April 4, 2013

Amazon tries the “you’re just jealous” defense in ongoing bookseller lawsuit


This box would like to put independent bookstores (and just about everyone else) out of business.

More news today in the may-never-reach-the-courtroom drama unfolding in the case of Book House Of Stuyvesant Plaza, Inc. et al v. Amazon.com. The publishers involved and Amazon have both filed for dismissal of the suit. That’s not an unexpected move: the possible repercussions of the lawsuit, were the booksellers to get even a few of the injunctions they’re calling for, could be extremely costly for the publishers and Amazon alike.

In their original suit the three bookstores—Fiction Addiction, Book House of Stuyvesant Plaza and Posman Books—are essentially claiming that Amazon’s platform-specific DRM, paired with the Big Six publishers’ unwillingness or inability to distribute ebooks to brick and mortar stores in an equitable fashion, constitutes harm. Even a partial success of their suit would mean reworking the terms by which ebooks are distributed, and indeed the validity of Amazon’s proprietary but ubiquitous file format.

More remarkable than the motion to dismiss the lawsuit is the tone of the filings from the publishers and in particular from Amazon, which could best be described as a sort of shitty self-congratulatory smirk-sneer. If these filings had been delivered as dialogue in a film, the actor delivering them would necessarily have slicked back hair, a patrician nose, and maybe a mustache to twiddle. If these filings were a high schooler in the 90s, they’d be named Brad.

The joint filing by the publishers argued, accurately, that the true target of the bookseller suit is Amazon. From PW:

“Plaintiffs’ effort to draw the Publishers into their dispute with Amazon’s unilateral design of the Kindle ecosystem fails for at least two reasons,” the publishers argue. First, there is no “agreement between Amazon and any of the Publishers—let alone each of them” where a requirement of “device- specific DRM can be plausibly inferred.” Publishers further argue that the term “device specific DRM” is “legally meaningless” and that the allegation “appears to be a weak attempt to allege some form of ‘acquiescence’ under vertical restraints jurisprudence.”

Got that? Not only are you incorrect, booksellers, but you are also, improbably, senseless. No, you can’t sit at this lunch table. As I say, the publishers are right that they are something of a red herring in this lawsuit, the better to broaden the scope of the claims against Amazon. But is it necessary to call the booksellers’ suit “weak”? Yes, they may actually be weak in person: it comes with the shut-in book-loving territory, but if the suit hasn’t been thrown out yet, if it’s forced you to respond, it can’t be without merit. And as for their language, we all know that they are talking about the .mobi file format. Don’t play aloof, Brad.

Of course the  absolute best part from the publishers’ brief is their opprobrium that booksellers cannot show “actual adverse effect on competition as a whole in the relevant market.” The sheer gall of it! Booksellers cannot show, according to this filing, that they have lost money in the market for files which they are not allowed to sell, tailored to devices which they are not allowed to sell, built by a company that is seriously and relentlessly looking to drive them out of business.

Somehow, the motion from Amazon’s team is even worse.

“Plaintiffs’ true grievance is that Amazon is attracting consumers with low prices and popular products,” the Amazon brief states. “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.”

Even their court briefs are obnoxious ads! It’s like submitting a photo of your sweet ride as defense in a hit and run. Admit it, booksellers, you threw yourselves in front of their kick-ass car because you were jealous.

The three bookstores have already seen setbacks in their suit. In mid-March lawyers for the booksellers and the publishers requested a delay in the trial, a request Judge Jed Rakoff called “completely unacceptable.”

There is an undeniable appeal to this lawsuit, and whether or not the suit itself has merit, the spirit behind it is correct. Even if they don’t succeed, I’m heartened to see these small stores try. It’s a David and Goliath story, only David is made of bricks and mortar, and Goliath is made of injured underpaid temp workers and crumbling infrastructure and cheap shoes. I know, Goliath is kind of complicated. Trust me, he’s the bad guy.



Dustin Kurtz is the marketing manager of Melville House, and a former bookseller.