Judge JudyConnoisseurs of unintended irony should really be thanking the American Booksellers Association for one of the best spectacles they’ve had since the last Trump rally. Their new “national advocacy campaign with letters urging the U.S. Congress, the 50 state attorneys general, and the 50 state governors to investigate Amazon for violations of antitrust laws” claims that “Amazon’s abuse of its dominance and its growing monopolization have had a negative impact on free expression and the health of America’s book industry, including a chilling effect on the diversity of, and access to, books and information.” You wonder, for one thing, if ABA members have ever heard of self-publishing, Kindles, or Amazon Books, or simply prefer to pretend these don’t exist. But there’s another more deserving target for action right now – though I’m not sure if such action is legally, rather than morally, merited.

Yes, I’m talking about the Big Five and their ebook pricing policies since the reintroduction of agency pricing. As writer and publishing industry critic Gene Doucette, in a blog post entitled “The Collective Insanity of the Publishing Industry,” points out, “after securing the right to price their ebooks unreasonably high and having those prices stick, the first thing the collective brain-trust of the Big 5 did was raise their ebook prices even more. Often, the prices were higher than the price of the print edition, which is just fundamentally insane.” Sure enough, those high prices caused the ebook market – or rather, the Big Five share of it – to contract. And yet the ABA is accusing Amazon of being the one having a negative impact on free expression?

As far back as 2010, you can see an instance of the effect of agency pricing, quoted by Amazon UK. “US agency publishers (Hachette, HarperCollins, Macmillan, Penguin, and Simon & Schuster) raised digital book prices almost across the board. These price increases were not only on new books, but on older, ‘backlist’ books as well,” says the Amazon UK post. “Unsurprisingly, when prices went up on agency-priced books, sales immediately shifted away from agency publishers and towards the rest of our store. In fact, since agency prices went into effect on some e-books in the US, unit sales of books priced under the agency model have slowed to nearly half the rate of growth of the rest of Kindle book sales.”

Now, by compelling customers to pay artificially high prices for ebooks compared to the same print books, where production, distribution, warehousing and other costs ought to dictate the opposite, all in order simply to ram home the principle that they get to set the prices, aren’t publishers distorting the market? Is there some version of predatory pricing legislation that prevents a supplier selling at an artificially high price deliberately intended to damage another link in the value chain – in this case, Amazon?

Now, some might argue that you need either cartel activities or monopolies to get the authorities involved. This time at least, there seems to be no overt cartel action by the Big Five. As for monopoly, though, well: though Big Five publishers obviously don’t have monopoly on the sale of books per se, what about particular books from particular authors? If a Big Five publisher is charging an artificially high price on an ebook edition of a particular work, compared to the print edition, purely to hit Amazon, is there no case for legal intervention? Maybe not, but there’s hardly more case for anyone to intervene against Amazon on behalf of the ABA, least of all for the reasons they claim.


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