Judge Rakoff Denies Delay Request in Bookseller Lawsuit Against Amazon, Publishers
If you are tired of publishing industry lawsuits like Google Books dragging on for years (that suit is now in year 8) then I have some good news. There’s at least one lawsuit that won’t be tying up the courts for the next 8 years.
Judge Jed Rakoff, the presiding judge in the recently filed Book House Of Stuyvesant Plaza, Inc. et al v. Amazon.Com, Inc. et al lawsuit, ruled against a request for delay yesterday. It seems the Judge isn’t impressed with the claim that more time was needed for pre-trial motions. He called the delay “completely unacceptable,” and denied the motion.
Yesterday’s motion was filed jointly by the booksellers and by publishers, both of which wanted more time to file motions and replies. Here’s the fun part: They also wanted more time because Amazon was ignoring the lawsuit (or at least that is what the plaintiffs and defendants claimed in this motion).
It is more likely that Amazon is not ignoring the lawsuit; they are ignoring the plaintiffs and defendants. I would bet that Amazon’s lawyers are working, and when they are ready they will file a brief which will argue that the lawsuit lacks merit.
There’s a good chance we will never see that motion (Amazon will quite reasonably ask for confidentiality) but I would bet money that the judge will rule in favor of Amazon and dismiss this lawsuit with prejudice (meaning the booksellers cannot file this lawsuit a second time).
This lawsuit, which was filed on 20 February, claims that Amazon and the 6 major publishing conglomerates broke anti-trust law when they conspired to sell Kindle ebooks with DRM. The 3 plaintiffs believe that this is unfair competition, and they seek to represent a class of indie bookstores that have been shut out of the ebook market.
Yeah, the lawsuit doesn’t make much sense to me either. Amazon’s dominance didn’t come from a conspiracy with publishers (who hate Amazon with a passion and 5 of which recently settled with the DOJ and admitted to conspiring against Amazon). Amazon dominates the ebook market because they are better at selling ebooks. Take away Amazon’s proprietary DRM and they would still be better at selling ebooks.
Furthermore, the complaint about incompatible DRM is largely irrelevant. Almost all the titles from the 6 publisher defendants listed in the Kindle Store are also available in Epub, a format that the plaintiffs could sell if they wanted, meaning they could be in the market if they wanted to be there.
And as for the claim that Kindle DRM itself is unfair restraint of trade, I’d suggest that the Atari v Nintendo lawsuit trumps that argument. Nintendo won an anti-trust lawsuit filed by Atari even though Nintendo had 80% of the gaming market at that time, forced game developers to sign exclusivity agreements, and locked down their game system with patents and NDAs.
Nintendo effectively had a monopoly on the gaming market at that time and yet Atari was unable to prove that anyone was harmed by that monopoly.
That last point is particularly important in this current lawsuit. It is far from clear that anyone has been unduly harmed by Amazon’s domination of the ebook market or their monopolization of Kindle DRM. The original lawsuit filed by the plaintiffs certainly does not prove that argument.
Nor can I see the harm. The ebook market is competitive on price and availability, and there are even a few moderately successful smaller ebookstores who are succeeding in spite of Amazon’s supposed monopolization. We’re even seeing new ebookstores be launched nearly on a monthly basis, and that makes me wonder if the plaintiffs are losing in the ebook market not because of unfair competition but because they are losers.
Unfortunately that is not something that can be blamed on Amazon.