I was watching the latest O'Reilly podcast last night when I had an epiphany.
Joe Wikert was interviewing Simon Lipskar, the President of the Writers House literary agency, on Simon's opinion of the current anti-trust lawsuit against the Price Fix 6. Simon has in the past made several cogent arguments that the Price Fix 6 didn't actually raise ebook prices. He cites various details about the ebook market, does a before and after analysis (based on the Amazon bestseller's list), and he disputes whether the 5 publishers really had the market power that everyone assumes.
Today I realized that most all of his arguments were irrelevant. In fact, none of the arguments made based on the general situation of the ebook market are relevant.
The thing is, I can't recall that the DOJ ever accused the Price Fix 6 of raising the prices of the ebook market; the lawsuit was only over whether they conspired to raise their own ebook prices. So any attempt at rebuttal based on the market as a whole is simply irrelevant.
Oh, and do remember that the anti-trust lawsuit is over whether the Price Fix 6 conspired to change the market, not whether they succeeded. All these arguments that say that there was no effective change are not disproving the conspiracy; they're simply calling the conspirators stupid. Chew on that.
I also think the phrase "raise ebook prices" is itself something of a misnomer. While it's easier to say that that the publishers were in it to raise ebook prices, you know and I know it's not that simple. The ebook market is too complex for that statement to have ever had any real meaning, and I think people use it as something of a red herring. It distracts from the real situation, which is that the 5 publishers conspired to gain control of ebook prices so they could prevent discounting. They wanted to set the prices themselves and not let the market (Amazon) decide what their ebooks should sell for.
And I bet I can prove that they were successful in conspiring to block Amazon from discounting ebooks. The following 5 ebooks would likely be selling for less today if not for the price fixing:
- The Company Man
- Fahrenheit 451
- Irresistible Forces
- Martha Quest (Perennial Classics)
- Redshirts: A Novel with Three Codas
Note that I selected one ebook from each of the conspiring publishers. I would argue that Amazon might have discounted all these ebooks had they been allowed to do so. And that means these 5 ebooks stand as representations of the many ebooks which the 5 publishers are artificially maintaining a high price.
So, if you accept a different description of what the Price Fix 6 wanted to accomplish, it suddenly becomes a lot easier to prove that they had succeeded. All I had to do was point at the Kindle Store, and rebutting the fact of all those ebooks is going to be much harder than debating details about the ebook market.
I look forward to watching people try. What do you think?