This article appeared in the December 3, 2015 Publisher’s Lunch Deluxe Newsletter. It speaks volumes for common sense and the state of the industry, which everyone seems to understand with the exception of Judge Denise Cote and the DoJ.
Barnes & Noble, ABA, and Authors Guild File Brief Asking Supreme Court to Hear Apple’s Appeal
Barnes & Noble and the American Booksellers Association joined with the Authors Guild and Authors United in a friend of the court brief asking the Supreme Court to hear Apple’s appeal of the ebook pricing case. Consistent with Apple’s own brief, the parties assert that the Second Circuit should have used the rule of reason to evaluate Apple’s conduct in launching the iBooks Store rather than judging it per se unlawful. And they assert that under a rule of reason, the market for ebooks became more competitive: “Following Apple’s entry into the market and the adoption of the agency model, competition within the e-book retail industry increased dramatically…. Amazon’s market share decreased from 90% to about 60%. Hundreds of independent bookstores began selling e-books, and Barnes & Noble’s e-book business grew as well.”
Moving beyond the market for ebooks, they also argue that, “The sale of e-books by a dominant retailer [e.g. Amazon] at below the cost paid to publishers also threatened brick-and-mortar retailers, and the publishers who depended on them to distribute the majority of books, because it ‘cannibalized’ hardcover sales.”
In joining together, the parties note they “have a strong interest in ensuring that adoption of the agency model of e-book pricing, a business model that improved competition and diversity in the e-book market, is not treated as an antitrust violation, to the detriment of authors, retailers, consumers, and the bedrock principle of
freedom of expression in the United States.”
A similar, indepth article ran on the same day in Publisher’s Weekly’s PW Daily.
One can only hope that the Supreme court will hear the appeal and that common sense and justice will prevail. But I’m not holding my breath… Amazon wields a lot of political power.