College Stores Association Argues Against DOJ, E-Books and E-Textbooks Are Different

The National Association of College Stores wants the Department of Justice and the U.S. District Court to provide a clearer definition of “e-books” so that e-textbooks are not lumped in with consumer-focused trade e-books in the proposed e-book price-fixing settlement.

In its July 23 response to comments on the proposed e-book price-fixing settlement between the DOJ and three of the largest U.S. publishers, the DOJ said, “because none of the Settling Defendants sell e-textbooks, and the Complaint already makes it clear that ‘e-books’ in the context of this case do not encompass ‘non-trade e-books’ such as ‘academic textbooks.'”

Counsel for the NACS says in a statement that this argument is not factual and not persuasive.

“Factually, the terms ‘academic textbook’ and ‘e-textbook’ are not used consistently, so without an explicit definition in the settlement agreement, interpretation of the document will be difficult and could cause publishers to hesitate to experiment in the higher education marketplace. Are ‘the Odyssey’ or ‘The Grapes of Wrath’ academic books when sold for use in a classroom?,” said Marc Fleischaker, of Arent Fox LLP, the NACS counsel.

Fleischaker goes on to argue that the settling publishers — Hachette, HarperCollins and Simon & Schuster — produce books that are used in the classroom and that they could go on to produce textbooks in the future if they chose.

Since no illegal conduct was alleged in the e-textbook market, the DOJ should make clear that e-textbooks are exempt from the settlement and from the lawsuit, the NACS says. Further, the NACS is urging the court — Judge Denise Cote — to reject the settlement unless it makes this distinction in the e-textbook market.

Later this Summer, Judge Cote will decide whether a proposed settlement between the Department of Justice and the three settling publishers is in the public interest and will go through. Antitrust experts expect the settlement to be approved. Nearly 900 comments have been sent to the judge, the vast majority of them against the settlement. Yesterday, the DOJ responded to the comments, reasserting the illegality of the publishers’ actions and that the settlement justly remedies the e-book price-fixing alleged in the DOJ’s lawsuit.


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