Rare Book Monthly

Articles - May - 2012 Issue

Department of Justice Sues Apple, Five Book Publishers

Dojapple

The Department of Justice sued Apple and five publishers for price fixing e-books.

The long rumored lawsuit by the U.S. Department of Justice against the world's most valuable company, Apple, and five book publishers for conspiracy to fix prices, was finally filed last month. The basic claim is that the companies conspired to force Amazon to raise its prices on electronic books. As a result, books that generally were being sold for $9.99 each had their prices raised to $12.99 or $14.99.

When Amazon began offering e-books in 2007, it offered them at a price substantially lower than printed copies. Their $9.99 price left the company little room for profit. Sometimes, the price resulted in a loss. However, Amazon was more concerned with building a business than making a short-term profit. The low book prices helped spur sales of its e-book reader, the Kindle, and made Amazon the overwhelming choice for those who purchased e-books. Amazon held an estimated 90% of the market.

According to the Department of Justice complaint, the five publishers (Hachette, HarperCollins, MacMillan, Penguin, and Simon & Schuster) “feared that lower retail prices for e-books might lead eventually to lower wholesale prices for e-books, lower prices for print books, and other consequences the publishers hoped to avoid.” Each feared consumers would come to expect a $9.99 price point, and wanted to disabuse them of such expectations as soon as possible. However, they “concluded that unilateral efforts to move Amazon away from its practice of offering low retail prices would not work, and they thereafter conspired to raise retail e-book prices and to otherwise limit competition in the sale of e-books.”

Just as the publishers were facing this price conundrum, Apple let it be known that it would be releasing its tablet computer, the iPad, which doubles as an electronic reader, and was considering selling e-books too. According to the complaint, Apple believed it could “trounce Amazon by opening up its own e-book store.” However, Apple was not looking for loss leaders or low margin businesses. Anyone who has ever purchased an Apple product realizes this. So, when Apple and the publishers discussed the former's interest in selling their e-books, “Apple learned that the Publisher Defendants shared a common objective with Apple to limit e-book retail price competition.” The parties also realized that the publishers wanted the price of e-books to be substantially higher than $9.99. As a result of these discussion, the DOJ continues, “Defendants reached an agreement whereby retail price competition would cease, retail e-book prices would increase significantly, and Apple would be guaranteed a 30% 'commission' on each e-book it sold.”

The DOJ then claims the parties, to effectuate their price fixing conspiracy, changed the model by which electronic books were sold. Instead of the “wholesale model,” by which publishers sold their e-books at a wholesale price, and the retailers sold them for whatever they wished, the publishers adopted an “agency model.” Under this model, the retailers acted as “agents” for the publishers. The publishers set the price, and their “agents,” the retailers, all had to sell their books for the same set price. There would be no price competition. The retailers would receive a fixed percentage commission on each e-book they sold. The publishers would get their wish – higher retail prices for e-books – and Apple would have its demand fulfilled, that no one would be permitted to undercut their retail price. Apple bought into this plan, according to the complaint, knowing it “would result in higher prices to consumers.”

The complaint concludes that once the publishers reached their agency agreement with Apple, the publishers limited price competition among themselves, and e-books that previously sold for $9.99 now sold for $12.99 and $14.99. As a result, consumers have been forced “to pay tens of millions of dollars more for e-books than they otherwise would have paid.” The DOJ asked the court to declare this practice illegal and prevent further “injury to consumers” by the parties.

The DOJ cites numerous meetings and telephone conversations by the publishers, both among themselves and with Apple, during which the scheme was allegedly hatched. Within a three day period in January 2010, all five publishers signed agreements with Apple, and the agency agreements all went into effect on the same day, April 3, 2010, the release date of the iPad.

When Macmillan led the way in enforcing the agency model on Amazon, the latter responded by discontinuing the sale of their books. However, when the other four backed up Macmillan with the same terms, the complaint says Amazon was forced to back down. The five represented almost half of Amazon's e-book business. The publishers had succeeded in enforcing the terms of its agreement with Apple on Amazon. Amazon had to raise prices to consumers.

Almost immediately after filing the claim, the Department of Justice announced that three of the publishers – Hachette, HarperCollins, and Simon & Schuster – had reached a settlement with them. The settlement would require terminating their agreements with Apple and refraining from further limiting the prices at which retailers may sell their e-books. However, Apple and the other two publishers have indicated they plan to fight the charges. Apple described the charges as “simply not true,” and says, to the contrary, they have “broken Amazon's monopolistic grip” on the e-book field. It compared the publishers' setting the prices on their iBookstore to “apps” developers setting their prices on Apple's App Store.

