Why only independent booksellers are punished for breaking strict laydown dates

Unless you're a bookseller or work in publishing, you might be scratching your head over that headline. What I'm talking about today is the absolutely unfair and ridiculous policy publishers have of holding small, independent bookstores to rigid rules about when books can and cannot be sold, while simultaneously allowing the chains and discount wholesalers to repeatedly break the same rules without recompense.

First, some definition of terms. A laydown date is the day a book is scheduled to officially go on sale. Bookstores usually get books shipped to them before their laydown dates, which only makes sense. That way, they can put the book on tables first thing in the morning (or at midnight sales, in some rare cases) the day a book officially goes on sale.

Most books--like mine, for example--do not have strict laydown dates. That is, my books have official pub dates, but if a bookstore got their shipment of The Brooklyn Nine a few days in advance of its pub date, there was no publisher restriction against them putting it out whenever they wanted to. That's why my books begin showing up on bookstore shelves around my pub date--sometimes before, sometimes after. There's no urgency, so there's no hard and fast rule.

The biggest lead titles usually get strict laydown dates. Lead titles are the big books a publisher is pushing that season, the ones they're backing with the most promotional dollars, bookseller co-op, and buzz. (Co-op is a whole other deal, best saved for its own post.) These are the authors they hope sell hundreds of thousands of copies. Biggies like Stephen King, J.K. Rowling, Dan Brown, John Grisham, Rick Riordan--they get strict laydown dates. Sometimes unknown or lesser-known authors will also get this treatment too, if the publisher feels a book has breakout potential.

The whole reason for strict laydown dates is to prevent stores who get their books first from putting them out and getting a jump on the competition. It's supposed to ensure that each and every bookstore has an equal chance at drawing customers in to buy the big releases.

To enforce strict laydown dates, publishers send out affidavits to bookstores which dictate what a book's official on-sale date is, and what the penalties are for selling the books in advance of that date.

Here's some of the language from a typical affidavit. I've changed the name of the book, on-sale date, and publisher, but the rest of the language is the same:

The Great American Novel official on-sale date is Wednesday, November 11, 2009 at 12:01 a.m.

It is absolutely imperative you abide by the national on-sale date of November 11, 2009. If you receive your copies prior to November 11, 2009, you must ensure that these books and audios are kept secure and not placed on the selling floor, sold, distributed, or leave your secure environment prior to the on-sale date. This agreement covers the hardcover, GLB, boxed set, and audio editions plus any and all prepacks and corrugation that includes any one of a combination of these items. This includes distribution to your staff and distribution of complimentary copies. To be shipped prior to the on-sale date, orders received by Harper Penguin House must be in carton quantities.

All distributors, suppliers, RDCs, retailers, and online retailers, as a part of our terms of sale, are expected to enforce this policy with all of their retail customers and locations.

[Bolding and underlining all theirs.]

The language goes on to say in more detail what was just said above. It requires everyone connected with distribution of the book to sign copies of the affidavit, which will then be returned to the publisher. That doesn't mean individual booksellers, just managers along the way--particularly in the case of large chains or retailers who will handle the delivery of the books from publisher to shelf in stages. I'll skip all that. Here's more:

The earliest ship date allowed to an individual consumer will be Tuesday, November 10, 2009. No consumer may receive the books and audios prior to November 11, 2009.

And here's the kicker:

Any violation of the on-sale date will result in Harper Penguin House's refusal to early ship your account any further Harper Penguin House new release titles for a period of up to 12 months. Instead, the new title releases will ship after the titles' original on-sale date. Harper Penguin House intends to monitor this important laydown closely. We appreciate your complete cooperation.

Did you catch that? If you sell the book before the laydown date, the publisher will withhold the shipping on ALL of their new releases for an entire year until after the books have come out. That's a serious punishment. Every one of your competitors will have brand new, lead title books on tables the day they go on sale, while you...well, you'll get the books when the publisher gets around to sending them to you, well after the pub date. When people come in looking for those brand new books, you'll have to turn them--and those sales--away.

