US sues Apple and publishers over e-book prices | Hacker News Reader

US sues Apple and publishers over e-book prices

bbc.co.uk

161 pointsmarklabedz98 comments

I for one applaud this effort and always viewed the agency model as anticompetitive, anticonsumer and arguably outright price fixing.

Ebooks have essentially zero printing and distribution costs and, from the publisher's point of view, can't be resold like paper books can. For both of these reasons they should be cheaper. On this point, Jeff Atwood actually makes sense [1].

I know the spiel about pricing having nothing to do with the cost of production, blah blah blah. I don't care. The present situation is stupid and ultimately shortsighted. Only Amazon seems to be interested in creating an ebook market rather than just gouging consumers.

[1]: http://www.codinghorror.com/blog/2012/04/books-bits-vs-atoms...

I am at a loss to understand how the "agency" model is anti-competitive or price-fixing.

I am hoping someone can just explain it rather than saying that it simply "is."

The agency model is what keeps the price of apps on the app store low. Developers (agents) can charge whatever they want, but clearly that doesn't equate to automatic sales at whatever price. It is in fact a very competitive market.

Nothing about the agency model, as I see it, in the example of the App Store has even a hint of being anti-competitive.

How is this different for books? I just don't see it. But I am open to explanations.

If anything is anti-competitive, it is selling at a loss so that nobody else can enter the market. That is what Amazon was doing.

Price fixing requires collusion between the producers to all sell at the same price point. It's certainly possible this is going on with the big publishers in Apple's store, but that doesn't require Apple's participation in the collusion. It doesn't exonerate Apple either, it's orthogonal.

In the wholesale model that traditional booksellers and Amazon use, it's still possible for publishers to price fix. It's possible for book sellers to price fix.

It seems to me that Agency vs Wholesale doesn't really have much to do with the concept for price fixing.

What am I missing?

This link makes some sense of it: http://blog.nathanbransford.com/2012/03/why-dojs-potential-l...

It isn't the agency model that is the problem, it is how the Apple et al. coerced/enabled the publishers to price-fix and then allowed/enabled the publishers to impose that price fixing on Amazon. I still don't exactly understand why Apple and Google are being sued and not the publishers.

[edit] It is Apple and five publishers according to the WSJ: "Three of the publishers have agreed to settle, according to court documents. Those are Hachette Book Group, Simon & Schuster and HarperCollins Publishers Inc. Under the settlement, those publishers will terminate any agreement they have with Apple regarding electronic books." http://online.wsj.com/article/SB1000142405270230444460457733... [/edit]

Money quote:

Along comes Apple and the iPad. Steve Jobs talked the publishers into the agency model - publishers set their own prices and they get 70% of the proceeds.

[...]

Publishers then turned around and imposed that agency deal on Amazon, which is the subject of the DOJ investigation [the agency model, not Amazon - gvb]. The end result: There really is more competition in the e-book world, but prices are higher than they likely would be if Amazon and others were able to discount as they saw fit.

Right - basically the argument is that publishers cooperated with Apple to raise prices, and prices actually did go up. Which raises a red-flag of anti-competitiveness.

The counterargument is that this took place at a time when prices were artificially lowered because of Amazon's leverage over the publishers. When competition was restored, prices returned to a level set by the market.

And the counter-counter argument is that if it were really the prices set by the market that we were returning to, collusion would not have been required.

Well we don't know whether there was what actually amounts to collusion, but assuming there was it might have been required to break Amazon's leverage over the bookseller which was artificially depressing prices.

That wouldn't make it less illegal, but it would be a reasons why it was necessary to restore the market as a pricing mechanism.

Prices weren't lower because of Amazon's leverage over publishers. They were lower because Amazon was willing to lose money to build a platform and a market. Remember, pre-agency publishers made more money along two dimensions:

1. Wholesale prices were often higher than their share of an agency price.

2. Since the prices to end-users were lower sales were higher than they otherwise would have been.

And don't forget, publishers had a much simpler, pro-competitive response if they were afraid of Amazon's dominance: drop the DRM. Then they could have sold ebooks to all of Amazon's customers (including Kindle device owners) without Amazon.

You might be in favor of dropping DRM, but that would in no way provide publishers with comparable access to the Kindle customers.

Kindle customers buy titles using 1-click from their devices or from the Amazon website. How does just 'dropping the DRM' compete with that distribution channel?

Thank you for the link to Bransford's blog.

You quoted from his post:

"Publishers then turned around and imposed that agency deal on Amazon, which is the subject of the DOJ investigation. The end result: There really is more competition in the e-book world, but prices are higher than they likely would be if Amazon and others were able to discount as they saw fit."

How can something be anti-competitive if it increased competition? Whether prices went up or down is irrelevant. The whole point of anti-trust law is to make sure that the market has competition. Not to make sure that prices are low.

