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Old 07-27-2019, 06:17 PM   #31
rcentros
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Originally Posted by pwalker8 View Post
Now, someone who hadn't totally bought in to the whole Apple/publisher bad, Amazon good narrative, who point out that Amazon was using their other businesses to sell ebooks at below cost, ...
The courts have already decided on this case. It was collusion, with the intent to raise eBooks prices. Even though Apple and the publishers lost (because of collusion), the publishers were allowed to return to agency pricing shortly afterwards (in theory) independently of one another. So they effectively retained what they lost in court and the prices of eBooks stayed higher as a result — as Jobs promised they would in an email to the publishers.

Now some of these publishers are finding (surprise, surprise) that they have to lower their prices on eBooks because too many people are borrowing from the library instead of buying eBooks. We still have agency pricing and we still don't have the sales we used to have on major new releases, but at least some of the publishers are finally "getting it." We'll see how it plays out.
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Old 07-27-2019, 07:18 PM   #32
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There used to be sales....but nobody put the entire NYT's best seller list on sale for $9.99 during the new release, hardback window. That’s what started the war. That’s what led to the publisher's actions.

Ultimately there came a choice....cease releasing ebooks at the same time as the hard backs....or cease allowing ANY seller to set the price of the ebooks (Agency pricing). Amazon choose Agency pricing over having ebooks time windowed like paperbacks.

All of those book sellers with their sales on this book or that book...could not compete with selling the entire NYT's best seller list as a loss leader. They didn’t have Amazon's access to capitol to survive that price dumping.

Apple was the stick the publishers needed to combat Amazon. Nobody else had a remote chance of competing against Amazon's money.
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Old 07-27-2019, 08:01 PM   #33
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Originally Posted by rcentros View Post
Greed short circuits the brain.
Consider the second sentence below from the OP article (reached via public library paid-for access):

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Macmillan will continue to sell its e-books to libraries for a two-year period, or 52 lends for $60 per book copy. One copy of each title will be sold on a perpetual-use basis for $30.
A couple decades of rent, for shelf space alone, comes to more than $30 for other than the thinnest paper books. So those greedy you know what seem, to me, to be offering libraries a bargain.

As for the library patron waiting a year or two, for the one copy, that seems to me a totally fair trade-off between freedom to read and keeping publishers away from the newspaper industry death march.

I know that's just Macmillan. And waiting for one copy in Wyoming won't be the same as waiting for one copy in Chicago. But I commend this.
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Old 07-27-2019, 09:34 PM   #34
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Originally Posted by leebase View Post
There used to be sales....but nobody put the entire NYT's best seller list on sale for $9.99 during the new release, hardback window. That’s what started the war. That’s what led to the publisher's actions.

Ultimately there came a choice....cease releasing ebooks at the same time as the hard backs....or cease allowing ANY seller to set the price of the ebooks (Agency pricing). Amazon choose Agency pricing over having ebooks time windowed like paperbacks.

All of those book sellers with their sales on this book or that book...could not compete with selling the entire NYT's best seller list as a loss leader. They didn’t have Amazon's access to capitol to survive that price dumping.

Apple was the stick the publishers needed to combat Amazon. Nobody else had a remote chance of competing against Amazon's money.
The Court decisions on the E-Book Price Fixing Conspiracy have put the matter of "loss-leading" in this case to rest. See these quotes from Apple's unsuccessful appeal:

Quote:
6 As we have already explained, the Publisher Defendants’ primary
7 objective in expressly colluding to shift the entire ebook industry to an agency
8 model (with Apple’s help) was to eliminate Amazon’s $9.99 pricing for new
9 releases and bestsellers, which the publishers believed threatened their short‐
10 term ability to sell hardcovers at higher prices and the long‐term consumer
11 perception of the price of a new book. They had grown accustomed to a business
12 in which they rarely competed with one another on price and could, at least
13 partially, control the price of new releases and bestsellers by releasing hardcover
14 copies before paperbacks. Amazon, and the ebook, upset that model, and
15 reduced prices to consumers by eliminating the need to print, store, and ship
16 physical volumes. Its $9.99 price point for new releases and bestsellers
17 represented a small loss on a small percentage of its sales designed to encourage
18 consumers to adopt the new technology
And:

