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Originally Posted by pwalker8
No, the legal definition of price fixing is when multiple competitors come together to decide on a price that everyone will charge. So price fixing is when two or more publishers come together and say we are going to charge X dollars for our books. Agency pricing is _NOT_ price fixing and has been upheld by the courts as perfectly legal, even if that doesn't follow the evil publishers narrative that some are so fond of pushing. The publishers have never admitted to conspiring to price fixing. They have never been charged with price fixing. They were charged with anti-trust on the charge that they got together to insist on agency pricing. They settled the case without admitting guilt.
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It is admittedly somewhat unusual, but I find I agree with several of your points. I agree Agency Pricing is not price fixing per se. Nor is it inherently evil. I agree that the Publishers have never admitted to price fixing, at least not formally and explicitly. And the DOJ's complaint was not about price-fixing per se.
However, what happened was worse than price fixing. They conspired to take control of retail pricing from the retailer, for the purpose of eliminating retail competion. The retailer had always had control of retail prices previously. Proof that they can in fact embrace change in the right circumstances. And although they never admitted or were convicted, as you put it, of price fixing per se, price fixing is what occurred. You may recall that the Apple "contracts" set pricing tiers and effectively prevented any discounting. Applying your amateur definition of price fixing above it is difficult to see how this behaviour escapes it. Prices did go up. Discounting stopped. The conspirator's authors suffered, as did the book-buying public. And arguably, the evidence of the activities of various publishing executives and Apple personnel, right up to Steve Jobs, effectively amounts to an admission.
Agency Pricing is not price fixing per se. But Price Fixing there was in its first publishing industry incarnation. In this, its second incarnation, this time achieved by negotiation, we have not been privy to the thoughts or correspondence of the various parties including executives involved. We are not even privy to the contracts between Amazon and the individual cartel members. Price fixing cannot be proved. But I strongly suspect it, with I think very good reason. Perhaps it is time that some of the Pro-Publishing Pollyanna's removed their rose coloured glasses and acknowledged some fairly obvious facts. But I won't be holding my breath.