It seems to me that the real issue is that nobody has figured out the right way to deal with digital goods where supply is effectively unconstrained. We have constructed laws to create artificial scarcity of digital goods. If the government wants to lower the price of digital goods, what they should do is find a way to relax the regulations that artificially constrain the supply.

> How can something be anti-competitive if it increased competition? Whether prices went up or down is irrelevant. The whole point of anti-trust law is to make sure that the market has competition. Not to make sure that prices are low.

You're conflating all of the different markets here. There is the publisher and retailer and the retailer and the consumer. The latter now no longer exists, as the publisher chooses the price for both markets.

That the ereader market, a third market in this equation, is now more competitive (which is a debatable subject) isn't relevant, as you can't use anti-competitive measures in one market to increase competition in another.

Something about what you have written doesn't sit right with me.

If Macmillan decided not to use the iBookStore and sell their ebooks on their own to the customer (the reader of the book), and all the other publishers saw that and thought, "Hey, that's a good idea", that would lead to the destruction of what you have called the publisher-retailer market.

Is it anti-competitive to choose not to participate in a market? It doesn't seem that way to me.

If I produce a product, am I not free to choose (or create) a market to sell this product? And can I not withdraw from that market whenever I see fit?

You can withdraw from the market, of course. It's not anti-competitive to destroy a market by rendering it redundant. But that's not what is happening here.

It is also worth considering Apple's stake in this. Just because they were launching the iPad didn't mean they had to sell ebooks. There were already plenty of ebook vendors and readers on the iPhone, after all.

One effect of the agency model is to make end users care less about which retailer they buy a book from (because the price is the same). A device manufacturer might be interested in encouraging that. For instance, they also might be interested in selling ebooks that only work on their devices to create additional lock-in for the future. An alternative spin would be that they might not want to be hostage to a powerful ebook vendor in the future (the way platform owners often depend on the developers of their key apps).

In any case, Apple's stake was and is altering and, arguably, restricting competition in markets related to ebooks. That's something else the DoJ should be interested in.

but that doesn't require Apple's participation in the collusion

The kink that I think you may be missing is that the agency model dictates the retail sale price and the retailer profit margin. The agency model sets the price the publishers sell to the retailer at and the price that the retailer can then sell the goods at.

So retailer A and retailer B can't really compete against each other on price because they're both locked into selling at the same price. If Publisher A and Retailer A collude to their mutual benefit, Retailer B can become royally screwed.

[Edit: This Charlie Stross post talks about the different pricing models in the context of last year's Amazon/Macmillan kerfuffle http://www.antipope.org/charlie/blog-static/2010/01/amazon-m...]

I don't think it matters if it is right or wrong.

The part the government is interested in is if Apple allowed or even encouraged Agencies to set similar prices. It is like running a red light. We can all agree it is illegal. But is it illegal in the middle of the night when there is no traffic? Of course it is. Just because someone went through the red light and didn't violate anyone else's safety doesn't make what they did any less criminal. The law was written without prejudices, so their is no need to look for "mens rea". Sure, it got things going for the driver and helped commerce by allowing the driver to reach the destination faster, but it is still an illegal act.

If Apple got the Agencies to agree on a similar price just to get things going and then let the market decide, it doesn't mean that it is any less criminal of an activity to do the former.

Remember, the government is pursuing this matter to get fines from all accused parties after the fact and they are doing it on your behalf, if you are an American citizen, that is.

Laws are made by man. What happens if the traffic lights are out of order and permanently shows a red light? Do you obey and patiently wait at the junction until it gets fixed? Of course not. In a civilized country with a working legal system you would be allowed to cross while taking reasonable care to do so.

And that's the trouble with this case too. According to what I've read so far Apple recommended setting an upper limit on price, but the lower bound is free (gratis). Technically it is "price-fixing" but I'm not sure whether an upper-bound above what Amazon charged is illegal.

Presumably getting the publishers to yank content from Amazon due to their contractual agreements with Apple is a matter of contractual law, not anti-trust or anti-competition.

It's not about competition between products, it's about competition between distributors of the same product.

To use your app store example, you would need to imagine an alternate universe where there are two competing iOS App Stores: one run by, say, Apple and another by Amazon. You're Macmillr, one of the hottest startups in the valley, and you have a bunch of apps you want to get on the market.

In this world, you sell your apps "wholesale" to Apple and Amazon. Apple comes to you and says "I'll buy your apps for $0.50 per copy", and you forge a similar deal with Amazon. Then they compete with each other to on-sell them to the public. Obviously, that's pretty difficult for the two 'A's. How do they compete with someone selling an equally-priced product?

First they'd reduce their own margins as much as possible. Then maybe they do some clever discounting tricks, loss-leaders and promos and the like. Maybe they add some intangibles like a nice recommendation system or a pretty shop UI. Eventually, though, you just know one of them is going to come back to you and say "Forget your $0.50. I want it for $0.45."