Meanwhile, the parties are facing litigation in several other venues. Fifteen states have reportedly already reached an agreement with the three publishers which will require a substantial cash payment from them. A private class action suit may affect residents of other states. The European Commission is investigating the claims, and reportedly has received settlement offers from Apple and four of the publishers (Penguin being the lone holdout). A class action suit has been brought in Canada, and Australia is reportedly considering action.

Rare Book Monthly

  • <center><b>University Archives<br>Autographs, Books & Relics Including Kerouac Estate<br>& Hemingway<br>February 26, 2020</b>
    <b>University Archives, Feb. 26:</b> Ernest Hemingway's Typewriter Used to Write "A Moveable Feast", Impeccable Provenance From His Biographer A. E. Hotchner. $50,000 to $100,000.
    <b>University Archives, Feb. 26:</b> Samuel Colt, "The Gun that Won the West": 3 Signed Patent Items for "Revolving Cylinder Guns". $40,000 to $50,000.
    <b>University Archives, Feb. 26:</b> Jack Kerouac's Own Typewriter From His Estate Used to Write His Very Last Book. $18,000 to $20,000.
    <center><b>University Archives<br>Autographs, Books & Relics Including Kerouac Estate<br>& Hemingway<br>February 26, 2020</b>
    <b>University Archives, Feb. 26:</b> Rare Force Engraving of the Declaration of Independence Printed in 1848. $15,000 to $18,000.
    <b>University Archives, Feb. 26:</b> Superb Tchaikovsky ALS to Napravnik, 4pp on "Mazeppa". $12,000 to $15,000.
    <b>University Archives, Feb. 26:</b> Wounded Knee Massacre Same Day Eyewitness Account by Participant, "the 7th needn't be ashamed of today's record". $10,000 to $12,000.
    <center><b>University Archives<br>Autographs, Books & Relics Including Kerouac Estate<br>& Hemingway<br>February 26, 2020</b>
    <b>University Archives, Feb. 26:</b> F. Scott Fitzgerald Signed Gordon Bryant Portrait -- Finest Known. $8,000 to $9,000.
    <b>University Archives, Feb. 26:</b> Neil Armstrong ALS on NASA Letterhead Regarding His X-15 Flights. $7,000 to $8,000.
    <b>University Archives, Feb. 26:</b> M. Gandhi Letter: "the life span of human beings is preordained..." -- Fantastic Spiritual Content. $7,000 to $8,000.
    <center><b>University Archives<br>Autographs, Books & Relics Including Kerouac Estate<br>& Hemingway<br>February 26, 2020</b>
    <b>University Archives, Feb. 26:</b> "Damn the torpedoes!" Riveting 24pp ALS of Admiral Farragut's Steward Describing the "Battle of Mobile Bay”. $6,000 to $7,000.
    <b>University Archives, Feb. 26:</b> Abraham Lincoln Signed Order to Suspend Execution. $5,000 to $6,000.
    <b>University Archives, Feb. 26:</b> Napoleon DS Featuring Imperial Eagle and Enormous Great Seal Appointing Norman Politician Baron of the Empire. $4,000 to $5,000.
  • <b>Swann Auction Galleries Mar 10:</b> Francis Scott Key, <i>Star Spangled Banner,</i> first printing, c. 1814-16. $8,000 to $12,000.
    <b>Swann Auction Galleries Mar 10:</b> William Sydney Porter, a.k.a. “O. Henry,” archive of drawings made to illustrate a lost mining memoir, c. 1883-84. $30,000 to $40,000.
    <b>Swann Auction Galleries Mar 10:</b> [Bay Psalm Book], printed for Hezekiah Usher of Boston, Cambridge, c. 1648-65. $50,000 to $75,000.
    <b>Swann Auction Galleries Mar 10:</b> Book of Mormon, first edition, Palmyra, 1830. $40,000 to $60,000.
