Quote:
Originally Posted by jasonkchapman
Of course, the publishing industry isn't quite the cash cow that big tobacco is, so there's less incentive to go after them.
That said, I'm not entirely convinced that the agency model fits into the price-fixing laws, since the sellers aren't actually buying and reselling the product. It's more akin to consignment sales. The retailers are just contracting to act as an agent for the publisher. A real estate agent can't arbitrarily set the price on a property without the seller's consent, no matter how many realtors have the listing.
|
Yes, that's essentially the definition of the Agency model, and the Publishers will of course try to make that case, but where it fundamentally falls apart is that there was a previous pricing model where they did not control retail prices, and they forced Amazon into the newer Agency model. Thus they acted in a collusive and monopolistic fashion, largely washes away any arguments they might have had. In the U.S., you cannot force licenses or consignment agreements solely to enforce prices, that won't hold up as a defense in court. Even in the U.S., an agent can cut their commission to make a deal, which is essentially precluded by the fixed eBook prices of the Agency model. Properly executed collective marketing agreements did hold up until fairly recently, although Intel recently lost some cases on what were deemed essentially kickbacks to maintain their prices. However, since Amazon (and B&N and Apple and Sony) does the distribution, not the publishers, they are not acting purely as agents, they have value add in the chain between the publisher and the buyer. And mostly the plaintiff lawyers can shop jurisdictions and courts to bring the lawsuit, so all they have to do is find one that's friendly to the legal theories behind their case. This isn't as big as tobacco, $-wise, but it's not small, lots of books are sold (and I described the play to turn it into whole market instead of just eBooks), and it would be
much cheaper to litigate, since the price-fixing is recent, and all the main parties are around to testify, no nasty government labels saying "Warning: Purchasing of this price fixed eBook product may be Dangerous to your financial health" to get in the way of your suit, the potential defendants have some pretty deep pockets and reasons to settle quickly, good bang for the buck lawsuit wise.