So now you're in a tough spot, because Apple controls 90% of the app market. If they say "$0.45 or we walk", there's not much you can do about it. Bad times. As you see this happening, you realise something: Apple must have reached this dominant position by price gouging you and your fellow developers. At this rate, it'll only get more popular and more powerful, which means your future profits look pretty bleak.

But then Amazon comes to you and says "Hey, buddy, we're new in this App Store game, but we play to win, and we have a proposal for you. These Apple assholes are squeezing us dry because they set prices we can't compete with at our market share, and they're driving your wholesale price down to meet their ridiculous margins. But that's the key. We've got this new system where you set the price and they just take a fixed percentage. If you stop letting them set the retail price, the pressure will let up on you and us both."

"Alright", you say, "but if I start dictating prices, won't Apple and their 90% monopoly just drop my sorry apps like a hot potato?"

"Well", says Amazon, with a wink, "you might not be the only meeting we have lined up today in the valley."

Two weeks later, you tell Apple it's $1 and they get 30%. They say no. You say yes. They drop all your apps. You take out a full page ad in Techcrunch. You hear word that 37Schusters and Harpr.Coll.ns are preparing to do the same. Apple gives up. Agency pricing is the new standard for iOS apps. You win! ...until the DoJ comes asking about those meetings.

As to whether the agency model in general keeps prices high, I don't know. Smarter people than I [1] with prettier graphs [2] say no, but my own experience suggests that, at least at the moment, ebooks are way too expensive. I can't help but think that they'd be lower with Amazon calling the shots, but without any data to back me up I'm left with just a vague sense of unease.

[1] http://www.teleread.com/paul-biba/does-agency-pricing-lead-t... [2] http://www.digitopoly.org/2012/03/31/are-prices-higher-under...

"my own experience suggests that, at least at the moment, ebooks are way too expensive"

Why would you think that? People that buy ebooks are generally more affluent (they have kindles and ipads) and we'd expect ebook price to follow the road of profit maximization.

The typical reason people see ebooks as being too expensive is that, post-agency, they often cost more than the hardcover edition of the same title. Since it is fairly obvious that the cost of producing and distributing the ebook is substantially less than the cost of producing and distributing the hardcover book many people feel there's something fishy going on there.

I'd add that if you're right and it is more profitable for ebook publishers to charge more because ebook buyers are typically more affluent that, by itself, suggests that there are issues with ebook competition. In an appropriately competitive market we'd expect prices to be more related to the supplier's costs (and the costs of alternatives like getting a book from a different publisher or getting the hardcover) than they would be to the customers ability-to-pay.

"In an appropriately competitive market we'd expect prices to be more related to the supplier's costs (and the costs of alternatives like getting a book from a different publisher or getting the hardcover) than they would be to the customers ability-to-pay."

This might be true absent IP laws but people who want to read Harry Potter can only get that from one legal source and if the profit maximizing price for Harry Potter was $100 that's what it would cost.

A cotton shirt with a designer logo stiched in at a supply cost of 20 cents can still sell for 50 or 100 times what a near identical shirt without it can. Price does not follow supply cost for these items.

Anti-competitive and price-fixing are two different things in this case.

Essentially all suppliers (publishers) agreed to set a price on their goods, that's a cartel.

We like to think of books such as Harry Potter when considering publishing, but Harry Potter is a unique item because it has more or less unparalleled popularity. Other fiction books aren't really in competition with Harry Potter, people don't normally say "I am going to either purchase Harry Potter or Hunger Games". They generally purchase both if interested.

Now consider something that is much more of a commodity: Cookbooks. It's quite easy to find a couple of cookbooks from competing publishers, and if one new type of cookbook proves popular (Gluten-free Cooking!), most other publishers will come out with a competing cookbook. Great you say, sounds like competition! Except they have agreed to sell all their cookbooks at $10, so we, the consumers, now have a plethora of books to choose from, but only at one price. That is very, very illegal.

If the different companies had independently decided to change how they charge for books, ok, but their meetings and apparent coordination not just of the agency model, but the actual price makes this a cartel.

The anti-competitive piece is more about Apple making sure Amazon could not undercut the price for competition. Apple wanted 30% profits, no matter the price, and couldn't do that with Amazon in the mix. Apple could have just signed an exclusivity deal for certain books or something, but instead it wanted all books this way, which made it get involved with the publisher's coordinating. Conspiring with the publishers to specifically target a single player (Amazon) is apparently illegal, although I don't know much about that part so much.

If you usually filled up your car at the local station and suddenly an App Station opened across the street and all gas everywhere was suddenly 30% more expensive, the anti-competitive nature would be readily apparent.

I don't think it's true that they agreed on a set price. eBooks are sold at various prices. What they agreed to was the ability to set end-user prices. Do you have any insight into the legality of that?

