Why It Matters That Amazon Shipped Margaret Atwood’s “The Testaments” a Week Early

Back in May, I signed an embargo agreement on behalf of my bookstore stating that I would “ensure that [The Testaments by Margaret Atwood] is stored in a monitored and locked, secured area and not placed on the selling floor prior to the on-sale date.” The idea behind such agreements is that retailers must sign them in order to receive their inventory in a timely fashion, a common practice for newsworthy, highly anticipated books with huge print runs. This was certainly the case when I was responsible for getting these affidavits signed on behalf of Simon & Schuster, where I worked in sales from 2003–2005.

On Tuesday, September 3, customers began reporting that Amazon.com was shipping copies of The Testaments already, and in fact that many have received their orders that day. The official on sale date for this book is Tuesday, September 10, a rare international embargo date. Most books go on sale on Tuesdays in the U.S. and on Thursdays in the U.K., and a universal date only happens for the highest of profile authors. Breaking such a significant embargo is a newsworthy event in the weird world of bookselling.

I do not expect that Nan A. Talese, the imprint that publishes Margaret Atwood’s books in the U.S., or Penguin Random House, the corporate entity behind that imprint, will pursue any of the theoretical consequences Amazon.com might face. Even for smaller retailers, the effects of breaking an embargo are generally practical rather than legal: publishers may hold back future sensitive shipments, forcing the bookseller to turn people away when they come looking for the hottest new book on release day. The terms of the agreement I signed state that if the embargo is broken, the publisher has the right to withhold “resupply” of the book, meaning they would not ship any more copies for a period of time. But even if PRH did hold back reshipments of The Testaments, that would do nothing to stop third party vendors who use Amazon.com as a marketplace from selling copies, so it seems unlikely that it would ever be completely unavailable on the site. The agreement also refers to remedies “in equity or otherwise,” and “injunctive relief.” My employees who formerly worked for Borders (RIP) and Barnes & Noble both were told in the past that their employers would be fined monetarily if they sold books prior to embargo dates. It’s hard to imagine Jeff Bezos getting too worried about a financial penalty. 

For smaller booksellers, embargos are serious business. I once posted a photo of a SEALED carton of Harry Potter and the Cursed Child on social media, which was in fact (bafflingly) in violation of the embargo agreement I had signed with Scholastic in order to receive the books in time for a midnight release party. I got a call from my sales rep on a Sunday morning asking me to take down the photo, which I did immediately. I was terrified that the publisher was going to punish me through delayed shipments of key titles after that, which was how I had been made to understand the consequences of violating embargo agreements. But I’m betting there will be ZERO consequences for Amazon violating not just the fine print but the entire basis of this agreement, which some exec surely signed digitally through Adobe Sign just like the rest of us did.

The real problem is that even a publisher the size of PRH can’t afford to muddy its relationship with Amazon. Preventing its biggest customer from selling what might turn out to be the biggest book of the year would only hurt the publisher in the long run. Amazon.com has taken retributive measures in the past against even large publishers who tried to fight their policies. And when a company gets this large and this powerful, too powerful to punish or risk alienating, the contracts the rest of us live by become meaningless. The best I can hope, as the owner of a small bookstore hoping to sell a good number of this book, is that The Testaments is a high enough profile publication that federal anti-trust lawyers will finally see exactly how unlevel the bookselling playing field is. (And in fact, the American Booksellers Association has reached out to the Department of Justice and the Federal Trade Commission about this incident and the patterns of which it is indicative.)

The kicker is that Amazon will make hardly any money selling this book. Books (especially big splashy publications like this) have always been a loss leader for them—whereas I and many other independent retailers are counting on this release to pay our bills. Penguin Random House has made a public statement to the effect that it was only “a very small number of copies” were released early, but The Guardian reports that it was around 800 copies—a small number in terms of the expected print run, but huge to a small retailer like me. If I were to sell 800 copies of this book, the income would pay nearly a year of wages for one hourly full-time employee at my store. “A very small number” is a relative term. 

I understand the marketing strategy behind strict on sale dates, and as a member of the book industry, I respect it. For the most part it’s a ploy to push books onto the elite New York Times Best Sellers list, by concentrating initial sales into one calendar week. But you can’t argue that embargo agreements matter if your biggest account gets to be the exception. As Tom Stoppard wrote in Rosencrantz & Guildenstern Are Dead, “There may be nothing behind it, but it doesn’t make any difference so long as it is honored.” Don’t tell me to honor something and then look the other way when the big dogs spit on that agreement.