Having just comfortably secured re-election to a third term, embattled Texas Attorney General Ken Paxton is likely to want to change the subject from investigations of his own conduct to a topic where he feels on much firmer ground: the 16-state lawsuit he currently leads accusing Google of monopolizing a segment of the digital advertising business.
The segment in question concerns the systems used to buy and sell display ads shown on third-party websites, such as TheNew York Times or Runner’s World. Paxton’s suit, originally filed in December 2020, alleges that digital advertising is dominated by a few large firms and that this stifles competition and generates enormous profits for companies like Google at the expense of advertisers, publishers, and consumers.
On the surface, the digital advertising business appears straightforward: Publishers sell space on their sites and advertisers buy that space to display ads. In this simple view, advertisers seek to minimize how much they pay for ads and publishers seek to maximize their revenues from selling ads.
The reality is much more complex. Rather than paying for how many “eyeballs” see an ad, digital advertisers generally pay only for the ads that consumers click on. Moreover, many digital advertising transactions move through a “stack” of intermediary services to link buyers and sellers, including “exchanges” that run real-time auctions matching bids from advertisers and publishers.
Because revenues are generated only when an ad is clicked on, advertisers, publishers, and exchange operators have an incentive to maximize the likelihood that a consumer will click. A cheap ad is worthless if the viewer doesn’t act on it and an expensive ad may be worthwhile if it elicits a click. The role of a company running the exchange, such as Google, is to balance the interests of advertisers buying the ads, publishers displaying the ads, and consumers viewing the ads. In some cases, pricing on one side of the trade will subsidize participation on another side, increasing the value to all sides combined.
At the heart of Paxton’s lawsuit is the belief that the exchanges run by Google and other large digital advertising firms simultaneously overcharge advertisers, underpay publishers, and pocket the difference. Google’s critics allege the company leverages its ownership of Search, YouTube, and other services to coerce advertisers to use Google’s ad-buying tools and Google’s exchange, thus keeping competing firms away from these advertisers. It’s also claimed that, through its Search, YouTube, and Maps services, Google has superior information about consumers that it won’t share with publishers or competing digital advertising companies.
These claims are based on the premise that “big is bad,” and that dominant firms have a duty to ensure that their business practices do not create obstacles for their competitors. Under this view, Google would be deemed anticompetitive if there is a hypothetical approach that would accomplish the same goals while fostering even more competition or propping up rivals.
But U.S. antitrust law is supposed to foster innovation that creates benefits for consumers. The law does not forbid conduct that benefits consumers on grounds that it might also inconvenience competitors, or that there is some other arrangement that could be “even more” competitive. Any such conduct would first have to be shown to be anticompetitive—that is, to harm consumers or competition, not merely certain competitors.
That means Paxton has to show not just that some firms on one side of the market are harmed, but that the combined effect across all sides of the market is harmful. In this case, his suit really only discusses the potential harms to publishers (who would like to be paid more), while advertisers and consumers have clearly benefited from the huge markets and declining advertising prices Google has helped to create.
While we can’t be sure how the Texas case will develop once its allegations are fleshed out into full arguments and rebutted in court, many of its claims and assumptions appear wrongheaded. If the court rules in favor of these claims, the result will be to condemn conduct that promotes competition and potentially to impose costly, inefficient remedies that function as a drag on innovation.
Paxton and his fellow attorneys general should not fall for the fallacy that their vision of a hypothetical ideal market can replace a well-functioning real market. This would pervert businesses’ incentives to innovate and compete, and would make an unobtainable perfect that exists only in the minds of some economists and lawyers the enemy of a “good” that exists in the real world.
In recent years, a diverse cross-section of advocates and politicians have leveled criticisms at Section 230 of the Communications Decency Act and its grant of legal immunity to interactive computer services. Proposed legislative changes to the law have been put forward by both Republicans and Democrats.
It remains unclear whether Congress (or the courts) will amend Section 230, but any changes are bound to expand the scope, uncertainty, and expense of content risks. That’s why it’s important that such changes be developed and implemented in ways that minimize their potential to significantly disrupt and harm online activity. This piece focuses on those insurable content risks that most frequently result in litigation and considers the effect of the direct and indirect costs caused by frivolous suits and lawfare, not just the ultimate potential for a court to find liability. The experience of the 1980s asbestos-litigation crisis offers a warning of what could go wrong.
Enacted in 1996, Section 230 was intended to promote the Internet as a diverse medium for discourse, cultural development, and intellectual activity by shielding interactive computer services from legal liability when blocking or filtering access to obscene, harassing, or otherwise objectionable content. Absent such immunity, a platform hosting content produced by third parties could be held equally responsible as the creator for claims alleging defamation or invasion of privacy.