They also talked quite a bit about specific price points ($12.99 and $14.99 instead of $9.99 according to the complaint). That's more than the ability to set end user prices.

Sure, but $9.99 and even lower are still options which do in fact get used. Apple didn't set prices, they provided publishers with a range of options that included the old price point.

Any publisher could set the end-user price for any of their books (speaking of cookbooks, I recently bought a copy of Mastering the Art of French Cooking in paper...$40, but I would not likely pay $40 for another french cookbook I'm not so familiar with, that's price power due to the popularity of that singular book, not a cartel agreement). The problem is the collusion to raise prices in lock-step with other publishers.

The fact it was 9.99 or 14.99 or .99 isn't the problem, it's the fact the publishers colluded together to artificially raise prices. If the price of ebooks was $1000 for some non-collusive(right word?) reason, the government would likely do little, but if the price of ebooks was $.05 by fiat, the government would step in.

It's a weird little world we live in, where the law recognizes multiple players in a market agreeing to artificial price fixing is bad for markets (and people, the actual reason for the law, the constitution doesn't care about markets), but at the same time grants strict monopoly rights to individual players in markets via patents and copyrights.

As a side note, I can often find a book online and can have it shipped to me for way less than it costs me to pay for the same book in an e-book format damaged with DRM.

Sometimes I pay the premium just because I want to (don't know if that's just stupid) and sometimes I buy the book, just store it and read a pirated version of the ebook.

But even if I buy an ebook I strip the DRM regardless of whether my kindle can manage the DRM. If the ebook was substantially cheaper than the real book (because it was subsidized or if I was paying less due to the DRM restrictions) I'd probably question my morality but as the prices are now I have no problem with it.

A bit sad I have to go through hoops and be a criminal every time I buy a book though.

The market is sick and with new players (apple, google) joining I would have hoped that there would actually be some competition?

If you don't want to pay the price they are setting then don't buy the book, it is that simple. I as a producer should be able to set it at whatever price I wish.

Yes, but you don't have the right to tell the retailer what price they must sell your product at. The trouble began when they went back to Amazon and said, "You must sell at the price we agreed on with Apple and nothing less."

No, but I think it's reasonable to just not sell through their market if they won't let you choose your end-user price. I feel the same way about my apps — I don't want to sell through the Amazon Appstore where they choose my price for me.

Part of the issue is that none of the publishers were willing to individually bear the the costs of not selling through Amazon. They were only willing to threaten that together.

To continue the analogy: If, for instance, the Top 100 paid app authors of Android apps banded together to force Amazon and Google to change their terms by threatening to take away their titles that would certainly raise at least a few antitrust eyebrows.

This implies that Amazon had a monopoly position. This is further illustrated by the fact that they did delist MacMillan's paper books in retribution.

Without Apple providing an alternative, Amazon controlled prices within the ebook market.

You do have the right to tell the retailer what price they must sell your product. It's called a contract. The retailer doesn't have to accept it.

Without Apple, the publishers had no meaningful alternative ebook store so Amazon always had the upper hand in contract negotiations, even going so far as to threaten to delist their paper books if they didn't accept the terms.

The publishing industry has been ripe for disruption for quite some time now. The pieces of the puzzle are there. But still it remains very difficult for a talented writer to make a living without some kind of brick and mortar publishing house agreeing to represent that writer.

So, this problem is especially interesting from the POV of a writer / aspiring writer.

Historically, writers would snail-mail the first 1-3 chapters to various literary agencies or publishing houses, include SASE, and wait for the inevitable rejection. (And yes, they DID insist on snail mail; this I know from experience). Those few lucky writers who would land an agent to represent them would likely get an advance, and hope for decent first-run sales. The publishing house would be responsible for placement in book stores, contact/ promo with "Book of the Month" clubs, etc. And depending on how well that writer's debut novel did, the writer would either get another advance, or fade into obscurity. Any number of circumstances around a first run could make or break a writer.

No piece of this old model was friendly to writers. J.K. Rowling was (now famously) rejected by every publishing house she sent Harry Potter to. The agency (Bloomsbury) that eventually agreed to buy and publish it didn't take on significant risk, and yet it has profited insanely from the success of her talents. It could be debated that back then, yes -- there was some risk associated with editing and formatting and typesetting and printing a hard-copy book. An agency would be right to take a "cut". But, aside from editing what part of the "book manufacturing" process is actually necessary now?

At some level, literary agencies and publishing houses have to know, deep down, that their time as gatekeepers of literary evolution is coming to a close. But yet, they dig their heels in, and refuse to acknowledge that their costs are lower so their prices should be lower -- if there was any real competition going. Instead, they say, "our costs are lower so our profit should be higher" . . . and so far, it is working for them, because everybody in their industry has agreed to play by those rules. Writers sure aren't getting any more wealthy, but publishing houses are . . .

