Since the Department of Justice stood up for fans of digital books a few months ago and sued the major publishers and Apple over their 2010 conspiracy to raise prices, the amount of whining, spin and flat out lies emanating from some of the publishers and Apple has been both impressive and depressing. That so many journalists and bloggers who should know better repeated much of this truthy crap storm is even more depressing.
So it was like a breath of fresh air yesterday when the Department of Justice released, along with some 868 comments it received, a powerful and straightforward brief refuting much of the garbage that lately passed for analysis and history of the ebook market. The whole 66-page brief (PDF) is worth reading — actually should be required reading for reporters and bloggers covering the issue — so I’ll limit myself to highlighting just a few key points. To start, the brief offers a simple, concise explanation of what went wrong:
When Apple launched its iBookstore in April of 2010, virtually overnight the retail prices of many bestselling and newly released e-books published in this country jumped 30 to 50 percent—affecting millions of consumers. The United States conducted a lengthy investigation into this steep price increase and uncovered significant evidence that the seismic shift in e-book prices was not the result of market forces, but rather came about through the collusive efforts of Apple and five of the six largest publishers in the country. That conduct, which is detailed in the United States’ Complaint against those entities, is per se illegal under the federal antitrust laws.
It’s really as simple as that.
Among the many detailed refutations and take-downs in the brief, the main one I want to focus on is about the role of Amazon. Recall that for more than a decade, the ebook market was nearly moribund. It wasn’t until November, 2007, when Amazon introduced its Kindle ereader and related ecosystem that the market exploded. A critical component, of course, was the deep discounts Amazon offered on some Kindle books, although that was far from the only innovative and important feature that helped the platform succeed where so many others had failed.
Publishers and their allies have centered their defense on outlandish claims that Amazon was simultaneously discounting them to death (even though they still had full control over how much Amazon paid them) and creating a monopoly to rip off consumers (even though Amazon’s entire business was predicated on low prices).
The Justice Department’s brief offers at least three powerful rejoinders:
-Amazon wasn’t do anything wrong
-The ebook market was vibrant and competitive
-”He hit me first” isn’t actually a viable legal defense
First, the Justice Department noted that it investigated allegations against Amazon and found no evidence of predatory pricing or other illegal conduct. Amazon’s ebook effort was consistently profitable, as only some ebooks, such as best sellers, were sold at $9.99, the money-losing price point so hated by publishers.
“Loss leaders,” two-for-one specials, deep discounting, and other aggressive price strategies are common in many industries, including among booksellers. This is to be celebrated, not outlawed. Unlawful “predatory pricing,” therefore, is something more than prices that are “too low.” Antitrust law prohibits low prices only if the price is “below an appropriate measure of . . . cost,” and there exists “a dangerous probability” that the discounter will be able to drive out competition, raise prices, and thereby “recoup its investment in below-cost pricing.” Brooke Group v. Brown and Williamson Tobacco Corp., 509 U.S. 209, 222-24 (1993). No objector to the proposed Final Judgment has supplied evidence that, in the dynamic and evolving e-book industry, Amazon threatens to drive out competition and obtain the monopoly pricing power which is the ultimate concern of predatory pricing law. The presence and continued investment by technology giants, multinational book publishers, and national retailers in e-books businesses renders such a prospect highly speculative. Of course, should Amazon or any other firm commit future antitrust violations, the United States (as well as private parties) will remain free to challenge that conduct.
Second, the agency reviewed some of the history of the ebook market after the Kindle arrived and before the illegal price-fixing conspiracy, which has been the subject of some of the most ridiculous propaganda from Apple and the publishers. And what was the condition of that market? Highly competitive and filled with innovation. Barnes & Noble, for example, not only had already introduced its popular Nook reader and garnered over half of ereader sales, but Google and Apple were far along in planning to launch their own offerings as well. Color ebooks, to pick one particularly silly example offered by Apple, were coming soon whether or not publishers colluded to raise prices.
The idea that somehow Amazon could now gain a monopoly is even sillier. The company has only a fraction of the profits and cash flows of its competitors, Apple, Google, Microsoft and Sony. Barnes & Noble was in a bit of financial turmoil earlier this year but got a $300 million injection from Microsoft as part of a wide-ranging alliance and remains a highly competitive number 2 in the market.
Third and finally, even if Amazon was in the midst of some heinous scheme to monopolize the ebook market, U.S. law still does not permit a bunch of companies to get together and agree to raise prices.
When Congress enacted the Sherman Act, it did “not permit the age-old cry of ruinous competition and competitive evils to be a defense to price fixing,” no matter if such practices were “genuine or fancied competitive abuses” of the antitrust laws. See United States v. SoconyVacuum Oil, 310 U.S. 150, 221-22 (1940); see also, e.g., FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 421-22 (1990) (“[I]t is not our task to pass upon the social utility or political wisdom of price-fixing agreements.”). Competitors may not “take the law into their own hands” to collectively punish an economic actor whose conduct displeases them, even if they believe that conduct to be illegal. See FTC v. Ind. Fed’n of Dentists, 476 U.S. 447, 465 (1986) (“That a particular practice may be unlawful is not, in itself, a sufficient justification for collusion among competitors to prevent it.”); Fashion Originators’ Guild of Am. v. FTC, 312 U.S. 457, 467-68 (1941) (rejecting defendants’ argument that their conduct “is not within the ban of the policies of the Sherman and Clayton Acts because the practices . . . were reasonable and necessary to protect the manufacturer, laborer, retailer and consumer against” practices they believed violated the law (internal quote omitted)); Am. Med. Ass’n v. United States, 130 F.2d 233, 249 (D.C. Cir. 1942), aff’d 317 U.S. 519 (1943) (“Neither the fact that the conspiracy may be intended to promote the public welfare, or that of the industry nor the fact that it is designed to eliminate unfair, fraudulent and unlawful practices, is sufficient to avoid the penalties of the Sherman Act.”). Thus, whatever defendants’ and commenters’ perceived grievances against Amazon or any other firm are, they are no excuse for the conduct remedied by the proposed Final Judgment.
No excuse, indeed…
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