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First reactions to the Intel Settlement

Posted by Dan Crane on August 4, 2010

I just finished watching the FTC webcast announcing the Intel settlement and did a quick read over the agreement itself. Some quick high-level reactions:

  1. The tone of the press conference was triumphant, of course. Leibowitz claimed that the FTC got 22 out of 26 of the remedies proposed in the complaint and that Intel, which had previously criticized the proposed remedies as unprecedented, was suddenly making the remedies “precedented.” Further study required here, but it’s far too glib to count victory based on 22 out of 26. Many of the proposed remedies contained suggestive, open-ended language which, if interpreted reasonably expansively, would have gone far beyond this settlement.
  2. To my ear, there was a big change in emphasis from the theory of the complaint. The complaint was predominantly about Intel’s exclusivity and rebating practices with customer with some deception theories thrown in to make it sound like a proper FTC case. The settlement is much more about intellectual property restrictions that prevent AMD and Via from outsourcing manufacturing when they become capacity constrained.
  3. Section 5 of the FTC Act: Leibowitz made a special point of reiterating his view that Section 5 is “a penumbra around the Sherman Act.” I happen to agree with that view, but it’s an open question whether this settlement really advances this view. It’s notable that the FTC has brought several Section 5 cases in the last few years and hasn’t chosen to litigate any of them all the way. Not saying it’s a bad decision, just pointing out that the status of Section 5 remains open after this settlement.
  4. Predatory design: This is an aspect of the settlement that I really can’t stomach. It makes me nervous to think that the FTC is going to have an open-ended right to decide that Intel’s design changes are predatory because they do not provide “any actual benefit” to the product. Benefits, like beauty, are often in the eye of the beholder.

More to follow.

Posted in antitrust, business, contracts, federal trade commission, law and economics, markets, monopolization | Tagged: , , , , , , | 2 Comments »

Who CAREs About Beer and Wine Consumers?

Posted by Josh Wright on August 3, 2010

The Comprehensive Alcohol Regulatory Effectiveness Act — yes, the “CARE Act” — or HR 5034, is a piece of legislation aimed at supporting “State-based alcohol regulation.”  Recall the Supreme Court’s decision in Granholm v. Heald, which held that states could either allow in-state and out-of-state retailers to directly ship wine to consumers or could prohibit it for both, but couldn’t ban direct shipment only for out-of-state sellers while allowing in for in-state sellers.  Most states thus far have opened up direct shipping laws to the benefit of consumers.    While we occasionally criticize the Federal Trade Commission from time to time here at TOTM, its own research demonstrating that state regulation banning direct shipment and e-commerce harmed consumers is an excellent example of the potential for competition research and development impacting regulatory debates.  Indeed, Justice Kennedy’s majority opinion in Granholm cites the FTC study (not to mention co-blogger Mike Sykuta’s work here) a number of times.  But in addition to direct shipment laws, there are a whole host of state laws regulating the sale and distribution of alcohol.  Some of them have obviously pernicious competitive consequences for consumers as well as producers.  The beneficiaries are the wholesalers who have successfully lobbied for the protection of the state.  Fundamentally, the CARE Act aims to place these laws beyond the reach of any challenge under the Commerce Clause as per Granholm, the Sherman Act, or any other federal legislation.  Whether the CARE Act has any ancillary social benefits is an important empirical question — but you can bet that the first-order effect of the law, if it were to go into effect, would be to increase beer, wine and liquor prices.  More on the CARE Act and state regulation of alcoholic beverages below the fold.

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Posted in alcohol, antitrust, beer, business, commerce clause, contracts, economics, exemptions, federal trade commission, federalism, markets, regulation, wine | 6 Comments »

Dares, Jokes and Contracts

Posted by Josh Wright on July 15, 2010

A fun example for contracts class, to be paired with Judge Kimba Wood’s opinion in Leonard v. Pepsico (remember the Pepsi Points commercial with the Harrier Jet?):

Dustin Kolodziej of the San Antonio area said attorney James Mason offered in a “Dateline NBC” interview he would pay $1 million to anyone who could prove him wrong in claiming his client, Nelson Serrano, could have made it from Atlanta’s Hartsfield-Jackson International Airport to a La Quinta Inn three miles away in less than 28 minutes, The Atlanta Journal-Constitution reported Monday.

