Rare Book Monthly

Articles - January - 2016 Issue

Apple is Going to the Supreme Court to Argue They Did Not Fix E-Book Prices

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All the way to the Supreme Court.

In a strange continuation of the long-running Department of Justice antitrust claim against Apple and five book publishers for e-book price fixing, Apple has filed an appeal all the way to the Supreme Court. The publishers long ago settled their cases. Actually, Apple did too. It had agreed upon a substantial payment to purchasers of e-books if the Appeals Court decision went against them. It did. Apple appealed to the Supreme Court anyway. It will not reduce their obligations to e-book buyers if they win. That part is over. They are only fighting for the principle now. Only a company like Apple, with its hundreds of billions of dollars in the bank, can take on the expenses of a Supreme Court case just for the principle.

 

The Department of Justice sued Apple and book publishers Hachette, HarperCollins, MacMillan, Penguin, and Simon & Schuster 3 ½ years ago for a conspiracy to fix prices. Briefly, Apple wanted to begin selling e-books to be used with its new iPad tablets, but did not want to compete on price against Amazon. Amazon was willing to sell books for little if any profit to obtain market share. The strategy was very successful. They dominated the e-book market.

 

Apple, however, wanted to make a profit. So, it informed the publishers that they would only sell their e-books if the publishers set retail prices at a level higher than those for which Amazon was selling. The exact nature of those discussions is in dispute, but the lower court determined that Apple was the "ringleader" in the process that resulted in more vendors selling e-books to the public, but at higher prices. The lower court determined this was an antitrust violation, and the Appeals Court more recently affirmed that opinion.

 

After the lower court ruled against Apple, but before the Appeals Court affirmed that ruling, Apple made a deal with representatives of the e-book buyers. Apple agreed to pay them $450 million if the Appeals Court ruled against them. If the Appeals Court ruled in their favor, Apple would pay nothing. Apple lost in the Appeals Court so they owe $450 million. That won't be undone, regardless of how the Supreme Court rules. It is now a battle over principle, or reputation from Apple's standpoint. My guess is no one else cares. Those who believe Apple is a soulless, dominating behemoth will not feel any different if Apple wins in the Supreme Court. Those who think the same of Amazon will likely continue to approve of Apple's behavior if the Appeals Court decision is upheld. A change in the court judgment now may have an impact on the thinking of legal scholars, but probably no one else.

 

Apple's appeal is based on distinctions between horizontal and vertical relationships, per se rules and a "rule of reason." Here is a brief guidebook. Horizontal relationships are between equals, competitors. Each of the five publishers was in a horizontal relationship with the other four competitors. Vertical relationship are between entities on different levels. Apple was a customer, the publishers vendors. That's a vertical relationship.

 

A per se ruling is where the basic activity is such that guilt is presumed. If horizontal entities, such as the publishers, get together, and at the end, they all agree to raise prices, a court will find per se they conspired to fix prices. They won't acquit on the basis they don't have testimony of what exactly transpired in that backroom. They know darn well.

 

However, a previous Supreme Court ruling said that, at least in some cases, a "rule of reason" needs to be applied for discussions between vertical players. It's not so obvious that a price-fixing conspiracy is taking place when non-competitors' discussions, such as those between Apple and the publishers, take place. This is true even if the various horizontal parties (the publishers) together raise prices. There may be a per se conclusion of a price-fixing conspiracy among the publishers, but not one between Apple and the publishers.

 

Two things happened as a result of whatever occurred here. One can be viewed as anti-competitive, the other as pro-competition. All of the publishers raised their prices to the same level. That sounds anti-competitive. On the other hand, more companies began selling e-books. Amazon's market share dropped from roughly 90% to 60%. That sounds pro-competitive. I think Apple may have a shot at this one, even though they are 0-2 so far. The Supreme Court sometimes sees things differently than lower courts that are dealing more with the personal side, witnesses and all, than simply legal arguments. Apple may yet win the case, but the e-book buyers, beneficiaries of the earlier agreed upon settlement, have already won their money.

