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>Bonhams, Jun 13 results:</b> Darwin, Charles. <i>On the Origin of Species.</i> Presentation Copy. Sold for $500,075.
    <b>Bonhams, Jun 13 results:</b> Darwin, Charles. Autograph Letter Signed, 3 pp, negotiating the 2nd American edition with Appleton. Sold for $21,325.
    <b>Bonhams, Jun 13 results:</b> Hemingway, Ernest. Autograph Letter Signed, 8 pp, Paris, 1924, to his father discussing Bullfighting, Stories, and his new baby. Sold for $25,075.
    <b>Bonhams, Jun 13 results:</b> Shakespeare, William. <i>Corialanus.</i> London, 1623. 1st printing [Extracted from the First Folio]. Sold for $50,075.
    <b>Bonhams, Jun 13 results:</b> Swift, Jonathan. <i>Gulliver's Travels.</i> London, 1726. 1st edition, Teerink's A edition, fine, large copy. Sold for $21,325.
    <b>Bonhams, Jun 13 results:</b> Fitzroy, Robert. Autograph Letter Signed to agent Thomas Stilwell, informing him of the progress of H.M.S. Beagle. Sold for $17,575.
    <center><b>Bonhams<br> Property from the Collection of Nicole and William R. Keck II</b>
    <b>Bonhams, Jun 13 results:</b> Shakespeare, William. <i>Sonnets.</i> 1901. 2 volumes. Printed on vellum and illuminated by Ross Turner, bound by Trautz-Bauzonnet. Sold for $13,825.
    <b>Bonhams, Jun 13 results:</b> Beardsley, Aubrey. <i>The Birth, Life, and Acts of King Arthur.</i> 1893-94. 2 volumes. Contemporary painted vellum gilt by Chivers. Sold for $5,325.
    <b>Bonhams, Jun 13 results:</b> Assisi, St. Francis. <i>The Canticle of Brother Sun.</i> Illuminated on vellum, for the Grolier Society. Sold for $7,575.
    <b>Bonhams, Jun 13 results:</b> Rackham, Arthur. <i>Peter Pan in Kensington Gardens.</i> 1/500 copies signed by Rackham. Sold for $4,825.
    <b>Bonhams, Jun 13 results:</b> Proust, Marcel. <i>Du coté de chez Swann.</i> 1st edition, 1st issue. Inscribed by Proust. Sold for $8,825.
  • <b>Swann Auction Galleries:</b> Ian Fleming, <i>Goldfinger,</i> first edition, inscribed to Sir Henry Cotton, MBE, London, 1959. Sold for $25,000.
    <b>Swann Auction Galleries:</b> Joseph Brant, Mohawk Chief, ALS, writing after pledging support to King George III against American rebels, 1776. Sold for a record $35,000.
    <b>Swann Auction Galleries:</b> Sonia Delaunay, <i>Ses Peintures</i> . . ., 20 pochoir plates, Paris, 1925. Sold for a record $13,750.
    <b>Swann Auction Galleries:</b> Diana, Princess of Wales, 6 autograph letters signed to British <i>Vogue</i> editor, 1989-92. Sold for $10,400.
    <b>Swann Auction Galleries:</b> Alexander Hamilton, ALS, as Secretary of the Treasury covering costs of the new U.S. Mint, 1793. Sold for $12,500.
    <b>Swann Auction Galleries:</b> Benjamin Graham & David L. Dodd, <i>Security Analysis,</i> first edition, inscribed by Graham to a Wall Street trader, NY, 1934. Sold for $20,000.
    <b>Swann Auction Galleries:</b> George Barbier & François-Louis Schmied, <i>Personnages de Comédie,</i> Paris, 1922. Sold for $9,375.
    <b>Swann Auction Galleries:</b> Alphonse Mucha, <i>Ilsée, Princesse de Tripoli,</i> Paris, 1897. Sold for a record $13,000.
    <b>Swann Auction Galleries:</b> Ralph Waldo Emerson, <i>The Dial,</i> first edition of the reconstituted issue, Emerson’s copy with inscriptions, Cincinnati, 1860. Sold for a record $3,250.
  • <b>Mayfair Book Auctions, July 17:</b><br>Lot 14. [CRIMEAN WAR] HAMLEY. <i>The Story of the Campaign of Sebastopol.</i> 1855. £150 to £200
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 17. JONGH & D'ALMEIDA. <i>L’armee Russe...</i> c.1898. Colour plates and many illustrations. £500 to £600
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 18. [RUSSIA] LE PRINCE. <i>Oeuvres. 1782.</i> Rare folio format with 80 etchings and 74 aquatints. £4000 to £6000
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 21. [RUSSIA] MORNAY. Set of 8 hand-coloured aquatints of carriages, sleighs and occupants. c.1825. £1200 to £1800
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 33. BOWDICH. <i>Excursions in Madeira and Porto Santo.</i> 1825. A fine copy. £800 to £1200
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 37. QUIN. <i>An Historical Atlas.</i> 1836. 2nd edn, 21 hand-coloured maps revealing civilisation. £800 to £1200
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 39. LE BRUN. <i>Voyages [...] par la Moscovie, en Perse...</i> 1718. 300+ engravings, panorama. £4500 to £5500
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 48. BRIERLY. <i>The English and French fleets in the Baltic.</i> 1855. Colour lithographs. £7000 to £9000
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 60. DELLA VALLE. <i>Reise Beschreibung... in Turckey, Egypten, Palestina[...].</i> 1674. £1500 to £2000
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 77. MURRAY, Mrs. Watercolour Album of Heaths. c.1860. 55 original watercolours. £750 to £1000
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 91. ADDISON. <i>Works...</i> 1721. 4 vols, large paper copy, English red morocco. £2500 to £3500
    <b>Mayfair Book Auctions, July 17:</b><br>Lot 96. HOLBEIN. Imitations of original drawings. 1792-1800. Exceptional copy. £4000 to £6000

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