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Summary:

Three independent bookstores have filed a class action suit against Amazon the big-six publishers, alleging that the proprietary DRM Amazon uses on ebooks creates a monopoly.

Three independent bookstores have filed a class action suit against Amazon and all of the big-six publishers, alleging that the proprietary digital rights management tools Amazon uses on ebooks serve to create a monopoly. The indies, represented by Los Angeles antitrust firm Blecher & Collins, say publisher contracts calling for the use of this DRM, which like most forms of DRM prohibits readers from copying ebooks or reading them on non-authorized devices, restrain ebook sales and that Amazon “has unlawfully monopolized or attempted to monopolize the market for ebooks in the United States.”

The case was filed in New York’s Southern District court (which also oversaw the Department of Justice’s antitrust suit on ebook pricing) on February 15 and was first noticed by the Huffington Post Wednesday afternoon. The named plaintiffs are Manhattan-based Posman Books, Book House of Stuyvesant Plaza and Fiction Addiction of Greenville, South Carolina; they seek to represent “all other similarly situated independent brick-and-mortar bookstores.”

The filing cites estimated market share for Kindle, Barnes & Noble’s Nook and Apple’s iBookstore as evidence that Amazon has a “dominant position” in the ebook market. The estimates cited are generally accepted in the publishing industry — over 60 percent for Amazon’s Kindle e-readers, around 25 percent for Nook and under 10 percent for the iBookstore (though some believe that Apple’s market share has grown ). The filing says Nook is Kindle’s “only substantial competition” but, in reference to recent news and earnings reports, notes Barnes & Noble is “experiencing financial difficulties and will be downsizing by closing a significant portion of their brick-and-mortar bookstores.” The filing doesn’t mention Kobo, but Posman, Book House and Fiction Addiction all sell Kobo ebooks through the company’s partnership with the American Booksellers Association.

To be clear, Barnes & Noble, Kobo and Apple also sell ebooks with DRM on them. Barnes & Noble and Kobo use Adobe DRM, and Apple uses its own proprietary DRM on ebooks — but that appears not to be at issue in this case because of Apple’s reportedly small ebook market share. (The filing does mention that Apple doesn’t use DRM on music.) Rather, the filing takes issue with Amazon’s proprietary DRM, AZW: “Ebooks with the AZW DRM can only be read on a Kindle device or on another device enabled with a Kindle application…the Kindle app works solely with ebooks sold by Amazon.” While the case names only the big-six publishers as defendants, Amazon places its DRM on nearly all of its ebooks from all publishers.

The filing says that big-six publishers, through their contracts with Amazon that allow for Amazon’s proprietary DRM on their ebooks, “unreasonably restrain trade and commerce in the market for ebooks” in violation of the Sherman Act,” and claims “consumers have been injured because they have been deprived of choice and also denied the benefits of innovation and competition resulting from the foreclosure of independent brick-and-mortar bookstores.”

Most of the filing, though, is spent on Amazon, which the plaintiffs accuse of purposely creating a monopoly on ebooks in the United States. According to the filing:

The aforesaid conduct and acts of Amazon and the big six were engaged in by Amazon with the purpose and intent: (1) to injure, suppress, destroy and irreparably harm Plaintiffs and the other Class Members in the relevant market; (2) to monopolize the market for the sale of ebooks in the United States; (3) to reduce or eliminate sales of ebooks by Plaintiffs and the other Class Members; (4) to control prices; (5) to reduce the variety of offerings that would otherwise be available to consumers; and (6) to unlawfully monopolize trade and commerce in said relevant market.

The plaintiffs seek an injunction “prohibiting Amazon and the big six from publishing and selling ebooks with device and app specific DRMs and further requiring the big six to allow independent brick-and-mortar bookstores to directly sell open-source DRM ebooks published by the big six.” It’s unclear what the plaintiffs mean by “open-source DRM.” Alyson Decker, the Blecher & Collins attorney overseeing the case, said she couldn’t comment specifically on the technicalities, but it seems as if the plaintiffs want some kind of DRM that would operate across platforms.

Decker told me that independent bookstores’ agreements to sell ebooks through Kobo aren’t sufficient: “My understanding is that the Big Six do not currently have any direct agreements for ebooks with independent brick and mortar bookstores comparable to the agreements they have entered into with them for traditional books. While some independent brick and mortar bookstores are able to sell ebooks for Kobo, my understanding is that that agreement is with Kobo and not directly with the big six.” Many independent bookstores may lack the technical knowledge and infrastructure to be able to sell ebooks straight from the publishers, but the filing doesn’t get into details on exactly how such a system would work.

  1. DRM? Seriously, that’s just the tip of the iceberg, small potatoes, kiddy stuff…well…you get what I’m saying. Not to mention that any insider knows the eBook bubble burst months ago. Thus, the infighting begins.