Rare Book Monthly

  • <b><center>Doyle<br>Rare Books, Autographs & Maps<br>December 9</b>
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 47. Roosevelt, Theodore. Photograph inscribed to Morris J. Hirsch. May 7th 1918. $1,500 to $2,500.
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 178. Whitman, Walt. <i>Leaves of Grass.</i> Brooklyn, New York: [Printed for the author], 1955. First edition in the first issue binding. $70,000 to $100,000.
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 38. Mather, Cotton. <i>Magnalia Christi Americana; or, the Ecclesiastical History of New-England.</i> London: Printed for Thomas Parkhurst, 1702. First edition. $3,000 to $5,000.
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 55. Taylor, Zachary. Autograph letter signed as President-Elect. Baton Rouge: January 15, 1849. $5,000 to $8,000.
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 203. Picasso, Pablo. <i>Verve</i> Vol. V, Nos. 19-20. Paris: Editions Verve, 1948. Inscribed on the title page by Picasso. $1,500 to $2,500.
    <b><center>Doyle<br>Rare Books, Autographs & Maps<br>December 9</b>
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 211. Domergue, Jean-Gabriel. L'Ete a Monte Carlo. Lithographed poster, Lucien Serre & Cie, Paris, circa 1937. $1,000 to $1,500.
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 105. Manuscript Illumination attr. to Neri da Rimini. Large excised initial "N" from a choirbook, extensively historiated. [Likely Rimini: first quarter of the 14th century]. $2,000 to $3,000.
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 40. McKenney, Thomas L. and Hall, James. <i>History of the Indian Tribes of North America, with Biographical Sketches and Anecdotes of the Principal Chiefs.</i> Philadelphia: Rice, Rutter & Co., 1870. $3,00
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 222. Searle, Ronald. [Pets--a dog, cats and a parrot-- surrounded by books, and inspecting a globe, perhaps planning global domination]. Original drawing, 17 3/8 x 13 1/2 inches. $1,500 to $2,500.
    <b>Doyle, Rare Books, Autographs & Maps:</b> Lot 98. Faden, William; Scull, Nicholas and George Heap. A Plan of the City and Environs of Philadelphia, Survey'd by N. Scull and G. Heap. London: William Faden, 12 March 1777. $3,000 to $5,000.
  • <i>Der Sturm.</i> 1922. Sold October 2021 for € 13,000.
    Diophantus Alexandrinus, <i>Arithmeticorum libri sex.</i> 1670. Sold October 2021 for € 18,000.
    <i>Cozzani Ettore e altri, l’Eroica. Tutto il pubblicato.</i> Sold October 2021 for € 11,000.
    Newton Isaac, <i>Philosophiae naturalis principia mathematica.</i> 1714. Sold October 2021 for € 7,500.
    Manetti Saverio, <i>Storia naturale degli uccelli.</i> 1767-1776. Sold April 2021 for € 26,000.
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    <b>Swann, Dec. 9:</b> AUDUBON, JOHN JAMES. Carolina Parrot. Plate 26. Hand-colored aquatint and engraved plate from Audubon's <i>Birds of America.</i> $80,000 to $100,000.
    <b>Swann, Dec. 9:</b> Francisco Henrique Carls. [Album de Pernambuco e seus Arrabaldes]. Fifty-three chromolithographed plates of landscape, town views and more of the state of Pernambuco, northeast Brazil. $25,000 to $35,000.
    <b>Swann, Dec. 9:</b> Captain Thomas Davies, after. Group of 5 engraved topographical scenes of North American waterfalls. $8,000 to $12,000.
    <center><br>Swann Auction Galleries<br>Maps & Atlases<br>Natural History<br>& Color Plate Books<br>December 9, 2021</b>
    <b>Swann, Dec. 9:</b> William R. Morley. Morley's Map of New Mexico. Large lithographed pocket map with original hand-color in outline. $7,000 to $10,000.
    <b>Swann, Dec. 9:</b> Frederick William Beechey, et al. <i>The Zoology of Captain Beechey's Voyage; Compiled from the Collections and Notes Made by Captain Beechey…</i> $7,000 to $10,000.
    <b>Swann, Dec. 9:</b> ZUDA ROKASHI (Priest Hotan.) Nansenbushu Bankoku Shoka No Zu. Woodblock wall map of the world on 16 sheets joined. $5,000 to $7,500.
  • <center><b>Sotheby’s<br>Zang Tumb Tuuum:<br>la révolution futuriste<br>Online Auction<br>30 November – 7 December</b>
    <b>Sotheby’s, Nov. 18:</b> The "Official Edition" of the United States Constitution and the First Printing of the Final Text of the Constitution, 1787. $15,000,000 to $20,000.
    <b>Sotheby’s, Nov. 30 – Dec. 7:</b> Marinetti, Filippo Tommaso. I Paroliberi Futuristi. 1914-1915. 8 p. Unique corrected proofs, for an anthology that remained unpublished. €40,000 to €60,000.
    <b>Sotheby’s, Nov. 30 – Dec. 7:</b> Cangiullo, Francesco. Studenti in Lettere. Università. 1915. Seminal work, featured in 3 historical futurist exhibitions. €20,000 to €30,000.
    <b>Sotheby’s, Nov. 30 – Dec. 7:</b> Cangiullo, Francesco. Chiaro di luna. Circa 1915. Collage and gouache on paper. €15,000 to €20,000.
    <b>Sotheby’s, Nov. 30 – Dec. 7:</b> Marinetti, Filippo Tommaso. Manicure. Faire les ongles à l'Italie. Circa 1915. A fantastic parody of an advertising poster. €20,000 to €30,000.

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