“I challenge anybody to show me. I’ll pay them $1 million if they can do it,” Mason told the interview.

Serrano was convicted of killing four people from Bartow, Fla., in 1997 and the prosecution’s case hinged on his ability to reach the inn in the time frame.

Kolodziej said he got off a plane at the airport, took his car from the parking garage and made it to the inn in just 19 minutes, capturing the whole experience on a camcorder. However, Mason refused to pay the $1 million reward, claiming the offer was a figure of speech.

Kolodziej’s lawsuit, filed in U.S. District Court in Atlanta, alleges breach of contract, claiming Mason’s statements on “Dateline” constituted a verbal contract.

“What this case boils down to is would a reasonable person believe that this is legitimate,” said David George, a lawyer for Kolodziej. “Think about the context. He’s on ‘Dateline,’ national TV, and his client is on death row. That is not a joking context.”

Mason is unmoved:

“When it’s over, somebody or some group of people out there are going to have to face the consequences of filing such a false, stupid lawsuit.”

I don’t have all the facts, but my initial reaction is that Mason should not be so sure.  The case against the student is not a slam dunk.  After all, Mason was on national television (Dateline NBC) defending am murder case.  The language of the offer at least supports a plausible (though also not certain) case that the offer was being made to the general public and not just the prosecutors (as Mason has claimed):

And from there to be on the videotape in 28 minutes? Not possible. Not possible. I challenge anybody to show me, and guess what? Did they bring in any evidence to say that somebody made that route, did so? State’s burden of proof. If they can do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.”

HT: Nathan Jones.

UPDATE: I see that Concurring Opinions has been on this from the start!  Sorry guys.  Dave Hoffman wrote way back when the complaint was filed that the case was unlikely to survive summary judgment.   Lawrence Cunningham, consistent with what I note above, that this case is a “closer call” and seems less like the Harriet Jet Pepsi Points case than it does like others in which courts have found valid contractual obligations to exist.

Posted in contracts | Comments Off

Solving Shelf Space Incentive Conflicts With Vertical Integration and By Contract in the Soda Market

Posted by Josh Wright on June 22, 2010

There is a nice example in the WSJ concerning the economics of vertical contractual arrangements.  I’ve noted previously the apparent trend in the soda industry toward vertical integration and the link to the economics of promotional shelf space.  In particular, incentive conflicts between manufacturers and retailers of differentiated products over the use of promotional shelf space are pervasive.

Like most vertical contracts, the key here is to understand how the incentives of the prospective transacting parties do not coincide and therefore must be controlled contractually rather than left to unrestrained competition and self-interest.  A common incentive incompatibility, identified by Klein & Murphy (1988) and later analyzed by Klein (1995), occurs when: (1) manufacturers sell a product at a significant markup over marginal cost, (2) the retailer provides some input like marketing activity or promotion that has a significant impact on demand for the product, and (3) consumers have heterogeneous demand for these promotional services, i.e. different value placed on placement of the product on eye-level shelf space, product demonstrations, etc.

Under these conditions, the retailer does not have adequate incentive to supply the efficient level of promotion or marketing activity because the retailer does not take into account the manufacturer’s (relatively large) profit margin on additional sales induced by provision of promotional services. These conditions are most likely to hold for differentiated products where manufacturer incremental profit margins are large relative to retailer profit margins.

