Quote:
Originally Posted by brecklundin
something to not forget, which is really what set off the alarms, was that the five companies acted in concert at the same time. How likely is it that spontaneously five competing companies all decide to change their vendor agreements to the same terms? If you recall there was the animated discussion between Jobs and execs from at least one company at the last CES during/after some product announcement, I think it was about the iPad but I don't remember the details though they are in a thread somewhere here.
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Well, if you need a reason for this parallel conduct, I would start by pointing a finger at Steve Jobs. IF (and this is speculation) he went around to all of the publishers at around the same time, giving them the same pitch--"agency pricing is good for you and good for me"--it is entirely plausible that each of them independently decided, "you know what? That does sound like a good idea, and in fact we'll try to get Amazon to agree to the same thing, because they are cutting prices and we hate that." And that's legal.
I will add that "conspiracy" laws regarding these types of circumstances are one of the more complex areas of antitrust law. The line between what you can do and what you can't is sometimes extremely fuzzy. The publishers are certainly legally allowed to observe, in a hands-off way, what the other publishers are doing, and make their own decisions about whether or not to do the same thing. They are also legally allowed to hope that all the other publishers make the same decision.
That said, if you had proof that the publishers got together in some smoke-filled room and said "let's all agree to force Amazon to accept agency pricing," you may be talking about a crime, for which people can (and do) go to jail. You might reach the same result if you could prove that Steve Jobs acted as a "gofer" to implement such a conspiracy, although I strongly doubt Jobs is that stupid. The man is smart, rich, and his company is going gangbusters; I cannot imagine why he would risk jail time for something like this.
But, I have to be careful here, because the world of copyright is, simply put, different. Court cases have recognized that ASCAP and BMI can coordinate "blanket licenses" for music performances. This is really a form of price-fixing--the copyright owners are getting together and jointly agreeing on a price--but it's legal because special circumstances engender special rules.
Fun fact: it is almost IMPOSSIBLE to tell, simply by viewing the outcome, whether parallel pricing decisions by competitors is the result of independent decisions or a conspiracy--even if the price changes are exactly the same and happen almost simultaneously. The Supreme Court has recognized this again and again.