From a pure antitrust perspective, the real story behind the DOJ’s Apple e-book investigation
is the Division’s deep commitment to the view that Most-Favored-Nation (MFN) clauses are anticompetitive (see also here
), no doubt spurred on at least in part by Chief Economist Fiona Scott-Morton’s interesting work
on the topic.
Of course, there are other important stories here (see Matt Yglesias’ excellent post
), like “how much should a digital book cost?” And as Yglesias writes, whether “the Justice Department’s notion that we should fear a book publishers’ cartel is borderline absurd, on par with worrying about price-fixing in the horse-and-buggy market.”
I can’t help but notice another angle here. For those not familiar, the current dispute over e-books emerges over a shift in business models from a traditional one in which publishers sold at wholesale prices to bookstores who would, in turn, set the prices they desired — sometimes below the book’s cover price — and sell to consumers at retail. Much of the dispute arises out of the incentive conflict between publishers and retailers with respect to the profit-maximizing price. The WSJ describes the recent iteration of the conflict:
To build its early lead in e-books, Amazon
Inc. AMZN +0.19%
sold many new best sellers at $9.99 to encourage consumers to buy its Kindle electronic readers. But publishers deeply disliked the strategy, fearing consumers would grow accustomed to inexpensive e-books and limit publishers’ ability to sell pricier titles.
Apple’s proposed solution was a move to what is described as an “agency model,” in which Apple takes a 30% share of the revenues and the publisher sets the price — readers may recognize that this essentially amounts to resale price maintenance — an oft-discussed topic at TOTM
. The move to the agency-RPM model also entailed the introduction of an MFN clause stipulating that publishers could not sell to rivals at a lower price.
Whether Apple facilitated a collusive agreement among publishers or whether this industry-wide move to the agency-model is an efficient and consumer-welfare enhancing method of solving the incentive conflict between publishers and retailers remains to be seen. What is somewhat new in this dispute about book distribution is the technology involved; but the underlying economics of vertical incentive conflict between publishers and retailers is not!
Many economists are aware Alfred Marshall’s Principles of Economics textbook was apparently the first commodity sold in the United States under an RPM agreement! (HT: William Breit
) The practice apparently has deeper roots in Germany. The RPM experiment was thought up by (later to become Sir) Frederick Macmillan. Perhaps this will sound familiar:
In 1890 Frederick Macmillan of the Macmillan Company was casting about for a book with which to conduct an experiment in resale price maintenance. For years it had been the practice in Great Britain for the bookselllers to give their customers discounts off the list prices; i.e. price cutting had become the general practice. In March, 1890, Mr. Macmilan had written to The Bookseller suggesting a change from the current discount system and had inserted a form to be filled out by the dealers.
Experimentation with business models to align the incentives of publishers and sellers is nothing new; it is only wonderful coincidence that the examples involve a seminal economics text published as the Sherman Act was enacted. Nonetheless, an interesting historical parallel and one that suggests caution in interpreting the relevant facts without understanding the pervasive nature of incentive conflicts within this particular product line between publishers and sellers. One does not want to discourage experimentation with business models aimed at solving those incentive conflicts. What remains to be seen is whether and why the move to the new arrangement was executed through express coordination rather than unilateral action.
The preceding is re-published on TAP with permission by its author, Joshua Wright, Associate Professor, George Mason University School of Law. “The Apple E-Book Kerfuffle Meets Alfred Marshall’s Principles of Economics” was originally published March 15, 2012 on Truth on the Market.