DoJ/Apple case: Judge Cote proposes ways to prevent further collusion and high e-book prices in near future
Judge Cote, to no one's surprise, denied Apple a stay of all proceedings pending its Appeal.
She further denied "Apple’s proposed schedule for its damages trial, and ordered the parties to finish discovery by the end of December, 2013 with summary judgment motions to be fully briefed by February 28, 2014."
Apple's lead counsel Orin Snyder received no sympathy from the judge about the "excessively aggressive" schedule. Andrew Albanese's report in Publishers Weekly is very detailed, and trial watchers will want to read this one.
The Christian Science Monitor's Molly Driscoll also writes in some detail about all this.
While the DoJ would like to see the publishers and Apple not just return to the Agency Model and its restrictions on lower pricing in only two years and would prefer that Apple, who did not settle, not be allowed, in the next 5 years, to use the Agency model in that same way (rather than be restricted to only two years).
Judge Denise Cote doesn't think that latter interval would be necessary but would want separate agreements with individual publishers staggered by months (maybe 6-8 months between) to avoid the kind of collusion noted.
She added that a monitor appointed by the court that would work with Apple, might not be needed as long as Apple set up a program within the company focusing on antitrust efforts.
' The judge, however, was also unimpressed with the publishers, calling them “unrepentant.”
“None of the publisher defendants have expressed any remorse,” Cote said.
Representatives for Apple and the DOJ will now have meetings to discuss the measures, and Cote has asked for an outline from the two companies on proposed restrictions for Apple sometime this week. '
The Wall Street Journal's Joe Palazzolo explains that Judge Cote made these proposals "during a hearing Friday in federal court in Manhattan, roughly a month after finding that Apple provided five of the largest publishers 'with the vision, the format, the timetable and the coordination that they needed to raise e-book prices' in violation of federal antitrust laws when the company entered the market in 2010." He adds:
' Judge Cote said she was seeking to impose conditions on Apple that would ensure price competition for e-books without disrupting innovation at the second-most valuable company in the world.
"I have no desire to regulate the App Store," Judge Cote said. '
A Reminder - The traditional wholesaler arrangement was that the publisher set the Retail or Suggested List Price, and booksellers would pay (guarantee) the publisher 50% of that.
Now, some of those e-books were set at $26 retail and therefore Amazon paid the publisher $13 while charging $10 for the e-books, taking a loss on those (while taking much better margins on some older e-books).
Other booksellers could not afford to do the same, but the basic reality is that publishers have no need to charge $26 (!) for an e-book as a retail price. If they set it at even $15 booksellers would pay the publisher $7.50 per e-book sold and take a profit of $2.50 -- no one has to take a loss.
But this has always been about keeping hardcover, printed books at the higher cost.
In fact, the publishers had more revenue from the wholesaler method from which to pay their authors but they often obfuscated this, even though at least one publishing house told its authors that with the Agency model the authors would have to take 20% of net profit rather than 25% on e-books.
The idea has been to keep the hardcover or printbook prices at a higher price level and not to 'devalue' them by allowing e-books to be sold so inexpensively despite the lower cost of producing the the digital versions. This has been stated often, by the publishers (out loud), but at the same time they also worked to paint Amazon as pricing e-books so low that no other booksellers could do that. Obviously, that never had to be. But it's all about traditional printed book pricing and protecting that.
As with any transition in technology, methods change and pricing along with that. It's one of those changes in the world order and inevitable battles for survival of older ways.
Support for the government's case made in the form of Amicus briefs by Kobo (affected badly by Apple's restrictions on in-app links to their store) and by The Consumer Federation of America (CFA).
Publishers Weekly's Andrew Albanese described the situation. Publishers Weekly is unusual in that while they are part of the publishing industry, normally aligned against Amazon's pricing mode and their fear that Amazon may eventually be able to set terms less favorable to the larger publishers, their articles are very balanced. The American Booksellers Association, on the other hand, paints Amazon as the Devil on his worst day and Apple as protective Angel.
Kobo's retail partner is, ironically, The American Booksellers Association, which is adamantly for the Agency Agreement as it was structured from the start, with its focus on keeping e-book prices high.
Kobo, though, lost 75% of its new-customer conversions when Apple, in the summer of 2011, suddenly imposed a large fee on the store-linking function in its apps by e-book sellers. The 30% commission on an in-app book sale would have taken all of Kobo's 30% profit on that sale price.
The DoJ has proposed that Apple allow the in-app links for the next two years. Amazon and Barnes & Noble e-book apps would be affected also if Judge Cote decides to go with this.
The CFA's noted antitrust lawyer David Balto explains why, Albanese adds, the proposed remedy is "not unusual" and is "appropriate" (the details are in the linked article). The Consumer organization stresses:
'...“the underlying conduct was willful and [Apple] remains unrepentant.” The brief also notes that the DoJ proved “conduct of a sort often prosecuted criminally, that was knowingly orchestrated by defendant’s highest management.”
Failure to take “strong remedial steps” in a case involving such egregious conduct, the brief concludes, would send a message that “antitrust compliance can be an afterthought and that antitrust penalties are merely a cost of doing business.” '
Believe it not, I wrote this blog entry as the 3rd topic for my blog article for today, as I had not posted over the weekend. As you can see, that would have been an impossibly long entry, but then, so is this one. I put together bits and pieces of reports I saw but it's not exactly coherent. If there's anything you'd like clarified a bit more, let me know in the Comments area. Thanks.
TIMELINE: Ebook Pricing Wars - what DOJ would have seen.
Also, History of the e-book pricing wars
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