Fast on the heels of our round-up of a busy year in court for publishing, Judge Jed Rakoff has cleared the docket of one of the strangest cases of 2013. In a 19-page opinion he swatted away the “threadbare allegations” by independent booksellers Book House of Stuyvesant Plaza, Posman Books, and Fiction Addition against the largest trade publishers and Amazon and dismissed the lawsuit.
On the vague idea that publishers’ acceptance of Amazon’s proprietary DRM “suggests that there may have been oral agreements or discussions” among the publishers, Judge Rakoff notes “the evasiveness of this allegation is remarkable.” Then there is problem of logic, since “the plaintiffs fail to explain why the publishers would even want to enter into the type of restrictive agreement alleged.” Even if there were some evidence of such an agreement — and there is none — Judge Rakoff says the booksellers failed to allege than any such agreement was legally “unreasonable.”
On the complaints that independent booksellers cannot sell ebooks that work on Kindle devices and apps, Rakoff relies on the time-tested Supreme Court line that “antitrust laws … were enacted for the protection of competition, not competitors.” Notably, “plaintiffs do not even allege that they would sell publishers e-books more cheaply than Amazon does.”
Judge Rakoff builds on the brutal honestly of that line with yet another quip: “To the extent plaintiffs have been frozen out of e-book market, it is not because of any unlawful concerted action by the defendants. Rather, it is simply because consumers prefer the products offered by plaintiffs’ competitors.” Later, he adds, “In essence, plaintiffs complain that Amazon has not allowed them to sell e-books on Amazon’s devices and apps. But no business has a ‘duty to aid competitors.'”