Amazon Backs Down; Settles Antitrust Lawsuit Filed By BookLocker

Editor’s Note: Since this occurred more than a decade ago, many of the links are not live anymore. Fortunately, the Internet Archive preserved most of them. You can get an overview of all the press coverage here. Wherever possible, we’ve replaced the original links in the posts with their Internet Archive equivalent.

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As many of you probably remember, in March, 2008, an Amazon / BookSurge representative called us on the phone and told us we (and other Print on Demand publishers) must start paying Amazon to print our books. If we didn’t, they would remove our “buy it now” buttons from Amazon.com.

NOTE: Amazon recently retired the BookSurge name (that was not a surprise), and is now doing their POD business under the name CreateSpace. Other than the name, not much appears to have changed.

After the phone call, we publicly cried foul, and alerted the publishing industry about the threat. We subsequently heard from other publishers who had received the same ultimatum, including a university press. A media firestorm erupted and many authors and publishers alike screamed “monopoly”, launching an online revolt. Several, including myself, boycotted Amazon.com, and publicly shared their anger about the Amazon / BookSurge (now CreateSpace) Ultimatum.

Our publicity efforts forced Amazon to finally make public what targeted POD publishers claimed to have been told through what some considered intimidating phone conversations. Until that point, Amazon hadn’t appeared to want to put anything in writing.

Unfortunately, many of the large POD publishers signed the Amazon / BookSurge (now CreateSpace) contract after Amazon gave them a deadline. We did not. BookLocker.com, instead, filed a class-action lawsuit against Amazon, alleging their actions violated federal antitrust laws.

That’s when the real battle began. We spent hundreds of hours researching, corresponding with other publishers, authors and our attorneys, and writing and rewriting legalese that would at times make my eyes glaze over (for this case my sister recommended to use under eye patches for my eye bags). Each time I had to work on the case, my initial anger about the unfairness of it all would return. I’ll admit it was hard to keep a smile on my face most days. The worst part of the entire experience was the time I was forced to spend away from our children because of Amazon’s actions. Mason is three years old and we’ve been dealing with this for almost two years now.

As expected, Amazon filed a motion to dismiss. We were not surprised in August, 2009 when Chief U.S. District Judge John Woodcock Jr. issued a 26-page order denying Amazon’s motion to dismiss.

We suspected Amazon would want to settle before discovery began and we were right.

We hammered out the details for almost two months. I wanted to share the settlement information with you all in the worst way during that time, but could not because the negotiations could have fallen through at any moment (and almost did a few times!). For example, we specified initially that any cash offered to BookLocker by Amazon would go directly to a charity and we wanted that statement included in the settlement. Amazon refused to allow the charity wording to appear in there. (Why do you think they did that??) We subsequently refused any cash payment from Amazon. We then included a statement in the settlement that BookLocker declined a cash settlement from Amazon…and Amazon insisted on removing that verbiage, too.

You can read the final settlement HERE.

We didn’t do this for the money. We did it to make Amazon understand that covert efforts aimed at forcing POD publishers to pay Amazon / BookSurge (now Createspace) to print their books is not the way responsible corporate citizens should act. By getting Amazon to rescind their pay-us-to-print-your-books-or-else policy, we believe BookLocker’s lawsuit achieved its goal.

Large companies will run all over small ones unless somebody fights back. The publishing industry contains many players and, for the benefit of readers everywhere, they all deserve an equal place in the market. Allowing the largest online retailer to strong-arm publishers into paying more for a product that may, in fact, be inferior hurts publishers, authors, and, ultimately, the reader. Yes, BookSurge (now operating under the CreateSpace name) has had quality problems. We recently ordered some books from them to see if things had changed. One arrived looking so bad that Amazon inserted an apology note into the book itself, saying it was the best they could get from their distributor. (IT’S THEIR BOOK!) Another arrived with the interior appearing upside-down. Their quality problems have been reported online by others as well.

I know many of you, readers, authors, and publishers alike, have many questions and I’ll be happy to answer them! Please email your questions to me at angela – at – booklocker.com. I’ll publish the questions (anonymously, of course) and the answers right here – so keep checking back.

