02-24-2013, 06:54 PM | #46 | |
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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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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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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?) Last edited by fjtorres; 02-24-2013 at 09:31 PM. |
02-25-2013, 07:15 AM | #49 | |||||
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02-25-2013, 07:39 AM | #50 | |
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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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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. |
02-25-2013, 07:53 AM | #52 | |
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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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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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02-25-2013, 08:05 AM | #54 | |
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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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02-25-2013, 08:29 AM | #55 | |
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Do Apple, B&N and Kobo fall under the jurisdiction of the court? |
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