DOJ

Will the Supreme Court Take Apple’s E-Book Appeal?

19 September 2015

From Andrew Albanese at Publishers Weekly

As expected, Apple attorneys this week confirmed that they will be seeking a Supreme Court review of Judge Denise Cote’s 2013 verdict finding them liable for a conspiracy to fix e-books prices. The question now is: will the Supreme Court take the case?

“I think, and have always said, that the Supreme Court taking the case is very unlikely,” says Christopher Sagers, law professor at Cleveland State University, and a close follower of the case. Sagers reiterated what he told PW this summer after an appeals court affirmed Cote’s ruling: “It’s a fact case, and I can’t imagine what the circuit split will be,” he said.

. . .

Apple has brought on some major firepower to help with its appeal, hiring Seth Waxman, the 41st Solicitor General of the United States, and a familiar figure before the Supreme Court.

. . .

In June of this year, a three-judge panel of the U.S. Court of Appeals for the Second Circuit strongly affirmed Cote’s “per se” handling of the case, calling the decision “amply supported and well reasoned.” But, in a headline-grabbing dissent, one member of the appeals panel, Judge Dennis Jacobs, sided with Apple.

. . .

If the Supreme Court ultimately rejects Apple’s petition for cert, its liability finding would be considered final under a 2014 settlement with 33 states and a consumer class, triggering $400 million in consumer rebates.

Link to the rest at Publishers Weekly

Posted by Vacation Substitute Blogger Bridget McKenna, who predicts we <i>will</i> see the last of Apple appeals if the Galactic High Court refuses to hear the case.

Authors United Epic Fail-O-Rama

14 July 2015

Joe Konrath considers the latest whinings to the Justice Department from Authors United, the Authors Guild, the American Booksellers Association and the Association of Authors Representatives:

More nonsense from Authors United.

. . . .

This is a long one, because their letter was so long. And so, so stupid. Tomorrow I’ll spank the Authors Guild, which did something semi-helpful by blogging about ebook royalties, and then stomped on that good faith with awful opinions about piracy, and by endorsing the following nonsense:

Dear Assistant Attorney General Baer:

We believe that Amazon has gathered unprecedented market power over the world of books, which many experts have asserted make it both a monopoly in its role as a seller of books to the public and a monopsony in its role as a buyer of books from publishers. We believe Amazon has been misusing that power in many ways, and we seek the benefit of your office to address this situation.

Amazon is not a monopoly, via Time Magazine:

While Amazon is certainly a large and growing online retailer, even a liberal interpretation of its share of the domestic e-commerce market puts the figure at less than 50%, which is well below the 70% threshold courts typically require as proof of monopoly power. (…) And even if a court found Amazon to possess monopoly power — as one could somewhat realistically claim it does in the e-book market — that’s still only half the battle, as it must also be proved that said power is being exercised to the detriment of consumers.

Lower prices is not to the detriment of consumers.

. . . .

Good luck trying to show that suppliers are being forced to sell ebooks at a loss, which reduces the supply. There are more ebooks available than ever, with more suppliers than ever. Digital media doesn’t subscribe to the rules of supply and demand. Supply is unlimited, because ebooks can be copied and delivered with the press of a button, with low to no overhead other than sunk costs involving the initial production (editing, cover art, formatting, etc.)

The Big 5 are hurting because they are too stupid, lazy, and inefficient to compete. Not because Amazon is controlling them, or anyone else. And, ultimately, pulishers aren’t suppliers. They are middlemen. Writers are the suppliers–something Authors United can’t seem to grasp.

On its current course, Amazon threatens to derail the benefits of a revolution in the way books are created and sold in America. This shift was brought about by two broad innovations. The first is the e-book, the most dramatic new technology in publishing since the invention of the printing press. Because of the low cost of producing and distributing an e-book, many more authors now have the opportunity to self-publish, and millions of people can read books in formats that better fit their pocketbooks and preferences.