Quote:
3 Although low prices that deter new entry may simply reflect the dominant
4 firm’s efficiency, it is true that below‐cost pricing can, under certain
5 circumstances, be anticompetitive. The dissent suggests that Amazon’s pricing
6 gave it an unfair advantage, so that even if Apple had priced ebooks at an
7 efficient level (whatever that might have been), it still would not have been able
8 to enter the market on a profitable basis. But Amazon was taking a risk by
9 engaging in loss‐leader pricing, losing money on some sales in order to
10 encourage readers to adopt the Kindle. “That below‐cost pricing may impose
11 painful losses on its target is of no moment to the antitrust laws if competition is
12 not injured: It is axiomatic that the antitrust laws were passed for ‘the protection
13 of competition, not competitors.’” Brooke Grp. Ltd. v. Brown & Williamson Tobacco
14 Corp., 509 U.S. 209, 224 (1993) (quoting Brown Shoe Co. v. United States, 370 U.S.
15 294, 320 (1962)). Because lower prices improve consumer welfare (all else being
16 equal), below‐cost pricing is unlawfully anticompetitive only if there is a
17 “dangerous probability” that the firm engaging in it will later recoup its losses by
18 raising prices to monopoly levels after driving its rivals out of the market. Id. If
1 Apple and the Publisher Defendants thought that Amazon’s conduct was truly
2 anticompetitive under this standard, they could have sued under § 2 of the
3 Sherman Act. (Whether DOJ would have pursued its own enforcement action is
4 of unclear relevance given the availability of a private remedy.) Failing that,
5 Amazon’s pricing was part of the competitive landscape that competing ebook
retailers had to accept.22 6.
Windowing in so far as delaying releases of e-books was tried before the price-fixing conspiracy and was not an outstanding success. However, the jury seems to be out as to the effect of windowing the release of e-books to libraries. I suspect that it will in fact result in both some extra sales and some extra piracy. But even if this is not the case, I doubt it does any real harm to publishers. Also, to put things in perspective, Amazon does not seem to make electronic versions of either KDP books or books from its own imprints available to libraries at all. I don't expect that they will do so unless forced, as there simply seems to be no upside for them. Perhaps some sensible model for library lending may develop in the future, but it will almost certainly result in libraries paying more. For instance, a payment per borrow may be feasible, but in view of annual budgets would probably need to be capped and monitored in real time, with access ceasing when the budget was fully expended. A per title cap may even be feasible. But I doubt this will eliminate windowing in any event.

My view is that, as the court pointed out and I quoted above, referring to the conspiring publishers:

Quote:
11 They had grown accustomed to a business
12 in which they rarely competed with one another on price and could, at least
13 partially, control the price of new releases and bestsellers by releasing hardcover
14 copies before paperbacks.
Neither Apple nor the Publishers were victims of any sort. They were simply not interested or used to competing on price, and when they were given a taste of competition, they didn't like it and acted to prevent it. In any case, the matter is decided. The Supreme Court refused to entertain a futher appeal by Apple.
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Old 07-27-2019, 09:45 PM   #35
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Hold on....your quotes back my point. The difference is Apple and the publishers should have sued Amazon instead of colluding. It doesn’t state that Amazon wasn’t price dumping.

