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Originally Posted by darryl
I agree with much of what you have written above. However, I don't think your Walmart comparison holds up particularly well with KDP (with a 70% royalty rate) or even with KU (where Amazon completely controls the size of the pool and any bonuses).
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eBook antitrust against Amazon is a non-starter because US antitrust is based on consumer harm and nothing in KDP or KDP Select leads to consumer harm. Amazon doesn't set prices and they don't tie access to the Kindle store to participation in either. In fact, the open nature of the Kindle store has led to some of the acrimony against it from the tradpub establishment, with occasional calls for segregating KDP titles from tradpub titles.
(Here's a fairly recent teapot tempest over the idea:
https://www.kboards.com/index.php?PH...memode=mobile;)
So direct consumer harm and tying are both DOA.
Some would try to paint publishers as the customers of KDP and Select and that might work except that both are strictly voluntary contractual agreements, require only 90 day commitments, and exemptions for "duress" are known to be allowed. No much to work with there.
A (marginally) more viable case might be made by distributors like Smashwords or Direct2Digital over Amazon refusing to accept ebooks for sale from them but that too is among the longest of longshots since retailers are generally free to choose which distributors they deal with and Amazon does accept ebooks distributed by Ingram Spark, not just KDP. So no tying there either.
Pretty much every cry of antitrust against Amazon on the publishing side is, so far, just a smokescreen to hide incompetence or disinterest. Amazon seems to have good antitrust counsel they listen to and most of their practices are actually common in modern retail. To the extent that they seem odd in the publishing world is more of a reflection of how retrograde the publishing world is, clinging to practices that made sense in the 1930's (returns, for one) but not in the 2030's. Or even 20-teens...
Where Amazon is crowding the line is in their B2B practices for dry goods retail. The WalMart "squeeze the supplier" cries have some merit but again, the practice is common and not limited to WalMart or Amazon. Every retailer does it to whatever extent their market power allows. Amazon's vulnerability there stems from the possibility that some hanging judge might choose to accept a "relevant market" definition handcrafted to fit Amazon's core market. (This has happened before to others.)
Amazon's best defense against this is to do exactly what they're doing: grow their B&M presence so they can't be judged solely on their online market share but on their share of the total global retail market. They are big fish in the online pond but in the overall ocean of retailing they're still guppies. That is one of the advantages of building a business as a conglomerate: it can grow to enormous sizes by growing horizontally and eating a chunk out of many markets without reaching actionable size in any of them.
And that includes publishing: one thing the anti-Amazon crowd forgets is that on the legal side, publishing is more than just consumer retail. Consumer book publishing isn't even the biggest single segment of the industry, which is why the Penguin/Random House merger sailed through antitrust scrutiny. Sure, they amount to half of all BPH books sold but that doesn't make them particularly powerful in the broader publishing world. The DOJ (and other involved authorities) correctly concluded that being the biggest player in consumer tradpub is just being the biggest fish in a drying pond.
The same applies to Amazon.
US publishing is close to $30B a year and Amazon might sell $4-5B a year. A decent chunk and they might even be the biggest single player but they are far from being a danger under antitrust.
Antitrust isn't an answer to the Amazon question.
In fact, Amazon isn't even the biggest issue for consumer publishing.
But that's a whole different story.