The second advance is the e-commerce technology that makes possible on-line bookstores. This techonology has connected readers with a vast selection of physical books, including rare, obscure, and out-of-print volumes. E-commerce has also made it far easier for small publishers to reach customers around the world.

I might be getting ahead of the letter, but apparently Amazon threatens to derail the benefits that Amazon itself–at great cost and risk–revolutionized.

Also, I hope Authors United spell-checked and corrected “techonology” before sending this. Lots of irony in misspelling that…

. . . .

Initially, Amazon deployed these new technologies in ways that benefited both readers and authors. While Amazon did not invent the e-book or e-reader, it created a platform that made it easy for millions around the world to access e-books, including readers who live nowhere near a brick and mortar bookstore.

But as Amazon has become a global corporation of unprecedented size, scope, and power, it is increasingly engaging in practices that undermine the interests of readers, authors, publishers, and society as a whole. Amazon has used the digital revolution in book publishing to exercise control over the marketplace of ideas in ways that threaten not merely open markets but free speech.

And Gutenberg needed to be stopped because he sold more printing presses–you know, that thing he invented–than anyone else.

If by “threatening an open market” they mean “competing better than anyone else” than they are correct.

I’m looking forward to see how Amazon also threatens free speech and the marketplace of ideas. Let’s read on…

While Amazon contends that its goal is to serve consumers by eliminating middlemen in publishing (which it calls the “gatekeepers”), Amazon’s executives have also made clear they intend to make Amazon itself the sole gatekeeper in this industry.

Unlike every other company, which limit themselves to small shares of a marketplace without ever trying to grow. I mean, Coke never tries to take market share from Pepsi. That would be unfair.

But what’s at stake here is not merely monopoly control of a commodity; what is at stake is whether we allow one of the nation’s most important marketplaces of information to be dominated and supervised by a single corporation.

Okay, I think I’m beginning to understand. So many consumers and suppliers use Amazon, freely and by choice, that free speech and ideas will be squelched, because…

Uh…

Because there is no other place to speak freely or exchange ideas. Because Amazon has become the sole omnipotent totalitarian power in the universe, because…

Um…

Because consumers and suppliers freely choose it to be.

Ack. And there are 20 more pages of this crap.

Link to the rest at Joe Konrath

Authors Guild Met With DoJ to Seek Investigation Into Amazon’s Practices

2 October 2014

From the Wall Street Journal (content may be behind a paywall):

The Authors Guild, the country’s largest advocacy group for writers, met with Justice Department officials in early August, people familiar with the matter said. The Guild, which has more than 8,500 members, raised concerns that Amazon is violating antitrust law as it puts pressure on Hachette Book Group in a dispute over revenue from e-books.

The meeting took place after the Authors Guild emailed Bill Baer, head of the antitrust division of the Justice Department, requesting that the department open an investigation into Amazon, one of the people said.

Meanwhile, Authors United, a separate group that counts more than 1,000 members, including some of the country’s most prominent writers, said it is readying a letter it intends to send to the Justice Department—also requesting an investigation into Amazon’s business practices.

The government has intervened in the e-book industry before.

In 2012, the government filed a civil antitrust lawsuit against five publishers and Apple Inc., accusing them of conspiring to raise digital-book prices. The five settled, paving the way for Amazon and other retailers to resume discounting e-books. Apple went to trial, was found liable in a civil case, and is appealing.

Sending a request to the Justice Department, however, may be a more sensitive matter to some members of Authors United. Mr. Preston, in an interview, said that a dozen or so writers have already contacted him requesting that their names not appear on a letter requesting DOJ intervention.

Read more over at the WSJ.

It’s worth noting that the WSJ pointed out that the DOJ has intervened in the ebook industry before, specifically the collusion case against Apple and the Fivetones. While the WSJ did manage to get the number of publishers correct, they failed to identify Hachette as one of the named defendants. That is surely an unfortunate oversight.

~ Dan