Judge approves settlement. Says It's In The Public Interest To Stop Price Fixing

[SeaKing]

Hooray!
It is about time the evil doers are stopped.

"Judge Quickly Approves Ebook Pricing Settlement; Says It's In The Public Interest To Stop Price Fixing"
from the will-prices-drop? dept
by Mike Masnick
Thu, Sep 6th 2012 12:12pm
techdirt.com

"Judge Denise Cote wasted no time at all in approving the DOJ's settlement with three book publishers in its antitrust lawsuit over ebook pricing. While there had been some concerns about the settlement, the judge saw no problem with it at all, and very quickly issued an order approving the settlement (pdf) between the government and HarperCollins, Simon & Schuster and Hachette (the case against others, and Apple continues). The terms of the settlement are straightforward:

They must terminate their Agency Agreements with Apple within seven days after entry of the proposed Final Judgment.
They must terminate those contracts with e-book retailers that contain either a) a restriction on the e-book retailer’s ability to set the retail price of any e-book, or b) a “Price MFN,” as defined in the proposed Final Judgment, as soon as each contract permits starting thirty days after entry of the proposed Final Judgment.
For at least two years, they may not agree to any new contract with an e-book retailer that restricts the retailer’s discretion over e-book pricing.
For at least five years, they may not enter into an agreement with an e-book retailer that includes a Price MFN. "

Read more
.

[fjtorres]

I love this quote:

The Complaint alleges a straightforward, horizontal price-fixing conspiracy, which is per se unlawful under the Sherman Act.... The Complaint also details the defendants’ public statements, conversations, and meetings as evidence of the existence of the conspiracy.

And, as to flooding the judge with an astro-turf campaign... not wise...

It is not necessary to hold an evidentiary hearing before approving the decree. Given the voluminous submissions from the public and the non-settling parties, which describe and debate the nature of the alleged collusion and the wisdom and likely impact of settlement terms in great detail, as well as the detailed factual allegations in the Complaint, the Court is well-equipped to rule on these matters. A hearing would serve only to delay the proceedings unnecessarily.

So much for special snowflake astroturf campaigns to force hearings and delay the innevitable.

[SeaKing]

Originally Posted by fjtorres

I love this quote:


And, as to flooding the judge with an astro-turf campaign... not wise...


So much for special snowflake astroturf campaigns to force hearings and delay the innevitable.

Amen brother. Amen.

[wyndslash]

yes! take that, you big fat fruit

[fjtorres]

I also loved her reply to the endlessly repeated claim of "predatory pricing" by Amazon:

As for the last issue (breaking up Amazon's dominance), she notes that it was "perhaps the most forceful species of criticism" but still does not find it persuasive here.
The court more or less notes that Amazon's market position isn't on trial, and its use of wholesale pricing does not equal price fixing, as some have alleged. Nor does it show "predatory" pricing, which was a key complaint.

The problem there: the evidence showed that Amazon was "consistently profitable." And, to show predatory pricing, "one must prove more than simply pricing below an appropriate measure of cost" but also that the company will jack up prices down the road. And all of the comments failed to do that:
None of the comments demonstrate that either condition for predatory pricing by Amazon existed or will likely exist. Indeed, while the comments complain that Amazon’s $9.99 price for newly-released and bestselling e-books was “predatory,” none of them attempts to show that Amazon’s e-book prices as a whole were below its marginal costs.

Oh, and finally, the court points out that swinging back the blame to Amazon is meaningless for the purpose of this case, anyway, because even if the court accepted that Amazon was price fixing too, that doesn't make it okay for the publishers to price fix themselves. Think of it as the "two wrongs don't make a right" rule.
Third, even if Amazon was engaged in predatory pricing, this is no excuse for unlawful price-fixing. Congress “has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies.” ... The familiar mantra regarding “two wrongs” would seem to offer guidance in these circumstances.

Highlights mine.
Note: Amazon never lost money selling ebooks.
Basket pricing at work, children.

[Barcey]

Well I was against the settlement because it was far too lenient on them. Hopefully the punishment for the non settlers will be severe.

At least the judge didn't buy the nonsense. I didn't think she would.

[RainingLemur]

Score!

[ProfCrash]

Oh yeah. New Kindles and Kobos and the promise of cheaper ebooks tobe read on them. A good day indeed

[Sydney's Mom]

Good to know that antitrust law is well in the United States. I read the entire opinion, and there is nothing controversial. This was a price-fixing conspiracy, we all knew it, and everyone hates Amazon.

Apple has lots and lots of money, and they will drag this out as long as they can, but the evidence is pretty damning. The $9.99 problem. Jobs quote about paying a little bit more.

It will be awhile before we see $9.99, but when it hits, we better all buy!

[SteveEisenberg]

Originally Posted by Sydney's Mom

This was a price-fixing conspiracy, we all knew it, and everyone hates Amazon.

I didn't know it. I still don't. The judge didn't hear witnesses cross-examined. There was no trial.

I don't hate Amazon, but I also don't think having most books be sold by them will help the average reader for long.

It will be awhile before we see $9.99, but when it hits, we better all buy!

