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Old 02-24-2013, 06:54 PM   #46
fjtorres
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Well exactly but that's where the specifics of anti-competition laws come in. I'm not sure at what point it becomes a "monopoly" in those terms but Amazon the device manufacturer clearly have a large majority of the dedicated ereader market which gives Amazon the bookseller a huge advantage.
Actually, the market share number is irrelevant.
Even an outright 100% share monopoly is not by itself illegal. They would have to *also* do something that abuses their market power to hurt *consumers*. Like raise prices outrageously or force consumers to buy audiobooks to get the ebook.

Achieving a dominant market position by merely pleasing consumers is not in any way illegal outside an Ayn Rand novel or the dreams of ill-informed ambulance-chasers.

The fact of the matter is DRM is an optional feature of Kindle readers and Amazon neither demands it nor forbids it. As of today there is no law forbidding DRM or mandating support for any specific brand of DRM or file format. Amazon has the right to design their readers as they please just as Sony and Nintendo can design their gaming devices as they please.

Again, walled gardens are not illegal.
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Old 02-24-2013, 08:28 PM   #47
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Hmm. Like I say I don't really know the law well enough and clearly there are walled gardens so they can't be illegal per se. However one of the reasons Microsoft got into trouble was using its dominance in one market (PC Desktop OS) to give itself an unfair advantage in another.

So if Amazon uses it's market-leading position in ereader devices to make sure it's harder for other book-sellers to compete then it seems at least plausible that there's a legal argument to be made.

Amazon doesn't demand DRM but the big publishers do and Amazon will only allow their own DRM on their devices, meaning effectively the only bookseller who can sell those publisher's books on the Amazon platform is Amazon. Anyone else has to go DRM-free (or possibly license the DRM but I haven't heard of anyone doing that and if they did they'd be beholden to their competitor).

But again, some music retailers tried to make the same kinds of claim against Apple and ipods before they went DRM-free, and AFAIK that didn't go anywhere.
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Old 02-24-2013, 09:24 PM   #48
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I'd love to see somebody try to prove in court that ebook readers and ebooks are totally *separate businesses* and that it should be illegal for one company to do both. At that point we *would* be living in an Ayn Rand novel.

The courts have already made it clear that "blame Amazon" doesn't play in antitrust court so its just delusional to hope it'll fly this time because "it's unfair!".

It didn't work against iPod and it won't work against Kindle.
Whatever success Kindle may or not have it's because consumers are voting their wallets, not because the publishers are in cahoots with Amazon. (What, are we to pretend the Agency Conspiracy didn't happen?)

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Old 02-25-2013, 07:15 AM   #49
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Actually, the market share number is irrelevant.
Even an outright 100% share monopoly is not by itself illegal. They would have to *also* do something that abuses their market power to hurt *consumers*. Like raise prices outrageously or force consumers to buy audiobooks to get the ebook.
From the lawsuit:
Quote:
In addition, consumers have been injured because they have been deprived of choice and also denied the benefits of innovation and competition from the foreclosure of independent brick-and-mortar bookstores
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Originally Posted by fjtorres View Post
The fact of the matter is DRM is an optional feature of Kindle readers and Amazon neither demands it nor forbids it. As of today there is no law forbidding DRM or mandating support for any specific brand of DRM or file format. Amazon has the right to design their readers as they please just as Sony and Nintendo can design their gaming devices as they please.
The lawsuit doesn't say that Amazon demands DRM. It is saying that there are agreements between Amazon and the Big 6 that violate the Sherman Antitrust Act.

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Originally Posted by fjtorres View Post
The courts have already made it clear that "blame Amazon" doesn't play in antitrust court so its just delusional to hope it'll fly this time because "it's unfair!".
Amazon was sued for antitrust violations by POD publishers and it ended with a settlement.
Quote:
We didn't do this for the money. We did it to make Amazon understand that covert efforts aimed at forcing POD publishers to pay Amazon / BookSurge (now Createspace) to print their books is not the way responsible corporate citizens should act. By getting Amazon to rescind their pay-us-to-print-your-books-or-else policy, we believe BookLocker's lawsuit achieved its goal.
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Old 02-25-2013, 07:39 AM   #50
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I'd love to see somebody try to prove in court that ebook readers and ebooks are totally *separate businesses* and that it should be illegal for one company to do both.
Well they may not be separate legally but they are to me as a consumer. When I first bought an ereader back in 2009 after some research I decided that the Kindle looked like the best device available[*]. However I made sure that it was possible to "unlock" the files because I didn't want to be tied into one supplier. If I couldn't have done that I might have gotten an ADE epub device (which I did later anyway) or I might have just waited a little longer. I see selling devices and selling books as separate businesses in the same way as I see selling DVD players and selling DVDs as separate.