    <b>Swann Auction Galleries Mar 10:</b> <i>Noticia estraordinario,</i> probable first announcement in Mexico City of the fall of the Alamo, 1836. $40,000 to $60,000.
    <b>Swann Auction Galleries Mar 10:</b> Patrick Gass, first edition of earliest first-hand account of the Lewis and Clarke expedition, Pittsburgh, 1807. $6,000 to $9,000.
    <b>Swann Auction Galleries Mar 10:</b> Diploma from the Princeton Class of 1783, commencement attended by Washington & Continental Congress. $10,000 to $15,000.
    <b>Swann Auction Galleries Mar 10:</b> <i>Sprague Light Cavalry!</i> color-printed broadside, NY, 1863. $5,000 to $7,500.
    <b>Swann Auction Galleries Mar 10:</b> <i>The Lincoln & Johnson Union Campaign Songster,</i> Philadelphia, 1864. $3,000 to $4,000.
    <b>Swann Auction Galleries Mar 10:</b> Lucy Parsons, labor organizer, albumen cabinet card, New York, 1886. $800 to $1,200.
    <b>Swann Auction Galleries Mar 10:</b> Daniel L.F. Swift, journal as third mate on a Pacific Whaling voyage, 1848-1850. $3,000 to $4,0000.
    <b>Swann Auction Galleries Mar 10:</b> Two photos of Thomas Moran, Grand Canyon, silver prints, 1901. $1,500 to $2,500.
  • <b>Morton Subastas, Feb 25:</b> Nebel, Carl. The War Between the United States and Mexico. New York, 1851. $270,000 - $300,000 MXN / USD $15,000 - $16,666
    <b>Morton Subastas, Feb 25:</b> Nebel, Carl. The War Between the United States and Mexico. New York, 1851. $270,000 - $300,000 MXN / USD $15,000 - $16,666
    <b>Morton Subastas, Feb 25:</b> Bolaños, Joaquín. La Portentosa Vida de la Muerte... (“The Portentous Life of Death”) México, 1792. $50,000 - $60,000 MXN / USD $2,777 - $3,333
    <b>Morton Subastas, Feb 25:</b> Tratado de Paz… entre la República Mexicana y los Estados Unidos. (“Treaty of Peace… Between the Mexican Republic and the United States”) 1848. $80,000 - $90,000 MXN / USD $4,444 - $5,000
    <b>Morton Subastas, Feb 25:</b> Fabregat, Josep Joaquín. Vista de la Plaza de México… (“View of the Square of Mexico”) México, 1797. $60,000 - $100,000 MXN / USD $3,333 - $5,555
    <b>Morton Subastas, Feb 25:</b> Hidalgo y Costilla, Miguel. Invitación al Coronel Narciso de la Canal… (“Invitation to Coronel Narciso de la Canal…”) 1810. $170,000 - $200,000 MXN / USD $9,444 - $11,111
    <b>Morton Subastas, Feb 25:</b> Gálvez, Joseph de. Real Cédula de Erección de la Compañía de Filipinas. (“Royal Notice of the Creation of the Company of the Philippines”) 1785. $40,000 - $60,000 MXN / USD $2,222 - $3,333
    <b>Morton Subastas, Feb 25:</b> Colección de Constituciones de los Estados Unidos Mexicanos (“Collection of Constitutions of the United Mexican States”) México, 1828. $50,000 - $60,000 MXN / USD $2,777 - $3,333
    <b>Morton Subastas, Feb 25:</b> Ruelas, Julio. Poemario Manuscrito Ilustrado, Dedicado a Lorencita Braniff (“Collection of Illustrated Poem Manuscripts, Dedicated to Lorencita Braniff”). 1903. $60,000 - $70,000 MXN / USD $3,333 - $3,888
    <b>Morton Subastas, Feb 25:</b> Espinosa de los Monteros, Juan J. Aviso de la Junta Soberana al Público (“Notice of the Sovereign Meeting to the Public”) 1821. $60,000 - $80,000 MXN / USD $3,333 - $4,444
    <b>Morton Subastas, Feb 25:</b> Constitución Federal de los Estados Unidos Mexicanos... (“Federal Constitution of the United Mexican States”) México, 1824. $140,000 - $150,000 MXN / USD $7,777 - $8,333
    <b>Morton Subastas, Feb 25:</b> Alcaraz, Ramón. Apuntes para la Historia de la Guerra entre México y los EU (“Notes on the History of the War between Mexico and the United States”). 1848. $40,000 - $50,000 MXN / USD $2,222 - $2,777