In the current legislative debates, Section 230’s critics on the left argue that the law does not go far enough to combat hate speech and misinformation. Critics on the right claim the law protects censorship of dissenting opinions. Legal challenges to the current wording of Section 230 arise primarily from what constitutes an “interactive computer service,” “good faith” restriction of content, and the grant of legal immunity, regardless of whether the restricted material is constitutionally protected.
While Congress and various stakeholders debate various alternate statutory frameworks, several test cases simultaneously have been working their way through the judicial system and some states have either passed or are considering legislation to address complaints with Section 230. Some have suggested passing new federal legislation classifying online platforms as common carriers as an alternate approach that does not involve amending or repealing Section 230. Regardless of the form it may take, change to the status quo is likely to increase the risk of litigation and liability for those hosting or publishing third-party content.
The Nature of Content Risk
The class of individuals and organizations exposed to content risk has never been broader. Any information, content, or communication that is created, gathered, compiled, or amended can be considered “material” which, when disseminated to third parties, may be deemed “publishing.” Liability can arise from any step in that process. Those who republish material are generally held to the same standard of liability as if they were the original publisher. (See, e.g., Rest. (2d) of Torts § 578 with respect to defamation.)
Digitization has simultaneously reduced the cost and expertise required to publish material and increased the potential reach of that material. Where it was once limited to books, newspapers, and periodicals, “publishing” now encompasses such activities as creating and updating a website; creating a podcast or blog post; or even posting to social media. Much of this activity is performed by individuals and businesses who have only limited experience with the legal risks associated with publishing.
This is especially true regarding the use of third-party material, which is used extensively by both sophisticated and unsophisticated platforms. Platforms that host third-party-generated content—e.g., social media or websites with comment sections—have historically engaged in only limited vetting of that content, although this is changing. When combined with the potential to reach consumers far beyond the original platform and target audience—lasting digital traces that are difficult to identify and remove—and the need to comply with privacy and other statutory requirements, the potential for all manner of “publishers” to incur legal liability has never been higher.
Even sophisticated legacy publishers struggle with managing the litigation that arises from these risks. There are a limited number of specialist counsel, which results in higher hourly rates. Oversight of legal bills is not always effective, as internal counsel often have limited resources to manage their daily responsibilities and litigation. As a result, legal fees often make up as much as two-thirds of the average claims cost. Accordingly, defense spending and litigation management are indirect, but important, risks associated with content claims.
Effective risk management is any publisher’s first line of defense. The type and complexity of content risk management varies significantly by organization, based on its size, resources, activities, risk appetite, and sophistication. Traditional publishers typically have a formal set of editorial guidelines specifying policies governing the creation of content, pre-publication review, editorial-approval authority, and referral to internal and external legal counsel. They often maintain a library of standardized contracts; have a process to periodically review and update those wordings; and a process to verify the validity of a potential licensor’s rights. Most have formal controls to respond to complaints and to retraction/takedown requests.
Insuring Content Risks
Insurance is integral to most publishers’ risk-management plans. Content coverage is present, to some degree, in most general liability policies (i.e., for “advertising liability”). Specialized coverage—commonly referred to as “media” or “media E&O”—is available on a standalone basis or may be packaged with cyber-liability coverage. Terms of specialized coverage can vary significantly, but generally provides at least basic coverage for the three primary content risks of defamation, copyright infringement, and invasion of privacy.
Insureds typically retain the first dollar loss up to a specific dollar threshold. They may also retain a coinsurance percentage of every dollar thereafter in partnership with their insurer. For example, an insured may be responsible for the first $25,000 of loss, and for 10% of loss above that threshold. Such coinsurance structures often are used by insurers as a non-monetary tool to help control legal spending and to incentivize an organization to employ effective oversight of counsel’s billing practices.
The type and amount of loss retained will depend on the insured’s size, resources, risk profile, risk appetite, and insurance budget. Generally, but not always, increases in an insured’s retention or an insurer’s attachment (e.g., raising the threshold to $50,000, or raising the insured’s coinsurance to 15%) will result in lower premiums. Most insureds will seek the smallest retention feasible within their budget.
Contract limits (the maximum coverage payout available) will vary based on the same factors. Larger policyholders often build a “tower” of insurance made up of multiple layers of the same or similar coverage issued by different insurers. Two or more insurers may partner on the same “quota share” layer and split any loss incurred within that layer on a pre-agreed proportional basis.
Navigating the strategic choices involved in developing an insurance program can be complex, depending on an organization’s risks. Policyholders often use commercial brokers to aide them in developing an appropriate risk-management and insurance strategy that maximizes coverage within their budget and to assist with claims recoveries. This is particularly important for small and mid-sized insureds who may lack the sophistication or budget of larger organizations. Policyholders and brokers try to minimize the gaps in coverage between layers and among quota-share participants, but such gaps can occur, leaving a policyholder partially self-insured.
