The electronic book and publishing world is anxiously watching legal actions that may affect the profitability of this form of an over 500-year-old business. Allegations have been raised by private parties, and unconfirmed reports indicate the U.S. Department of Justice may be looking into the claims. We do not know what, if any, action the DOJ will take, but a look at a lawsuit filed last summer, and updated about a month ago, gives us a glimpse at what is at issue.
The complaint was filed by Hagens Berman, a large law firm that likes to take on class action suits. These are generally suits where a lot of individuals' claims, often each of which is relatively small, are combined into one large action against a much bigger foe. That foe is often a large corporation, or what is known in the trade as a “target” defendant, or one with “deep pockets.” If the suit is successful, the defendant is stopped from committing further wrongdoing, the damaged individuals get a little compensation, and the law firm makes a whole lot of money. Some people are understandably offended that the law firm is the only one that gets seriously paid, but if something like price fixing is taking place, and the government doesn't act, this may be the only way private citizens can stop the practice.
This class action suit was brought against five publishers – MacMillan, Hachette, Penguin, Simon & Schuster, HarperCollins (a division of Rupert Murdoch's News Corp.), and one very deep-pocketed target defendant, the most valuable company in the world – Apple. With $100 billion (yes, billion) in cash sitting on its balance sheet, who wouldn't like to sue Apple?
When Amazon started selling e-books, a primary part of their strategy was to make them cheap. The $9.99 book was created. Amazon didn't make much on selling these e-books, at times even taking a loss. Amazon, unlike Apple, is not a massively profitable business, but there is a reason. Amazon is more focused on building their business for the future than making a lot of money now. By selling e-books for much less than printed ones, Amazon figured (correctly) it could wean a lot of readers over to electronic reading. On top of this, Amazon, with its Kindle e-reader, dominated the e-reader business, with something like 75% of the business. Selling cheap e-books encouraged readers to buy a Kindle e-reader. And ultimately, Amazon even started selling the Kindles cheaply, foregoing profits on them to get you hooked into the process of buying your e-books from Amazon to read on your Kindle electronic reader. The idea was to get people into the habit of fulfilling all of their book reading needs through Amazon. If it wasn't enormously profitable short term, in time that huge customer base would become a large source of revenue and profits for Amazon.
The publishers didn't much like this. Sure, they were getting paid their price for their e-books, but they did not like the long term implications. If Amazon established in consumers' minds that a book is worth only $9.99, and no more, it would make it very hard for them to ever raise prices, and it would make it very hard to sell traditional, printed books for typically established prices. Publishers seriously wanted Amazon to charge more.
So, according to the allegations in the lawsuit, the publishers decided to set the retail price for electronic books. A typical price appears to be $14.99.
Meanwhile, someone else became interested in selling electronic books – the aforementioned Apple. Apple was interested in encroaching on Amazon's e-reader market, selling books to be read on their iPad tablet computers, portable devices which can function as e-readers. Since Amazon is starting to morph their Kindle e-readers into being tablet computers as well, to go after Apple's dominant iPad market, Apple was more than willing turn the tables and go after Amazon's e-reader market. To this end, Apple was willing to go along with what is called the “agency model,” the complaint alleges. In this model, the publisher sets the price, and the seller gets a fixed commission, like 30%. However, while Apple did not seek to garner market share by undercutting the competition, they did not want to charge more than others either. Therefore, to get Apple to sell their e-books, and have them charge higher “agency model” pricing, the publishers had to force up Amazon's retail pricing, or so the complaint alleges.
In their complaint, the e-book consumers, as represented by law firm Hagens Berman, claim the publishers “conspired with Apple to force Amazon to adopt a new agency model in which publishers set prices directly, effectively ending Amazon’s ability to provide consumer-friendly pricing for e-books.” After the new pricing model was unanimously adopted by the publishers, the complaint further alleges, “the price of e-books shot up 30 percent.” The law firm describes this as a “price-fixing conspiracy,” and as “illegal,” which, if their allegations are true, is probably correct.
The law firm cites various alleged statements as evidence of the conspiracy. It cited a statement by Hachette CEO David Young in the New Yorker that if the consumer comes to believe a book is worth “ten bucks,” then “to my mind it's game over for this business.” It says Macmillan CEO John Sargent wrote on a blog that the previous market was “fundamentally unbalanced,” but that the agency model is “stable and rational.” The law firm also claims a Hachette executive met with Amazon and said that a price increase would solve the industry problem. Finally, they cite the Walter Isaacson biography of the late Apple CEO Steve Jobs, with Jobs reportedly saying that Amazon “screwed it up,” and that Jobs described his request that no other retailer be allowed to sell e-books for less than the price Apple charged.
By the way, if you want to read Isaacson's biography of Steve Jobs, you can buy a copy on Amazon. The price is $14.99.