Apple preparing DoJ court battle over e-book fixing: report

Summary: Apple is reportedly preparing to take allegations of e-book price fixing to the Department of Justice.

Apple will take the allegations that it 'fixed' e-book prices in a bid to undermine Amazon's business to court, reports Bloomberg, citing sources famililar with the matter.

The two other publishers are thought to be Macmillan and Pearson's Penguin Group, who earlier this week were reportedly "reluctant" to settle the case before an antitrust investigation begins.

The case is being taken further as publishers attempt to defend the 'agency' model -- which allows the publisher rather than vendor to set e-book prices. This, in turn, gives publishers control over pricing and consumer discounts.

The Justice Department will be investigating whether the Cupertino-based company conspired with publishers to control pricing structures and limit competition within the e-book market.

According to Bloomberg's sources, the government wishes to establish a settlement that would allow competing retailers, such as Amazon, to revert to a wholesale model. In comparison to an agency model, wholesale structures ensure retailers retain control over the price of goods that consumers are required to pay.

CBS-owned Simon & Schuster (ZDNet is also owned by CBS), Hachette Book Group, and HarperCollins are attempting to avoid a potentially expensive and lengthy legal battle, and may be willing to reach an agreement by next week.

It is possible that a settlement would void certain clauses in the contracts that Apple issues book sellers; such as the clause that requires participants to provide the company with the lowest prices offered to competitors.

Apple was unavailable for comment at the time of writing.

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16 comments
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  • "Agency model" can not "fix" the prices, contrary to Amazon's model

    So I am not sure what they are going to discuss in the court.

    Apple takes 30% from whatever price the [i]seller[/i] wants to set. Before Apple came to the market Amazon was setting end-user prices and only paid small money to publishers. Apple's deal seemed more fair to publishers so Amazon had no other choice but to offer better conditions.

    This all resulted in raise of average end-user prices. However, since [b]Apple has no word on how big or small end-user price has to be[/b] (contrary to Amazon), DoJ will hard time going after Apple for that. Publishers is another matter. How much success can DoJ have pursuing them is not clear; lets see.

    This is not to say that average price hike is any good for consumers. Steven Jobs said that this is only short-term effect, and in the long run agency model will allow to sell significant amount of books cheaper than $9.99 price that Amazon would set on them.
    DDERSSS
    • Not accurate

      [quote] The case is being taken further as publishers attempt to defend the agency model which allows the publisher rather than vendor to set e-book prices. This, in turn, gives publishers control over pricing and consumer discounts. [/quote]
      Can you name any other non-cartel business that uses this in the consumer sector? Any other business where one reseller says "I don't care what you sell them for but I ALWAYS get the lowest price."? It is literally guarranteed the lowest price by contract.

      Apple knew full well the affect this model and the pricing constraints it insisted upon would have on all other ebook vendors including Amazon.
      For me as a former avid ebook consumer, I know it significantly affected my pricing payment structure - I am getting a lot less today for the same dollar spent.

      You need to stop rolling out the "$9.99" exhibit as the affect was way beyond that. As an example: Out of print books: you can order them new or like new for less than the publishers are setting as the ebook price.

      Either way, I hope in a fashion this does go to trial. It will be a very interesting case. My personal thought is either the defendants will get their asses handed to them or will settle out of court.
      rhonin
      • Apple disputes that it ever dealt with prices for other electronic stores

        So no information to confirm "I don't care what you sell them for but I ALWAYS get the lowest price".
        DDERSSS
      • Read the Agreement Details

        In the agreement, Apple is determined to have a guaranteed price equal to the lowest price being offered including any "specials", "markdowns" or sale items.

        Go read the original and tell me your interpretation.
        rhonin
      • Where to read the original?

        @rhonin: Those deals are confidential/trade secret, are not they? Or they were published on DoJ site?
        DDERSSS
  • This one is a no brainer for Apple to win....

    Apple isn't guilty... Apple will win...

    +1 for DeRSSS...

