Rare Book Monthly

Articles - April - 2014 Issue

Apple Appeals Judgment It Engaged in E-Book Price-Fixing Scheme

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Apple appeals the judgment against it.

As promised, Apple has filed a blistering appeal against a federal court decision that held it had participated in a conspiracy with book publishers to fix the prices of electronic books at artificially high levels. “Apple and the Publisher Defendants agreed to work together to eliminate retail price competition in the e-book market and raise the price of e-books above $9.99,” wrote District Court Judge Denise Cote in her opinion. Just the opposite, responded Apple. “Apple’s entry as an e-book retailer marked the beginning, not the end, of competition.” Who is right? Stay tuned.

 

Here is what we know. In late 2009, Amazon controlled 90% of the e-book market. Part of their strategy for gaining such control was low pricing, sometimes selling books at less than their cost, particularly with the most popular titles. It made it extremely difficult for others to enter the business.

 

While book publishers were able to sell these e-books to Amazon for the prices they wanted, they were still unhappy. Two things bothered them. One was they feared Amazon's unexpectedly low e-book prices would interfere with their ability to sell printed books, a more lucrative market. Secondly, no one likes to have most of their sales go to a single customer. It can give that customer enormous leverage over the supplier in future negotiations. That is a very risky position for any supplier.

 

Evidently, various publishers were aware that their compatriots were similarly distressed by this situation, though we do not know how much direct communication there was between them. After they, and Apple, were sued by the Department of Justice and others for a conspiracy to fix prices, all five publishers agreed to pay large sums in settlement. Whether they settled out of guilt, or, as one publisher claimed, simply because the potential financial risk of a loss in court was so great it would put them out of business, is uncertain.

 

In December of 2009, Apple approached the publishers with a plan to open an online e-book store, to go along with its newly introduced tablet computer, which can also be used as an e-reader. However, Apple concluded this would not be feasible unless two conditions were met. First, it must make a reasonable profit. Apple has no interest in building market share by losing money, as Amazon does. Secondly, it did not want to have anyone else undercutting their prices, making them look bad. If Apple needed a 30% profit, while Amazon sold at cost, naturally Apple's price would be 30% more for the same books, an embarrassing situation. Apple may charge a high price for its merchandise, but that is because it is unique, Apple-branded merchandise. It does not want to sell the same thing as Amazon for a much higher price.

 

Apple explained its requirements to the publishers. What it wanted was for the publishers to adopt “agency” pricing. At the time, the publishers were selling their e-books (primarily to Amazon) at a set wholesale price. Amazon then set the retail price. The bookseller was free to go as low (or high) as it wanted, depending on how much or little it was willing to make on each sale. In agency pricing, however, the publisher sets the retail price. All retailers must sell their books for at least that much. The retail prices they set afforded a 30% commission for the retailers. Of course, this meant that books Amazon was selling at cost or a loss would rise by at least 30%.

 

Exactly what happened next is unclear. What we do know is that a few weeks later, all at once, the five publishers switched over to agency pricing. Amazon had little choice but to accede. Meanwhile, Apple began selling e-books. According to Apple, between themselves and Barnes & Noble (who could also now afford to sell e-books), they control 30%-40% of the market, meaning Amazon's share has dropped substantially from its previous 90%.

 

So the question becomes, what did Apple do in that period between telling the publishers individually what they demanded to sell e-books and the publishers switching to Apple's required agency model? Apple had a legal right to tell publishers it would only sell if prices were set so they could make 30% while no one else could sell for less. That is not illegal price fixing. What is illegal is for them to act in concert with multiple publishers to set prices – that is a legal “conspiracy” to fix prices. Even if the publishers conspired with each other to set prices, which is illegal, that does not necessarily mean Apple conspired with them if Apple acted independently with each. However, if, as the court ruled, in the Department of Justice's words, Apple was a “ringmaster” in this conspiracy, then they have violated the law.

 

The court looked at the evidence and said, in effect, of course Apple was pulling the strings. There is something in the law called a “per se” standard that says there is an antitrust violation where the evidence is obvious. And then, there is another standard where it is not so obvious, but if the evidence establishes participation in a conspiracy, it is also a violation. The court focused on “per se” guilt, but said Apple was guilty under both standards.

 

Apple responded that the evidence does not establish such participation, and that the law requires clear evidence, not just actions that are consistent with a conspiracy. The demands it made on publishers, Apple said, were strictly normal ones to meet its business needs, and did not require a conspiracy. They say they simply told the publishers what they needed in order to sell e-books, and left it to the publishers to decide whether to meet their requirements. If the publishers conspired among themselves, that was not Apple's doing. They neither participated nor encouraged the publishers to act in concert.

