29 May 2014

Tossing Your Cookies

Needed: Cast of thousands to play the part of villains in two erupting controversies. No problem — there are plenty of candidates.

First, and perhaps easiest to resolve (if only because I've predicted this one for years), is the current iteration of AmazonFail; I think we're up to version 5.04. Amazon is facing off against another historical bully, Hachette (the US publishing arm of a French conglomerate that rose to [in]fame selling arms to both sides in mid-twentieth-century postcolonial conflicts). The apparent dispute is over e-book pricing, and has resulted to date in Amazon making it slightly less convenient and timely to order Hachette products, both by turning preordering into "click here to be notified" instead of "click here to order in advance" and by getting a case of the "blue flu" in its order fulfillment of Hachette products. Meanwhile, few commentators are noting any of three salient points:

  • On their face, Amazon's tactics have crossed the line from "negotiation" to "abuse of dominant market position," thereby bringing antitrust law into play... if someone can be found to complain who has antitrust standing to do so. In particular, any action that Amazon takes that constitutes an alteration of terms or mechanisms of sale based solely upon the identity of a third-party vendor, or characteristics of that third-party vendor that do not make that third-party vendor a director competitor, may violate both § 1 and § 2 of the Sherman Act. See, e.g., Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451 (1992). Bad Amazon. No cookie.
  • Hachette has already been found liable for violating the collusion-to-raise-prices aspect of the Sherman and Clayton Acts as to this very market. See the Wormyfruit litigation (just search this blawg for "Wormyfruit"). Bad Hachette. No cookie.
  • Gone completely unremarked-upon, both Hachette and Amazon have violated antitrust law in acting not as monopolists, but monopsonists: They have both exercised unfair market dominance in controlling prices and availability as to the authors. In particular, Hachette's probable bad faith in attempting to impose a uniform "25% of net" return to authors on e-book sales (without regard to anything), and in particular in refusing to negotiate that term, definitely constitute both unlawful tying (as to existing books) and abuse of dominant market position (as to all books). Amazon has enabled further abuses — and evidence might lead to a conclusion that it colluded with publishers to do so — by making auditing of e-book sales impossible through various assertions that exact sales data is confidential and may not be released to the authors. Bad Hachette and bad Amazon. No cookie.

And other publishers, you are just as bad, if not worse. Competing e-book outlets, you're just as bad, if not worse.

But as irritated as I am about this, that's the easy one. It's the one I'm less pissed off about. It insults largely my clients (my own stuff isn't published by Hachette!), not me personally... like the next one.

The VA.

Or Department of Veterans' Affairs. Or whatever new marketing-speak-friendly name we're giving this black hole of disrespect, disrepute, and disdain this decade.

There are plenty of villains to go around for this one, too... but most of them are either long gone or pretending that they just get to investigate. This is a classic instance of proximate cause and first cause. The proximate cause is what I hope is merely utter incompetence and self-seeking careerism by a high proportion of highly placed personnel in the VA hospital system — all in the name of meeting beancounteresque "performance goals" that have little, if anything, to do with actually meeting the needs of veterans. Metrics were established by assholes who've never had personal experience with the system, and were treated as stone tablets brought down from some mountain in the middle of nowhere by a wandering prophet. Nobody stopped to ask whether the metrics were meaningful in the first place... or meaningful to the individual veterans seeking attention. Or — more to the point regarding the particular managers involved — so good a measure of personal job performance that failure to meet the goals was correctly and properly perceived as career-inhibiting.

That's bad enough. The real problem, though, is first cause. Congresscritters and administration officials stretching back to 1991 have to share this one. Every base that was recommended for closure but wasn't closed; every dollar spent on unwanted weapons systems because they gave jobs to factory workers in a few districts (without, of course, questioning whether those same workers might have been employed elsewhere); every administrative redirection of money from care and infrastructure to warfighting in Southwest Asia that was demanded by Congress and/or the Administration, but not funded adequately for the specified mission and force levels; the very choices to repeat the mistakes of the Gulf of Tonkin Resolution, by going into Iraq on dubious (almost certainly mistaken, and potentially fabricated) foundations; need I go on? As shameful as the VA's role in its own failures has been, it was bloody well set up to fail. True, it "exceeded expectations" in how it did so.

Bad politicians (including VA managers). No cookie.