Best Amicus Brief Ever

Thursday, September 6th, 2012

-Eapen Thampy

Here’s page 1.

 

The rest of the brief is here.

Hat Tip: Todd Bussert

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25 Responses to “Best Amicus Brief Ever”

  1. #1 |  Burgers Allday | 

    What is the thing about the court getting the DoJ’s investigative records about?

    Is Bob implying that the DoJ is hiding something in these records? What?

    One nice thing about amazon kindle is that it gives access to a lot of books of a type that simply didn’t exist before, or at least were not available. For example, I read a 99 cent one on game theory. Not the type of book I would have been able to find 5 years ago. Just a little thing written by an RIT grad student no one has ever heard of, apparently for the el cheapo end of the kindle market.

    Much more than me, my wife loves “independent authors” who do sci-fi fantasy books and sell cheap on Amazon. She says that this type of author used to be self-published, but it was rare to find their stuff and it was expensive. Always a voracious reader, she enjoys reading even more now with these plentiful, cheap ‘independent author” books.

    My big concern is that whatever it is Bob is touting in the amici brief (agency model?) is going to destroy this new type of “independent author” book that my wife and I so enjoy.

    Is it?

  2. #2 |  David | 

    If the court doesn’t see those records, it can’t determine whether the government has actually proven what it’s supposed to.

    There are two monopolistic acts in play in the ebook market: Amazon sells books below marginal cost, while the publishers and Apple collude to fix prices across the market. The Department of Justice has decided that Amazon is the lesser of two evils, and is pursuing the price-fixers instead. Bob is saying they should be required to justify that decision, rather than the court simply accepting that the defendants are, in fact, the bad guys.

  3. #3 |  Jess | 

    The smugness is overpowering.

    Also, I would have appreciated a non-bullshit argument supporting the claims of “efficiency” and “market failure”, since apparently these are precise and well-understood terms for economists, novelists, lawyers, and other bullshit artists. (Yes I know these terms imply putative alternate allocations of resources that would hypothetically improve someone’s lot without harming anyone else’s. That’s pretty hard to square with, “before consumers paid low prices; now they pay high prices: yay capitalism!”) I’m sure that citing precedent in tiny narrative boxes is an appropriate alternative to reasoned argument when writing for judges, but somehow this seems pitched more at the civic-minded public.

    But since I wouldn’t have slogged through a brief in a different format to find these exact same deficiencies, I guess I’m glad Bob wanted to caricature the DOJ shlub as an Oscar-the-Grouch impersonator (I can’t BELIEVE he actually has me feeling empathy for a federal prosecutor, but that is one crude panel) and pose his sleeveless lady friend as such an pantingly obsequious foil for his voluminous insights. “Oh Bob, I could never be a lawyer. I’m not studly and smart like you!”

  4. #4 |  Eapen Thampy | 

    Honestly, I just thought it was hilarious that this amicus was submitted as a 5 page comic.

  5. #5 |  burgers | 

    I would have appreciated a non bs argument re “margin al cost.” That is the part that seemed to me a manipulable construct in the context of ebooks.

    The statement that this is a one time thing also seemed highly suspect. I wanted the chica to say something but she seemed more like she was going to go reverse cowgirl on Bob on “overlimit p. 6.

  6. #6 |  Jess | 

    De gustibus.

    Glancing back over the document, I note this argument: “e-books are systems goods — no value to consumers in isolation”. This is exactly what RMS and other DRM opponents have been warning for years, and now a lawyer in the employ of the publishers has admitted it. Sure, consumers should be smart enough not to spend their money on DRMed goods, but this frank admission should cut off a lot of nonsense.

  7. #7 |  Burgers Allday | 

    Eapen, If you want to read a good graphic novel, then I would humbly suggest From Hell by Alan Moore. It is pi-cubed times better than this amici brief. It has sort of a similar protagonist and sycophantic-helper dynamic, but it is funnier and says more about the human condition.

    I am not a graphic novels type of guy generally, but Alan Moore transcends the genre in a way that Bob can’t seem to.

  8. #8 |  Cyto | 

    I don’t know anything about their costs, but eBooks on Amazon are more expensive than paperbacks.