And I never said "it should be illegal to do both". The point about anti-trust/anti-monopoly laws is that things that are acceptable in a market where you're just another player may not be if you've got an overwhelming share of that market.


[*]I'm sure there'll be those that argue it wasn't but that was my conclusion rightly or wrongly at the time.
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Old 02-25-2013, 07:45 AM   #51
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POD services is clearly separate from pbook retailing so that was a pretty clear case of bundling.
But ebookstores in ereaders isn't bundling separate products any more than XBL in XBOXes is bundling, so that road is closed. Walled gardens are legal.

And, yes, Amazon does have agreements with the publishers. At the publisher's terms, as a condition to get access to the content. Again; Agency Conspiracy. They are not buddies.

Their case hinges on proving that the publishers insist on DRM to *favor* Amazon. That is not going to happen. Because Amazon is not the only company using a proprietary DRM; so is Apple, so is Kobo, so is Nook... All DRM schemes are proprietary. Even the watermark DRM schemes.

And if requiring DRM on content is illegal, then they'll have to explain why the Congress saw fit to protect encryption DRM with the DMCA bill.

The choice they claim is lost is a smokescreen; consumers have a choice of vendors for their walled garden readers just as they have a choice of walled garden smartTVs, walled garden smartphones, and walled garden gaming consoles.

There is no inherent right for *vendors* to sell into somebody else's proprietary platform and that has been clear since the 80's and the Nintendo/Atari Games (aka Tengen) lawsuits. Look to the remedies and you'll see they are not looking to do the consumers any favors: what they really want is a payout. That's what the declaration of antitrust they want is all about.

This lawsuit is not about consumers or ebooks or even DRM; all those claims are mistated and/or misrepresented. What isn't misrepresented is their desire to be able to sue, afterwards, in civil court for big bucks.

It's all about quick cash from deep pockets.
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Old 02-25-2013, 07:53 AM   #52
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The point about anti-trust/anti-monopoly laws is that things that are acceptable in a market where you're just another player may not be if you've got an overwhelming share of that market.
Right.
It's all about market power.
And as the Agency Conspiracy proved, Amazon doesn't have the market power to nay-say the publishers. The publishers wanted to stop Amazon discounting and Amazon had no way to force them. They still don't, once the settlement terms expire.

Amazon is no monopoly (43% global share, 50-60% US share, with Apple growing fast?) so the suit needs to prove bundling or other kinds of hanky-panky on *both* sides of the table *intended* to benefit Amazon. Just like the Agency Conspiracy intended to benefit Apple and harm Amazon and consumers.

I'm saying that is a tough hill to climb given the publicly available information.
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Old 02-25-2013, 07:58 AM   #53
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I didn't give the POD publishers example to suggest that the situation is the same. I was trying to point out that Amazon settled. You are looking at this situation from the point of view of convincing the court, but if the plaintiffs are aiming for a settlement then they just have to be annoying about it.
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Old 02-25-2013, 08:05 AM   #54
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I didn't give the POD publishers example to suggest that the situation is the same. I was trying to point out that Amazon settled. You are looking at this situation from the point of view of convincing the court, but if the plaintiffs are aiming for a settlement then they just have to be annoying about it.
Amazon settled the POD case because they were in the wrong on the merits.
They're not wrong on the merits here. They have a fair shot at straight dismissal because all the claims are based on *intent* to limit consumer choice whereas DRM is intended to limit piracy. (snicker)

Since they're not suing Apple or B&N or Kobo, they have to prove in court the publishers *intended* to benefit Amazon over the others, that they *intended* to give Amazon a 50% share of the ebook business.

I say: good luck with that.
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Old 02-25-2013, 08:29 AM   #55
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Amazon settled the POD case because they were in the wrong on the merits.
They're not wrong on the merits here. They have a fair shot at straight dismissal because all the claims are based on *intent* to limit consumer choice whereas DRM is intended to limit piracy. (snicker)
Fair shot is not the same as certainty. If a prolonged lawsuit has a negative impact on them they might decide to settle.

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Since they're not suing Apple or B&N or Kobo, they have to prove in court the publishers *intended* to benefit Amazon over the others, that they *intended* to give Amazon a 50% share of the ebook business.
Do Apple, B&N and Kobo fall under the jurisdiction of the court?
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