Rare Book Monthly

Articles - August - 2015 Issue

Apple Loses Its Legal Appeal (No Pun Intended) – Will Pay Ebook Buyers $450 Million

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Apple has lost its appeal.

Apple Inc., the computer/iPhone maker that is now the world's most valuable company, lost its appeal of a lower court ruling that it had engaged in price fixing of electronic books with five publishers. The result means that Apple will be distributing $450 million to purchasers of ebooks who paid more for their books because of the agreement between Apple and the publishers. In accordance with an earlier compromise between Apple and the plaintiffs (the U.S. Government and numerous states), Apple has agreed to pay this amount even if it decides to appeal the Appeals Court decision to the Supreme Court.

 

This case dates back to early 2010 when Apple, on the verge of releasing its newest device, the iPad, decided it wanted to go into the business of selling electronic books. The iPad was suitable to provide competition for Amazon's market leading Kindle e-reader. There was one problem. Amazon was selling ebooks for little mark-up, sometimes even at a loss. It wanted to sell its Kindles and wanted to dominate the ebook market before anyone could offer serious competition. While Apple wanted to provide competition, it did not want to lose money. Amazon built its business on thin margins, but not Apple. Apple wants to eat its cake and have it too, that is, come to dominate a market but still make large profits in the process. Amazingly, it is very good at doing both at the same time.

 

However, this time, the court determined, Apple stepped over the line. Apple and the publishers conducted numerous phone calls, and when all was said and done, the publishers revised their pricing schedule. Instead of charging a fixed wholesale price for their books, and letting retailers determine at what price they would resell them (even if for a loss), the publishers would set the price at which all retailers had to sell their ebooks. The retailers, in turn, would buy them at a wholesale price that would give them a fixed profit margin. The mandatory retail prices the publishers set were mostly higher than what Amazon had been charging. Ebooks Amazon sold for $9.95 would now mostly be priced at $12.95 or even $14.95.

 

Apple maintained it never conspired with the publishers to fix prices. It said it merely informed them what sort of pricing structure was necessary for them to enter the business. This is legal. What is not legal under antitrust law is for multiple companies to agree to set prices together. In this case, the lower court ruled that Apple had worked with the publishers together to set prices. The lower court even went so far as to conclude Apple was the ringleader in getting the publishers to agree to all change their pricing structure.

 

This was the claim that was appealed. Did Apple lead the publishers into setting new prices, or did they just tell them what they needed and the publishers, whether independently or in concert with each other, decided to set the new prices on their own? In looking at phone records and various statements made by company executives, the lower court concluded this was a conspiracy spearheaded by Apple. Now, the Appeals Court, on a 2-1 vote, has agreed.

 

Apple also argued that rather than being anti-competitive, the new arrangement opened the door to new competition. Previously, with Amazon's low to below-cost pricing, no one else could afford to enter the market. You almost had to buy your ebooks from Amazon. They controlled 90% of the market. Under the new pricing model, where Amazon could no longer use its power to viciously undercut competitors, lots of new ebook sellers entered the market. The Appeals Court quickly shot down the "benefit" of that type of competition:

 

"Plainly, competition is not served by permitting a market entrant to eliminate price competition as a condition of entry, and it is cold comfort to consumers that they gained a new ebook retailer at the expense of passing control over all ebook prices to a cartel of book publishers — publishers who, with Apple’s help, collectively agreed on a new pricing model precisely to raise the price of ebooks..."

 

After the verdict was announced, a spokesperson for Apple indicated they were considering their next step. They can appeal to the Supreme Court. The spokesperson indicated Apple wanted to put the case behind them, but reiterated that Apple had done no wrong and that there were principles involved. That is all that is left, because Apple had earlier agreed to pay the ebook buyers $450 million if they lost this appeal. Even if the Supreme Court finds Apple as pure as snow and overturns this decision, Apple will still have to pay the $450 million. The parties settled on this figure (about half of what plaintiffs wanted) to set a predetermined amount of damages to Apple in case of a loss, rather than letting the court pick a price which might be more or less, or giving Apple a chance to reverse the decision on further appeal. Exactly how this money will be broken out and paid remains to be determined. Based om an earlier settlement with the publishers, the time frame for purchases to qualify for refunds is likely to be April 1, 2010 – May 21, 2012.