    I don't know why anyone would try to drag them into this... They don't set the prices, so how could they "fix" any of them to be anti competitive? Makes you wonder what the collective IQ of the DOJ is... 45???
    i8thecat4
  • In the Real World

    In the real world books come with a price not only on the cover but also encoded into the ISBN. Any change in pricing is a loss to the retailer ie. Amazon was taking the hit when they lowered prices. This is usually offset by discounts for bulk orders (order more books and they cost you less). The difference is that Amazon does sell physical books (and is therefore getting a discount somewhere along the line which enables them to sell ebooks at a lower price) where Apple does not. I think (I'm not absolutely sure so don't yell at me if I'm wrong) the point here is that, by demanding that they get the lowest possible price Apple has broken this system by getting the bulk discount without buying physical books at all. Of course, this system does not apply to ebooks at all as there are no physical books being shipped, just a file that can be downloaded over and over. This actually does screw things in a major way up if in fact it is the case.
    kennyrosenyc
    • You are correct

      By doing this, Apple is ensuring it gets the best discount offered to any other supply chain recipient without having to satisfy the clause or condition that grants the discount, ie. bulk purchasing. This itself is a significant driver for the publishers to use the agency model though there are a number of others.
      rhonin
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  • Anticompetitive behavior?

    I believe last time I looked into how you do competitive pricing was to offer the lowest price you could without cutting your own throat. By making it required that publishers sell e-books at the lowest price they offer through any other e-tailer for e-books, APPLE is doing just that, competing in the pricing game for e-books. When you require the lowest price a content provider is selling their content for elsewhere in your market, all you are doing is making sure you are able to compete with the market.
    Vartra
    • Totally off base

      Do a bit of investigation into the business models.

      This is like saying Apple is going to sell cars and as a result they cannot be undersold and in doing so disallows any car dealership to sell cars for less than the MSRP which the manufacturers can change to suit their needs. Any discounts are automatically granted to Apple and others get them at the manufacturers discretion.
      rhonin
      • More like

        Getting cars at wholesale, rather than paying retail to the Automaker.
        Jumpin Jack Flash
  • I see now.

    I see this is the issue according to the Chicago Tribune. Ignore my other post.

    Apple convinced the publishers to no longer sell e-books at a wholesale price to Amazon or other vendors. The publishers agreed that no distributor could sell e-books for less than Apple. The Apple deal came about in 2010, as Amazon was scaring publishers by selling new titles for less than the wholesale price. The online retail giant wanted market share for its Kindle line of handheld electronics, which competes with Apple's iPad. Amazon was willing to take a loss on some of the most popular e-books for the sake of promoting Kindle over iPad. The publishers worried that Amazon had too much market power. They viewed its loss-leader pricing as predatory, since it would discourage Apple, Barnes & Noble and other retailers from selling e-books. After all, who wants to get into a competition that's guaranteed to lose money? The upshot of the Apple deal was higher prices for new e-book titles.
    kennyrosenyc
    • Apple obviously argues that it did not really "convince" publishers to ...

      ... require better conditions from Amazons. Publishers are not dumb and they understand where the profits are without Apple's advice/coercion/collusion. Apple thinks that it was artificially dragged into this matter.
      DDERSSS
  • Antitrust

    In my opinion, this seems like there is are elements of anti-competitive behavior and monopoly abuse but I'm not sure to what degree.
    Here is the undeniable fact:
    Apple and most of the major publishers (who have an almost total monopoly) got together and negotiated a way for them to control the price of the book being sold to the consumer. They basically decided that anyone who wants to buy a book from them would basically pay a price set by the publisher. On that effort, they were then going to use that leverage and force amazon into a similar arrangement. This would mean that they had the intent of using their dominant power in the publishing industry and apple's ecosystem to control and manipulate the price of their works without the input of a free market system.
    Here is what is alleged:
    1. They were going to use their monopoly to control the price of their product and dictate that price to bookstores, amazon, etc.
    2. This was not done on a one on one basis but a concerted organized effort to change the pricing structure irregardless of the open market value of the item.
    3. They aren't accused of setting prices on the product and selling it, they are accused of setting the price of the book AND dictating that price to the retailer.
    Some may speculate that the eventual goal would result in lower prices and others may claim that this gives amazon too much power, but the main question is not what may or could happen, the question is WHAT ACTUALLY happened.

    Did anti-competitive behavior and monopoly abuse occur? (whether it was for the betterment of our world or not is not the issue here) I think the answer is yes but I'm not sure on damages and how egregious it was. That is something the mega-lawyers and the doj are going to fight it out about.
    rgor@...
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