How Apple's Agency Model for Publishers Fails to Merit Collusion Charges

ibooks iconEarlier this month, the U.S. Department of Justice, a number of U.S. states, and authorities in several other countries announced that they were filing lawsuits against Apple and six book publishers, alleging anticompetitive behavior in shifting to an Apple-backed agency model in which publishers set retail pricing and retailers such as Apple receive a 30% commission on the sales price.

Rather than settling the case as several of the publishers have opted to do, Apple has stood firm in its stance that the move did not represent collusion and price fixing but instead served as a way to give publishers control over pricing and break up Amazon's near-monopoly in the e-book market.

Former Wall Street Journal publisher and Press+ founder Gordon Crovitz published a column over the weekend outlining how Apple's plan for a 30% commission on publishers' sales is merely its standard business practice, not any sort of collusion to fix prices in the market.

'I don't think you understand. We can't treat newspapers or magazines any differently than we treat FarmVille."

With those words, senior Apple executive Eddy Cue stuck to his take-it-or-leave-it business model of a 30% revenue share payable for transactions through the iTunes service. Despite my arguments to Mr. Cue in Apple's Cupertino, Calif., offices last year on behalf of news publishers seeking different terms, to him there was no difference between a newspaper and an online game.

It was a sobering reminder that traditional media brands have no preferred place in the new digital world. It also should be the defense's Exhibit A in the Justice Department's antitrust case against Apple and book publishers: The 30% revenue-share model is Apple's standard practice, not, as alleged by the government, the product of a conspiracy.

Crovitz goes on to outline how the U.S. government's case against Apple and the publishers is misguided, with the agency model having been validated in numerous other industries by federal courts. And with the model looking exactly like that used for apps and other iTunes Store content, it suggests that Apple is not trying to accomplish anything special to gain control of the e-book market.

In fact, Crovitz notes that the e-book market has become significantly healthier since Apple's agency model was adopted by the major publishers.

Over the past couple of years, thanks to the agency model, the Kindle's market share has fallen to 60% [from 90% previously] thanks to competition from iPads and Barnes & Noble Nooks, and there is more variation in consumer prices, typically ranging from $5.95 to $14.95.

Pricing flexibility for publishers is necessary to allow innovation. Why shouldn't some e-books cost 99 cents and others that come with video and hardcover editions be $49.95? Why not give people the option to pay 10% more to access an e-book on all e-readers? Consumers should decide, not Amazon or the Antitrust Division.

With settlements already looking at unwinding the agency model to allow Amazon to once again begin controlling the e-book market by leveraging its consistent $9.99 pricing to drive competitors out of business, investors have become increasingly skittish about Barnes & Noble and other retailers trying to stake out their positions in the market. Consequently, there are real fears among authors, publishers, and retailers that the federal government's efforts are working quickly to restore an Amazon monopoly capable of bringing down its competitors.

Update: As noted by Chris Martucci and others, Crovitz fails to address the issue of the "most favored nation" clauses included in Apple's contracts with the publishers. These clauses prohibited the publishers from offering their content to any other retailer at lower prices than they offered through Apple. When combined with the apparent coordination among the publishers to break Amazon's near monopoly by shifting to the agency model, a case for anti-competitive behavior is more easily made.

But while simply removing the most favored nation clauses from Apple's contracts with the publishers would bring them more in line with the relationship between Apple and app developers, that move alone would not appear to satisfy the Department of Justice.

The government's settlements with several of the publishers have gone beyond the issue of most favored nation clauses and have required that the publishers essentially abandon the agency model as it currently exists. While the settlements would allow a modified form of the agency model to exist, they would require that retailers remain some control over the setting of retail prices.