Economic theory tells us that firms will use a variety of contractual measures to mitigate these incentive conflicts and exploit gains from trade.  For example, firms enter into slotting contracts, category management arrangements, and sometimes partial or full exclusive dealing contracts to control the transacting parties incentives in favor of non-performance and facilitate self-enforcement of the contract.   The trend towards vertical integration, as reported, appears to suggest that integration has become a more efficient solution for assuring supply of the desired distribution services than contracting.

Today’s WSJ article gives a nice example of how this theory applies in practice:

“Our [retail] customers really want to be able to differentiate themselves from their competitors,” says Mr. Foss. PepsiCo benefits when stores sell its snacks and drinks together, but it was harder to coordinate such promotions before PepsiCo bought its bottlers.

It is interesting to note that while the Pepsi and Coke have acquired bottlers recently, the article also discusses how Pepsi is tightening up its contractual relationships with retailers in order to align incentives with respect to promotions:

Mr. Foss says retailers he has visited have told him they would like to run more promotions that combine PepsiCo products, such as displaying six packs of Pepsi and bags of Doritos tortilla chips side by side, and offering discounts for purchasing them together.

Obviously, the costs of a multi-product retailer such as a gas station, convenience store, or supermarket granting an exclusive to Pepsi or Coke are higher than those of the bottler because of consumer demand for product variety in these settings.  In these settings, Pepsi and Coke rely on the contractual solutions described above to align incentives and induce the supply of efficient promotional services.

As a side note, slotting contracts and RPM are two ways to compensate the retailer for the supply of those services.  From there, one is only a step away from understanding why the Leegin decision was correctly decided, what Justice Breyer doesn’t understand about the economics of RPM, and why the “inherently suspect” approach to RPM is misguided.

Posted in antitrust, contracts, economics, markets, mergers & acquisitions | Comments Off

Will the FTC Sue Apple?

Posted by Josh Wright on June 18, 2010

I don’t know.  But apparently, industry analysts preliminarily think not.   I tend to disagree.  At least, I think its far too early to be confident in either direction. Press reports, such as this one,  are primarily relying on the report of an analyst who correctly points out that Apple’s market share would be an obstacle for a case against Apple:

This week, Google (GOOG) complained that Apple’s new rules on sharing iPhone and iPad user data with advertisers unfairly advantages the company’s own iAd service over rivals like Google’s AdMob – and the government is reportedly looking into the issue. There’s also continued grumbling over the company’s decision not to support the Adobe (ADBE) Flash standard on the iPhone/iPad platform, and the Feds are apparently looking at that issue, as well.

Stifel Nicloas analyst Rebecca Arbogast reviewed the situation in a research note this morning, and finds that Apple has justifications in both cases that support its policies. The Washington-based analyst, who focuses on regulatory issues, said she finds it unlikely the FTC or the Justice Department will sue Apple over either issue, asserting that market share and industry practices are changing so rapidly that the government is unlikely to step in here without a smoking gun.

The conventional wisdom in the press appears to be that a suit is unlikely because Apple probably does not have monopoly power.  For example, in this article, Stanford Law professor Alan Sykes distinguishes Apple from monopolization cases like Microsoft on the grounds that Apple doesn’t have the same quantum of market power, as does Howard University’s Andy Gavil here.

Professors Sykes and Gavil are correct.  Proving that Apple to possess monopoly power in a relevant market is certainly an obstacle to a classic Sherman Act monopolization case.  But I wouldn’t be so sure that the FTC is limiting itself to Section 2 here.  In fact, I’d bet against it.  The FTC’s attempts to breathe some life into Section 5 have been focused on high-tech firms, and involved claims that would be difficult under Section 2.  The contractual restrictions here would bar the use of Google and AdMob advertising software on applications for use on Apple’s iPhone.  I do not think it would be wise to rule out the possibility that the FTC challenges those restrictions under Section 5 of the FTC Ac as an unfair method of competition, continuing its aggressive use of that statute against firms in high-tech industries and in the standard setting context, e.g. Intel, N-Data, and Rambus.  An attack on restrictions such as Apple’s would also be consistent with the Commission’s attempt to use vague and more manipulable “consumer choice” standard as the touchstone of antitrust harm — the restrictions obviously reduce the choice set available to a developer — under Section 5 rather than the conventional “consumer welfare” standard.