An organization’s options to insure its content risk may also be influenced by the dynamics of the overall insurance market or within specific content lines. Underwriters are not all created equal; it is a challenging responsibility requiring a level of prediction, and some underwriters may fail to adequately identify and account for certain risks. It can also be challenging to accurately measure risk aggregation and set appropriate reserves. An insurer’s appetite for certain lines and the availability of supporting reinsurance can fluctuate based on trends in the general capital markets. Specialty media/content coverage is a small niche within the global commercial insurance market, which makes insurers in this line more sensitive to these general trends.
Litigation Risks from Changes to Section 230
A full repeal or judicial invalidation of Section 230 generally would make every platform responsible for all the content they disseminate, regardless of who created the material requiring at least some additional editorial review. This would significantly disadvantage those platforms that host a significant volume of third-party content. Internet service providers, cable companies, social media, and product/service review companies would be put under tremendous strain, given the daily volume of content produced. To reduce the risk that they serve as a “deep pocket” target for plaintiffs, they would likely adopt more robust pre-publication screening of content and authorized third-parties; limit public interfaces; require registration before a user may publish content; employ more reactive complaint response/takedown policies; and ban problem users more frequently. Small and mid-sized enterprises (SMEs), as well as those not focused primarily on the business of publishing, would likely avoid many interactive functions altogether.
A full repeal would be, in many ways, a blunderbuss approach to dealing with criticisms of Section 230, and would cause as many or more problems as it solves. In the current polarized environment, it also appears unlikely that Congress will reach bipartisan agreement on amended language for Section 230, or to classify interactive computer services as common carriers, given that the changes desired by the political left and right are so divergent. What may be more likely is that courts encounter a test case that prompts them to clarify the application of the existing statutory language—i.e., whether an entity was acting as a neutral platform or a content creator, whether its conduct was in “good faith,” and whether the material is “objectionable” within the meaning of the statute.
A relatively greater frequency of litigation is almost inevitable in the wake of any changes to the status quo, whether made by Congress or the courts. Major litigation would likely focus on those social-media platforms at the center of the Section 230 controversy, such as Facebook and Twitter, given their active role in these issues, deep pockets and, potentially, various admissions against interest helpful to plaintiffs regarding their level of editorial judgment. SMEs could also be affected in the immediate wake of a change to the statute or its interpretation. While SMEs are likely to be implicated on a smaller scale, the impact of litigation could be even more damaging to their viability if they are not adequately insured.
Over time, the boundaries of an amended Section 230’s application and any consequential effects should become clearer as courts develop application criteria and precedent is established for different fact patterns. Exposed platforms will likely make changes to their activities and risk-management strategies consistent with such developments. Operationally, some interactive features—such as comment sections or product and service reviews—may become less common.
In the short and medium term, however, a period of increased and unforeseen litigation to resolve these issues is likely to prove expensive and damaging. Insurers of content risks are likely to bear the brunt of any changes to Section 230, because these risks and their financial costs would be new, uncertain, and not incorporated into historical pricing of content risk.
Remembering the Asbestos Crisis
The introduction of a new exposure or legal risk can have significant financial effects on commercial insurance carriers. New and revised risks must be accounted for in the assumptions, probabilities, and load factors used in insurance pricing and reserving models. Even small changes in those values can have large aggregate effects, which may undermine confidence in those models, complicate obtaining reinsurance, or harm an insurer’s overall financial health.
For example, in the 1980s, certain courts adopted the triple-trigger and continuous trigger methods of determining when a policyholder could access coverage under an “occurrence” policy for asbestos claims. As a result, insurers paid claims under policies dating back to the early 1900s and, in some cases, under all policies from that date until the date of the claim. Such policies were written when mesothelioma related to asbestos was unknown and not incorporated into the policy pricing.
Insurers had long-since released reserves from the decades-old policy years, so those resources were not available to pay claims. Nor could underwriters retroactively increase premiums for the intervening years and smooth out the cost of these claims. This created extreme financial stress for impacted insurers and reinsurers, with some ultimately rendered insolvent. Surviving carriers responded by drastically reducing coverage and increasing prices, which resulted in a major capacity shortage that resolved only after the creation of the Bermuda insurance and reinsurance market.
The asbestos-related liability crisis represented a perfect storm that is unlikely to be replicated. Given the ubiquitous nature of digital content, however, any drastic or misconceived changes to Section 230 protections could still cause significant disruption to the commercial insurance market.
Content risk is covered, at least in part, by general liability and many cyber policies, but it is not currently a primary focus for underwriters. Specialty media underwriters are more likely to be monitoring Section 230 risk, but the highly competitive market will make it difficult for them to respond to any changes with significant price increases. In addition, the current market environment for U.S. property and casualty insurance generally is in the midst of correcting for years of inadequate pricing, expanding coverage, developing exposures, and claims inflation. It would be extremely difficult to charge an adequate premium increase if the potential severity of content risk were to increase suddenly.