 

One more thing – no need to cry for Apple. The company is worth over $700 billion. The $450 million is mere pocket change to Apple. On the day the judgment was announced, Apple's stock jumped almost $1, raising the company's value by another $5 billion.

Rare Book Monthly

  • <b>Swann Auction Galleries Sep 27:</b> Franklin H. Brown, <i>State Sovereignty, National Union,</i> Chicago, 1860. $6,000 to $9,000.
    <b>Swann Auction Galleries Sep 27:</b> Thomas Paine, <i>The American Crisis,</i> Fishkill, NY, December 1776. $25,000 to $35,000.
    <b>Swann Auction Galleries Sep 27:</b><br>The Aitken Bible, Philadelphia, 1781. $20,000 to $30,000.
    <b>Swann Auction Galleries Sep 27:</b> Francisco Loubayssin de Lamarca, probable first edition of the first novel set in the Spanish New World, Paris, 1617. $15,000 to $25,000.
    <b>Swann Auction Galleries Sep 27:</b> Juan de la Anunciación, <i>Sermonario en lengua mexicana,</i> first edition, first book of sermons in Nahuatl, Mexico, 1577. $30,000 to $40,000.
    <b>Swann Auction Galleries Sep 27:</b> Maturino Gilberti, <i>Thesoro spiritual en lengua de Mechuacá,</i> first edition, Mexico, 1558. $15,000 to $25,000.
    <b>Swann Auction Galleries Sep 27:</b> Commission of William O. Stoddard as secretary to the president, signed by Lincoln, Washington, 1861. $7,000 to $10,000.
    <b>Swann Auction Galleries Sep 27:</b> <i>Clay and Frelinghuysen,</i> flag banner, circa 1844. $8,000 to $12,000.
    <b>Swann Auction Galleries Sep 27:</b> Daguerreotype of a man believed to be Frederick Granger Williams Smith, son of Joseph Smith, circa late 1850s. $10,000 to $15,000.
    <b>Swann Auction Galleries Sep 27:</b> John C. Wolfe, <i>Portrait of Abraham Lincoln,</i> oil on board in period wooden frame, circa 1860s. $12,000 to $18,000.
    <b>Swann Auction Galleries Sep 27:</b> Francis W. Winton, manuscript on pow-wows with indigenous Canadians, 1881. $15,000 to $25,000.
    <b>Swann Auction Galleries Sep 27:</b> Family letters from two young daguerreotype artists, 1826-79. $10,000 to $15,000.
  • <b>Leland Little: Important Fall Auction. September 22, 2018</b>
    <b>Leland Little, Sep. 22:</b> Published Half Plate Ambrotype of a North Carolina Confederate Officer. $2,000 to $4,000
    <b>Leland Little, Sep. 22:</b> Two 19th Century Books Pertaining to Canada's Red River Settlement. $400 to $800
    <b>Leland Little, Sep. 22:</b> Two Books With Fore-Edge Paintings of British Architectual Landmarks. $400 to $600
    <b>Leland Little: Important Fall Auction. September 22, 2018</b>
    <b>Leland Little, Sep. 22:</b> Andy Warhol (American, 1928-1987), "Torte a la Dobosch" from <i>Wild Raspberries</i>. $1,000 to $3,000
    <b>Leland Little, Sep. 22:</b> Keith Haring (American, 1958-1990), <i>Pop Shop II,</i> One Plate screenprint in colors, on wove paper, 1998. $8,000 to $12,000
    <b>Leland Little, Sep. 22:</b> Thomas Rowlandson (British, 1756-1827), Twenty-Two Prints from the <i>Tours of Dr. Syntax</i>. $500 to $1,000
  • <b>19th Century Shop:</b> Charles Darwin on sexuality and the transmission of hereditary characteristics: Autograph Letter Signed to Lawson Tait. Down, 17 January [1877].