 

Apple also challenged whether the result of their requirements was anti-competitive anyway. They cite the fact that Amazon's share has substantially decreased, while new vendors now offer e-books for sale. That is pro-competition, not a hindrance to it, Apple argues. There are now more retailers selling e-books. On prices, Apple also cited statistics that e-book prices, as a whole, have come down. Self-published books, in particular, Apple claims, have seen their prices drop, as the 30% profit Apple demands leaves the self-publishers 70%. Apple says this is twice what Amazon used to give them before Apple began carrying their books, enabling these publishers to lower their retail prices. And one more thing – Apple says they did not demand publishers lower retail prices, only that the minimum price leave them a 30% margin. Publishers could set the prices at $9.99 or even less if they chose, so long as the wholesale price was 30% less. What appears to have happened, if Apple's statistics are right, is that overall e-book prices came down, though the prices for the most popular books, which Amazon used to sell at little or no profit, went up.

 

The Department of Justice has said it will respond to Apple's appeal in May. You can be sure they will give a far less benign account of Apple's actions. Judge Cote's decision paints a series of discussions between Apple and the publishers that implies that firm was knowingly leading them down the road of joint price setting, even while holding separate conversations. It will then be up to the Appeals Court to confirm that ruling, overturn it, or order a new trial. One thing you can count on – Apple will not give up easily or go quietly into the night. This case may one day find itself in the Supreme Court.