    JMHO

    E.R. @ Killingkillers.blogspot.com

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    1. Tell us again how the “ebook bubble burst months ago.”

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      1. Look at Google trends for the term ebooks, or Kindle, or nook.

        Up for two years then down like a rock.

        Bottom line: Paper won.

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      2. Woooooooow. That’s some ironclad data there.

        In 2011, Amazon’s (the dominant ebook retailer) ebook sales surpassed its print sales, and that was only five years after the intro of the Kindle. In 2012, Amazon ebook sales were up 70%, whereas print was only up 5%.

        But we all know that Google trends > actual sales data. RIP ebooks.

        PS I’m holding out hope that you were joking and I just missed it.

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      3. A little more on this … many publishers are reporting slowing ebook sales, and for now digital sales as a percentage of total book sales at large publishing houses appears to have settled at around 25 percent-ish. It’s unclear if this is a temporary plateau and as more genres of books (not just fiction) become popular in digital format, this could shift again. The market does appear to be maturing (but not going away).

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      4. Laura, I’d wager that a lot of those publishers have been notoriously slow to embrace ebooks in the first place (e.g. windowing). But the upward trend of ebook sales is clear, and isn’t driven by traditional publishing houses who just happen to offer ebook versions of their print books; it’s driven by smaller houses and self-publishers.

        At any rate, saying that the bubble has burst and that paper has won due to Google trends is about as wrong as a statement can be, and I’m not quite clear what kind of agenda drives such a statement.

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  2. The Wheel of Time Kindle books have a notice saying they don’t have DRM due to publisher request. What makes it Amazon’s fault if the publisher defaults to DRM?

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  3. Wow, didn’t see this one coming. Right now it appears as though this is completely independent of the ABA (American Booksellers Association), which in the past has not been afraid to go the legal route to make a point. It sort of looks like the NY law firm might have enlisted these three NY area bookstores because they sensed an opportunity.

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    1. “It sort of looks like the NY law firm might have enlisted these three NY area bookstores because they sensed an opportunity.”

      You might be onto something here.

      Regardless of the merits of the case, it’s good PR for the three independent booksellers and bad PR for Amazon and the publishers.

      They might just be angling for some settlement money.

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  4. “Open-source DRM” is impossible. If it’s open source you can’t prevent anyone from modifying it to dump the relevant encryption keys, or save off the unencrypted content. You’d think they would at least come up with demands that aren’t plain silly like that.

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    1. Yes — Cory Doctorow wrote a good post about the terminology here:
      http://boingboing.net/2013/02/20/indie-booksellers-sue-amazon-a.html

      I think by “open-source” they mean “cross-platform” but it’s not really spelled out in the court filing and Decker didn’t go into more detail about it with me.

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  5. Amazon does not require DRM. My books are published on Amazon without DRM. The DRM option is specified by the publisher, Amazon merely follows the instructions from that publisher. This is true for the major legacy publishers and self-publishers both.

    I published my own books on Amazon without DRM. My choice.

    This (DRM) worked to Amazon’s advantage, and to the long-term disadvantage of the traditional publishers who were too stupid to realize they were locking themselves to Amazon’s proprietary format, but we shouldn’t blame Amazon. Blame the short-sightedness of the traditional houses.

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    1. The kindle file format (azh -?) is proprietary to Amazon and the kindle units.

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  6. Or just simply go to sites like ebookoid.com and get ebooks without DRM for cheap

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  7. ments they have entered into with them for traditional books. While some independent bric

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  8. OMG! This is ridiculous. Kindle gave me the option of having my book with the DMR or not. I said, yes. The purpose of having it, is to prevent piracy, which sounds like the indie stores would like to commit.

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    1. Dayna — are you a self-published author publishing your book on Amazon and getting the DRM option or did you somehow get the option to *buy* a book with or without the DRM? I’m assuming the former b/c I’ve never heard of the latter, but just curious.

      The indie stores as far as I can understand are not advocating for no DRM — they are advocating for some kind of cross-platform DRM. As @Jared Lundell points out, “open-source” DRM is not really a thing — but I am pretty sure that when they say open-source they mean cross-platform.

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  9. P.S. The closest thing to cross-platform DRM might be Adobe, which a bunch of different retailers use. As Emily Books’ Ruth Curry wrote in a guest post for us last year, Adobe DRM is very expensive for small retailers to implement. http://paidcontent.org/2012/04/06/drm-is-crushing-indie-booksellers-online/

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  10. Elliott Brennon Thursday, February 21, 2013

    To oversimplify, it appears that the plaintiffs are saying that Amazon generated strong acceptance in the market place of their (Amazon) DRM that the plaintiffs couldn’t match. If that’s the thrust of their argument, it seems to me, as a non lawyer, that they’re seeking relief in an inappropriate venue.
    How can a court of law pass judgment on a product developed in the normal course of business that is more successful than what the plaintiffs offer?

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