I think the judges position that it doesn’t matter if competitors are hurt if prices are lowered for consumers...is naive. Selling goods below cost because you have more access to capitol than all the competition....is harmful. Customers aren’t getting a lower price due to some more efficient process. Amazon just ate the difference. They wouldn’t have done so forever. They might not have raised prices....they just would have told publishers to take less per book. And with most of the book sellers run out of business...publishers would have been powerless to fight. Which is WHY the publishers had to fight when they did. None of which was given consideration by judge Koh. All of which might well come under revue now
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Old 07-27-2019, 10:31 PM   #36
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Hold on....your quotes back my point. The difference is Apple and the publishers should have sued Amazon instead of colluding. It doesn’t state that Amazon wasn’t price dumping.
But Amazon wasn't price dumping, and neither Apple, the Publishers or the DOJ sued. One might draw an inference from that. The fact that the Court was not called upon to consider this particular point neither helps nor harms your point. The fact that Apple and the Publishers could have sued if they really believed Amazon's actions were anti-competitive but chose instead not to in favour of entering into an unlawful conspiracy does harm your point.

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I think the judges position that it doesn’t matter if competitors are hurt if prices are lowered for consumers...is naive. Selling goods below cost because you have more access to capitol than all the competition....is harmful. Customers aren’t getting a lower price due to some more efficient process. Amazon just ate the difference. They wouldn’t have done so forever. They might not have raised prices....they just would have told publishers to take less per book. And with most of the book sellers run out of business...publishers would have been powerless to fight. Which is WHY the publishers had to fight when they did. None of which was given consideration by judge Koh. All of which might well come under revue now
I think you miss the point here. I'll again let the Court make it rather than myself:

Quote:
12 It is axiomatic that the antitrust laws were passed for ‘the protection
13 of competition, not competitors.’” Brooke Grp. Ltd. v. Brown & Williamson Tobacco
14 Corp., 509 U.S. 209, 224 (1993) (quoting Brown Shoe Co. v. United States, 370 U.S.
15 294, 320 (1962)).
Bolding and underlining is mine.

The conspirators had the lawful option of suing. I infer they did not do so because they knew they had no case. And yes, Amazon may well have later told publishers to take less per book, preserving lower prices for the benefit of consumers. It's called business. Price points, particularly those set by an oligopoly in the absence of competition, do not attract the protection of anti-trust law. It's all about the consumer!
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Old 07-28-2019, 05:33 AM   #37
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Hold on....your quotes back my point. The difference is Apple and the publishers should have sued Amazon instead of colluding. It doesn’t state that Amazon wasn’t price dumping.

I think the judges position that it doesn’t matter if competitors are hurt if prices are lowered for consumers...is naive. Selling goods below cost because you have more access to capitol than all the competition....is harmful. Customers aren’t getting a lower price due to some more efficient process. Amazon just ate the difference. They wouldn’t have done so forever. They might not have raised prices....they just would have told publishers to take less per book. And with most of the book sellers run out of business...publishers would have been powerless to fight. Which is WHY the publishers had to fight when they did. None of which was given consideration by judge Koh. All of which might well come under revue now
If I recall correctly, Cote explicitly refused to allow evidence of Amazon's actions to be presented saying that it was not germane to the case and if Apple thought that Amazon was engaged in anti-trust actions they should have sued.

While two of the appeals judges did uphold Cote, the other appeal judge, Jacobs, expressly blasted Amazon for their actions in the case saying that Amazon was rather obviously guilty of anti-trust actions.

But hey, that's what lawyers do, cherry pick opinions that back their case while ignoring the ones that refute their case. A lawyer's job is to win the case by any legal means possible.
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Old 07-28-2019, 07:01 AM   #38
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If I recall correctly, Cote explicitly refused to allow evidence of Amazon's actions to be presented saying that it was not germane to the case and if Apple thought that Amazon was engaged in anti-trust actions they should have sued.

While two of the appeals judges did uphold Cote, the other appeal judge, Jacobs, expressly blasted Amazon for their actions in the case saying that Amazon was rather obviously guilty of anti-trust actions.

But hey, that's what lawyers do, cherry pick opinions that back their case while ignoring the ones that refute their case. A lawyer's job is to win the case by any legal means possible.
Cote was absolutely correct.

