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Originally Posted by GreenMonkey
Is the argument that the various publishing houses are making, then, that Amazon (and Apple or whoever) is their agent, not a retailer?
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I honestly do not know if they are making this argument right now. It's the kind of argument you would make to a court. However, I have to think that it is not by accident that the term "agency" has been prominently applied to this relationship. Presumably the publishers anticipated possible legal challenges, and the "agency" angle may have been one way to try to keep the arrangement legal.
Simply using the label "agency" does not automatically make it a true principal-agent arrangement. There are legal tests for that. I am not privy to the actual contractual arrangements between the publishers and Amazon, Apple, etc., so I have no idea whether the label is accurate. I would expect a court to look beyond the label to what was "really going on" in assessing the issue--that's what the Supreme Court directed in
American Needle, and it sounds sensible.
Quote:
Originally Posted by GreenMonkey
I personally believe MAP / RPM laws, allowing corporations to restrict how much retailers sell their products for, are anti-competitive and an anti-trust problem. Companies should be allowed to price products they are selling as they want (for good or ill) in order to compete.
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First, let's separate out MAP from RPM. MAP is the "minimum
advertised price"--i.e., it does not place any limits on your selling price, just what you can advertise. In some cases, the manufacturers provide retailers with money for advertising, and don't want the retailers using this cash to advertise ridiculously low prices. I am not saying MAP restrictions are necessarily always good, but they are in a different category.
Rather than try to list the arguments pro and con for RPM, I suggest you read the majority opinion and dissent in
Leegin. Look in particular at the company Leegin itself, and the reasons why it didn't want the "big box" stores selling its "boutique" products at a heavy discount and providing a crappy buying experience and crappy customer support. You may find that you agree with the dissent (I suspect you will, given what you've said), but hopefully you will understand why many commentators believe that RPM might be justified
in certain cases. One prominent argument is that, even if different
retailers are not competing on price, different
brands are still competing, and that is sometimes the most important competition. (However, interestingly enough, in the ebook world this is a less persuasive argument.)
And that phrase "certain cases" is the key. The Supreme Court did not even rule that Leegin (the company)'s policies were legal. All it said was, given advances in modern economic theory, we're taking vertical minimum RPM out of the "per se" category, meaning that each side to the dispute can argue about whether the arrangement was helpful or harmful. I'll make explicit what this implies: anticompetitive and harmful RPM agreements are
still illegal. But "anticompetitive" and "harmful" are to be judged by economic theory and analysis, rather than anecdotal and seat-of-the-pants "well, it just seems wrong" arguments.