Critics of E-Books Lawsuit Miss the Mark, Experts Say

The Justice Department has come under criticism since filing an antitrust lawsuit against Apple and five publishers, accusing them of colluding to fix e-book prices. But many experts say that under antitrust law, the department didn't have much choice. And even if it did, antitrust experts say, it is far from clear that doing nothing would have been wise.

So did the Antitrust Division get the law backward? Antitrust scholars say no and that some of the criticism is based on basic misperceptions of the law. US antitrust law doesn't seek to protect little companies against big ones, or even struggling ones against successful ones. Companies can grow as large as they want, as long as they do it through lower prices, better service or niftier innovations. Companies can even become monopolies, as long as they don't get there illegally or try to extend their power by unlawfully stifling competition. Companies under pressure from a more successful rival can't band together to protect themselves, whatever their size. "Price fixing is kind of the first-degree murder of antitrust violations," says Herbert Hovenkamp, law professor at the University of Iowa. "They don't have discretion to just walk away from what appears to be a strong set of facts that, if true, are one of the most central of antitrust violations."