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 Battery Glass Feature

iPhone 16 Pro Max 80% Charge Limit: One Year Later, Was It Worth It?

Wednesday September 24, 2025 3:58 pm PDT by
With the iPhone 15 series, I did an experiment and kept my iPhone's Charge Limit set at 80 percent for an entire year. It provided an interesting look at the impact of charge limits on battery longevity, so I decided to repeat it for the iPhone 16 line. Since September 2024, my iPhone 16 Pro Max has been limited to an 80 percent charge, with no cheating. As of today, my battery's maximum...
iOS 26

Everything New in iOS 26.1 Beta 1

Monday September 22, 2025 12:44 pm PDT by
Apple released the first beta of iOS 26.1 today, just a week after launching iOS 26. iOS 26.1 mainly adds new languages to Apple Intelligence, but there are a few other features that are worth knowing about. New Apple Intelligence Languages Apple Intelligence is now available in Danish, Dutch, Norwegian, Portuguese (Portugal), Swedish, Turkish, Chinese (Traditional), and Vietnamese. AirPo...
iPhone 17 Pro Colors

Skipped the iPhone 17 Pro? Here's What is Rumored for iPhone 18 Pro

Tuesday September 23, 2025 8:55 am PDT by
While the iPhone 18 Pro and iPhone 18 Pro Max are still a year away, there are already a few rumors about the devices that offer an early look ahead. Below, we have recapped some of the early iPhone 18 Pro rumors so far. This story was published previously, and it has been updated to reflect the latest rumors. Many early rumors prove to be true, but nothing is confirmed yet, and Apple's...
apple tv 4k new orange

Next Apple TV Expected to Launch This Year With These New Features

Monday September 22, 2025 10:00 am PDT by
The next Apple TV is expected to be released later this year, and a handful of new features and changes have been rumored for the device. Below, we recap what to expect from the next Apple TV, according to rumors. Likely Features N1 Chip With Wi-Fi 7 Last year, Bloomberg's Mark Gurman said the next Apple TV would be equipped with Apple's own combined Wi-Fi and Bluetooth chip, which is...
iphone 17 pro dark blue 1

Apple Blames In-Store MagSafe Chargers for iPhone 17 Pro Display Model Scratches

Wednesday September 24, 2025 10:22 am PDT by
The marks on the iPhone 17 Pro models that people have noticed at Apple retail stores are caused by the chargers that Apple uses, Apple confirmed today. Apple told 9to5Mac that worn MagSafe charging stands in stores are causing marks on the iPhone 17 Pro and iPhone 17 Pro Max. Apple says that the marks are not scratches, and are instead material transfer from the stand to the phone. The...
iPhone 17 Pro USB C Port

iPhone 17 Pro Max's USB-C Charging Speeds Tested With Apple Chargers

Monday September 22, 2025 7:29 am PDT by
The website ChargerLAB has tested the iPhone 17 Pro Max's USB-C charging speeds with a variety of Apple's chargers, from 18W to 140W. The device reached a peak charging speed of around 36W with the following Apple chargers:40W Dynamic Power Adapter with 60W Max 61W USB-C Power Adapter 67W USB-C Power Adapter 70W USB-C Power Adapter 96W USB-C Power Adapter 140W USB-C Power AdapterFor...
AirPods Pro 3 Newsroom

Apple's 'Back to School' Offer Ends Soon, Now Applies to AirPods Pro 3

Wednesday September 24, 2025 7:20 am PDT by
Apple's annual "Back to School" promotion for students ends soon, so act fast if you want to score free AirPods with the purchase of an eligible new Mac or iPad. Until Tuesday, September 30, college students and qualifying educational staff in the U.S. can receive free AirPods 4 with Active Noise Cancellation when they purchase an eligible new Mac or iPad from Apple. This is a $179 value. ...
ios 26 digital id passport wallet

Apple Confirms iOS 26 Wallet Passport Feature is Coming in 2025

Tuesday September 23, 2025 1:06 pm PDT by
Digital ID, the iOS 26 feature that lets U.S. passport holders add their passports to the Wallet app, is coming later in 2025, Apple confirmed today. Apple updated the release timing wording of Digital ID on its iOS 26 features page. "Digital ID will be coming later this year with US passports only," it reads. Prior to today, the footnote for the feature said "Digital ID will be available ...
Apple Intelligence General Feature 2

iOS 26.1 Adds New Apple Intelligence Languages and Expands AirPods Live Translation

Monday September 22, 2025 11:15 am PDT by
With iOS 26.1, Apple Intelligence is gaining support for additional languages, including Danish, Dutch, Norwegian, Portuguese (Portugal), Swedish, Turkish, Chinese (Traditional), and Vietnamese. Apple announced plans to expand the languages that can be used with Apple Intelligence last year, and now the added language support is here. Apple Intelligence is now available in the following...
maxresdefault

iPhone 17 Pro is Vulnerable to Scratching, But Not Where You Might Think

Tuesday September 23, 2025 2:18 pm PDT by
Early reports have suggested that the iPhone 17 Pro and iPhone Air are more vulnerable to scratches and scuffs, primarily due to damage spotted at Apple Stores. Apple customers have discovered that the iPhone Air and iPhone 17 Pro models Apple has out for display at its retail locations have scratching in the area of the MagSafe charger. Those devices are handled by hundreds to thousands of...

Top Rated Comments

neiltc13 Avatar
175 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
175 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
175 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
175 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
175 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
175 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)