One of the main problems with agency relationships is that they totally mess with the risk:reward model. Travel agents, insurance agents, real estate agents, literary agents, stock brokers -- their risk is minute compared to the risk of those they "represent" because the "agency model" encourages industry collusion. As long as every agent in the industry is doing the same thing, individuals are not accountable, and the mainstream society simply accepts it. The unfortunate thing is that the end sellers and buyers (writers and readers) are the ones who end up losing out.

Aren't there two pieces of your comment that are contradictory?

But, aside from editing what part of the "book manufacturing" process is actually necessary now

and yet:

But still it remains very difficult for a talented writer to make a living without some kind of brick and mortar publishing house agreeing to represent that writer

How do you reconcile these two statements? Either publishers add nothing of value, other than basic editing (which you should be able to easily purchase yourself by contracting a freelance editor), or publishers do in fact provide a lot more value in the process that helps ensure the success of a book. If publishers provide no value, how could it possibly be that you need to use a publisher to be successful?

It has never been easier in the history of the world to self publish a book. It's naive to think that a publisher's only role is to typeset, edit, and print (or electronically distribute) a book. If that was all there was to it then authors would/should self publish. And yet, as the other part of your comment alludes to, that's not all there is to successfully selling a book.

It could be that the only value added by publishers is that of passing through the barriers to entry that they themselves have erected around the book market. I won't say that this is definitely the case, but it's certainly a way to have publishers still provide an advantage without actually providing value.

I believe the point is that this part:

But still it remains very difficult for a talented writer to make a living without some kind of brick and mortar publishing house agreeing to represent that writer

is not actually necessary anymore (as it well may be in the world of physical books and brick-and-mortar retailing).

Ah, in that context the comment makes more sense. Then the argument is that because we have these new electronic storefronts, there's no need for the traditional marketing/sales effort that publishers traditionally provide (which used to be necessary for blockbuster success). I guess then it's just a matter of whether or not you believe that. I don't.

Marketing/sales is, of course, a necessary part of success (as are effective editing and, within the limits of the medium, effective design). Simply making the book available for purchase is never going to be enough (unless you're the type who likes to by very expensive tickets in a long-odds lottery). What is not necessarily part of the equation is that the channels for that part of the process be restricted to its traditional agencies and suppliers in the e-realm.

They control distribution. You know, that thing nobody needs? Well, you can't use what you don't need without them.

Of course, each statement is true for different parts of the market. You still need distribution for physical books and you don't need it for e-books IF you can make people aware of your book somehow. Well, that's a big IF sometimes.

"because the "agency model" encourages industry collusion."

Wait what? Is there collusion in the digital app industry built from the ground up with the agency model?

"As long as every agent in the industry is doing the same thing,"

Wait under which model were all ebooks, regardless of length, quality and demand were $9.99?

Simple observation of what's happened since the agency model has come out should explode your notions that it's some price fixer's paradise.

The top books in Amazon's Kindle store today are:

7.70 7.99 5.00 7.14 2.24 2.24 2.99 9.99 7.99

Most of the ones at the same-ish price point are from the same series/author/publisher.

The agency model has been a huge boon for self-publishers and this is exploding price levels the industry has relied on for decades.

> Wait what? Is there collusion in the digital app industry built from the ground up with the agency model?

In the digital app industry, there isn't collusion there's coercion where some (not all) platform owners say that if you want to sell apps for my platform you will adhere to my rules about distribution, pricing and related matters. That's not exactly a model of competition.

"Only Amazon seems to be interested in creating an ebook market rather than just gouging consumers."

Oh please, prices are [edit] often [/edit] lower now then when Amazon controlled the market.

Apply every observation you've made about "the agency model" to smartphone apps and your conclusions fall apart.

Agreed. This is probably the first time I've seen anything on Ebook pricing and not have to hit my head against the desk because people are being retarded with people calling for all ebooks to cost $.99 because they're cheap assholes, or people completely misunderstanding the fact that printing and distribution costs only attribute 20-30% of the cost of selling a book. (Retailer takes 30%. Printing/distribution, essentially the dead tree portion takes 30%, the publisher takes 30% to pay for the editors, etc., and finally the writer gets 10% (and their agent gets about 1%, or 10% of the writers cut.)

Ebook pricing has been anticompetitive outside the Amazon market.

Of paper books I own, I've (or my wife has) read over 90% of them. 5% are in my to-read list, and probably the last 5% are books that I've gotten out of nostalgia, or ones that I've said "I'm getting this one for when I have kids". That last 5% mainly consist of books that I personally haven't cracked open and read that book that's on my shelf, most that I've found at garage sales that are in great condition and I've said "I love that book, I'd rather see it go on my shelf than into a dump" and yeah when my kid gets old enough, that copy of Enders Game I found for $0.25 is so getting stuck in their hand. (supposing the printed word still exists in the next decade and kids understand how to read off of the mysterious bound fibres called 'books')

They don't have zero distribution costs, they have (close to) zero shipping costs. Distribution is not just shipping.

