A year ago, before Agency was ever publicly discussed, I was grasping for what publishers could do to get control of ebook pricing and curtail, or at least manage, the degree to which ebooks undercut paper and, in turn, brick-and-mortar. At the time, people told me that it was possible for a manufacturer to control the pricing of their goods at retail and pointed to Apple’s success doing that and to other manufacturers like Bose that managed to do it. I believe the key was that they controlled the entire supply chain, right to the point of consumer purchase (although we know that other retailers do sell Apple products.)
I never got a grip on how this could be made to work, legally.
Then, along came Agency. The concept is that the publisher is the selling party in the retail transaction so the publisher sets the price. The intermediaries (the retailers) wouldn’t actually buy and sell the goods, as they always did. They would, instead, be “agents” for the publisher. That approach pushes the responsibility for sales tax back to the publisher, no trivial matter (although services are springing up to help with it). But it gives the publisher price control.
From Publishers Lunch, and then picked up by the Wall Street Journal, comes the news that the Attorney-General in Texas is investigating Apple and the publishers participating in Agency over the legality of the Agency arrangement. For publishers who had been struggling for years with the real market control exercised by Amazon, Apple’s arrival on the scene and willingness to accept unform pricing across outlets (to be followed shortly by Google doing the same) constituted liberation.
But one can see a logic to the Texas investigation. Amazon’s strategies required no cooperation with any other company. They bought the ebooks at the prices publishers charged them and sold them at the price they thought was best for them in the marketplace. But the Agency agreement with Apple (as I understand it; I’ve never seen one) allows (or maybe requires) that Apple meet any lower price for the same title offered by another retailer. So there is a “combination” and it is “restraining” trade. That’s a speaker-of-English talking here (which I am), not a lawyer (which I’m not.)
It would make many publishers very unhappy if the Agency model were deemed illegal. One major house CEO I spoke with two weeks ago was positively rhapsodic about the control the new paradigm gives the publisher. That CEO told me about one major bestseller at their publishing house which suffered no loss of unit sales when the price went up from the Amazon-set $9.99 to the Agency price of $12.99. Struck by that, the CEO further raised the price of that title to $14.99 and saw immediate sales erosion. So, two weeks later, the CEO took the price back down to $12.99 for that title, where it sits.
As this person said, “I can’t ever see going back. I have never had this ability to maximize revenue before or to experiment with pricing.”
I’m personally persuaded that universal set prices for ebooks are good for the industry and, ultimately, for consumers. They will definitely foster competition among retailers. My belief for a long time has been that the day will come when almost all web sites will offer their own curated selection of ebooks. (Why shouldn’t ESPN.com be selling the new Willie Mays or Steinbrenner biography?) That will work great in a price-set world. It would make the retailing opportunity about “location, location, location”, rather than “price.” It would boost sales for publishers and authors by putting ebooks a click away from interested consumers across the Web. But it isn’t going to happen if web sites figure that their curation efforts will just be triggers to send people to a deep-pocketed etailer that is pricing for market share.
It would appear that the Agency model is good for just about everybody except the etailers that would use price to drive others out of the market. But will it ultimately be ruled legal? I don’t think we know yet.
Late add: The vision of every-site-a-curated-bookstore got some confirmation a couple of hours after I posted this when Ingram and F+W Media announced a partnership by which Ingram will power sales of all publishers’ ebooks through the online stores F+W operates for their communities. I’d expect this to become increasingly common.