In the face of such risk uncertainty and challenges to adequately increasing premiums, underwriters would likely seek to reduce their exposure to online content risks, i.e., by reducing the scope of coverage, reducing limits, and increasing retentions. How these changes would manifest, and the pain for all involved, would likely depend on how quickly such changes in policyholders’ risk profiles manifest.
Small or specialty carriers caught unprepared could be forced to exit the market if they experienced a sharp spike in claims or unexpected increase in needed reserves. Larger, multiline carriers may respond by voluntarily reducing or withdrawing their participation in this space. Insurers exposed to ancillary content risk may simply exclude it from cover if adequate price increases are impractical. Such reactions could result in content coverage becoming harder to obtain or unavailable altogether. This, in turn, would incentivize organizations to limit or avoid certain digital activities.
Finding a More Thoughtful Approach
The tension between calls for reform of Section 230 and the potential for disrupting online activity does not mean that political leaders and courts should ignore these issues. Rather, it means that what’s required is a thoughtful, clear, and predictable approach to any changes, with the goal of maximizing the clarity of the changes and their application and minimizing any resulting litigation. Regardless of whether accomplished through legislation or the judicial process, addressing the following issues could minimize the duration and severity of any period of harmful disruption regarding content-risk:
Presumptive immunity – Including an express statement in the definition of “interactive computer service,” or inferring one judicially, to clarify that platforms hosting third-party content enjoy a rebuttable presumption that statutory immunity applies would discourage frivolous litigation as courts establish precedent defining the applicability of any other revisions.
Specify the grounds for losing immunity – Clarify, at a minimum, what constitutes “good faith” with respect to content restrictions and further clarify what material is or is not “objectionable,” as it relates to newsworthy content or actions that trigger loss of immunity.
Specify the scope and duration of any loss of immunity – Clarify whether the loss of immunity is total, categorical, or specific to the situation under review and the duration of that loss of immunity, if applicable.
Reinstatement of immunity, subject to burden-shifting – Clarify what a platform must do to reinstate statutory immunity on a go-forward basis and clarify that it bears the burden of proving its go-forward conduct entitled it to statutory protection.
Address associated issues – Any clarification or interpretation should address other issues likely to arise, such as the effect and weight to be given to a platform’s application of its community standards, adherence to neutral takedown/complain procedures, etc. Care should be taken to avoid overcorrecting and creating a “heckler’s veto.”
Deferred effect – If change is made legislatively, the effective date should be deferred for a reasonable time to allow platforms sufficient opportunity to adjust their current risk-management policies, contractual arrangements, content publishing and storage practices, and insurance arrangements in a thoughtful, orderly fashion that accounts for the new rules.
Ultimately, legislative and judicial stakeholders will chart their own course to address the widespread dissatisfaction with Section 230. More important than any of these specific policy suggestions is the principle underpins them: that any changes incorporate due consideration for the potential direct and downstream harm that can be caused if policy is not clear, comprehensive, and designed to minimize unnecessary litigation.
It is no surprise that, in the years since Section 230 of the Communications Decency Act was passed, the environment and risks associated with digital platforms have evolved or that those changes have created a certain amount of friction in the law’s application. Policymakers should employ a holistic approach when evaluating their legislative and judicial options to revise or clarify the application of Section 230. Doing so in a targeted, predictable fashion should help to mitigate or avoid the risk of increased litigation and other unintended consequences that might otherwise prove harmful to online platforms in the commercial insurance market.
Aaron Tilley is a senior insurance executive with more than 16 years of commercial insurance experience in executive management, underwriting, legal, and claims working in or with the U.S., Bermuda, and London markets. He has served as chief underwriting officer of a specialty media E&O and cyber-liability insurer and as coverage counsel representing international insurers with respect to a variety of E&O and advertising liability claims
 The triple-trigger method allowed a policy to be accessed based on the date of the injury-in-fact, manifestation of injury, or exposure to substances known to cause injury. The continuous trigger allowed all policies issued by an insurer, not just one, to be accessed if a triggering event could be established during the policy period.
[TOTM: The following is part of a digital symposium by TOTM guests and authors on the law, economics, and policy of the antitrust lawsuits against Google. The entire series of posts is available here.]
U.S. antitrust regulators have a history of narrowly defining relevant markets—often to the point of absurdity—in order to create market power out of thin air. The Federal Trade Commission (FTC) famously declared that Whole Foods and Wild Oats operated in the “premium natural and organic supermarkets market”—a narrowly defined market designed to exclude other supermarkets carrying premium natural and organic foods, such as Walmart and Kroger. Similarly, for the Staples-Office Depot merger, the FTC
narrowly defined the relevant market as “office superstore” chains, which excluded general merchandisers such as Walmart, K-Mart and Target, who at the time accounted for 80% of office supply sales.