  • <b>Bonhams, Mar. 6:</b> Helvelius. Two Autograph Letters Signed to Francis Aston, Royal Society Secretary, noting his feud with Robert Hooke, 5 pp total, 1685. $70,000 to $100,000.
    <b>Bonhams, Mar. 6:</b> Newton, Isaac. Autograph manuscript on God, 4 pp, c.1710, "In the beginning was the Word...."?$100,000 to $150,000.
    <b>Bonhams, Mar. 6:</b> Beethoven's Ninth Symphony. First edition, first issue. Untrimmed copy in contemporary boards. $30,000 to $50,000.
    <b>Bonhams, Mar. 6:</b> Lincoln, Abraham. Signed photograph, beardless portrait with Civil War provenance. $80,000 to $120,000.
    <b>Bonhams, Mar. 6:</b> IMPEACHMENT. Original engrossed copy of the first Andrew Johnson impeachment resolution vote. $120,000 to $180,000.
    <b>Bonhams, Mar. 6:</b> Mucha, Alphonse. 11 original pencil drawings for?<i>Andelicek z Baroku,</i> "Litte Baroque Angel," Prague, 1929. $10,000 to $15,000.
    <b>Bonhams, Mar. 6:</b> Einstein, Albert. Annotated Galley Proofs for <i>The Meaning of Relativity.</i> 1921. $25,000 to $35,000.
    <b>Bonhams, Mar. 6:</b> Silverstein, Shel. Original maquette for <i>The Giving Tree,</i> 34 original drawings. $10,000 to $15,000.
    <b>Bonhams, Mar. 6:</b> Roth, Philip. Typed Manuscript with substantial autograph corrections for an unpublished sequel to <i>The Breast.</i> $10,000 to $15,000.
    <b>Bonhams, Mar. 6:</b> Taupin, Bernie. Autograph Manuscript, the original draft of lyrics for Elton John's "Candle in the Wind," 2 pp, 1973. $100,000 to $150,000.
    <b>Bonhams, Mar. 6:</b> HARVEY, WILLIAM. <i>De Motu Cordis et Sanguinis in Animalibus Anatomica Exercitatio.</i> Padua: 1643. $12,000 to $18,000.
    <b>Bonhams, Mar. 6:</b> CESALPINO, ANDREA. <i>Peripateticarum Quaestionum Libri Quinque.</i> Venice: 1571. $30,000 to $40,000.
  • <b>ALDE, Feb. 26:</b> Leon TOLSTOÏ. <i>Anna Karenina.</i> Moscou, 1878. First and full edition of the Russian novel, in the author’s language.<br>Est. 3 000 / 4 000 €
    <b>ALDE, Feb. 26:</b> Mark TWAIN. <i>Adventures of Huckleberry Finn (Tom Sawyer's comrade).</i> New York, 1885. First American edition.<br>Est. 5 000 / 6 000 €
    <b>ALDE, Feb. 26:</b> Walt WHITMAN. <i>Leaves of Grass.</i> Brooklyn, New York, 1856. Second edition gathering 32 poems. Est. 3 000 / 4 000 €
    <b>ALDE, Feb. 26:</b> Karen BLIXEN. <i>Out of Africa.</i> Londres, 1937. First edition in the UK, before Danish translation and American release.<br>Est. 1 500 / 2 000 €
    <b>ALDE, Feb. 26:</b> Ernest HEMINGWAY. <i>A Farewell to Arms.</i> New York, 1929. First edition with $2.50 on the dust and A on the copyright page.<br>Est. 2 000 / 3 000 €
    <b>ALDE, Feb. 26:</b> James JOYCE. <i>Ulysses.</i> Paris, Shakespeare and Company, 1922. First edition published by Sylvia Beach. Est. 3 000 / 4 000 €
    <b>ALDE, Feb. 26:</b> James JOYCE. <i>Dubliners.</i> Londres, 1914. First edition. Nice copy in publisher’s cardboard. Est. 2 000 / 3 000 €
    <b>ALDE, Feb. 26:</b> Franz KAFKA. 8 novels in German first edition, published in München, Leipzig and Berlin 1916-1931. Est. from 300 / 400 to 2 000 / 3 000 €
    <b>ALDE, Feb. 26:</b> David Herbert LAWRENCE. <i>Lady Chatterley's Lover.</i> Florence, 1928. Privately printed first edition. Est. 4 000 / 5 000 €
    John STEINBECK. <i>The Grapes of Wrath.</i> New York, 1939. First edition. Nice copy with $2.75 on the cover. Est. 1 000 / 1 200 €

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