In an amicus brief, the Authos Guild, the ABA, B&N, and others back Apple's attempt to roll back the antitrust decision against it. Publishers Weekly has the story.
The amicus brief comes in support of Apple’s petition this fall to have the Supreme Court review the case, after the Second Circuit Court of Appeals in June upheld Judge Denise Cote’s 2013 ruling finding the company liable for price-fixing. Apple attorneys argue that the lower courts erred in finding Apple liable for a “per se” case of price-fixing, rather than applying the more rigorous “rule of reason” standard...
“The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals,” Judge Pierre N. Leval of the Court of Appeals for the Second Circuit wrote, explaining the court’s decision.
The contracts in question granted Author Solutions “the right” to market an author’s work, Cote explained, but “notably absent” was any contractual obligation requiring Author Solutions to actually do so.
Now academic research further challenges the image of eccentric hobbyists scribbling away in their sheds by revealing that it is middle-aged and well-educated women who dominate the growing e-publishing market.
While Amazon’s critics reflexively call the retailer a monopoly, Green notes that a company which commands overwhelming market share—Amazon is estimated to sell 60% of all e-books, and 40% of all print books—is not necessarily a monopoly. He writes that despite the company's dominance, "proving Amazon is a monopoly, let alone an abusive one, wouldn’t be easy. In legal terms, the word monopoly relates to a company’s ability to control a defined market because of a lack of competition. While there’s not a specific market-share number that defines a monopoly, the threshold is typically quite high."
And, also, this:
U.S. antitrust law focuses on harm to consumers, not to producers or suppliers. Amazon may well be squeezing publishers to get lower prices. But the damage to publishers, or the authors whose works they publish, isn’t likely to hold much sway with courts, said Eleanor Fox, a New York University Law School antitrust-law professor."
The mechanisms for the AMZN squeeze are in place," Tamblyn wrote, "agreements allow it. Self-pub inclusion in Select, Unlimited, KOLL are early examples. Amazon can and will, as a business, do what it needs to do to _all_ suppliers in time to improve profitability and grow share...The litmus test for an indie author: could your income survive a conflict with Amazon? If not, it's worth thinking about how you could.