Independent bookstores, as a rule, are very careful about strict laydown dates.That year of withheld lead titles are sales they cannot afford to lose. The chains and big box retailers, however? Well, they're often not so careful.

First, logistically, it's difficult for the one person in New York or Bentonville who promised not to sell books before their pub date to make sure the hundreds or thousands of store managers under their purview don't open those boxes when they come in and throw the books up on the shelf ahead of a strict laydown date. Sometimes, these stores put the books out without even understanding what an on-sale date is. Yes, it's the company's job to make sure everyone from the board room down to the stock room understands that, but realistically, it can't always happen that way. So accidents happen.

Now, is it ever deliberate? Do some store managers ever put books ahead of time to capitalize on sales, figuring nobody else in Jackson, Tennessee, say, is going to notice? Probably. And if they're caught, they can plead ignorance, or accident. I don't want to get too rabid here and claim coordinated conspiracy, but I can't think every report is an accident.

And there are a lot of reports. It seems like a couple of time a year, reports surface about big retailers selling or shipping books before their strict laydown dates. Take this article about Wal-Mart jumping pub dates from Tuesday's PW Daily, for example:

For years, independent booksellers have complained that a few individual big box retailers have offered Harry Potter and other bestsellers before the publisher’s on-sale date. Now it looks like Wal-Mart may have jumped release dates for its online operation. When the retailing behemoth began offering books on its Web site for $8.98 a few weeks ago, Dean Swift, who opened Swift Books in Orangeburg, S.C., in May, decided to see if Wal-Mart would honor its advertised discount plus free shipping. It did.

But Swift was in for a different surprise. Although Stephen King’s Under the Dome releases today, his two copies arrived on Saturday, ditto for Linda Howard’s Ice. Walmart.com also shipped some of the books which released last Tuesday, November 3, several days early. For example, Swift’s two copies of J.D. Robb’s Kindred in Death arrived on Saturday October 31.

Surprise, surprise. Again, I'm sure the retailer in this case can (and will) claim accident. "Ah, it was a computer error! Those books weren't meant to ship early. Our apologies!" So, accident or not, what punishment will Wal-Mart suffer?

Absolutely none.

Again, surprise, surprise. Scribner and Ballantine, owned by Simon & Schuster and Random House, respectively, undoubtedly have loads of signed affidavits from Wal-Mart honchos agreeing not to sell or ship these books in advance of the pub dates. So, they're both going to withhold all their new lead titles with strict laydown dates from Wal-Mart for the next 12 months, right?

Not on your life. Because as much as Wal-Mart enjoys those sales, Simon & Schuster and Random House need them. Desperately. Take away the sales that Wal-Mart generates, and I dare say the houses might go under. (That's an uninformed outsider's guess, but the enormous impact of big box discount sales cannot be denied.) So of course they're not going to punish Wal-Mart by withholding titles. They'd be punishing themselves even worse.

Now, what happens if Malaprop's Bookstore in Asheville, NC, one of our favorite indies, gets caught putting those two books up for sale two or three days in advance? Or Little Shop of Stories, another of our favs in Decatur, GA, gets caught selling the new Rick Riordan book ahead of time? You guessed it--down comes the hammer. Why? Well, they signed that affidavit, didn't they? They promised to make sure those books weren't sold in advance of their pub dates.

But more importantly, the publishers don't need the sales of one independent bookstore. Not like they need the sales of every Wal-Mart in the country. One indie can be punished; an entire chain cannot.

And so we have yet another story about a major retailer breaking strict laydown dates. Wow. Stop the presses. The indies abide by strict laydowns religiously for fear of losing valuable business, while the chains and big box discount stores flaunt them repeatedly with impunity. Let's call it like it is: the effectiveness of affidavits to keep the playing field level is a joke, and it will continue to be a joke until the publishers hold the major retailers accountable.

Just don't hold your breath.