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Amazon, Publishers File for Dismissal in Bookseller Lawsuit
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  • April 3, 2013
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6888732417_82860253ea[1]It’s been just over a month since 3 indie booksellers filed a class action lawsuit against Amazon and the 6 major US publishers, and from the looks of the recent motions filed by the defendants this week I’m not sure that this trial will be around for much longer.

Yesterday the 7 defendants filed motions to dismiss the lawsuit Book House Of Stuyvesant Plaza, Inc. et al v. Amazon.Com, Inc. et al. This lawsuit, which was filed on 20 February, initially claimed that Amazon and the 6 major publishing conglomerates broke anti-trust law when they conspired to sell Kindle ebooks with DRM. The 3 plaintiffs claimed that this was unfair competition, and they sought to represent a class of indie bookstores that (according to them) had been shut out of the ebook market.

The motions filed yesterday tend to shoot that claim full of holes.

The arguments presented by the publishers calls into question the accuracy of the technical details offered by the plaintiffs, including the concept of “device specific DRMs”. That detail, along with the plaintiff’s use of the word “DRMs” the phrase”open source DRM” show a marked lack of technical knowledge on the part of the plaintiffs, IMO. The publishers also disputed that there was any “agreement between Amazon and any of the Publishers—let alone each of them” where a specification for “device- specific DRM can be plausibly inferred.”

And the publishers conclude their motion by pointing out that there is no evidence to show that there was no evidence that the consumers were harmed and that the plaintiffs failed to show “actual adverse effect on competition as a whole in the relevant market”. This does not surprise me; from the very first time that I heard about this lawsuit I did not see how the plaintiffs could show that anyone was harmed.

In spite of the plaintiff’s claim that DRM has stymied the market, the clearly visible innovation and price  competition over the past several years provides a simple factual rebuttal, IMO.

Amazon’s motion to dismiss is even simpler. The facts simply aren’t in the original or amended complaint to support an anti-trust case. According to the brief:  “Plaintiffs’ true grievance is that Amazon is attracting consumers with low prices and popular products.” The brief goes on to state: “On its face, the Amended Complaint demonstrates that Amazon’s innovations have both revolutionized the book industry and resulted in undeniable consumer benefits. Because Amazon is not alleged to have done anything apart from engaging in proper, healthy competition, the Amended Complaint must be dismissed.”

Judge Jed Rakoff has specified that the parties have until 18 April to reply to the motions, and that they will need to appear in court on 25 April for oral arguments on the motions. It will likely take the judge some months to issue a ruling, so the soonest (my estimation) this could be settled would be the end of July.

Then again I have gotten the impression from the tight schedule set by Judge Rakoff (it’s measured in weeks and not months or years) and his refusal to delay the case that the judge doesn’t think much of this case. He might want to end it quickly.

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