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Collusion

March 23, 2012

I am not a lawyer*, but I do have some appreciation for the legal environment of business (need I mention, again, the MBA?).  You don’t have to be either to have an interest in the outcome of the US Justice Department’s recent decision to sue Apple and 5 of the Big-6 publishers for collusion.

I linked to John Scalzi’s post on the topic quite intentionally.  If I may, I’d like to quote him on the subject:

The question of whose side I am on is simple and obvious, to me at least: I’m on my side. My side wants my work available to readers in a way that that is affordable and easy to get in whatever format they prefer while at the same time allowing me to make a living doing what I do. In a larger sense, I’m also on the side of other writers, so that the end result of all this punching back and forth is not that authors are obliged to take contractual or retail positions that are detrimental to their interests, either as businesspeople or rights holders. Basically, my side doesn’t want anyone else to screw up what I see is the actual goal of all of this as a working writer, namely, connecting my words to readers, and their cash to me.

I, too, am on my side, and on the side of writers and of readers.  To say that the emergence of this case gives me pause would be quite accurate.  I’ve made no qualms in some past points that I’m, shal we say, concerned by Amazon’s combination of market influence in the area of e-books and their apparent willingness to use anti-competitive tactics to cement their market position.  That said, although I find Amazon’s anti-competitive tactics largely reprehensible, I can’t be wholly certain that what they generally do is illegal. Reprehensible?  Yes.  Dangerous for the future of writers and readers?  Probably.  Illegal?  Well, I’m not sure, as the law here is pretty murky.

Collusion, however, is pretty clear and straight-forward.  And it’s illegal for a reason.  Good reasons, in fact.  And, at least from the outside, what Apple and the Big-Six did certainlylookslike collusion.  So I won’t be surprised if this case does not go well for Amazon’s Foes.

Which leaves me just a little conflicted: what’s bad for Amazon’s Foes is almost certainly good for Amazon.  Which means that as this case goes forward, the most likely outcome is a further strengthening of Amazon’s monopoly position.  In point of fact, I do think that clauses in contracts that disallow price differentiation across the market are de facto collusive and anti-competitive.  As a contractual matter, I think that’s wrong.  But you can arrive at the same outcome without collusion or contracts.  Market forces can work that way.

Regardless, what it seems to me is this: Apple and the Big-Six were using anti-competitive tactics to combat Amazon’s anti-competitive tactics.  They were fighting fire with fire.  But they’re going to get burned for it.  What are the chances that Amazon emerges unscathed?

______________________________

*I am not a lawyer – yes a common internet meme – but this guy is.

And he shares some of his thoughts on the collusion case in the following links, which might be of interest:

Scrivener’s Error on March 8th

Scrivener’s Error on March 9th

Scrivener’s Error on March 12

(After this series of posts, I had to add his site, which I only rarely visited when he popped up on another writer’s regular Link Salad posts, to my more regularly-visited list.  Since he is a lawyer, and clearly interested in law as it effects writers, I’m really interested to see his thoughts on the subject as the case evolves.)

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