Popular Stories

iOS 26

15 New Things Your iPhone Can Do in iOS 26.2

Friday December 5, 2025 9:40 am PST by
Apple is about to release iOS 26.2, the second major point update for iPhones since iOS 26 was rolled out in September, and there are at least 15 notable changes and improvements worth checking out. We've rounded them up below. Apple is expected to roll out iOS 26.2 to compatible devices sometime between December 8 and December 16. When the update drops, you can check Apple's servers for the ...
ios 18 to ios 26 upgrade

Apple Pushes iPhone Users Still on iOS 18 to Upgrade to iOS 26

Tuesday December 2, 2025 11:09 am PST by
Apple is encouraging iPhone users who are still running iOS 18 to upgrade to iOS 26 by making the iOS 26 software upgrade option more prominent. Since iOS 26 launched in September, it has been displayed as an optional upgrade at the bottom of the Software Update interface in the Settings app. iOS 18 has been the default operating system option, and users running iOS 18 have seen iOS 18...
iOS 26

Apple Seeds iOS 26.2 and iPadOS 26.2 Release Candidates to Developers and Public Beta Testers

Wednesday December 3, 2025 10:33 am PST by
Apple today seeded the release candidate versions of upcoming iOS 26.2 and iPadOS 26.2 updates to developers and public beta testers, with the software coming two weeks after Apple seeded the third betas. The release candidates represent the final versions of iOS 26.2 and iPadOS 26.2 that will be provided to the public if no further bugs are found during this final week of testing....
Photos App Icon Liquid Glass

John Gruber Shares Scathing Commentary About Apple's Departing Software Design Chief

Thursday December 4, 2025 9:30 am PST by
In a statement shared with Bloomberg on Wednesday, Apple confirmed that its software design chief Alan Dye will be leaving. Apple said Dye will be succeeded by Stephen Lemay, who has been a software designer at the company since 1999. Meta CEO Mark Zuckerberg announced that Dye will lead a new creative studio within the company's AR/VR division Reality Labs. On his blog Daring Fireball,...
iOS 26

When Will Apple Release iOS 26.2?

Monday December 1, 2025 4:37 pm PST by
We're getting closer to the launch of the final major iOS update of the year, with Apple set to release iOS 26.2 in December. We've had three betas so far and are expecting a fourth beta or a release candidate this week, so a launch could follow as soon as next week. Past Launch Dates Apple's past iOS x.2 updates from the last few years have all happened right around the middle of the...
maxresdefault

iPhone Fold: Launch, Pricing, and What to Expect From Apple's Foldable

Monday December 1, 2025 3:00 am PST by
Apple is expected to launch a new foldable iPhone next year, based on multiple rumors and credible sources. The long-awaited device has been rumored for years now, but signs increasingly suggest that 2026 could indeed be the year that Apple releases its first foldable device. Subscribe to the MacRumors YouTube channel for more videos. Below, we've collated an updated set of key details that ...
Intel Inside iPhone Feature

Apple's Return to Intel Rumored to Extend to iPhone

Friday December 5, 2025 10:08 am PST by
Intel is expected to begin supplying some Mac and iPad chips in a few years, and the latest rumor claims the partnership might extend to the iPhone. In a research note with investment firm GF Securities this week, obtained by MacRumors, analyst Jeff Pu said he and his colleagues "now expect" Intel to reach a supply deal with Apple for at least some non-pro iPhone chips starting in 2028....
ive and altman

Jony Ive's OpenAI Device Barred From Using 'io' Name

Friday December 5, 2025 6:22 am PST by
A U.S. appeals court has upheld a temporary restraining order that prevents OpenAI and Jony Ive's new hardware venture from using the name "io" for products similar to those planned by AI audio startup iyO, Bloomberg Law reports. iyO sued OpenAI earlier this year after the latter announced its partnership with Ive's new firm, arguing that OpenAI's planned "io" branding was too close to its...
iphone air camera

iPhone Air's Resale Value Has Dropped Dramatically, Data Shows

Thursday December 4, 2025 5:27 am PST by
The iPhone Air has recorded the steepest early resale value drop of any iPhone model in years, with new data showing that several configurations have lost almost 50% of their value within ten weeks of launch. According to a ten-week analysis published by SellCell, Apple's latest lineup is showing a pronounced split in resale performance between the iPhone 17 models and the iPhone Air....
iPhone 17 Pro Cosmic Orange