In some ways, a case against Apple is an easier sell than the Intel case because the latter turns on exclusivity conditioned on discounts offered to purchasers and passed on to consumers.  In other words, the case against Intel involves a practice with intuitively obvious pro-competitive justifications and the real question is whether the FTC can document concrete evidence of consumer harm to that dominates those benefits.  While Apple’s restrictions also likely have pro-competitive justifications (though I won’t speculate about them here), and are probably but not certainly protected under conventional monopolization doctrine under Section 2 even if Apple were a monopolist, the pro-competitive justifications for the restrictions are not as intuitively obvious as the discounts involved in Intel.

For most if not all of the reasons I discuss in my paper on the Commission’s complaint against Intel, I’d view a Section 5 suit against Apple as a bad development for consumers.  It would also be an interesting test case to examine whether developers would sue under Little FTC Acts in state court follow-on actions for multiple damages.  Nonetheless, Apple’s market share is not an obstacle to a Section 5 claim where there is no monopoly power requirement.  And of course, the FTC was well aware of the burdens it faces under both statutes and the publicly available market share data when it decided to announce the investigation.  While it is quite possible that the FTC does not bring suit at all, or even brings a pure Section 2 claim, my point is that the availability of a Section 5 claim changes the analysis.  Indeed, such a claim would be consistent with Commission’s current views on the appropriate role of Section 5.

Posted in antitrust, business, consumer protection, contracts, economics, federal trade commission, markets, music, technology | 1 Comment »

A first principles approach to antitrust enforcement in the agricultural industry

Posted by Geoffrey Manne on April 30, 2010

Like Mike, we also have a short article in the latest issue of the CPI Antitrust Chronicle.  Also available on SSRN, for those without a CPI subscription.

Here’s our stab at an abstract:

There are very few industries that can attract the attention of Congress, multiple federal and state agencies, consumer groups, economists, antitrust lawyers, the business community, farmers, ranchers, and academics as the agriculture workshops have.  Of course, with intense interest from stakeholders comes intense pressure from potential winners and losers in the political process, heated disagreement over how gains from trade should be distributed among various stakeholders, and certainly a variety of competing views over the correct approach to competition policy in agriculture markets.  These pressures have the potential to distract antitrust analysis from its core mission: protecting competition and consumer welfare.  While imperfect, the economic approach to antitrust that has generated remarkable improvements in outcomes over the last fifty years has rejected simplistic and misleading notions that antitrust is meant to protect “small dealers and worthy men” or to fulfill non-economic objectives; that market concentration is a predictor of market performance; or that competition policy and intellectual property cannot peacefully co-exist.  Unfortunately, in the run-up to and during the workshops much of the policy rhetoric encouraged adopting these outdated antitrust approaches, especially ones that would favor one group of stakeholders over another rather than protecting the competitive process. In this essay, we argue that a first principles approach to antitrust analysis is required to guarantee the benefits of competition in the agricultural sector, and discuss three fundamental principles of modern antitrust that, at times, appear to be given short-shrift in the recent debate.

Posted in antitrust, business, contracts, intellectual property, international center for law & economics, law and economics, markets, politics, regulation, technology | Tagged: , , , , , , , , | Comments Off

On seed industry concentration and its claimed effects [#dojusda #agworkshop]

Posted by Geoffrey Manne on March 12, 2010

A common theme throughout the day has been the declining number of seed companies–increasing concentration–and its effect. Except no one has talked about the effect.  Other than pointing to the structural change itself, no one seems to have any evidence relating to the effect of the change.  One farmer at the open mic session (coincidentally one who had been sued by Monsanto) asserted that the move from 70 seed companies to 4 represented a relevant decline in competition.  But he didn’t talk about any relevant effect; he had nothing to offer on declining return on investment–no evidence that the change actually affected his bottom line.

