Friday, June 15, 2012

The problem isn't agency pricing, it's Most Favored Nation clauses

PaidContent writes about a letter written by American Booksellers Association president Oren Teicher, protesting the proposed eBook price-fixing settlement between the U.S. Justice Department and Hachette, Harper Collins and Simon & Schuster. In his letter, Teicher writes that the publishers shouldn't be prohibited from using Agency pricing, saying that the loss of the agency model would “significantly discourage new entry, and will lead to the departure from the market of a sizable number of the independent bookstores that are currently selling e-books." In an earlier letter to the Justice Department, Barnes & Noble made a similar request, with similar arguments.

The problem with these arguments is, as Jane Litte wrote on the "Dear Author" blog, that agency pricing is meaningless without Most Favored Nation (MFN) clauses in place with all the major book resellers. Apple's MFN clause requires publishers to insure that Apple can always sell their eBooks at a price no higher than the lowest price offered by any other reseller. The combination of Agency pricing and MFN is necessary in order to make this work.

As Teicher's letter points out, the Justice Department doesn't claim that Agency pricing is illegal. In fact, the settlement with the three publishers expressly permits Agency pricing with some restrictions. What it forbids, for five years, are MFN clauses. So what, exactly, is Teicher asking for? It sounds as though he wants the publishers to be able to implement Agency pricing with no exceptions. No reseller would have the ability to discount for sales or special events. Resellers couldn't negotiate with the publishers--the entire pricing scheme would be "take it or leave it." In other words, he wants industry-wide MFN in practice, without individual MFN clauses.

In any event, given that the ABA has lost its eBook eCommerce partner (Google) and hasn't come up with a replacement, Mr. Teicher's arguments are largely moot.


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