Texas Attorney General Ken Paxton’s complaint against Google’s advertising business, joined by the attorneys general of nine other states, continues this tradition of narrowing market definition to shoehorn market dominance where it may not exist.
For example, one recent paper critical of Google’s advertising business narrows the relevant market first from media advertising to digital advertising, then to the “open” supply of display ads and, finally, even further to the intermediation of the open supply of display ads. Once the market has been sufficiently narrowed, the authors conclude Google’s market share is “perhaps sufficient to confer market power.”
While whittling down market definitions may achieve the authors’ purpose of providing a roadmap to prosecute Google, one byproduct is a mishmash of market definitions that generates as many as 16 relevant markets for digital display and video advertising, in many of which Google doesn’t have anything approaching market power (and in some of which, in fact, Facebook, and not Google, is the most dominant player).
The Texas complaint engages in similar relevant-market gerrymandering. It claims that, within digital advertising, there exist several relevant markets and that Google monopolizes four of them:
Publisher ad servers, which manage the inventory of a publisher’s (e.g., a newspaper’s website or a blog) space for ads;
Display ad exchanges, the “marketplace” in which auctions directly match publishers’ selling of ad space with advertisers’ buying of ad space;
Display ad networks, which are similar to exchanges, except a network acts as an intermediary that collects ad inventory from publishers and sells it to advertisers; and
Display ad-buying tools, which include demand-side platforms that collect bids for ad placement with publishers.
The complaint alleges, “For online publishers and advertisers alike, the different online advertising formats are not interchangeable.” But this glosses over a bigger challenge for the attorneys general: Is online advertising a separate relevant market from offline advertising?
Digital advertising, of which display advertising is a small part, is only one of many channels through which companies market their products. About half of today’s advertising spending in the United States goes to digital channels, up from about 10% a decade ago. Approximately 30% of ad spending goes to television, with the remainder going to radio, newspapers, magazines, billboards and other “offline” forms of media.
Physical newspapers now account for less than 10% of total advertising spending. Traditionally, newspapers obtained substantial advertising revenues from classified ads. As internet usage increased, newspaper classifieds have been replaced by less costly and more effective internet classifieds—such as those offered by Craigslist—or targeted ads on Google Maps or Facebook.
The price of advertising has fallen steadily over the past decade, while output has risen. Spending on digital advertising in the United States grew from $26 billion in 2010 to nearly $130 billion in 2019, an average increase of 20% a year. Over the same period, the producer price index (PPI) for internet advertising sales declined by nearly 40%. Rising spending in the face of falling prices indicates the number of ads bought and sold increased by approximately 27% a year.
Since 2000, advertising spending has been falling as a share of gross domestic product, with online advertising growing as a share of that. The combination of increasing quantity, decreasing cost and increasing total revenues are consistent with a growing and increasingly competitive market, rather than one of rising concentration and reduced competition.
There is little or no empirical data evaluating the extent to which online and offline advertising constitute distinct markets or the extent to which digital display is a distinct submarket of online advertising. As a result, analysis of adtech competition has relied on identifying several technical and technological factors—as well as the say-so of participants in the business—that the analysts assert distinguish online from offline and establish digital display (versus digital search) as a distinct submarket. This approach has been used and accepted, especially in cases in which pricing data has not been available.
But the pricing information that is available raises questions about the extent to which online advertising is a distinct market from offline advertising. For example, Avi Goldfarb and Catherine Tucker find that, when local regulations prohibit offline direct advertising, search advertising is more expensive, indicating that search and offline advertising are substitutes. In other research, they report that online display advertising circumvents, in part, local bans on offline billboard advertising for alcoholic beverages. In both studies, Goldfarb and Tucker conclude their results suggest online and offline advertising are substitutes. They also conclude this substitution suggests that online and offline markets should be considered together in the context of antitrust.
While this information is not sufficient to define a broader relevant market, it raises questions regarding solely relying on the technical or technological distinctions and the say-so of market participants.
In the United States, plaintiffs do not get to define the relevant market. That is up to the judge or the jury. Plaintiffs have the burden to convince the court that a proposed narrow market definition is the correct one. With strong evidence that online and offline ads are substitutes, the court should not blindly accept the gerrymandered market definitions posited by the attorneys general.
On July 10 a federal judge ruled that Apple violated antitrust law by conspiring to raise prices of e-books when it negotiated deals with five major publishers. I’ve written on the case and the issues involved in it several times, including here, here, here and here. The most recent of these was titled, “Why I think the government will have a tough time winning the Apple e-books antitrust case.” I’m hedging my bets with the title this time, but it’s fairly clear to me that the court got this case wrong.