It seems like the other aspects you may be including in 'distribution' would fall more accurately under advertising. Placement on shelves in major chains, displays, flash banner ads, etc, are all much closer to advertising than they are to actual distribution, especially when it's digital. Placement on B&N's center display is equivalent to being on the landing page on Amazon. Both directly provide zero sales and move zero inventory (minus whatever is on B&N's stand), but expose them to many times more eyes.

Marketing is a fundamental part of distribution - if you're claiming wholesale catalogues (ie: marketing, 'hey folks, this is what we're selling') are not technically part of what a distributor does, you're moving the goalposts.

There's also pipeline management - while product inflow is not physical entities in the digital world, there is still the issue of finding new products and managing digital license agreements. Being a 'distributor' is more than just 'sending out a product from storage'. If that's all you're doing, you're a 'shipping department', not a 'distributor'

I think the process is like this:

- Publisher says "I want $10 for this e-book. You distributors can decide the actual 'list price'" - Amazon starts selling at $9 as losses $1 per book - to help drive Kindle sales - Publishers freak out, not about the now, but the future as Amazon has 90% market share of e-books - Enter Jobs and Apple who says "Oh here's what you do. You tell them the street price has to be $x and we'll keep 70% and you get 30%" - How do we make Amazon comply? Well, Apple insert the most favored nation clause saying that a price offered to anyone is the same price that they must Apple is selling at. - The book publishing executives also make the mistake of getting together every few months to discuss strategy and how the whole pricing thing was going (Dumb!)

So Apple, getting ready to launch the iPad, saw the stress with the publishers and a way to reign in Amazon and used their business savvy to help the publishers connect the dots.

The important question to me is will this lawsuit do more good than harm. Having the government establish when prices are too high (price fixing, Apple in this case) or too low (unfair competition, Google maps in France) is a risky situation.

Consider this quote from Milton Friedman talking about the antitrust suit against Microsoft in the 90s:

"Under the circumstances, given that we do have antitrust laws, is it really in the self-interest of Silicon Valley to set the government on Microsoft? Your industry, the computer industry, moves so much more rapidly than the legal process, that by the time this suit is over, who knows what the shape of the industry will be. Never mind the fact that the human energy and the money that will be spent in hiring my fellow economists, as well as in other ways, would be much more productively employed in improving your products. It’s a waste! But beyond that, you will rue the day when you called in the government. From now on the computer industry, which has been very fortunate in that it has been relatively free of government intrusion, will experience a continuous increase in government regulation. Antitrust very quickly becomes regulation." Full article at: http://www.cato.org/pubs/policy_report/v21n2/friedman.html

I'm not sure of your point here. Your opening sentence appears to question antitrust laws? Yet your Friedman quote seems to support antitrust laws and just argue that the Valley really shouldn't get too spun up about MSFT because by the time a conclusion is reached by the processes set in place it will likely be moot. This was a pretty cut and dried case that moved rapidly (2 years) against a group of executives who were colluding to raise prices to thwart a competitor?

Yes, I do question the value of antitrust laws. The Friedman quote was meant to show that given the existence of antitrust laws, it is still not in your long term interest to seek to have them enforced in your industry. Arguing that the government should have power to punish your competition is also an invitation for the government to regulate you.

If they lose, it's not obvious how this would hurt Apple aside from the fine. Wouldn't they just adopt the wholesale model for books leaving the publishers high and dry?

Presumably the only way Amazon was able to force the wholesale model in the first place was to threaten to stop selling paper books from those who wouldn't accept it.

In losing, Apple is likely to wind up under significant antitrust oversight. Given some of their other business practices (like the app stores), that could be a big issue for them.

The app store is clearly nothing to do with any kind of monopoly, however much people would like the government to force Apple to make it what they want.

However, I agree that antitrust oversight would be harmful for the Apple, and indirectly for the industry as a whole.

The question I have is what would be the consequence if the DOJ wins. Does Apple and others involved pay up to the government or compensate the people?

What does usually happen when the government wins in a lawsuit against a private firm?

With the antitrust cases against Microsoft by the EU I remember them getting a fine. And this fine was paid to the EU.

Any companies that felt they were entitled to compensation had to sue Microsoft and point to the antitrust case.

"To collect your $2.35 share of the settlement payment, please fill out this form and mail it within 10 days."

"Be sure to include a certified bank cheque for a $4.99 processing fee."

The private firm begins to properly contribute to the fund raising efforts of selected politicians so as to have the government turn its attention to other companies who are not performing their civic duty by contributing to vibrant democracy.

Usually the government gets a fine or change in behavior.

Afterwards, individual claimants sue the loser, using the facts of the government case. For example, a few states have sued Intel and LCD manufacturers after an FTC ruling.