Unfortunately, Diana Moss is the lone antitrust expert on the seed industry concentration panel (also known as the “is Monsanto an antitrust problem?” panel), and it falls to her to put meat on these bones.  But she fails in the effort, and really just repeats the same mantra as the farmer, with exactly the same amount of evidence (zero, in case I wasn’t clear on this point).  (Moss’s AAI paper on biotech seeds is available here; our ICLE paper partially addressing Moss’s is here).

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Posted in ag/antitrust workshop, antitrust, business, contracts, economics, intellectual property, markets, patent, politics, technology | 2 Comments »

TradeComet complaint against Google dismissed

Posted by Geoffrey Manne on March 9, 2010

TradeComet’s antitrust suit against Google has been dismissed by the S.D.N.Y. Court in which the case was being heard.  The opinion is available here.

The holding:

Google has now moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(3) for improper venue based on a forum selection clause in the parties’ advertising contracts. Because TradeComet’s claims fall within the scope of the relevant forum selection clause that requires that this action be brought in California, and because enforcing that clause would be neither unreasonable nor unjust, Google’s motion to dismiss is granted.

Of course this does nothing to the substantive claims, but it does require that they be brought–if they are brought again at all–in Santa Clara County, CA (as the forum selection clause dictates).

Of more interest to law . . talking . . guys may be the following:

TradeComet contends that the forum selection clause is unconscionable because—it claims—Google enforces it selectively, it is found within a contract of adhesion, and it would force TradeComet to litigate its claims in Google’s “backyard.”

To me these claims are meritless on their face.  The court also had no trouble dismissing them and here–citations omitted–is the court’s complete response to the claims:

However, TradeComet offers neither evidence to support its allegation of selective prosecution nor legal authority indicating that such behavior—if true—would make a forum selection clause unconscionable and thus unenforceable. Additionally, the fact that the August 2006 Agreement may or may not be a contract of adhesion does not invalidate its forum selection provision.  Finally, although litigating these claims in California rather than New York likely will be more burdensome for TradeComet, which has its principal place of business in New York, there is no suggestion that it would be so difficult as to deprive TradeComet of a fair opportunity to litigate its claims.

I only wish the court had pointed out that Google enters into an incredible number of these agreements.  Whatever burden ex post it places on each of Google’s counterparties that the terms be identical between the contracts and that they specify Google’s “backyard” as the venue for any litigation, the magnitude of the burden it would impose on Google to separately negotiate and track terms for each advertiser and to litigate each agreement in a different court is several orders of magnitude larger.  I can see no reason whatever that a court should ever entertain an argument to invalidate such terms.  The unconscionability argument is, well, unconscionable.

UPDATE:  Aruna Viswanatha at Main Justice is also on the case, as it were.

Posted in antitrust, contracts, google | Tagged: , , , | Comments Off

Competition in agriculture redux (cross-posted)

Posted by Geoffrey Manne on February 11, 2010

Antitrust & Competition Policy Blog is hosting a symposium on Competition in Agriculture.  Mike’s post from yesterday is available here.   So far in the symposium there are also posts by Ron Cass (BU Law), Jeff Harrison (Florida Law), Peter Carstensen (Wisconsin Law), and Kyle Stiegert (Wisconsin Applied Econ).  Additional posts should be forthcoming from Christina Bohannan (Iowa Law), Andrew Novakovic (Cornell Applied Economics), and the great George Priest (Yale Law), who I hope gets the blogging bug.

Josh, Scott Kieff and I have posted a short comment based on our submission to the DOJ/USDA Workshops on Agricultural Competition, co-authored by us and Mike. The comment should be available for download from the DOJ webpage when the public comments are posted (someday . . . ).  A copy is also available here (www.laweconcenter.org), and comments are most welcome at gmanne@laweconcenter.org Please leave comments on this post over at the A&CP Blog.

