Barnes & Noble, American Booksellers Association to file amicus curae brief in DoJ anti-trust case

Well, that didn’t take long. In the wake of the Department of Justice’s response to the hundreds of comments it received regarding its proposed anti-trust settlement with three alleged agency pricing conspirator publishers, PaidContent reports that the American Booksellers Association and Barnes & Noble have sought permission from Judge Denise Cote to file an amicus curae (“friend of the court”) brief in the case. Judge Cote has granted permission to file such a brief by August 15th.

The ABA and B&N discuss the sorts of things they’re likely to say in the 10-page filing (PDF) in which they ask for permission to file the “real” brief, which also represents a sort of first response to the contentions the DoJ made in its own response in which it discussed and dismissed B&N’s claims in its comments.

It mostly amounts to reiterating the same arguments B&N made in its DoJ comments, however: agency pricing itself is not illegal, Amazon’s predatory pricing gave it control of 90% of the e-book market, but agency pricing magically cut that back to 60%. Agency pricing supported diversity and competition, and the DoJ isn’t directly punishing any of the colluders for colluding. It also argues that the DoJ didn’t ever come out and say why dismantling agency pricing is in the public interest in its response, and beats on the drum of 800 posts opposing, only 19 posts supporting the DoJ’s settlement.

All this really isn’t terribly surprising. As the DoJ also pointed out in its response, B&N has a financial stake in the fruits of the alleged collusion. For that matter, do does the ABA. Their business interests so strongly align with the continued practice of agency pricing from all the Big Six publishers that they really don’t have any choice but to fight tooth and nail against the settlement until they’re finally dragged into it kicking and screaming.

And while the settlement will go into effect soon if the judge doesn’t block it, it’s still going to be ten months until we can even begin to find out whether the DoJ’s interpretation of the anti-trust laws will hold up in court.

3 Comments on Barnes & Noble, American Booksellers Association to file amicus curae brief in DoJ anti-trust case

  1. Quote: “As the DoJ also pointed out in its response, B&N has a financial stake in the fruits of the alleged collusion. For that matter, do does the ABA. ”

    So the only people the DoJ is willing to listen to are those with no interest in the outcome? That’s a strange POV. If you care we won’t take your seriously.

    Even stranger is the fact that the DoJ doesn’t seem concerned (at least in public) that their legal actions seem almost perfectly tailored to benefit Amazon and Amazon alone.

    * Only Amazon hates agency pricing because it doesn’t let them sell below cost and destroy their competition. Agency pricing is one reason why their 90% market share is now around 60%.

    * As the dominant player in the market only Amazon benefits when publishers and online stores can’t work together to straighten out the mess the ebook market is in. Only Amazon is big enough to establish a proprietary standard that’ll dominate until industry-wide standards and a rationale distribution system is established.

    My hunch is that Amazon or some law firm serving as a cut-out for Amazon got to the DoJ and persuaded them to adopt this ill-advised quest. At best, they were too stupid to know they were being duped.

    And since then the DoJ’s behavior fits with one of Mike’s Laws: “The stupider the idea, the more tenaciously it will be defended.” The DoJ has dug itself into a hole it can’t get out of without great embarrassment.

  2. It wasn’t magic that cut Amazon’s marketshare to 60%, it was agency pricing which leveled the price playing field. Once price was removed as a reason to buy at Amazon, many people decided there was no longer a good reason to buy at Amazon. Although Amazon fans like to think of Amazon as flawless, for many book buyers it has lots of moles.

    And as Michael Perry notes in his comment, it is strange that the DOJ so easily and readily dismisses 800 comments and focuses on 19, supposedly from disinterested parties. The mere fact that they commented makes them interested and even if all 19 are “consumers” rather than authors or booksellers, doesn’t make them less interested in the outcome. Their interest is clearly lowest pricing.

  3. Brian / AnemicOak // August 1, 2012 at 9:55 am //

    “It wasn’t magic that cut Amazon’s marketshare to 60%, it was agency pricing which leveled the price playing field. Once price was removed as a reason to buy at Amazon, many people decided there was no longer a good reason to buy at Amazon.”

    Really? You’re sure it has nothing to do with B&N and others capturing some of the market that’s grown since then? I’m sure some folks left Amazon or like me buy everywhere and not just from Amazon, but it seems likely to me that B&N, Kobo, etc. have been able to capture some of the ever growing market for eBooks and it has little to do with Amazon losing customers (in fact I’m sure they’ve gained many which is why they still dominate the market).

    Of course all of the market share info is speculation, we don’t know who has what shares of the market really.

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