Monetarily, the Government gets the fine. Then this money disappears into the bureaucracy and the people that were allegedly hurt receive none of it.

Speaking as someone publishing an ebook through BN, Amazon, and Apple, there's some competition in distribution. Basically Apple and BN are competitive and Amazon isn't (which is, I guess, what you'd expect given that Amazon is dominant). Apple offers 70%, as does BN. Amazon offers 70% if you sell your book for under $10, and only in some markets, and it charges you for downloads (from your 70%). If you want to price a book over $20 you get 35% royalties.

Fascinating. I assume this is self publishing (vs this article which is about the large publishers?) When you mention 35% royalties are you saying that Amazon gives you 70% of the street price you set to them? However, if your street price is more than $20 they drop that to 35% to you? Also, do any of the agreements require you, if you sell in other locations, that the price listed must match the price you told them? Ie - are they using a MFN clause like that listed in the article above?

AFAIK Amazon doesn't have an MFN clause. (Does Apple still w.r.t. books? I thought that's past tense.)

If I am willing to sell for under $10 Amazon offers a 70% royalty (less various charges -- effectively 60%) in some regions, 35% in others, and if the price is over $10 then it's 35% (with no deductions).

Oh my original post is confused -- books over __$10__ are limited to a 35% royalty (which is a huge poverty trap)

In all cases I'm talking percentage of my set selling price. (Perhaps Amazon wants to discount my books and still have enough margin to pay my royalty -- that's a lot of wiggle room -- they can sell my $20 book for $10 and make just as much money off it as if I'd set the cover price at $10.

From Apple, Barnes & Noble, etc. it's 70% minus some admin charge -- effectively 65% or so -- across the board.

Note that Apple does cap prices for "textbooks" created with iBookauthor at $14.99.

I guess in the end this doesn't matter much since we can always split books into parts, but the fact is that Amazon's business model currently involves:

* paying less to writers than anyone else

* evading state sales taxes by fair means and foul

* being the only vendor of ebook readers that can't read DRM-free ePubs out-of-the-box

It's not that Amazon isn't competitive, it's that you don't like the deal you are able to get with them as an author. If you were to go to a major publisher, I can pretty much guarantee that you would get a much worse deal unless you've already written books that have sold many copies.

iBooks offers a 70% royalty flat to anyone.

Amazon offers 35% to me, or 70% - some amount based on file size, if I am willing to sell for under $10.00.

I don't care what deal I'd get from a publisher -- the whole point of this new world is we don't need more middlemen.

This whole thing is pretty complex. I'd say the crux of the issue is Apple's non-compete clause on price. You can't list your ebook cheaper on Amazon than the price with Apple. But what if you don't have control over pricing at Amazon? That's where we'd be if Amazon was still using the wholesale model.

For this lawsuit, the problem is still the publishers since they insisted on the agency model with Amazon. The publishers are "price fixing," not Apple and not Amazon.

I am not a lawyer but I think the issue with Apple is that they coordinated the change. 1 publisher making demands of Amazon has no leverage, but collectively they do, and Apple is who told the publishers that they would have that support. Allegedly.

I fail to see the problem being solved by this lawsuit.

I'm sure there's some anti-competitive laws somewhere that have been violated, but I still disagree with the philosophy behind this action.

Consumers are buying ebooks and ebook readers like never before -- free individuals making a choice of their own free will to pay a certain amount of money for the product.

It is also hard to see how anything could be "anti-competitive" in a market where a lone person could compete by writing a book at home and selling it on their own website with paypal. Think that's an unrealistic example? You probably also thought that about the video games industry 5 years ago with big box stores, gamestops, and steam seemingly controlling all access to the market. Despite all that, a game involving digging blocks out of the ground made millions of dollars and completely side stepped the all the dominating distributors.

Don't under estimate the choices of the consumer and the power of innovative individuals. They will shake things up orders of magnitudes more than a small army of government lawyers.

The problem is that industry executives got together to fix prices and raise them by 20 - 30%. I'm all for innovative people but struggle with the logic of "We're ok with crony capitalism because it drives innovation!" Surely free, transparent markets are better for innovation than manipulated ones?

For a much longer and more involved write-up, see [1]

[1]: http://mediadecoder.blogs.nytimes.com/2012/04/11/justice-fil...

Where does Amazon's market influence fit into this picture?

A poster below offered two valid scenarios from opposite angles: 1) Prices were illegally raised by Apple and publishers colluding in an anti-competive way 2) Prices were artificially lowered by Amazon's pricing scheme, and competition was restored by returning to price levels originally set by the market

It wasn't a stretch of the imagination to think that Apple would move into the ebooks market at some point, building on their success with music and apps. Does a competitor running a loss to preemptively lock out new market entrants count as anti-competitive behaviour?