Regarding firm size and integration, it must be kept in mind that the agriculture industry in the U.S. has, for good reasons, moved beyond the historic, pastoral image of small family farms operating in quiet isolation, devoid of big business and modern technologies. The genetic traits that give modern seeds their value—traits that confer resistance to herbicide and high yields, for example—are often developed through processes that are technologically-advanced, time- and money-intensive, risky investments, and subject to various layers of regulation. It doesn’t take expertise in industrial organization to imagine why at least for some participants in this market these processes are likely to be more efficiently and effectively conducted within large agribusiness companies having enormous research and development budgets and significant expertise in managing complex business and legal operations, than they are by the somber couple depicted in the famous 1930 Grant Wood painting, “American Gothic.” Nor is such expertise required to imagine why complex contracting across firms, of any size, is likely to be of significant help in supporting the specialization and division of labor that is useful in allowing some businesses (even a small family farm is a business) to be good at planting and harvesting while others are good at inventing, investing, managing, developing, testing, manufacturing, marketing, and distributing the next wave of innovative crop technologies. This requires on the one hand that the government give reliable enforcement to contracts and property rights whether tangible or intangible (extremely important in this industry are patents, trade secrets, and even trademarks), while on the other hand it allows firms wide flexibility to decide for themselves which of these contracts and property rights they would like to enter into or obtain pursuant to the applicable bodies of contract and property law.

When courts and regulatory agencies like the DOJ Antitrust Division adopt special approaches to the body of antitrust law to address concerns that may arise from these property rights and contracts, they run the risk of crafting doctrines that inappropriately override well-established bodies of law that are informed by longstanding judicial and scholarly thought and consideration of each area, and creating the potential to reduce innovation and economic growth. A central countervailing concern is that the putative antitrust injuries that might arise are rooted in stylized economic models that are heavily dependent on a narrow set of assumptions, leaving significant room for erroneous antitrust enforcement. A modest but fundamental safeguard to protect against this concern of “false positives,” is an approach to antitrust that requires a strong demonstration of actual anticompetitive effect as a precondition for a monopolization violation.

Not only are patents not presumptive proof of market power in any static sense, but patents can also meaningfully improve both competition and access to patented technologies over time, in the dynamic sense. From the public record it appears that the driver of much of today’s antitrust enforcement in the agricultural industry boils down to intervention into business disputes between large and sophisticated parties. The inherent uncertainty regarding the economic consequences of specific conduct, coupled with competitors’ poor incentives and the huge costs of error, counsel strongly against antitrust intervention without strong empirical evidence that the conduct has reduced competition and harmed consumers in the form of higher prices, lower quality, or reduced innovation.

Posted in antitrust, blogging, business, contracts, economics, intellectual property, law and economics, markets, mergers & acquisitions, patent, technology | 1 Comment »

Amazon vs. Macmillan: It's all about control

Posted by Geoffrey Manne on February 7, 2010

The Amazon vs. Macmillan controversy has been beaten to a pulp in the blogosphere.  See Megan McArdle, John Scalzi, Joshua Gans, Virginia Postrel, Lynne Kiesling, Lynne Kielsing and Lynne Kiesling, among others.  Pulp or no (get it? It’s a book/e-book pun), I haven’t seen anyone hit squarely on what I think is the crux of the issue: control rights.

Amazon is an interesting hybrid, sometimes acting as a platform, sometimes acting as a direct merchant.  In its capacity as a platform, Amazon facilitates sales of goods from other merchants to Amazon’s customers through its website.  Amazon itself doesn’t actually sell these goods (because it never actually owns them), although it operates the system that enables these sales and takes a cut.  In its capacity as a merchant, Amazon purchases goods from suppliers and sells them directly to its customers.

The Kindle makes the merchant/platform distinction even more muddled for Amazon, and the distinction is at the core of the issue.

