Did you know there’s another agency pricing Apple lawsuit? This one hasn’t gotten as much press, though Nate has covered it at The Digital Reader and we touched upon it once in regard to a ruling by Judge Cote on the legality of removing DRM.
It was filed by three booksellers: Australian e-book store DNAML (who we’d covered a few times), Lavoho (“successor to” defunct store Diesel eBooks), and Abbey House Media (formerly BooksOnBoard). They alleged that Apple and the agency-pricing publishers had effectively torpedoed their businesses, because they relied so heavily on discounts and bundles..
In June, 2014, Cote permitted the suit to proceed, though warned the plaintiffs that it could be extremely difficult to prove actual financial damages against the publishers and Apple. In August, 2014, she ordered the plaintiffs and defendants into mediation, but it apparently didn’t go anywhere. So, at last, Andrew Albanese reports at Publishers Weekly, the trial is moving forward into the Summary Judgment phase. Under the new schedule, all motions and replies are expected to be briefed by the end of October.
It’s unclear what, if anything, the former e-book stores could hope to gain from this. As Judge Cote noted, it would be very difficult to put a price tag on money they didn’t make. Indeed, proving damages or lack thereof from agency pricing was one of the more contentious issues of the overall Apple trial. What’s more, even if the bookstores win, it seems unlikely they’ll be able to re-open. Agency pricing is effectively a fait accompli now; since the trial, the publishers have accomplished by negotiation what they couldn’t with litigation, so they wouldn’t be able to resume their discounting and bundling ways.
But if nothing else, it might be a source of some ancillary schadenfreude while we wait to hear what the Supreme Court thinks of Apple’s appeal.
In a way, it’s kind of sad. There should have been other companies represented as plaintiffs—eReader, Fictionwise, Mobipocket. They were the best-known names in e-books in the late ‘90s and early 2000s, and their businesses were torpedoed just as effectively by agency pricing. (I was a member of Fictionwise’s “Buywise” discount club and rebate program, which could no longer exist by the rules of agency.)
But by then Barnes & Noble and Amazon had already bought them out and they no longer existed as separate companies (and first Mobipocket and then Fictionwise and eReader no longer existed at all)—and even if their new owners could join the suit on their behalf, it seems unlikely either of those big bookstore companies would want to court further enmity with the publishers and Apple by doing so.