[dgatwood]

Originally Posted by fjtorres

But ebooks and print books *are* fungible.

To some degree, they are, but not fully so:

• If you don't have a computer, tablet, smartphone, or eBook reader, you can't do anything with an eBook.
• If you need to carry a bunch of books around, e.g. for school, there's a huge difference between carrying six electronic books on a tablet and carrying six textbooks.
• If you're running a library, there's a huge difference between a hardcover book and a paperback.

So these products, though somewhat fungible, aren't entirely fungible in all circumstances. That makes it a somewhat more complex issue than I think you're giving it credit for being.

It is anybody's guess how the courts would actually rule on the subject if pressed to do so, but in United States v. Apple, the court did allow "trade eBooks in the United States" to be considered a market. Neither party contested that market definition, and if they had, it is possible that the courts would have rejected that definition, but the fact that the U.S. District Court in NYC did not reject it at least lends strong support to my assertion that it is, in fact, legally a separate market from print publishing.

With that said, Amazon has 65% of online print book sales, which is still a staggering percentage, and I would argue that online print book sales are the only ones that are relevant in discussions of freedom of expression, because there's no way that an author is going to get books into brick-and-mortar stores without a significant publishing house backing them, statistically speaking, and they represent a serious gatekeeping factor.

So even if you expanded the market definition to include all online book sales, Amazon still has such complete dominance over that market compared with the next largest player that the courts would probably consider it to be in a monopoly-ish position.

Originally Posted by MikeB1972

Classifying a book sold in one format as exclusive when it is available elsewhere in equivalent formats is going to politician levels of stretching the facts.

Not at all. They aren't equivalent formats. If I own a Kindle reader (except for the Fire), then no format is equivalent to Kindle format. I can't just buy an EPUB and use it on a Kindle reader. Advanced users can download kindlegen (or Kindle Previewer), install a Java runtime, and convert the EPUB, but most users will struggle just getting to that point.

Also, unless the EPUB is very, very minimal in its formatting, the result is unlikely to be acceptable. We have to do significant work on the source EPUB to make kindlegen put out something that is usable on all those old devices, much less something that looks good, and the resulting EPUB can't pass epubcheck, so we can't sell it as the official EPUB version. An average user isn't going to be able to fix HTML problems inside an EPUB so that the kindlegen output will look good, so a Kindle user buying an EPUB will get a substantially degraded experience compared with a Kindle user buying it in the MOBI/KF8 format.

This isn't remotely like peas, where the only difference is the packaging, because the "packaging" plays a critical functional role in how you can use the product. And that's why Amazon's use of a proprietary format is so critical to the discussion.