Basically, the difference between a merchant and a platform, as suggested above, is in the degree of control an intermediary exerts over pricing and other terms of sale, and the extent to which it bears risk.  The more control, the more merchant-like; the less control, the more platform-like (Thus the Gap is a merchant; eBay is a platform).  Background economic conditions determine which model (or where on the continuum between them) is more efficient for a given intermediary or market.  As these conditions change, the optimal degree of control may change, as well.  At the same time, suppliers or intermediaries may choose to assert or deny control in response to changing economic conditions–and this choice may not be optimal.  To my thinking, this is what is going on in the book/e-book market.

Steven Pearlstein in the WaPo hints at the issue:

While markets have their flaws, over the long run they are good at executing these technological transformations. My guess is that in the not-so-distant future, best-selling authors such as John Grisham and Malcolm Gladwell — along with unknown authors peddling their first books — will publish their own works, contracting with independent editors and marketers and selling directly to consumers as much as possible. Other authors will turn to smaller, more specialized publishing houses that will offer smaller advances but bigger royalties and will be built, as they once were, around great editors. Publishers will sell their books through competing online distributors and traditional hard-copy bookstores, the latter of which will continue to exist not only as places to browse and socialize, but also as places to have printed on demand. Backlists will be infinite, pricing will be dynamic, and more copies of more books will be read and sold.

From Amazon’s point of view, this possible future is probably a quite likely one (in part because it can help to hasten its arrival), and one which does not necessarily bode well for its merchant-like business model (on which see, e.g., Charlie Martin).  But this future is a goldmine for its platform model, particularly to the extent that Amazon’s Kindle offers a widespread and attractive platform to readers and authors alike.

When it comes to selling physical books directly, Amazon has, and is used to, full control over the terms of sale.  When it comes to selling e-books, however, Amazon is not really a merchant–but it’s not (yet) exactly a platform, either.  Most obviously, there is no physical inventory for Amazon to purchase with e-books, and whether it actually purchases e-books at the time of sale to resell in each transaction (even at a predetermined price) or simply facilitates a transaction between publisher and purchaser at the time of sale, Amazon bears the same extent of inventory risk: zero. Very platform-like.  But the terms of contracts with publishers complicate matters.  Under the Amazon-negotiated pricing scheme, Amazon does, indeed, buy the e-book and re-sell it.  Although this entails no inventory risk, it does mean that Amazon bears “pricing risk” (if that’s a term) just as a merchant does, and it is stuck with the price it negotiated with publishers, no matter the price at which it actually sells its e-books.

There are other nuances.  Important among these, use of e-books purchased through Amazon requires that buyers own a Kindle (just as use of Xbox video games generally requires owners to have purchased an Xbox).  If not enough buyers own Kindles, there is little value (and some cost) to publishers in participating in the e-book market through Amazon; likewise, if not enough publishers sell e-books through Amazon, there is little value to consumers in buying a Kindle.  Again, very platform-like.  But books will be written, published and marketed regardless (or maybe almost regardless) of the number of Kindle owners, and book buyers will buy the same books (or maybe almost the same books) whether they own Kindles or not–and some Kindle owners will buy physical books even though they own Kindles.  The point is that the indirect network effects (or economies of scale–a debate for another day) that one expects in platform markets and that one sees in, say, the video game market (the more Xbox owners, the more Xbox game developers there will be and thus the more Xbox owners there will be) are severely attenuated in the e-book market currently because of the overwhelming demand for physical versions of the same books.

Now, both of these points are discussed in different ways by many of the commentators I pointed to on this issue.  Obviously the nature of the contracts between Amazon and publishers is central to the story (in fact, it is the story), and everyone has discussed the issue.  Several folks have also pointed out that e-books compete with physical books, usually to mention that publishers are interested in price discrimination (on which Kiesling and Postrel are particularly good).