Many lawyers love to refer to minority opinions when the majority one doesn't support them, so I suppose I shouldn't blame an amateur for adopting the same practice.
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Old 07-28-2019, 07:46 AM   #39
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Cote was absolutely correct.

Many lawyers love to refer to minority opinions when the majority one doesn't support them, so I suppose I shouldn't blame an amateur for adopting the same practice.
Gosh, I wonder why Scalia's most famous and influential opinions are dissents? Heck, someone even put together a book of his most famous dissents called "Scalia Dissents". You should read it sometime. I have. Could be that judges tend to be more forceful in dissents or it could be that judges feel the need to explain the rational better.

Yea, many lawyers love to refer to opinions that agree with them and dismissing opinions that don't. I suppose I shouldn't blame a lawyer for just following common practice. Of course, I don't really expect a lawyer that doesn't practice law in the US to understand certain aspects of US law and custom.

Of course, the real point here is that Cote ignored any evidence that Amazon was engaged in possible anti-trust actions, so pointing to her opinion when talking about if Amazon might have violated anti-trust laws is rather misleading. You can't find evidence of mis-doing if you refuse to look for it.

Last edited by pwalker8; 07-28-2019 at 07:51 AM.
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Old 07-28-2019, 08:26 AM   #40
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Of course, I don't really expect a lawyer that doesn't practice law in the US to understand certain aspects of US law and custom.
I must indeed be missing something. I didn't realise that the law differed so much in the US that 1 judge out of 3 constituted the majority and carried the case.
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Old 07-28-2019, 09:21 AM   #41
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I must indeed be missing something. I didn't realise that the law differed so much in the US that 1 judge out of 3 constituted the majority and carried the case.
Apparently you did miss something, the idea that different judges can look at the same facts and come up with very different opinions. Having two out of three agree on something means that two of three agreed, not that the third judge's opinion is unworthy of consideration. Maybe in Australia, the judges that aren't in the majority resign their posts since they are unworthy. Doesn't work like that in the US.

Nice try for at a misdirection though.
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Old 07-28-2019, 09:25 AM   #42
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If I recall correctly, Cote explicitly refused to allow evidence of Amazon's actions to be presented saying that it was not germane to the case and if Apple thought that Amazon was engaged in anti-trust actions they should have sued.

.
Correct. So while we did get judgement against Apple and the publishers, Amazon’s actions have never been considered by a court. The DOJ might well look into this.
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Old 07-28-2019, 10:07 AM   #43
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Apparently you did miss something, the idea that different judges can look at the same facts and come up with very different opinions. Having two out of three agree on something means that two of three agreed, not that the third judge's opinion is unworthy of consideration. Maybe in Australia, the judges that aren't in the majority resign their posts since they are unworthy. Doesn't work like that in the US.

Nice try for at a misdirection though.
In common law jurisdictions a majority decision decides the case, and represents the law. All lower courts in that hierarchy are bound to follow the decision, and it is often given heavy weight outside that hierarchy, sometimes even in other countries. A minority judgement is worthless as a precedent, and does not represent the law. This is not to say that a dissent, particularly a well reasoned one, has no value. Nor does it imply that a judge who is part of a minority is worthless. Sometimes a well reasoned dissent will provoke much debate, and may be influential in the precedent being overturned, either by Parliament or legislation. But unless and until this happens, it is not the law. This is the same in both Australia and the US.