    I suppose that’s why he talks about piracy in the amicus brief, but it still strikes me as odd to claim that Amazon is selling small text files for $14.99 at “below cost”.

  9. #9 |  MikeV | 

    Waht is the marginal cost of an ebook? Other than the network bandwidth to download it and the royalty they pay to the publisher, what other costs are there?

    And if Amazon is selling books below their marginal cost, how is that hurting consumers?

  10. #10 |  Burgers Allday | 

    And if Amazon is selling books below their marginal cost, how is that hurting consumers?

    Here be the theory, such as it is:

    http://en.wikipedia.org/wiki/Predatory_pricing

  11. #11 |  Burgers Allday | 

    I suppose that’s why he talks about piracy in the amicus brief, but it still strikes me as odd to claim that Amazon is selling small text files for $14.99 at “below cost”.

    It costs more than $14.99 to write a great book. If you want to get a feel for what it costs, I would recommend: (i) In the end you end of becoming yourself anyway by David Foster Wallace; and (ii) Down and out in Paris & London by George Orwell.

    That sed, MikeV hits it on the hed when he sez “marginal cost,” and this is also what I ment upthd when I said that “marginal cost” (in the context of eBooks, is a highly manipulable construct. Bob’s comic book style brief itself is part of the marginal costs (sadly), and if the lady in the comic had mentioned that, then the comic would have gone “meta” and it would have been a much better comic.

    I cannot believe that we are actually having an antitrust thd on the Adge — I have waited years for this — thank you so much, Eapen!

  12. #12 |  Burgers Allday | 

    To put it another way, I think what Bob is arguing, concerning the idea of selling below marginal costs, is that Amazon is not ransoming its limited virtual shelf space for all the money it could get for this resource. This resource is valuable because Amazon sold a lot of $200 Kindle Fires (I luv, luv, luv mine) so it has a lot of customer eyez focussed on its digital offerings.

    What is the cost of designing and mas marketing a thingee like the Kindle Fire? I don’t know, but the answer has got to be enormous. When you spread that enormous cost over the sale of an enormous quantity of book sales then it becomes smaller, but how much smaller? Bob says that not enough of this cost is showing up in the price of Amazon eBooks because Amazon is engaging in predatory pricing. I am saying that I think that is hogwash.

    Mostly I am worried that Bob’s amici brief is a sophisticated play to keep low margin authors out of the eBook game and to keep publisher’s in the eBook game.

    One response that one might have to my concern about “independent authors” would be to say that if they are chased off the Kindle platform, then they can still set up their own independent eStores and sell to me and my wife (and others similarly inclined) over our plain old WINDOWS computers. That could happen in theory, but I don’t think it will happen in reality — in fact I KNOW it won’t. This is why I feel so strongly about wanting these authors on the Kindle, and I don’t want the likes of Bob chasing them off using naff antitrust theories.

    Still, in the end Bob will probably win. Even among supposedly-economically-oriented libertarians there is just too little knowledge about antitrust law, and too small of a value placed on true consumer choice. I think the perception is that the things I am pontificating about on this here thd is just Crazy Old Burgers being crazy again.

    “Its gotta be Burgers” ™

  13. #13 |  David | 

    Waht is the marginal cost of an ebook? Other than the network bandwidth to download it and the royalty they pay to the publisher, what other costs are there?

    Pretty much that, but the royalties run higher than you’d expect. The publishers often charge retailers $8-$10 per license, meaning Amazon was losing money on many of those $7.99 books it used to sell.

  14. #14 |  Burgers Allday | 

    Pretty much that, but the royalties run higher than you’d expect. The publishers often charge retailers $8-$10 per license, meaning Amazon was losing money on many of those $7.99 books it used to sell.

    But it should be noted that this marginal cost is arbitrary in a way that traditional marginal costs are not.

    It takes $x worth of steel to make a washing machine. at ny given point in time there is not a whole lot that washing machine mfgrs can do to change that.

    In this case, the publishers set the marginal cost and they purposely set it high so that can charge predatory pricing on Amazon’s that then excuses collusion on the part of the publishers. Using antitrust law to actively promote collusion among the big-market-share producers. It is like judicial ju-jitsu! Side to S.D.N.Y.: You’re getting played, brother (but you probably knew that).

