Two ongoing court battles involving large, technology multinationals may go before the Supreme Court this year, and the outcome of either case could alter the course of publishing as we know it — or maybe not.
On December 23, the US Department of Justice filed a 32-page brief concerning United States of America v. Apple Inc., et al., an antitrust case that argues Apple attempted to fix the prices of e-books along with major publishers. The “et al.” of the case included HarperCollins Publishers, Macmillan Publishers, Penguin Group, Inc., Simon & Schuster, Inc, and Hachette Book Group, Inc, until these publishers eventually settled, leaving Apple to pursue a series of appeals on its own.
The DOJ brief states in no uncertain terms that Apple’s bid to take the case to the Supreme Court rests on a non-existence edifice. “[Apple] was not a hapless actor that unwittingly became enmeshed with some form of alleged collusion,” the brief states, according to Publisher’s Weekly, “but in fact orchestrated the publishers’ conspiracy, and actively relied on their collusion to achieve its business ends.” Several amicus briefs, filed by parties including the Author’s Guild, have been filed in Apple’s defense.
What does this mean for e-book prices, especially in an uncertain world where e-book sales are (probably) in decline? Well, if the Supreme Court somehow decides to hear Apple’s case, and if they also decide that it has merit, it may mean that Apple can return to a model with higher prices. An e-book version of Jonathan Franzen’s Purity, for example, currently sells for $9.99 at both Apple and Amazon. It sells for $14.99 at Macmillan, the parent company of the book’s publisher, which eventually wrested the ability to control the price of its e-books away from Amazon.
Meanwhile, the Author’s Guild’s longstanding case against Google may also be nearing its conclusion. Last Thursday, the group brought its appeal to the Supreme Court in an effort to prolong its battle against Google’s decade-long Google Books project, which aims to become the world’s “most comprehensive index of full-text books” through the scanning of millions of books, the texts of which are made searchable for online users. Google has defended its practice (successfully, so far) with recourse to “transformative fair use.” The Author’s Guild calls it theft.
Still, many legal experts have argued that the Supreme Court is unlikely to hear the case. Talking to Inside Higher Ed, University of Maryland at Baltimore professor of law, James Grimmelmann, explained that “the Supreme Court typically takes cases when there are important unsettled issues of law that need to be decided or in cases of overwhelming importance.” He added, “This case might have seemed like a case of overwhelming importance a decade ago, but it has dragged on for so long and the ground has moved so much in copyright that it doesn’t have that urgency.”
Yet after a decade of legal wrangling, with several minor revolutions in digital reading habits and technologies, it remains to be seen what sort of impact the resolution of the Google Books case could have on broader publishing. It would certainly, however, alter fair use practices by effectively removing some barriers set up by commercial entities. This transformation alone could have a net effect on the ability of writers to make a living from digital sales of books, large portions of which may become available online.
It’s unlikely, even statistically speaking, that either case will make it to the Supreme Court, and should one or either case be heard, it wouldn’t be until later in the year. Nevertheless, the resolution of these two longstanding cases — in either direction — may clear the air for a more substantial investment in book publishing by two of our largest and most iconic companies.