Over the past few years, regulators and private antitrust plaintiffs found themselves in a tug-of-war with Big Tech, struggling to apply centuries-old antitrust laws to modern digital marketplaces. Much of the attention has centered on platform dominance, search engines, and app store restrictions. But long before tech CEOs appeared before Congress, antitrust enforcers already planted their flag in a digital battleground that blended Silicon Valley with legacy media: the publishing industry.
The article traces the evolution of antitrust enforcement in digital publishing, beginning with Apple’s 2010 eBook price-fixing case and progressing to current lawsuits targeting Amazon’s position in the market for eBooks and audiobooks. It argues new entrants like Spotify offer competition, but questions whether longstanding market power and structural advantages continue to dictate how antitrust law applies to modern digital marketplaces.
The Original eBook Case: Apple and “Agency Pricing”
One of the most pivotal moments in the digital publishing saga came in 2010, when Apple entered the eBook market with its iPad and iBooks store. At the time, Amazon had a substantial share of the eBook market, selling popular titles at $9.99, even when it meant taking a loss. Publishers worried that Amazon’s pricing would permanently devalue books and undercut their traditional print businesses.
Enter Steve Jobs. In a now-famous quote documented by Walter Isaacson in his biography of Jobs, the Apple CEO explained Apple’s pitch to those concerned about the deep-discounting practices of Amazon: “They’ll be the same price.” The idea was to shift from the wholesale model—where retailers like Amazon set the price of eBooks—to an “agency pricing” model—where publishers set the price of eBooks, and retailers simply took a commission. Following Jobs’ pronouncement, Apple signed contracts with five of the then “Big Six” publishers in a matter of weeks.
It quickly became known in the industry that the publishers’ contracts also included certain Most Favored Nation (“MFN”) clauses, which effectively guaranteed Apple the lowest eBook price available in the market. If a publisher let another retailer sell at a lower price, Apple could match it. The DOJ, various states’ Attorneys General, and private plaintiffs cried foul. They alleged that Apple and the publishers conspired to raise eBook prices in four related lawsuits filed against Apple and five book publishers.
Following a bench trial in the DOJ and States’ Actions in 2013, the Court ruled that Apple had indeed orchestrated a conspiracy to raise eBook prices. The MFNs were seen as a key enforcement mechanism that suppressed price competition, particularly targeting Amazon’s Kindle. Apple and the publishers were found liable and ultimately settled the various lawsuits, marking one of the first major antitrust victories against a Big Tech player in the digital age.
Amazon Under the Microscope: From eBooks to Audiobooks
Ironically, Amazon—initially seen as the underdog—soon became the focus of antitrust scrutiny in the years following the Apple trial. Indeed, as Amazon regained its footing in the eBook market, private litigants began to question Amazon’s use of non-price MFNs—contractual provisions that restrict how publishers or authors can deal with competitors.
Specifically, the plaintiffs brought suit against Apple and the “Big Five” book publishers alleging a conspiracy to adopt restrictive distribution contracts leading to higher eBook prices. Though plaintiffs’ claims against the book publishers were ultimately dismissed, the Court allowed plaintiffs’ monopolization claims against Amazon to proceed, and the case remains pending.
Meanwhile, as digital technologies evolved, the antitrust lens has shifted to audiobooks—a fast-growing segment of the digital publishing market. Amazon’s Audible has long been a popular player in the industry, especially with its subscription model and exclusive content offerings.
In 2024, however, authors filed a proposed class action lawsuit alleging that Amazon’s Audible platform monopolizes the audiobook retail market by imposing higher distribution fees on authors who choose not to distribute their works exclusively through Audible. Additionally, the lawsuit claims that Audible penalizes non-exclusive titles by limiting their visibility and promotional opportunities on its platform. The lawsuit and critics argue that these tactics made it difficult for new entrants or smaller services to compete meaningfully in the space.
Amazon has defended its practices arguing that the exclusivity program is optional and that the audiobook market remains competitive, with significant players like Apple and Google. The company also contends that the exclusivity period is shorter than typical antitrust standards and that promoting exclusive content more vigorously is lawful. It also points to the recent entry of another Big Tech giant… Spotify.
Spotify’s Audible Challenge: Streaming Meets Storytelling
Spotify, already a dominant force in music and podcast streaming, made bold moves in the audiobook space in recent years—and its entry could influence how regulators and courts view other sellers’ positions in the market, including Amazon.
In 2022, Spotify launched its audiobook section, and by 2023, it began offering a set number of free audiobook listening hours as part of its Premium subscription effectively growing the market for audio books. Unlike the prevailing credit-based model—which requires users to purchase monthly credits for individual books—Spotify’s approach is more akin to streaming: users get access to a catalog of audiobooks with fewer purchasing frictions. This bundling strategy appeals to younger, tech-savvy listeners who are already embedded in Spotify’s ecosystem.
From an antitrust perspective, Spotify’s presence in the market introduces a crucial alternative to the way audiobooks are distributed. Indeed, Spotify’s entry may be seen as proof of a competitive market, and Spotify’s rapid growth and alternative pricing model may be evidence that authors and consumers have meaningful choice.
However, some antitrust commentators counter that Spotify’s presence does not automatically suggest the existence of robust competition. They argue that while Spotify is a rising player, Amazon still has the majority of audiobook sales and remains an important player for many self-published and indie authors through its ACX (Audiobook Creation Exchange) platform.
Spotify’s challenge thus becomes a double-edged sword in the courtroom. On one hand, it demonstrates that market entry is possible. On the other, the very need for Spotify to bypass traditional distribution models and bundle audiobooks into a music subscription service arguably underscores the antitrust issues raised in the lawsuits.
Conclusion: Old Laws, New Markets
The battle over books—whether digital, audio, or streamed—highlights a central tension in modern antitrust enforcement: How do you apply traditional competition principles to markets shaped by data, platforms, and digital ecosystems? And, how do you do it in an industry that is already highly concentrated.
Whatever the answer, it is clear that the publishing industry has served as a testing ground for applying antitrust theories to Big Tech. The Apple eBook case laid the groundwork for how courts understand platform-based collusion and MFNs. The later eBook lawsuits expanded the scope to include non-price restraints. And the ongoing battles in audiobook distribution continue to raise questions about how market positions are exercised—and checked—in the modern marketplace.
Spotify’s streaming model is already reshaping consumer expectations, just as Amazon’s $9.99 eBooks once did. Whether that shift is enough to introduce additional competition in the audiobook market remains to be seen, but it will surely set the tone for antitrust policy in the content economy for years to come. Indeed, the last decade has shown that even in the age of algorithms and streaming, the pen (or perhaps the audiobook narrator) is still mightier than the sword—especially when it comes to shaping antitrust law.