To me the bigger problem is Apple's arbitrary standards regarding the App Store. They can effectively shut out what are legitimate apps for whatever agenda they want to push (anti-competitive or otherwise) and back it up with any bogus citation of their restrictive ToS. The idea of Dell or Apple able to dictate what we can or cannot install on our computers would be absurd yet we're paving the way for such a future as smartphones get smarter while such policies remain in place.

At least book/content publishers have other avenues to disseminate their content.

Does anyone have the complaint?

http://online.wsj.com/public/resources/documents/ebooks04112...

Wow, that reads like a pretty good slam dunk for the govt.

It does look strong. I wonder what Apple is holding out for, or whether there is actually a defense.

Apple, like Microsoft before them, might be holding out for a change in the people who oversee the DoJ.

If so, that seems like just as unwise strategy now as it was for Microsoft. I think it's pretty unlikely.

The government complaint is actually pretty easy-to-understand and read, for anyone who wants to understand the real issues here:

http://online.wsj.com/public/resources/documents/ebooks04112... (pages 5-9)

Isn't the agency model exactly what enables new entrants to publishing (whether publishing houses or self-publishers) to operate on a level playing field with established publishers?

It seems to me to be the best thing that's happened to the book industry for decades.

Not really; anyone could sell an ebook to amazon under the wholesale rules as well. It probably makes things easier for self-publishers in that amazon can't sell big-name titles for as cheap, which might increase demand for small name titles at lower prices, but is that a good thing?

I'd say it could a good thing because it facilitates price competition between actual producers, where the feedback from the market can more directly affect the quality of actual books rather than just who gets to sell them.

It's a little hard to be up in arms about this alleged price fixing. Yes, it's anti-consumer and might end up costing us a few dollars, but if the DOJ is looking to make some real change, I'd argue that this isn't the best use of their time. Let's remember that we still have too-big-to-fail banks and an associated industry that the Dallas Federal Reserve says is on the brink of putting us into another bailout situation.

To make a comparison, it's like candidates arguing over birth control issues and glossing over the 3 wars and financial crisis we're in. Yes, very important, but there are some more pressing matters that are being largely ignored.

Parallel processing? To make a comparison, just because the siding on your house is badly in need of repair doesn't mean you stop doing the dishes for two weeks until you've replaced all your siding.

Maybe they just need a better PR department. From my point of view, I'd like to hear a few more headlines about how they're working to avoid the next economic meltdown before I care about being charged an extra 50 cents for an ebook.

To use your comparison, if there were reports of a hurricane coming I'd use every available resource to fix that siding, because the dishes won't matter if the house is blown apart.

Allowing some injustices and illegal behavior to go on because there exists larger injustices out there doesn't seem like a good strategy for anyone hoping to see an improvement.

In absolute terms, I agree. However, in the real world there are limits on resources. Imagine there was a serial killer loose in your town, and instead of seeing headlines about the police's progress in catching him, the headline reads "police bust local book store for selling books on the sidewalk without a permit." You'd be asking what the progress is on the serial killer.

I'm not saying the ebooks thing isn't a problem, it just seems so trivial compared to the other crushing problems our country is facing at this moment.

I'm curious why Google Books isn't involved one way or another in this. I suppose they may be tired of lawsuits involving publishers.

I'm guessing due to lack of popularity and possibly inclusion in whatever collusion is going on. For most, if you think "eBooks", you think Amazon or iBooks.

Not necessarily. If you have iWhatever you may think that. If you're running android you're thinking Amazon or Play books.

Considering the Play Books has only been around for a few months, you sound a bit hard to believe.

I'd say it's more likely the average Joe and Jane think about the Kindle and the Nook (and maybe the iPad - oh, but that's mainly for playing games + browsing) and their respective bookstores.

Well - when you open android market, you see ebooks advertised. That's Play books. If you browse popular applications, you'll see Kindle.

I'm saying this from the point of view of possibilities / easy accessibility. No, iBooks is not an option for Android users, because they have no access to it. They don't care about it unless they have an iDevice - that's all I tried to say.

If you go for a Kindle device, your first option is Amazon of course. Actually a common user will probably know something about Kindle and that he can buy books on his mobile. The details about who they come from and how they work are not that important.

Google has been selling ebooks for about a year less than Apple (April 2010 vs Dec 2010). If Google had hit their announced release date for their ebook store it would have been with in weeks of each other. Sure Google just rebranded their store a few months ago but it has been around for much longer.

Amazon's been in the eBook game long before Android.

I've never really seen Google be so offensive. They do sue but in most cases when someone is suing them first.

Why would they? Apple was the one who facilitated the collusion between the publisher competitors.

Dopiest thing I've seen about this is the statement that Apple "considered" fixing prices.

God forbid someone should think about doing something.

Governments hand out monopolies with one hand (copyright, patents) and then sue companies for making use of these monopolies with the other hand. What a great waste of time and money!

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