Rare Book Monthly

  • <b>Morton Subastas, Feb 25:</b> Nebel, Carl. The War Between the United States and Mexico. New York, 1851. $270,000 - $300,000 MXN / USD $15,000 - $16,666
    <b>Morton Subastas, Feb 25:</b> Nebel, Carl. The War Between the United States and Mexico. New York, 1851. $270,000 - $300,000 MXN / USD $15,000 - $16,666
    <b>Morton Subastas, Feb 25:</b> Bolaños, Joaquín. La Portentosa Vida de la Muerte... (“The Portentous Life of Death”) México, 1792. $50,000 - $60,000 MXN / USD $2,777 - $3,333
    <b>Morton Subastas, Feb 25:</b> Tratado de Paz… entre la República Mexicana y los Estados Unidos. (“Treaty of Peace… Between the Mexican Republic and the United States”) 1848. $80,000 - $90,000 MXN / USD $4,444 - $5,000
    <b>Morton Subastas, Feb 25:</b> Fabregat, Josep Joaquín. Vista de la Plaza de México… (“View of the Square of Mexico”) México, 1797. $60,000 - $100,000 MXN / USD $3,333 - $5,555
    <b>Morton Subastas, Feb 25:</b> Hidalgo y Costilla, Miguel. Invitación al Coronel Narciso de la Canal… (“Invitation to Coronel Narciso de la Canal…”) 1810. $170,000 - $200,000 MXN / USD $9,444 - $11,111
    <b>Morton Subastas, Feb 25:</b> Gálvez, Joseph de. Real Cédula de Erección de la Compañía de Filipinas. (“Royal Notice of the Creation of the Company of the Philippines”) 1785. $40,000 - $60,000 MXN / USD $2,222 - $3,333
    <b>Morton Subastas, Feb 25:</b> Colección de Constituciones de los Estados Unidos Mexicanos (“Collection of Constitutions of the United Mexican States”) México, 1828. $50,000 - $60,000 MXN / USD $2,777 - $3,333
    <b>Morton Subastas, Feb 25:</b> Ruelas, Julio. Poemario Manuscrito Ilustrado, Dedicado a Lorencita Braniff (“Collection of Illustrated Poem Manuscripts, Dedicated to Lorencita Braniff”). 1903. $60,000 - $70,000 MXN / USD $3,333 - $3,888
    <b>Morton Subastas, Feb 25:</b> Espinosa de los Monteros, Juan J. Aviso de la Junta Soberana al Público (“Notice of the Sovereign Meeting to the Public”) 1821. $60,000 - $80,000 MXN / USD $3,333 - $4,444
    <b>Morton Subastas, Feb 25:</b> Constitución Federal de los Estados Unidos Mexicanos... (“Federal Constitution of the United Mexican States”) México, 1824. $140,000 - $150,000 MXN / USD $7,777 - $8,333
    <b>Morton Subastas, Feb 25:</b> Alcaraz, Ramón. Apuntes para la Historia de la Guerra entre México y los EU (“Notes on the History of the War between Mexico and the United States”). 1848. $40,000 - $50,000 MXN / USD $2,222 - $2,777
  • <b>Bonhams, Mar. 6:</b> Helvelius. Two Autograph Letters Signed to Francis Aston, Royal Society Secretary, noting his feud with Robert Hooke, 5 pp total, 1685. $70,000 to $100,000.
    <b>Bonhams, Mar. 6:</b> Newton, Isaac. Autograph manuscript on God, 4 pp, c.1710, "In the beginning was the Word...."?$100,000 to $150,000.
    <b>Bonhams, Mar. 6:</b> Beethoven's Ninth Symphony. First edition, first issue. Untrimmed copy in contemporary boards. $30,000 to $50,000.
    <b>Bonhams, Mar. 6:</b> Lincoln, Abraham. Signed photograph, beardless portrait with Civil War provenance. $80,000 to $120,000.
    <b>Bonhams, Mar. 6:</b> IMPEACHMENT. Original engrossed copy of the first Andrew Johnson impeachment resolution vote. $120,000 to $180,000.
    <b>Bonhams, Mar. 6:</b> Mucha, Alphonse. 11 original pencil drawings for?<i>Andelicek z Baroku,</i> "Litte Baroque Angel," Prague, 1929. $10,000 to $15,000.
    <b>Bonhams, Mar. 6:</b> Einstein, Albert. Annotated Galley Proofs for <i>The Meaning of Relativity.</i> 1921. $25,000 to $35,000.
    <b>Bonhams, Mar. 6:</b> Silverstein, Shel. Original maquette for <i>The Giving Tree,</i> 34 original drawings. $10,000 to $15,000.
    <b>Bonhams, Mar. 6:</b> Roth, Philip. Typed Manuscript with substantial autograph corrections for an unpublished sequel to <i>The Breast.</i> $10,000 to $15,000.
    <b>Bonhams, Mar. 6:</b> Taupin, Bernie. Autograph Manuscript, the original draft of lyrics for Elton John's "Candle in the Wind," 2 pp, 1973. $100,000 to $150,000.
    <b>Bonhams, Mar. 6:</b> HARVEY, WILLIAM. <i>De Motu Cordis et Sanguinis in Animalibus Anatomica Exercitatio.</i> Padua: 1643. $12,000 to $18,000.
    <b>Bonhams, Mar. 6:</b> CESALPINO, ANDREA. <i>Peripateticarum Quaestionum Libri Quinque.</i> Venice: 1571. $30,000 to $40,000.
  • <b>ALDE, Feb. 26:</b> Leon TOLSTOÏ. <i>Anna Karenina.</i> Moscou, 1878. First and full edition of the Russian novel, in the author’s language.<br>Est. 3 000 / 4 000 €
    <b>ALDE, Feb. 26:</b> Mark TWAIN. <i>Adventures of Huckleberry Finn (Tom Sawyer's comrade).</i> New York, 1885. First American edition.<br>Est. 5 000 / 6 000 €
    <b>ALDE, Feb. 26:</b> Walt WHITMAN. <i>Leaves of Grass.</i> Brooklyn, New York, 1856. Second edition gathering 32 poems. Est. 3 000 / 4 000 €
    <b>ALDE, Feb. 26:</b> Karen BLIXEN. <i>Out of Africa.</i> Londres, 1937. First edition in the UK, before Danish translation and American release.<br>Est. 1 500 / 2 000 €
