Is Apple price-fixing? Does it matter?

The United States DoJ is investigating Apple and five major publishers for collusion.

Earlier this month, the Wall Street Journal reported that the United States Department of Justice was investigating Apple and the "big five" publishers (HarperCollins, Hachette, Macmillan, Penguin, and Simon & Schuster) for collusion to fix ebook prices.

At stake is the agency pricing model, where publishers have the power to set their own prices on ebook retailers; this is in contrast to the pricing model dominant in the industry before Apple's entrance, where retailers (at the time largely synonymous with Amazon, which held 80-90 per cent of the ebook market) were free to set their own prices while guaranteeing a certain cut to the publishers.

The concern of the Department of Justice seems to be that all the major publishers used the entry of Apple into the market to force Amazon to adopt the agency model, and then, it is alleged, all made the most of their newfound freedom over pricing to raise the prices of their ebooks.

Evidence on the issue is scarce, and some of the publishers have reportedly moved to settle already; but today, some new figures came to light which may strengthen their case.

The publisher Smashwords, which acts as an umbrella body for self-published authors looking to get their books on to digital storefronts, has released the data it submitted to the DoJ in the investigation. It shows that, all else being equal, the competition afforded by agency pricing seems to lower prices across the board:

In plain English, the average prices have dropped 25% from $4.55 in October 2010 to $3.41 today...

The $3.41 is a really interesting number, for a couple reasons:

1) It shows that authors and publishers, left to their own free will, are pricing their books lower in this highly competitive market. Sure, they could all try to fleece customers by pricing their books at $29.99, but customers won't let them.

2) $3.41 is remarkably close to the average price paid for Smashwords books purchased at Barnes & Noble during the last 30 days. The B&N number: $3.16. I looked at every Smashwords book sold at Barnes & Noble between February 28 and March 27, then calculated the average price. This means Smashwords authors are pricing their books close to what customers want to pay. The median price (represents the midpoint, where an equal number of books sold at lower prices and and equal number sold at higher prices) was $2.99.

But proving that agency pricing doesn't lead to artificially inflated price tags may not be enough to save the publishers and Apple from a lawsuit. Tim Carmody reports for Wired that the issues for the DoJ are "bigger than rising e-book prices or even collusion between publishers":

"Plenty of business practices raise prices that aren’t antitrust violations," says Donald Knebel, an IP and antitrust attorney affiliated with the Center for Intellectual Property Research. "Agency pricing is perfectly legal. But something isn’t an agency relationship just because you call it that."

Knebel says there are three major points of law at stake in both the class-action suit and the Justice Department investigation against Apple and the five publishers:

  1. Whether and how the agency model applies to virtual goods;
  2. Whether Apple and publishers engaged in a “hub-and-spoke” conspiracy or simply “conscious parallelism”;
  3. The status of the “most-favored nation” clause, common to many legal contracts today, which Apple used to ensure that books could not be sold elsewhere at a lower price than in the iBooks store.

The case is nowhere close to conclusion, but whatever the outcome, it will reverberate throughout the industry. In tech, it remains the case that where America goes, the rest of the world follows.

A Kindle is tested in Amazon France. Credit: Getty

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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For a mayor who will help make Londoners healthier, vote for Tessa Jowell

The surgeon, former Labour health minister and chairman of the London Health Commission, Ara Darzi, backs Tessa Jowell to be Labour's candidate for London mayor.

London’s mayor matters. As the world’s preeminent city, London possesses an enormous wealth of assets: energetic and enterprising people, successful businesses, a strong public sector, good infrastructure and more parks and green spaces than any other capital city.

Yet these aren’t put to work to promote the health of Londoners. Indeed, quite the opposite: right now, London faces a public health emergency.

More than a million Londoners still smoke tobacco, with 67 children lighting up for the first time every day. London’s air quality is silently killing us. We have the dirtiest air in Europe, causing more than 4,000 premature deaths every year.

Nearly four million Londoners are obese or overweight – and just 13% of us walk or cycle to school or work, despite half of us living close enough to do so. All Londoners should be ashamed that we have the highest rate of childhood obesity of any major global city.

It’s often been said that we don’t value our health until we lose it. As a cancer surgeon, I am certain that is true. And I know that London can do better. 

For that reason, twice in the past decade, I’ve led movements of Londoners working together to improve health and to improve the NHS. Healthcare for London gave our prescription for a better NHS in the capital. And Better Health for London showed how Londoners could be helped to better health, as well as better healthcare.

In my time championing health in London, I’ve never met a politician more committed to doing the right thing for Londoners’ health than Tessa Jowell. That’s why I’m backing her as Labour’s choice for mayor. We need a mayor who will deliver real change, and Tessa will be that mayor.  

When she invited me to discuss Better Health for London, she had the courage to commit to doing what is right, no matter how hard the politics. Above all, she wanted to know how many lives would be saved or improved, and what she could do to help.

In Tessa, I see extraordinary passion, boundless energy and unwavering determination to help others.

For all Londoners, the healthiest choice isn’t always easy and isn’t always obvious. Every day, we make hundreds of choices that affect our health – how we get to and from school or work, what we choose to eat, how we spend our free time.

As mayor, Tessa Jowell will help Londoners by making each of those individual decisions that bit easier. And in that difference is everything: making small changes individually will make a huge difference collectively.  

Tessa is committed to helping London’s children in their early years – just as she did in government by delivering Sure Start. Tessa will tackle London’s childhood obesity epidemic by getting children moving just as she did with the Olympics. Tessa will make London a walking city – helping all of us to healthier lifestyles.

And yes, she’s got the guts to make our parks and public places smoke free, helping adults to choose to stop smoking and preventing children from starting.   

The real test of leadership is not to dream up great ideas or make grand speeches. It is to build coalitions to make change happen. It is to deliver real improvements to daily life. Only Tessa has the track record of delivery – from the Olympics to Sure Start.   

Like many in our capital, I am a Londoner by choice. I am here because I believe that London is the greatest city in the world – and is bursting with potential to be even greater.

The Labour party now has a crucial choice to make. London needs Labour to choose Tessa, to give Londoners the chance to choose better health.