But I think viewed in the light of the choice of business model it is clear that the issue is control.  The question is the extent to which Amazon should act more like a platform or more like a merchant, and this distinction is determined by the amount of control it has.  As a merchant, Amazon expects–and everyone benefits from it having–a lot of control, with both its attendant costs and benefits, over the terms of sale of its products.  As a platform, Amazon is willing to cede control over the terms of sale and just manage the platform.

When publishers assert that they want more control over e-book prices they are pushing Amazon toward a platform model for e-books.  The problem is that because book publishers do not internalize the benefits conferred on other publishers from a wider use of Amazon’s platform, their pricing incentives may be inefficient.  As others have noted, publishers probably want to engage in pricing and price discrimination that will maximize their revenue.  But this control may not be optimal for the platform at this nascent stage.

And that’s really the twist.  Amazon is not ready to be a platform in this business.  The economic conditions are not yet right and it is clearly making a lot of money selling physical books directly to its users.  The Kindle is not ubiquitous and demand for electronic versions of books is not very significant–and thus Amazon does not want to take on the full platform development and distribution risk.  Where seller control over price usually entails a distribution of inventory risk away from suppliers and toward sellers, supplier control over price correspondingly distributes platform development risk toward sellers.  Under the old system Amazon was able to encourage the distribution of the platform (the Kindle) through loss-leader pricing on e-books, ensuring that publishers shared somewhat in the costs of platform distribution (from selling correspondingly fewer physical books) and allowing Amazon to subsidize Kindle sales in a way that helped to encourage consumer familiarity with e-books.  Under the new system it does not have that ability and can only subsidize Kindle use by reducing the price of Kindles–which impedes Amazon from engaging in effective price discrimination for the Kindle, does not tie the subsidy to increased use, and will make widespread distribution of the device more expensive and more risky for Amazon.

Many of the commentators (see especially Scalzi and Kiesling) are angered by Amazon’s conduct in the affair, and see in it reason to shift their loyalty from Amazon to its competitors (or at least they did before Amazon capitulated).  I see it quite differently.  To me the affair was a dispute over control rights allocated by contract.  Amazon is willing to pay more for control–to act, in other words, like a merchant re-selling publishers’ books.  It wants this control because it wants to sell e-books at a lower price than publishers want in an effort to sell more Kindles and encourage e-book use (and, incidentally, sell fewer physical books).  At this stage in this market what is needed is not more incentive for publishers to develop more inventory, but more incentive for Amazon to develop its platform.  To the extent that Amazon must now bear more of the risk and cost associated with the transition to e-books, the transition will likely occur more slowly.  Amazon’s effort to maintain pricing control by playing hardball with Macmillan in the physical book market was appropriate and gutsy.  And we would have been better off if it had succeeded.

I don’t think there’s anything to be “done” about the state of affairs other than for Amazon and publishers including Macmillan to continue negotiating.  But I will note one thing (seconding Joshua Gans):  It is almost certainly the case that Amazon capitulated in its dispute with Macmillan because of fear of drawing antitrust litigation.  If so, I think this would be most unfortunate, and it would represent antitrust enforcement placing an inefficient thumb on the bargaining power scale.  Perhaps we shouldn’t be so quick to reject the idea of false positives . . . .

Important Hat Tip.  When I started writing this post I hadn’t yet seen this article by Andrei Hagiu (Hagiu, Andrei (2007) “Merchant or Two-Sided Platform?,” Review of Network Economics: Vol. 6: Iss. 2, Article 3) (embarrassingly enough, as it was published in 2007).  But my thinking here maps significantly onto Andrei’s and I re-wrote some of the post, particularly reflecting some of his terminology, once I did read it in the middle of drafting the post.  It strikes me as an extremely important article in the two-sided markets literature, and I highly recommend it to everyone interested in the topic.  To the extent that I say what he says, he says it better; and to the extent that we diverge, he is probably correct and I am probably wrong.

Posted in antitrust, business, contracts, economics, law and economics, markets, technology | Comments Off

 
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