ABA, Authors Guild, Authors United, and B&N File Supreme Court Brief in Support of Competitive E-Book Pricing

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The U.S. Supreme Court has been asked by a broad coalition of booksellers and authors to review a decision by the Second Circuit Court of Appeals in the case U.S. v. Apple, which found that Apple violated antitrust law by coordinating with major U.S. book publishers to influence the price of e-books.

The friend-of-the-court brief, which was filed on Wednesday, December 2, by the Authors Guild, Authors United, the American Booksellers Association, and Barnes & Noble, was filed in the interest of competitive e-book pricing, and was a continuation of the efforts of authors and booksellers to ensure that the nation’s book markets aren’t controlled by a single dominant player.

The brief highlights the benefits of a competitive e-book economy and argues that Apple’s entry into the e-book market enhanced competition by decreasing the average price of e-books and increasing the number of e-book titles and of e-book distributors. This, the brief notes, has led to technological improvements in the e-book market and enhanced freedom of expression and access to e-books.

“Booksellers firmly believe in the importance of competition, a robust and diverse environment for authors and readers, and a healthy marketplace of ideas,” said ABA CEO Oren J. Teicher. “We believe Apple’s participation in the e-books market strengthened all those goals, and the American Booksellers Association is pleased to join with our friends and colleagues at the Authors Guild, Authors United, and Barnes & Noble to support this matter.”

“We are pleased to lend our support in this matter, critical to anyone interested in a competitive and diverse literary marketplace,” said Mary Rasenberger, executive director of the Authors Guild in New York. “We fundamentally question the wisdom of the Second Circuit’s use of antitrust law to punish a business arrangement that demonstrably increased competition in the e-book marketplace.”

Rasenberger added, “Freedom and diversity of expression inevitably wither in a book market heavily controlled by a single player.”

“We authors feel strongly that diversity, competition, and the free flow of ideas are key to a healthy marketplace of books,” said Douglas Preston, founder of Authors United. “The numbers unequivocally show that Apple’s entry into the e-book market increased competition and gave authors and publishers greater choice in how content was delivered to the reading public.”

In its 2012 suit against Apple, the U.S. Department of Justice maintained that, by striking a coordinated deal to establish agency pricing for e-books, the publishers and Apple exhibited anticompetitive conduct by conspiring to fix prices.

The publishers and Apple maintained, however, that Apple’s entry into the market actually increased competition, as demonstrated by the fall of Amazon’s market share from 90 percent in 2010 to around 60 percent two years later.

After a 20-day trial in summer 2013, the trial court found that Apple colluded with the publishers to drive the price of e-books above the $9.99 favored by Amazon, a decision upheld by the Second Circuit.

In the conclusion of the brief, the author and book industry groups bolstered their argument for the case’s review, noting, “Increased competition among authors to write e-books, publishers to price them, and retailers to sell them has been good for readers and good for American democracy, which is rooted in broad access to culture and a vibrant marketplace of ideas.”