The predominant sentiment among pundits following the decision seems to be approval (among authors, however, the response to the suit has been decidedly different). Supporters believe it will lower e-book prices and instigate a shift in the electronic publishing industry toward some more-preferred business model. This sort of reasoning is dangerous and inconsistent with principled, restrained antitrust. Neither the government nor its supporting commentators should use, or applaud the use, of antitrust to impose the government’s (or anyone else’s) preferred business model on industry. And lower prices in the short run, while often an indication of increased competition, are not, by themselves, sufficient to determine that a business model is efficient in the long run.
For example, in a recent article, Mark Lemley is quoted supporting the outcome, noting that it may spur a shift toward his preferred model of electronic publishing:
It also makes no sense that publishers, not authors, capture most of the revenue from e-books, when they do very little of the work. I understand why publishers are reluctant to give up their old business model, but if they want to survive in the digital world, it’s time to make some changes.
As noted, there is no basis for using antitrust enforcement to coerce an industry to shift to a particular distribution of profits simply because “it’s time to make some changes.” Lemley’s characterization of the market’s dynamics is also seriously lacking in economic grounding (and the Authors Guild response to the suit linked above suggests the same). The economics of entrepreneurship has an impressive intellectual pedigree that began with Frank Knight, was further developed by Joseph Schumpeter, Israel Kirzner and Harold Demsetz, among others, and continues to today with its inclusion as a factor of production. (On the development of this tradition and especially Harold Demsetz’s important contribution to it, see here). The implicit claim that publishers’ and authors’ interests (to say nothing of consumers’ interests) are simply at odds, and that the “right” distribution of profits would favor authors over publishers based on the amount of “work” they do is economically baseless. Although it is a common claim, reflecting either idiosyncratic preferences or ignorance about the role of content publishers and distributors in the e-book marketplace and the role of entrepreneurship more generally, it is nonetheless mistaken and has no place in a consumer-welfare-based assessment of the market or antitrust intervention in it.
It’s also utterly unclear how the antitrust suit would do anything to change the relative distribution of profits between publishers and authors. In fact, the availability of direct publishing (offered by both Amazon and Apple) is the most likely disruptor of that dynamic, and authors could only be helped by an increase in competition among platforms—in other words, by Apple’s successful entry into the market.
Apple entered the e-books market as a relatively small upstart battling a dominant incumbent. That it did so by offering publishers (suppliers) attractive terms to deal with its new iBookstore is no different than a new competitor in any industry offering novel products or loss-leader prices to attract customers and build market share. When new entry then induces an industry-wide shift toward the new entrants’ products, prices or business model it’s usually called “competition,” and lauded as the aim of properly functioning markets. The same should be true here.
Despite the court’s claim that
there is overwhelming evidence that the Publisher Defendants joined with each other in a horizontal price-fixing conspiracy,
that evidence is actually extremely weak. What is unclear is why the publishers would need a conspiracy when they rarely compete against each other directly.
The court states that
To protect their then-existing business model, the Publisher Defendants agreed to raise the prices of e-books by taking control of retail pricing.
But despite the use of the antitrust trigger-words, “agreed to raise prices,” this agreement is not remotely clear, and rests entirely on circumstantial evidence (more on this later). None of the evidence suggests actual agreement over price, and none of the evidence demonstrates conclusively any real incentive for the publishers to reach “agreement” at all. In actuality, publishers rarely compete against each other directly (least of all on price); instead, for each individual publisher (and really for each individual title), the most relevant competition for this case is between the e-book version of a particular title and its physical counterpart. In this situation it should matter little to any particular e-book’s sales whether every other e-book in the world is sold at the same price or even a lower price.
While the opinion asserts that each publisher
could also expect to lose substantial sales if they unilaterally raised the prices of their own e-books and none of their competitors followed suit,
it also states that
there is no evidence that the Publisher Defendants have ever competed with each other on price. To the contrary, several of the Publishers’ CEOs explained that they have not competed with each other on that basis.
These statements are difficult to reconcile, but the evidence supports the latter statement, not the former.
The only explanation offered by the court for the publishers’ alleged need for concerted action is an ambiguous claim that Amazon would capitulate in shifting to the agency model only if every publisher pressured it to do so simultaneously. The court claims that
if the Publisher Defendants were going to take control of e-book pricing and move the price point above $9.99, they needed to act collectively; any other course would leave an individual Publisher vulnerable to retaliation from Amazon.
But it’s not clear why this would be so.