iPhone 17 Pro Lost a Camera Feature Pro Models Have Had Since 2020

Thursday December 4, 2025 5:18 am PST by
iPhone 17 Pro models, it turns out, can't take photos in Night mode when Portrait mode is selected in the Camera app – a capability that's been available on Apple's Pro devices since the iPhone 12 Pro in 2020. If you're an iPhone 17 Pro or iPhone 17 Pro Max owner, try it for yourself: Open the Camera app with Photo selected in the carousel, then cover the rear lenses with your hand to...

Top Rated Comments

neiltc13 Avatar
178 months ago
This is opinion posted with a title that suggests it is fact. I expect better from MR.
Score: 23 Votes (Like | Disagree)
Krevnik Avatar
178 months ago
So you're comfortable spending $15 for an eBook that might have otherwise cost you $10 under Amazon's former wholesale model? Why are you on Apple's side when its screwing you over as a consumer?
The problem is that "screwing over the consumer" isn't always so cut and dry by checking who costs more. Especially when wholesale pricing allows Amazon to use newer titles and the kindle itself as loss leaders. It not only creates an unrealistic price expectation, but it tends to squeeze out players that can't afford to slash their own wrists in the game of price cut-throat. Amazon can fuel losses in Kindle sales from video games, furniture, TVs, peripherals, food, clothing, etc. B&N can't.

And what happens when Amazon does get themselves setup as the 'de-facto e-book source' under their model? Do those loss leaders go away? What keeps them going? Prices on older books that just never seem to get lower because Amazon needs the margins? Which is worse? Higher initial prices or higher final prices?

The PC OEM market has effectively commoditized themselves doing stuff like this. Look at how slowly the survivors (Dell and HP) are able to respond to the move to mobile devices and slates. Look at the fact that Intel had to do a big chunk of the R&D to bring ultrabooks to Apple's competitors. Perhaps the e-book market needs to be commoditized as well, but not around a single retailer with vertical integration lock-in.
Score: 11 Votes (Like | Disagree)
badtzwang Avatar
178 months ago
Can they please let Apple do what they wanna do? If the prices are too high, customers will let Apple know by closing their wallets.

So you're comfortable spending $15 for an eBook that might have otherwise cost you $10 under Amazon's former wholesale model? Why are you on Apple's side when its screwing you over as a consumer?
Score: 10 Votes (Like | Disagree)
MhzDoesMatter Avatar
178 months ago
This is opinion posted with a title that suggests it is fact. I expect better from MR.

You expect better from a site that primarily publishes rumors?
Score: 7 Votes (Like | Disagree)
Small White Car Avatar
178 months ago
If anything is wrong here, it's Apple's insistence that publishers have to give Apple the lowest price.

That's the one area where all this does differ from apps. If Angry birds was $2 on the iPhone and $1 on Android, there's nothing Apple can do about that. They're trying to make that a rule with books, though.

The good news is, I honestly think they can (and should) drop that and it won't hurt them. Then books really will be treated like apps, which is how I think it should be. (And I think Apple will still do just fine in that world.)

I'm not 100% clear if the DOJ would agree with me at that point or if they're trying to go further. My opinion depends on that and I don't have a really clear understanding of their intentions right now.
Score: 7 Votes (Like | Disagree)
linuxcooldude Avatar
178 months ago
Apple's terms for dealing with the publishers included that they were required to give Apple the lowest price (retail, not "list). That means that, combined with their agency-only policy, they were effectively pricing everything on Amazon's website, or anyone else's website, if they wanted to play ball with Apple's new store.
I thought the deal was, that if they price the same book at a lower price else where they must offer it at the same price inside the iTunes store too?
Score: 6 Votes (Like | Disagree)