Finally, we want to publicly express our deepest gratitude to Seth Klein, Bob Izard, and all the caring folks at Izard Nobel LLP, and to Anthony Pellegrini and the team at Rudman & Winchell. Without them, we and all POD publishers might be in a completely different position today.

UPDATE – NEWS ARTICLES:

Amazon, Booklocker Settle
Publishers Weekly

Amazon settles lawsuit over print-on-demand books
TechFlash

Amazon Settles Antitrust Lawsuit Filed by BookLocker
Writing for Hire

Amazon Agree Settlement in Booklocker.com Antitrust Lawsuit
Mick Rooney – POD, Self Publishing and Independent Publishing

Amazon Backs Down On Demanding Publisher Use Only Its Own Print-On-Demand Solution
TechDirt

Amazon defeated by independent POD Publishers
The Long Riders’ Guild Press

Amazon – And the Perils of PODing
Sgt. Mom

Who Moved My Buy Button?

UPDATE – QUESTIONS FROM READERS, AUTHORS AND PUBLISHERS:

What about the ones who caved? Do you think they’ll renegotiate? – Nan

Unfortunately, since the case had not yet been certified as class-action, the POD publishers who caved must ask their own attorneys what they can do. Had they joined us as lead plaintiffs in the beginning (many publishers were afraid to publicly confront Amazon), they would have been covered by any settlement as well. I admit this was a very bitter part of the story for me. We were basically thrown to the wolves, and had to publicly fight on our own, with many publishers whispering to us in the background, but not publicly joining us on the front lines. I may write about that in the future. For now, we are enjoying the victory.

I’m delighted to hear this but a bit worried that you and Richard were forced to pay all of the legal fees you incurred over the two year period. I admit I only scanned the entire write up — did you indeed have to pay everything with no compensation? -T

Oh, heavens no. The law firm took our case on a contingency basis and Amazon agreed to pay our attorneys $300K directly.

You are sweet to be concerned about us, T!! No way could we afford to front $300K in legal fees (or even a fraction of that). Makes my stomach turn just thinking about it.

Congratulations on the settlement. Could you clarify a point? I’ve read the settlement, and it’s clear that Booklocker is exempted from Amazon’s “pay us to print your books or else” policy, but what about other publishers? Their November 2009 update mentions working on a “case-by-case basis,” but this could mean that any other publisher could be subject to the same “or else” policy. Do I misunderstand? – P.

Since our case was not yet certified as class-action, and since none of the “other guys” had joined us as lead plaintiffs, the settlement itself does not (and could not) apply to anyone other than Booklocker.com.

The publishers who have already signed the Amazon / BookSurge (now CreateSpace) contract would need to contact their own attorneys to assess their situation. We could not negotiate a settlement on behalf of all POD publishers because we were the only plaintiff at that point in time.

While I agree that Amazon’s new statement is very vague and doesn’t really promise anything, they did agree to rescind their original policy. Since we had no control over their actions with regards to other POD publishers (since they weren’t plaintiffs yet), we couldn’t force them to offer something to companies (potential class members) that weren’t (yet) involved in the lawsuit.

Again, had any of them stepped up to the plate and stood beside us as lead plaintiffs, they would also have been protected by any settlement. Unfortunately, we were contacted by many, some of whom begged us to never divulge their names, who admitted they were afraid of going public and angering Amazon.

You at Booklocker are truly amazing. I say congratulations to the Amazon litigation, I just kowtow before you. I love your triumph. I looked up your pages about that, but couldn’t find out why you settled when you could have won. -E.

Amazon rescinded their policy and promised not to mess with us. Again, while we’d have loved to protect all POD authors and publishers, no other publisher had stepped forward to join us in the lawsuit. We couldn’t make deals for companies that weren’t plaintiffs. We are very happy that we were able to protect our authors.

Sure, we could have gotten greedy and demanded tens of thousands of dollars, etc, etc., but that’s just not the kind of people we are. Why drag it out, muck up the courts, force the legal fees even higher (on both sides), and keep the stress at such an extreme level when we could just get back to work and living our normal, quiet lives? Like I said, we didn’t do this for the money. We did it because it was the right thing to do.