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Correct. So while we did get judgement against Apple and the publishers, Amazon’s actions have never been considered by a court. The DOJ might well look into this.
The DOJ can choose at any time to look into this and other matters, though given the passage of time and the advent of agency pricing it may well be futile in any event. What the majority did decide quite clearly and correctly is that vigilantism is not appropriate. If you believe your competitor is engaging in anti-competitive practices you go to the Courts for your remedy. If you take the law into your own hands and yourself enter into a price-fixing conspiracy, it is no defence that you believe your competitor was breaking the law. The majority quite rightly regarded such allegations as irrelevant. The majority did consider them in passing when referring to the dissent, and made observations as quoted in one of my previous posts in this thread, which I will repeat here for your convenience:

Quote:
3 Although low prices that deter new entry may simply reflect the dominant
4 firm’s efficiency, it is true that below‐cost pricing can, under certain
5 circumstances, be anticompetitive. The dissent suggests that Amazon’s pricing
6 gave it an unfair advantage, so that even if Apple had priced ebooks at an
7 efficient level (whatever that might have been), it still would not have been able
8 to enter the market on a profitable basis. But Amazon was taking a risk by
9 engaging in loss‐leader pricing, losing money on some sales in order to
10 encourage readers to adopt the Kindle. “That below‐cost pricing may impose
11 painful losses on its target is of no moment to the antitrust laws if competition is
12 not injured: It is axiomatic that the antitrust laws were passed for ‘the protection
13 of competition, not competitors.’” Brooke Grp. Ltd. v. Brown & Williamson Tobacco
14 Corp., 509 U.S. 209, 224 (1993) (quoting Brown Shoe Co. v. United States, 370 U.S.
15 294, 320 (1962)). Because lower prices improve consumer welfare (all else being
16 equal), below‐cost pricing is unlawfully anticompetitive only if there is a
17 “dangerous probability” that the firm engaging in it will later recoup its losses by
18 raising prices to monopoly levels after driving its rivals out of the market. Id. If
1 Apple and the Publisher Defendants thought that Amazon’s conduct was truly
2 anticompetitive under this standard, they could have sued under § 2 of the
3 Sherman Act. (Whether DOJ would have pursued its own enforcement action is
4 of unclear relevance given the availability of a private remedy.) Failing that,
5 Amazon’s pricing was part of the competitive landscape that competing ebook
retailers had to accept.
It did not of course decide the issue, which was not relevant to the case. But neither Apple nor any of the Publishers chose to take action against Amazon. Nor did the DOJ then. I doubt very much that this will feature significantly in any further enquiry.
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Old 07-28-2019, 12:59 PM   #44
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You make it sound like folks can just whistle up an anti-trust case. Even IF the government would have taken in the case, by the time a verdict is rendered, its way too late from a business perspective.
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Old 07-28-2019, 07:18 PM   #45
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Quote:
Originally Posted by darryl View Post
In common law jurisdictions a majority decision decides the case, and represents the law. All lower courts in that hierarchy are bound to follow the decision, and it is often given heavy weight outside that hierarchy, sometimes even in other countries. A minority judgement is worthless as a precedent, and does not represent the law. This is not to say that a dissent, particularly a well reasoned one, has no value. Nor does it imply that a judge who is part of a minority is worthless. Sometimes a well reasoned dissent will provoke much debate, and may be influential in the precedent being overturned, either by Parliament or legislation. But unless and until this happens, it is not the law. This is the same in both Australia and the US.


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However, the US isn't a common law country. There are some aspects of US law which are common law, but many aspects are not. While it is derived from English law, it branched off in a very different direction.

Citing dissents happens a fair amount in the US, especially as attitudes towards the original decision shift. An example is that when the DC Circuit court upheld the appointment of Mueller, they cited Scalia's dissent in Morrison v Olsen et al. (usually referenced simply as Morrison), a rather famous and influential dissent.

Appellate law in the US is generally focused on the technical aspects which were specifically listed in the appeal as opposed to the rightness or wrongness of the trial judge's decision. So saying that a decision was upheld as a way to validate that the decision was correct is misleading. That's simply not the way it works in the US. Appellate courts decide if a specific point of law was correctly applied, not if the case was correctly decided.

Most of the time, when a judgement is overturned, it is returned to the trial court to reconsider keeping in mind the appellate court's clarification of how the law should be applied. No idea how common law countries do appeals.
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