Amazon and the six big publishers who have been accused of "illegal restraint of trade" submitted a filing saying that the booksellers' lawsuit against them is without merit.

Three independent booksellers - New York's Book House of Stuyvesant Plaza, the South Carolina-based Fiction Addiction and New York City's Posman Books filed a lawsuit Feb. 22 accusing Amazon and six other major publishing houses (Penguin, Random House, Simon & Schuster, HarperCollins, Hachette and Macmillan) of creating an e-book monopoly that is destroying other booksellers. The contracts between the publishers and Amazon established that Amazon would use digital rights management technology (DRM) to prevent unauthorized sharing or copying of eBooks.

"Currently, none of the big six has entered into any agreements with any independent brick-and-mortar bookstores or independent collectives to sell their eBooks," say the booksellers, and "consequently, the vast majority of readers who wish to read an eBook published by the big six will purchase the eBook from Amazon." This, and the dominant position of the publishers and Amazon has left independent booksellers with no option to sell eBooks in the U.S. They grieve that this has not only led to loss of sales for them but they have also had to disappoint their customers by not providing them with an eBook option. 

Now, Amazon and the six publishing houses have filed a case, which states that the booksellers' lawsuit against them is without merit and wants the court to dismiss the lawsuit.

"Plaintiffs' effort to draw the Publishers into their dispute with Amazon's unilateral design of the Kindle ecosystem fails for at least two reasons," the publishers argue. First, there is no "agreement between Amazon and any of the Publishers-let alone each of them" where a requirement of "device- specific DRM can be plausibly inferred." Publishers further argue that the term "device specific DRM" is "legally meaningless" and that the allegation "appears to be a weak attempt to allege some form of 'acquiescence' under vertical restraints jurisprudence." However, not only do no such agreements exist, they are not even plausible, as such an agreement would run counter to the publishers' interests, the motion says.

Second, the booksellers can show no "actual adverse effect on competition as a whole in the relevant market." Instead, the brief argues, the booksellers offer only "naked conclusions that Amazon's use of 'device specific' DRM technology harms competition." As such, and lacking any provable, factual basis, publishers ask the court to dismiss the case.

Replies to the motions are now due by April 18 and oral arguments on the motions are set for April 25.