On the one hand, if Apple really were the electronic publishing juggernaut implied by this antitrust action, this concern should be minimal: Publishers wouldn’t need Amazon and could simply sell their e-books through Apple’s iBookstore. In this case the threat of even any individual publisher’s “retaliation” against Amazon (decamping to Apple) would suffice to shift relative bargaining power between the publishers and Amazon, and concerted action wouldn’t be necessary. On this theory, the fact that it was only after Apple’s entry that Amazon agreed to shift to the agency model—a fact cited by the court many times to support its conclusions—is utterly unremarkable.
On the other hand, if the loss of Amazon as a retail outlet were really so significant for publishers, Apple’s ability to function as the lynchpin of the alleged conspiracy is seriously questionable. While the agency model coupled with the persistence of $9.99 pricing by Amazon would seem to mean reduced revenue for publishers on each book sold through Apple’s store, the relatively trivial number of Apple sales compared with Amazon’s, particularly at the outset, would be of little concern to publishers, and thus to Amazon. In this case it is difficult to believe that publishers would threaten their relationships with Amazon for the sake of preserving the return on their newly negotiated contracts with Apple (and even more difficult to believe that Amazon would capitulate), and the claimed coordinating effects of the MFN provisions is difficult to sustain.
The story with respect to Amazon is questionable for another reason. While the court claims that the publishers’ concern with Amazon’s $9.99 pricing was its effect on physical book sales, it is extremely hard to believe that somehow $12.99 for the electronic version of a $30 (or, often, even more expensive) physical book would be significantly less damaging to physical book sales. Moreover, the evidence put forth by the DOJ and found persuasive by the court all pointed to e-book revenues alone, not physical book sales, as the issue of most concern to publishers (thus, for example, Steve Jobs wrote to HarperCollins’ CEO that it could “[k]eep going with Amazon at $9.99. You will make a bit more money in the short term, but in the medium term Amazon will tell you they will be paying you 70% of $9.99. They have shareholders too.”).
Moreover, as Joshua Gans points out, the agency model that Amazon may have entered into with the publishers would have been particularly unhelpful in ensuring monopoly returns for the publishers (we don’t know the exact terms of their contracts, however, and there are reports from trial that Amazon’s terms were “identical” to Apple’s):
While Apple gave publishers a 70 percent share of book sales and the ability to set their own price, Amazon offered a menu. If you price below $9.99 for a book, Amazon’s share will be 70 percent but if you price above $10, Amazon only returns 35 percent to the publisher. Amazon also charged publishers a delivery fee based on the book’s size (in kb).
Thus publishers could, of course, raise prices to $12.99 in both Apple’s and Amazon’s e-book stores, but, if this effective price cap applied, doing so would result in a significant loss of revenue from Amazon. In other words, the court’s claim—that, having entered into MFNs with Apple, the publishers then had to move Amazon to the agency model to ensure that they didn’t end up being forced by the MFNs to sell books via Apple (on the less-attractive agency terms) at Amazon’s $9.99—is far-fetched. To the extent that raising Amazon’s prices above $10 may have cut royalties almost in half, the MFNs with Apple would be extremely unlikely to have such a powerful effect. But, as noted above, because of the relative sales volumes involved the same dynamic would have applied even under identical terms.
It is true, of course, that Apple cares about price differences between books sold through its iBookstore and the same titles sold through other electronic retailers—and thus it imposed MFN clauses on the publishers. But this is not anticompetitive. In fact, by facilitating Apple’s entry, the MFN clauses plainly increased competition by introducing a new competitor to the industry. What’s more, the terms of Apple’s agreements with the publishers exactly mirrors the terms it uses for apps and music sold through the iTunes store, as well. And as Gordon Crovitz noted:
As this column reported when the case was brought last year, Apple executive Eddy Cue in 2011 turned down my effort to negotiate different terms for apps by news publishers by telling me: “I don’t think you understand. We can’t treat newspapers or magazines any differently than we treat FarmVille.” His point was clear: The 30% revenue-share model is how Apple does business with everyone. It is not, as the government alleges, a scheme Apple concocted to fix prices with book publishers.
Another important error in the case — and, unfortunately, it is one to which Apple’s lawyers acceded—is the treatment of “trade e-books” as the relevant market. For antitrust purposes, there is no generalized e-book (or physical book, for that matter) market. As noted above, the court itself acknowledged that the publishers “have [n]ever competed with each other on price.” The price of Stephen King’s latest novel likely has, at best, a trivial effect on sales of…nearly every other fiction book published, and probably zero effect on sales of non-fiction books.
This is important because the court’s opinion turns on mostly circumstantial evidence of an alleged conspiracy among publishers to raise prices and on the role of concerted action in protecting publishers from being “undercut” by their competitors. But in a world where publishers don’t compete on price (and where the alleged agreement would have reduced the publishers’ revenues in the short run and done little if anything to shore up physical book sales in the long run), it is far-fetched to interpret this evidence as the court does—to infer a conspiracy to raise prices.
