authorsguildThe battle lines are drawing up! Last week, both parties in the Apple e-book antitrust case consented to the filing of amicus curae briefs—briefs filed by parties who could be affected by a decision supporting the arguments of one side or the other—in Apple’s request to have it reheard by the Supreme Court. And here comes the first one.

All the usual suspects just got together: signers include the Authors Guild, Douglas Preston’s Authors United, the American Booksellers Association, and Barnes & Noble—pretty much every major anti-Amazon voice that’s made a peep in the last couple of years. (I’m surprised Melville House didn’t join in—though they do get mentioned on page 24 of the brief itself.) The Authors Guild has a press release that includes an embed and link of the brief as a PDF.

They trot out all the usual arguments, too. Letting the verdict against Apple stand could “undermine the very objective of antitrust law—to ensure robust competition.” (Never mind that the thing about agency pricing was that it entirely removed the ability of smaller retailers to compete on price.) Amazon controlled too much of the e-book market at the time, and still controls an awful lot, and it does bad things to companies it doesn’t like. Agency pricing increased competition by causing a drop in Amazon’s market share, and reduced the ability of Amazon to stifle publishers or ideas it didn’t like by making their works unavailable.

The brief’s authors hold that Apple’s behavior should have been adjudicated under the Rule of Reason, in which the behavior is considered on its merits, rather than deemed per se illegal with no such consideration required. And they think that under the Rule of Reason, it would have a pretty good chance of being deemed legal.

So far, the lower courts haven’t found these arguments convincing. It remains to be seen whether they’ll move the Supreme Court to take up the case.

Any other parties who want to file amicus briefs have until January 4th to get theirs in. It’s still unknown whether the Department of Justice plans to file a brief of its own.


  1. Quote: “Never mind that the thing about agency pricing was that it entirely removed the ability of smaller retailers to compete on price.”

    Chris, you really need to remember to finish that morning coffee before you write these things. It will help clear your head and improve your memory. Do you really think “smaller retailers” can afford to cut prices on anything like the scale that Amazon can?

    I remember that period well. Amazon had roughly 90% share of the ebook market and was selling popular ebooks well below cost (i.e a $17.99 bestseller from a major publisher for $9.99) to destroy what pitifully little competition remained. No smaller retailer of ebooks stood a chance against that.

    That’s the real history of the time not the Orwellian version. By offering agency pricing just like it did for music, movies and apps, Apple won the favor of the major publishers it needed to kick off its iBookstore. It also infuriated Amazon with its desire to own the ebook market. And unlike all the little people around or even the Big Five retailers, Apple has pockets every bit as deep as Amazon’s. That’s why it has continued this fight even though those big publishers were forced to settle.

    Agency pricing was intended to give everyone else protection against Amazon. That it did, hence the Amazon’s undercover push to get the DOJ to sue Apple and the Big Five. As I often point out, the Seattle law firm that prompted the DOJ to sue is about a ten-minute walk from Bezos’ office. Do you think that’s just a coincidence?

    You might also keep in mind who is the real nasty guy in the current market. It’s Amazon with its most-favored clause. That means that if an author or publisher wants to help those “smaller retailers”—or perhaps a charity he supports—by giving them a better price so they can undercut Amazon, he can’t. Amazon will find out about that lower price. Its lawyers will send out most-nasty letters, and Amazon will cut the price to match that other one, paying the author only on that forcibly lowered price.


    I really can’t understand Amazon fan-boys. Accepting abuse only brings more abuse. I’m boringly average-sized now, but in grade school is was one of the smallest guys. Yet interestingly, I was never teased, much less bullied. Recently, I asked myself why and realized there was a reason. If anyone had tried, they’d have regretted it. Bullies are typically cowards and sensed how I would react. As a result, I never had to face the problem Ralphie faces in “A Christmas Story.” I didn’t have to blow any fuses.


    For the record, I was one of seven authors who challenged the speed with which the Google book settlement was being rushed through the court—with grossly incompetent coverage in the press I might add. We won a delay that was just long enough to build momentum against the settlement and essentially castrate it as various foreign governments filed their own papers against it.

    And do you know who was covertly covering the legal costs for us seven authors? It was Amazon. Amazon has a lot of lawyers in their upper ranks and they like to make their legal moves off the radar of the news media, something that’s not that hard to do.

    I agreed with Amazon on that one because I stand with authors. When Google tries to screw authors around the world by making worthless the U.S. copyright of all their out-of-print books, I’ll be a ‘friend of the court’ with Amazon. And I did that even though I knew Amazon’s motives—not wanting all those books to be free—differed from my own.

    But I will also oppose Amazon when it, rather than Google, is the one screwing authors. That’s why I bash Amazon for bullying authors and small publishers (i.e the POD controversy that ended up a Maine federal court). That’s why I criticize Amazon for grossly underpaying authors, a fact that is beyond denial. And that’s why I bash it for trying to trap authors in a one-retailer market by rewarding with more visibility those who give them exclusives.

    I might add that Apple does none of that. I does not bully or threaten. It pays the best royalties in ebook retail. It doesn’t tie iBookstore promotions to giving it an exclusive. And rest assured, when Apple gets out of line, I outrage Apple fan-boys by giving it hell too.

    One final note. Apple is right about the “rule of reason,” because unreason has reigned supreme in this case thus far. How could Apple, which at the time of its alleged crime, had 0% of the ebook market engage in price fixing? Why would it even want to do so? It wanted ebooks reasonably priced to do what really makes it the money, selling iPads. And if agency pricing is so evil, why is it the way Amazon and practically everyone else sells music, movies and apps? At the sales end, the retailing of all four is identical: a credit card is processed and a file is downloaded.

    One thing the Authors Guild, Douglas Preston’s Authors United, the American Booksellers Association, and Barnes & Noble share in common is that they reflect a vast experience. They understand books and publishing along with what makes them healthy. I don’t think I will ever understand those who seem to believe that an ebook market totally dominated by Amazon is a healthy market.

    Sadly, in the Ralphie v. Farkus dispute, they seem to be taking the side of Farkus.

    • Fictionwise was a smaller retailer, and was able to stay in business right up until agency pricing happened. Then its Buywise discount club (of which I was a member, because I did all my shopping there) had to go away. And then it went away. So I was writing from experience.

  2. IIRC, Fictionwise did not drop the Buywise discount club immediately, but they did stop selling books from the Agency Pricing 5 on April 1, 2010, the day the publishers forced agency pricing on everyone. I don’t think Fictionwise ever publicly stated why they never got new agreements to sell ebooks from the AP5, but I always assumed that its parent company, B&N (and a party to this brief), chose not to negotiate new Fictionwise contracts in order to coerce Fictionwise customers into buying Nooks and migrating to the B&N website.

  3. Dear Mr. Perry,

    I have a hypothetical question for you as you seem to very knowledgeable on these matters.

    My question is:

    If Amazon had initiated an agreement with all the major publishers to increase the price of their books on the Amazon marketplace, would this have been illegal?

    Thank you

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