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

maxresdefault

Five Features Coming to AirPods Pro 3

Friday June 27, 2025 10:52 am PDT by
Apple hasn't updated the AirPods Pro since 2022, and the earbuds are due for a refresh. We're counting on a new model this year, and we've seen several hints of new AirPods tucked away in Apple's code. Rumors suggest that Apple has some exciting new features planned that will make it worthwhile to upgrade to the latest model. Subscribe to the MacRumors YouTube channel for more videos. Heal...
iPhone Car Key WWDC 2025

Apple Announces 13 Automakers Planning to Offer iPhone Car Keys

Friday June 27, 2025 11:42 am PDT by
In 2020, Apple added a digital car key feature to its Wallet app, allowing users to lock, unlock, and start a compatible vehicle with an iPhone or Apple Watch. The feature is currently offered by select automakers, including Audi, BMW, Hyundai, Kia, Genesis, Mercedes-Benz, Volvo, and a handful of others, and it is set to expand further. During its WWDC 2025 keynote, Apple said that 13...
anker power bank recall

PSA: Anker Recalls Multiple Power Banks Due to Fire Risk

Friday June 27, 2025 4:16 pm PDT by
Popular accessory maker Anker this month launched two separate recalls for its power banks, some of which may be a fire risk. The first recall affects Anker PowerCore 10000 Power Banks sold between June 1, 2016 and December 31, 2022 in the United States. Anker says that these power banks have a "potential issue" with the battery inside, which can lead to overheating, melting of plastic...
Chase Sapphire Reserve Apple Perk Feature

Chase Sapphire Reserve Card Introduces New Perk for Apple Customers

Wednesday June 25, 2025 2:08 pm PDT by
Chase this week announced a series of new perks for its premium Sapphire Reserve credit card, and one of them is for a pair of Apple services. Specifically, the credit card now offers complimentary annual subscriptions to Apple TV+ and Apple Music, a value of up to $250 per year. If you are already paying for Apple TV+ and/or Apple Music directly through Apple, those subscriptions will...
iPhone 17 Pro Blue Feature Tighter Crop

iPhone 17 Pro Launching in a Few Months With These 12 New Features

Thursday June 26, 2025 2:00 am PDT by
Apple's next-generation iPhone 17 Pro and iPhone 17 Pro Max are around three months away, and there are plenty of rumors about the devices. Apple is expected to launch the iPhone 17, iPhone 17 Air, iPhone 17 Pro, and iPhone 17 Pro Max in September this year. Below, we recap key changes rumored for the iPhone 17 Pro models:Aluminum frame: iPhone 17 Pro models are rumored to have an...
A18 Pro Chip

New MacBook With A18 Pro Chip Spotted in Apple Code

Monday June 30, 2025 8:05 am PDT by
Apple is developing a MacBook with the A18 Pro chip, according to findings in backend code uncovered by MacRumors. Earlier today, Apple analyst Ming-Chi Kuo reported that Apple is planning to launch a low-cost MacBook powered by an iPhone chip. The machine is expected to feature a 13-inch display, the A18 Pro chip, and color options that include silver, blue, pink, and yellow. MacRumors...
macbook air spacegray purple

Apple Planning to Launch Low-Cost MacBook Powered By iPhone Chip

Monday June 30, 2025 3:20 am PDT by
Apple is planning to launch a low-cost MacBook powered by an iPhone chip, according to Apple analyst Ming-Chi Kuo. In an article published on X, Kuo explained that the device will feature a 13-inch display and the A18 Pro chip, making it the first Mac powered by an iPhone chip. The A18 Pro chip debuted in the iPhone 16 Pro last year. To date, all Apple silicon Macs have contained M-series...
CarPlay Ultra Climate Controls

Here's Which Vehicle Brands Will and Won't Offer Apple's CarPlay Ultra

Friday June 27, 2025 9:52 am PDT by
Apple last month announced the launch of CarPlay Ultra, the long-awaited next-generation version of its CarPlay software system for vehicles. There was news this week about which automakers will and won't offer CarPlay Ultra, and we have provided an updated list below. CarPlay Ultra is currently limited to newer Aston Martin vehicles in the U.S. and Canada. Fortunately, if you cannot...
apple watch ultra 2 new black

Apple Watch Ultra 3 Finally Coming After Two-Year Hiatus

Tuesday June 24, 2025 3:40 am PDT by
Apple will finally deliver the Apple Watch Ultra 3 sometime this year, according to analyst Jeff Pu of GF Securities Hong Kong (via @jukanlosreve). The analyst expects both the Apple Watch Series 11 and Apple Watch Ultra 3 to arrive this year (likely alongside the new iPhone 17 lineup, if previous launches are anything to go by), according to his latest product roadmap shared with...

Top Rated Comments

neiltc13 Avatar
172 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
172 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
172 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
172 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
172 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
172 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)