The American Booksellers Association and Barnes & Noble have teamed up to file a motion for permission to file a "friend of the court" brief in the Department of Justice’s settlement agreement with Simon & Schuster, Hachette, and HarperCollins. In asking the court to file an amicus brief, the two booksellers argue that the DoJ’s agreement with the three publishers would hurt their businesses by forcing the houses to discontinue agency pricing on e-books for two years, even though the agency model has never been found to be illegal. The motion blasts the DoJ’s response to the 868 comments it received about the settlement as lacking any understanding of the publishing business and therefore the ABA and B&N should be allowed to file an amicus brief to correct the inaccuracies made by the DoJ.
The proposed final judgment, the motion contends “represents an unprecedented effort by DOJ to reject its traditional role of ending alleged collusion and to become a super-regulator of thousands of publishing industry participants, the vast majority of whom are not before the Court, in a nascent technology industry DOJ little understands.” If the settlement receives court approval, “the end loser of his unnecessary and burdensome regulatory approach will the American public, who will experience higher overall average e-book and hardback prices and less choice.”
The motion argues that forcing the three publishers to end the agency model, rather than actually punishing the publishers or Apple, would lead to the dismantling of a distribution system that has given rise to a diverse e-book ecosystem that has increased choice in the e-book market. Furthermore, the parties argue, the DoJ provided no rationale explaining why the elimination of the agency model is in the public interest since it is likely that returning to the former sales system would allow Amazon “to continue its below-cost, anticompetitive price [which] will restore Amazon to a monopolistic market share.”
Since B&N and ABA are directly impacted by the proposed final judgment, the two should be permitted to file an amicus brief, the motion concludes, and adds a request that their lawyers be allowed to participate at any hearing that may be held to determine if the judgment is in the public interest.