We all? Except for a business-related computer programming book, I can't remember the last time I paid that much. What about people for whom $9.99 has to be a rare treat, and normally use the library?

Simon & Schuster eBooks are still not in libraries. The settlement does nothing about that, or about declining advances, or any other situation that might impact the average world-wide reader.

$9.99 loss-leader best-sellers in the world's richest large country, while not cheap enough for the average world-wide reader, are likely low-priced enough to undercut paper books, pushing them into being a luxury niche item like 33 1/3 RPM records are today. Without cheap used books to put downward pressure on prices, Amazon will be under pressure from Wall Street to raise book prices, however much Jeff Bezos loves low prices and high volume.

And if I'm wrong about what happens when semi-cheap eBooks destroy the market for paper books, it will be because Amazon instead took the WalMart route of using market power to squeeze their suppliers, whose advances to authors are already pitifully low.

I could ask how much Amazon publishing advances are, but then people might say I hate Amazon

[AnemicOak]

Originally Posted by Sydney's Mom

It will be awhile before we see $9.99, but when it hits, we better all buy!

Just because Agency goes away for those pubs doesn't necessarily mean we'll see $9.99 bestsellers. We don't know what list and wholesale prices will be or anything like that.


What I hope we see mass market books (ones in the $6.99-$9.99 range) that have mass market paperback equivalents drop a bit like they used to be, or even a 4 for 3 type of deal like you see with paperbacks.

[Andrew H.]

Originally Posted by SteveEisenberg

I didn't know it. I still don't. The judge didn't hear witnesses cross-examined. There was no trial.

There is, however, a lot of evidence, as well as the fact that these publishers settled.

I don't hate Amazon, but I also don't think having most books be sold by them will help the average reader for long.

No one can predict the future. But everyone noticed how quickly book prices went up with agency, and there's no reason to assume that they will go back down.

And if most readers choose to buy their books from Amazon because of lower prices or better service or whatever - that is good for the consumer. Eliminating price competition is bad for the consumer.

We all? Except for a business-related computer programming book, I can't remember the last time I paid that much. What about people for whom $9.99 has to be a rare treat, and normally use the library?

Then they weren't harmed by the collusion in the first place. E-books going from $9.99 to $14.99 is, of course, only a problem if you bought a $9.99 book in the first place. If you never paid more than $2.99 for a book, then you weren't harmed when the price went from $10-$15, either. So you there's no reason you should get anything from the settlement.

Simon & Schuster eBooks are still not in libraries. The settlement does nothing about that, or about declining advances, or any other situation that might impact the average world-wide reader.

The settlement also doesn't stop hunger, cure cancer, or decrease ennui. There are millions of things that the settlement doesn't do. So what?

$9.99 loss-leader best-sellers in the world's richest large country, while not cheap enough for the average world-wide reader, are likely low-priced enough to undercut paper books, pushing them into being a luxury niche item like 33 1/3 RPM records are today. Without cheap used books to put downward pressure on prices, Amazon will be under pressure from Wall Street to raise book prices, however much Jeff Bezos loves low prices and high volume.

This makes no sense. Cheaper e-books are bad because they will undercut paper books, which will cause e-book prices to rise. So the solution is to keep e-book prices at a high level so that e-book prices don't rise to a high level.

And I don't know what your point is about "world wide readers." E-book prices - book prices generally - in the US are much cheaper than those in Europe. Which is a big reason why the US has 80% of the e-book market.

And while it's true that $9.99 is going to be a big expense for someone in a third world country, so is $24.99 for the same hardback.

And if I'm wrong about what happens when semi-cheap eBooks destroy the market for paper books, it will be because Amazon instead took the WalMart route of using market power to squeeze their suppliers, whose advances to authors are already pitifully low.

*Amazon* won't destroy the paper book market. If the paper book market is destroyed, it will be because consumers preferred to buy e-books.

I could ask how much Amazon publishing advances are, but then people might say I hate Amazon

I don't think you hate Amazon. I think you hate consumers.

[Fbone]

Originally Posted by AnemicOak

Just because Agency goes away for those pubs doesn't necessarily mean we'll see $9.99 bestsellers. We don't know what list and wholesale prices will be or anything like that.

People may have forgotten all the ebooks priced higher than the hardcovers before Agency kicked in. We had post after post here on MR about it.

Looking at my then wishlist, I see prices $14.57, $15.12, $14.09. All of which went to $12.99 in Agency.

As you wrote, we don't know how wholesale pricing will go in 30 days.

[AnemicOak]

Originally Posted by Fbone

People may have forgotten all the ebooks priced higher than the hardcovers before Agency kicked in. We had post after post here on MR about it.

Yes, remember all the $9.99 boycott threads.

[FizzyWater]

It was never about hardback pricing for me. It was having to pay more for ebooks, with fewer rights to them, than I can for paper.

I probably paid "full hard-back price" for 3 ebooks a year, for authors I just didn't want to wait a year for the "paperback" price.

On the other hand, I'll be sad, sad, sad if publishers go back to their "we'll get around to dropping the ebook price to the paperback equivalent when we get around to it" windowing scheme as part of this...