    Upthd I mentioned that 99 cent game theory book i read on my kindle a moth or so back. I guaran-darn-tee you that that RIT grad student (don’t even remember the fella’s name) wasn’t charging a ten dollar royalty. and he isn’t the one who hired Bob to write his smug lil comic strip neither.

    Oh, well. At least it made our Eapen chuckle.

  15. #15 |  Burgers Allday | 

    correction:

    –on Amazon’s part that–

  16. #16 |  the other rob | 

    SF author Charlie Stross wrote a rather good piece on this, back in April.

    http://www.antipope.org/charlie/blog-static/2012/04/understanding-amazons-strategy.html

  17. #17 |  egd | 

    A clever presentation does little to mask a poor legal – and economic – argument. Although the poor economic argument bears little weight, the government ignores economics daily.

    Still, it’s a nice change of pace from regular amicus briefs. I can’t think of any bluebook rules it violated offhand. Perhaps improper footnoting (not at the bottom of the page).

  18. #18 |  Burgers Allday | 

    SF author Charlie Stross wrote a rather good piece on this, back in April.

    Big publisher mouthpiece. Lars Ulrich for the literary set.

  19. #19 |  Highway | 

    I really find all the arguments of monopoly and monopsony completely unmoving, especially when we’re talking about the internet. I find it extra unmoving when a guy like Stross is trying to argue that Amazon is bad because it’s trying to be BOTH at the same time. If that’s the case, then why don’t the suppliers to Amazon and the buyers from Amazon get together and… CUT OUT THE MIDDLEMAN! Heeeeeyyyy! Lookee there! They just did the exact same thing back to Amazon.

    Does this involve investment on their part? Sure. Is it possibly risky? Sure. But I don’t really care about that. If customers are feeling like they’re getting screwed by a supposed monopoly (and we could certainly get into whether there are actually any monopolies, which is definitely an open question), then there’s the opportunity for a new provider. Make it work, and quit bitching.

  20. #20 |  Leon Wolfeson | 

    @18 – No, he’s just nuts.

    The reality is that Amazon’s market share in ebooks outside America has been taking some nasty hits from the Nook and Kobo (who for example have a majority of the hardware market in France and Canada) lately.

    Things are fragmenting, the problem is very much publishers holding prices to random, in an echo of the old UK Net Book Agreement, which held prices for books artificially high for a decade and prevented i.e. softbacks from being published here.

  21. #21 |  Leon Wolfeson | 

    random? Ransom.

    (Personally I have a Kobo and only buy DRM-free ebooks…)

  22. #22 |  Leon Wolfeson | 

    @12 – http://www.baenebooks.com

    They and the small publishers which share the platform make a *huge* amount of their profit from epublishing. Completely DRM free, cross-platform, etc. – also monthly bundles, reasonable prices, “snippets” of certain books, etc.

    Heck, they sell unedited ARC’s for a premium, and people pay it!

  23. #23 |  Matt | 

    @10

    Lots of shouldacouldawoulda in that article in support of the supposed “predatory pricing” and no facts. The second paragraph admits that pretty much no economists believe there even is such a thing. This is the same logic that gave us “net neutrality”, except even worse.

    I’m typing this from an Ubuntu 12.04 install with Chromium v18.0 while also running some tests on my software in Eclipse Juno via OpenJDK. The software I described there cost man-millennia in labor to produce, yet I obtained it, and every other piece of software currently residing on this machine at the discount price of $0. It costs quite a bit more than $0 to make the software I listed, but somehow software does fine. And neither I not even the developers for the software would be happy if you muscled in and told me that I had to pay for the software at a price you specified.

  24. #24 |  Doc Merlin | 

    @Matt:
    The marginal cost is the cost of making a copy of that software, so roughly $0.

    This is another reason the lawyer that wrote the amicus is full of crap.

  25. #25 |  Mo | 

    This logic in this case is fascinating. Somehow the company with $48B in revenue and $600M in profit is the monopolistic big dog and the company with $108B in revenue and $26B in profit and the ubiquitous media distibution channel is the helpless underdog. WTF?

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