Meanwhile, by restricting itself to consideration of competitive effects in the e-book market alone, the court also inappropriately and without commentary dispenses with Apple’s pro-competitive justifications for its conduct. Put simply, Apple contends that its entry into the e-book retail and reader markets was facilitated by its contract terms. But the court ignores these arguments.
On the one hand, it does so because it treats this as a per se case, in which procompetitive effects are irrelevant. But the court’s determination to treat this as a per se case—with its lengthy recitation of relevant legal precedent and only cursory application of precedent to the facts of the case—is suspect. As I have noted before:
What would [justify per se treatment] is if the publishers engaged in concerted action to negotiate these more-favorable terms with other publishers, and what would be problematic for Apple is if its agreement with each publisher facilitated that collusion.
But I don’t see any persuasive evidence that the terms of Apple’s deals with each publisher did any such thing. For MFNs to perform the function alleged by the DOJ it seems to me that the MFNs would have to contribute to the alleged agreement between the publishers, just as the actions of the vertical co-conspirators in Interstate Circuit and Toys-R-Us were alleged to facilitate coordination. But neither the agency agreement itself nor the MFN and price cap terms in the contracts in any way affected the publishers’ incentive to compete with each other. Nor, as noted above, did they require any individual publisher to cause its books to be sold at higher prices through other distributors.
Even if it is true that the publishers participated in a per se illegal horizontal price fixing scheme (and despite the court’s assertion that this is beyond dispute, the evidence is not nearly so clear as the court suggests), Apple’s unique role in that alleged scheme can’t be analyzed in the same fashion. As Leegin notes (and the court in this case quotes), for conduct to merit per se treatment it must “always or almost always tend to restrict competition and decrease output.” But the conduct at issue here—whether somehow coupled with a horizontal price fixing scheme or not—doesn’t meet this standard. The agency model, the MFN terms in the publishers’ contracts with Apple, and the efforts by Apple to secure broad participation by the largest publishers before entering the market are all potentially—if not likely—procompetitive. And output seems to have increased substantially following Apple’s entry into the e-book retail market.
In short, I continue to believe that the facts of this case do not merit per se treatment, and there is a good chance the court’s opinion could be overturned on this ground. For this reason, its rejection of Apple’s procompetitive arguments was inappropriate.
But even in its brief “even under the rule of reason…” analysis, the court improperly rejects Apple’s procompetitive arguments. The court’s consideration of these arguments is basically summed up here:
The pro-competitive effects to which Apple has pointed, including its launch of the iBookstore, the technical novelties of the iPad, and the evolution of digital publishing more generally, are phenomena that are independent of the Agreements and therefore do not demonstrate any pro-competitive effects flowing from the Agreements.
But this is factually inaccurate. Apple has claimed that its entry—and thus at minimum its development and marketing of the iPad as an e-reader and its creation of the iBookstore—were indeed functions of the contract terms and the simultaneous acceptance by the largest publishers of these terms.
The court goes on to assert that, even if the claimed pro-competitive effect was the introduction of competition into the e-book market,
Apple demanded, as a precondition of its entry into the market, that it would not have to compete with Amazon on price. Thus, from the consumer’s perspective — a not unimportant perspective in the field of antitrust — the arrival of the iBookstore brought less price competition and higher prices.
In making this claim the court effectively—and improperly—condemns MFNs to per se illegal status. In doing so the court claims that its opinion’s reach is not so broad:
this Court has not found that any of these [agency agreements, MFN clauses, etc.]…components of Apple’s entry into the market were wrongful, either alone or in combination. What was wrongful was the use of those components to facilitate a conspiracy with the Publisher Defendants”
But the claimed absence of retail price competition that accompanied Apple’s entry is entirely a function of the MFN clauses: Whether at $9.99 or $12.99, the MFN clauses were what ensured that Apple’s and Amazon’s prices would be the same, and disclaimer or not they are swept in to the court’s holding.
This effective condemnation of MFN clauses, while plainly sought by the DOJ, is simply inappropriate as a matter of law. In order to condemn Apple’s conduct under the per se rule, the court relies on the operation of the MFNs in allegedly reducing competition and raising prices to make its case. But that these do not “always or almost always tend to restrict competition and reduce output” is clear. While the DOJ may view such terms otherwise (more on this here and here), courts have not done so, and Leegin’s holding that such vertical restraints are to be assessed under the rule of reason still holds. The court’s use of the per se standard and its refusal to consider Apple’s claimed pro-competitive effects are improper.
Thus I (somewhat more cautiously this time…) suggest that the court’s decision may be overturned on appeal, and I most certainly think it should be. It seems plainly troubling as a matter of economics, and inappropriate as a matter of law.