesinger has it right. Schlesinger — who, along with writers such as Toni Morrison and Harper Lee signed a statement in support of Randall — said that ultimately, "The Mitchell estate is doing a wonderful job of advertising for Houghton Mifflin."

The San Francisco case, on the other hand, will have a broader impact on what books get to bookstores. The American Booksellers Association and 26 independent bookstore owners were suing Barnes & Noble and Borders, claiming they get secret discounts from publishers and distributors. That would be a violation of the Robinson–Patman Act, which says large businesses can't use their purchasing power to gain market advantage.

Such secret deals, say independents, are why there are now 2,000 fewer independent bookstores than there were five years ago. The chains said there were no deals, they're beating independents fair and square.

Until the dramatic finale, the case went largely uncovered in the mainstream press — the New York Times called it a "closely-watched story" in an article about the settlement, but clearly somebody other than the Times was doing the "close watching," as this was its first article on the trial.

What coverage there was, however — mostly in the local San Francisco papers, and in daily reports on the A.B.A.'s website — made clear that the independents were making a strong case: they got private e–mails documenting secret discounts from at least one publisher, Avon, entered into evidence, and proved a secret deal had been struck between both chains and the country's biggest wholesaler, Ingram's.

But there were setbacks, too, including a ruling that said the A.B.A. couldn't collect damages because it was impossible to determine a value for any harm done. Throwing out the damages claim meant turning it from a jury trial into a judge–only trial. And, according to Bookweb's Hut Landon, the A.B.A. sensed it was all over when that judge, 87–year–old William Orrick, asked one expert witness testifying about the secret deals "what was wrong with trying to get the best deal you could — 'Isn't that what capitalism is all about?' he queried, as if the words Robinson-Patman didn't exist."

So, on Thursday the A.B.A. accepted a $4.7 million settlement offer from the chains. With their final legal bill expected to top $18 million, many saw it as an A.B.A. defeat. B&N president Leonard Riggio claimed "total vindication," and Borders president Greg Josefowicz said Borders, too, was "completely vindicated."

Well, they settled, so "vindication" is questionable. Meanwhile, there's no question the mega–chains have been a major factor encouraging publishers to publish to the lowest common denominator. Their discounts have worked to homogenize literary fare, as has the pulverization of the independents. And let's not forget that, once it was clear they were beating the independents into oblivion, both Borders and Barnes & Noble ended the majority of their discount pricing to customers.

The pending New York trial, meanwhile, is also about a large corporation dominating a smaller one: Random House, which is owned by German multi–national Bertelsmann and is the world's largest publisher, is suing tiny e–book publisher Rosettabooks to block its versions of books by Random authors Kurt Vonnegut, William Styron, and Robert Parker.

Random House says a clause in their contracts — all signed before 1984 — gives it rights to their work to "print, publish and sell in book form." Rosetta and the writers point out those contracts were signed before e–books existed.

So the essential question is: Is an e–book the same as a book?

Millions of adamant non–purchasers have already answered that. But the rise of e–books is inevitable, and electronic rights to Random House's entire backlist are at stake; the trial goes on, scheduled to start May 7.

It will be a shame if the Random House vs. Rosettabooks trial is as overlooked as the A.B.A. trial was (a very real possibility — when it comes to the purchase of book–related advertising, surely Random House/Bertelsmann is second only to Barnes & Noble).

All three cases, at their core, are about the place of diversity within the marketplace. As the notable lack of coverage of the complex A.B.A. case shows, books are fast becoming the last place of public discourse about such difficult issues. And even as we speak, the jury's coming back in, and it doesn't look good.

Last Week’s Column: A DIVINE READING EXPERIENCE For a guy who's been dead for 700 years, Dante Alighieri is having a great spring.


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All material not otherwise attributed ©2001 Dennis Loy Johnson.