    <b>ALDE, Feb. 26:</b> Ernest HEMINGWAY. <i>A Farewell to Arms.</i> New York, 1929. First edition with $2.50 on the dust and A on the copyright page.<br>Est. 2 000 / 3 000 €
    <b>ALDE, Feb. 26:</b> James JOYCE. <i>Ulysses.</i> Paris, Shakespeare and Company, 1922. First edition published by Sylvia Beach. Est. 3 000 / 4 000 €
    <b>ALDE, Feb. 26:</b> James JOYCE. <i>Dubliners.</i> Londres, 1914. First edition. Nice copy in publisher’s cardboard. Est. 2 000 / 3 000 €
    <b>ALDE, Feb. 26:</b> Franz KAFKA. 8 novels in German first edition, published in München, Leipzig and Berlin 1916-1931. Est. from 300 / 400 to 2 000 / 3 000 €
    <b>ALDE, Feb. 26:</b> David Herbert LAWRENCE. <i>Lady Chatterley's Lover.</i> Florence, 1928. Privately printed first edition. Est. 4 000 / 5 000 €
    John STEINBECK. <i>The Grapes of Wrath.</i> New York, 1939. First edition. Nice copy with $2.75 on the cover. Est. 1 000 / 1 200 €
  • <center><b>University Archives<br>Autographs, Books & Relics Including Kerouac Estate<br>& Hemingway<br>February 26, 2020</b>
    <b>University Archives, Feb. 26:</b> Ernest Hemingway's Typewriter Used to Write "A Moveable Feast", Impeccable Provenance From His Biographer A. E. Hotchner. $50,000 to $100,000.
    <b>University Archives, Feb. 26:</b> Samuel Colt, "The Gun that Won the West": 3 Signed Patent Items for "Revolving Cylinder Guns". $40,000 to $50,000.
    <b>University Archives, Feb. 26:</b> Jack Kerouac's Own Typewriter From His Estate Used to Write His Very Last Book. $18,000 to $20,000.
    <center><b>University Archives<br>Autographs, Books & Relics Including Kerouac Estate<br>& Hemingway<br>February 26, 2020</b>
    <b>University Archives, Feb. 26:</b> Rare Force Engraving of the Declaration of Independence Printed in 1848. $15,000 to $18,000.
    <b>University Archives, Feb. 26:</b> Superb Tchaikovsky ALS to Napravnik, 4pp on "Mazeppa". $12,000 to $15,000.
    <b>University Archives, Feb. 26:</b> Wounded Knee Massacre Same Day Eyewitness Account by Participant, "the 7th needn't be ashamed of today's record". $10,000 to $12,000.
    <center><b>University Archives<br>Autographs, Books & Relics Including Kerouac Estate<br>& Hemingway<br>February 26, 2020</b>
    <b>University Archives, Feb. 26:</b> F. Scott Fitzgerald Signed Gordon Bryant Portrait -- Finest Known. $8,000 to $9,000.
    <b>University Archives, Feb. 26:</b> Neil Armstrong ALS on NASA Letterhead Regarding His X-15 Flights. $7,000 to $8,000.
    <b>University Archives, Feb. 26:</b> M. Gandhi Letter: "the life span of human beings is preordained..." -- Fantastic Spiritual Content. $7,000 to $8,000.
    <center><b>University Archives<br>Autographs, Books & Relics Including Kerouac Estate<br>& Hemingway<br>February 26, 2020</b>
    <b>University Archives, Feb. 26:</b> "Damn the torpedoes!" Riveting 24pp ALS of Admiral Farragut's Steward Describing the "Battle of Mobile Bay”. $6,000 to $7,000.
    <b>University Archives, Feb. 26:</b> Abraham Lincoln Signed Order to Suspend Execution. $5,000 to $6,000.
    <b>University Archives, Feb. 26:</b> Napoleon DS Featuring Imperial Eagle and Enormous Great Seal Appointing Norman Politician Baron of the Empire. $4,000 to $5,000.
  • <b>Swann Auction Galleries Mar 10:</b> Francis Scott Key, <i>Star Spangled Banner,</i> first printing, c. 1814-16. $8,000 to $12,000.
    <b>Swann Auction Galleries Mar 10:</b> William Sydney Porter, a.k.a. “O. Henry,” archive of drawings made to illustrate a lost mining memoir, c. 1883-84. $30,000 to $40,000.
    <b>Swann Auction Galleries Mar 10:</b> [Bay Psalm Book], printed for Hezekiah Usher of Boston, Cambridge, c. 1648-65. $50,000 to $75,000.
    <b>Swann Auction Galleries Mar 10:</b> Book of Mormon, first edition, Palmyra, 1830. $40,000 to $60,000.
    <b>Swann Auction Galleries Mar 10:</b> <i>Noticia estraordinario,</i> probable first announcement in Mexico City of the fall of the Alamo, 1836. $40,000 to $60,000.
    <b>Swann Auction Galleries Mar 10:</b> Patrick Gass, first edition of earliest first-hand account of the Lewis and Clarke expedition, Pittsburgh, 1807. $6,000 to $9,000.
    <b>Swann Auction Galleries Mar 10:</b> Diploma from the Princeton Class of 1783, commencement attended by Washington & Continental Congress. $10,000 to $15,000.
    <b>Swann Auction Galleries Mar 10:</b> <i>Sprague Light Cavalry!</i> color-printed broadside, NY, 1863. $5,000 to $7,500.
    <b>Swann Auction Galleries Mar 10:</b> <i>The Lincoln & Johnson Union Campaign Songster,</i> Philadelphia, 1864. $3,000 to $4,000.
    <b>Swann Auction Galleries Mar 10:</b> Lucy Parsons, labor organizer, albumen cabinet card, New York, 1886. $800 to $1,200.
    <b>Swann Auction Galleries Mar 10:</b> Daniel L.F. Swift, journal as third mate on a Pacific Whaling voyage, 1848-1850. $3,000 to $4,0000.
    <b>Swann Auction Galleries Mar 10:</b> Two photos of Thomas Moran, Grand Canyon, silver prints, 1901. $1,500 to $2,500.

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