    <b>19th Century Shop:</b> MILTON, JOHN. <i>Paradise Lost. A Poem written in ten books.</i> London: 1667. A very rare example with the contemporary binding untouched and with a 1667 title page.
    <b>19th Century Shop:</b> Hamilton secures the ratification of the Constitution: <i>The Debates and Proceedings of the Convention of the State of New-York, assembled at Poughkeespsie, on the 17th June, 1788.</i>
    <b>19th Century Shop:</b> The social contract “Man is born free, and everywhere he is in chains”: ROUSSEAU, JEAN-JACQUES. <i>Principes du Droit Politique [Du Contract Social]</i>. Amsterdam: Michel Rey, 1762
    <b>19th Century Shop:</b> “The first English textbook on geometrical land-measurement and surveying”: BENESE, RICHARD. <i>This Boke Sheweth the Maner of Measurynge All Maner of Lande…</i>
  • <b>Bonhams: Exploration and Travel, Featuring Americana, Part I. September 25, 2018</b>
    <b>Bonhams, Sep. 25:</b> Shackleton, Ernest. <i>Aurora Australis.</i> Printed at the sign of 'The Penguins'; East Antarctica, 1908. $70,000 to $100,000
    <b>Bonhams, Sep. 25:</b> Shackleton, Ernest. <i>South Polar Times.</i> 1st edition, limited issue. from the library of Michael Barne. $20,000 to $30,000
    <b>Bonhams, Sep. 25:</b> General Washington's <i>Proceedings of a General Court Martial... of Major General Lee.</i> Philiadelphia, 1778. 100 copies printed for Congress. BOUND WITH: ...Court Martial... of St Clair and ...Schuyler. $25,000 to $35,000
    <b>Bonhams: Exploration and Travel, Featuring Americana, Part I. September 25, 2018</b>
    <b>Bonhams, Sep. 25:</b> <i>The Voice of the People.</i> Boston, 1754. Rare pamphlet on the Excise Tax. Nathaniel Sparhawk's copy. $4,000 to $6,000
    <b>Bonhams, Sep. 25:</b> Autograph Letter Signed ("S.L. Clemens"), offering extensive hard-earned advice on writing, 5 pp, 1881. $30,000 to $50,000
    <b>Bonhams, Sep. 25:</b> After Fra Egnazio Danti. <i>L'Ultime Parti not:e nel Indie Occid:ntli" [The last known parts of the Western Indies].</i> Painted Map of California, Western Mexico, and Japan. $70,000 to $100,000
    <b>Bonhams: Exploration and Travel, Featuring Americana, Part I. September 25, 2018</b>
    <b>Bonhams, Sep. 25:</b> Ptolemaeus, Claudius. <i>Geographie opus nouissima...</i> 1513. The most important edition of Ptolemy, containing the Admiral's Map. $250,000 to $350,000
    <b>Bonhams, Sep. 25:</b> De Arellano, Don Alonso. Manuscript, his <i>"Relación mui singular y circunstanciada... Capitán del Patax San Lucas,"</i> manuscript copy from the Sir Thomas Phillips collection. $50,000 to $80,000
    <b>Bonhams, Sep. 25:</b> Purchas, Samuel. <i>Purchas his Pilgrimes.</i> First edition. With John Simth's engraved map of Virginia. $70,000 to $100,000
    <b>Bonhams: Exploration and Travel, Featuring Americana, Part I. September 25, 2018</b>
    <b>Bonhams, Sep. 25:</b> Lewis, Meriwether. Contemporary manuscript true copy of his final power of attorney, 1809. $8,000 to $12,000
    <b>Bonhams, Sep. 25:</b> <i>A New Method of Macarony Making, as Practiced at Boston in North America.</i> Mezzotint. London, 1774. $5,000 to $7,000
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