eMusic says they will sue Apple if they decide to try buffet-style access with the purchase of a premium-priced device. One of the options Apple could offer in the future would be this: if you buy their premium device (like an iPhone with a crazy add-on fee), you get all the music you want from the iTunes store. Sounds good for the consumer, right?
According to eMusic, this would be the definition of tying, that is, ” the practice of making the sale of one good (the tying good) to the de facto or de jure customer conditional on the purchase of a second distinctive good (the tied good)” (Wikipedia). This is from the Sherman Anti-trust law, enacted in 1890, which says, “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony”.
To sum up, if someone buys an iPod, they are tied to major label content (potentially shutting out independent sources of entertainment). Which would be tying to a tee. As much as I would love to have the buffet-style access to iTunes, it would be not be in the best interest of EVERYONE if this were allowed. Indie artists like myself get screwed (once again by major labels), because the largest music market (iPod owners) would be almost unattainable to reach.
The only hole I see in this case is: would iPods/iTouches/iPhone be prevented from loading music from other sources (like CDs or other distributors)? If so, this would clearly be tying and would not be allowed to continue, by law. If Apple retains their current policies of allowing any MP3 or AAC to be played on their players, then this suit could have issues, but should still be brought, if anything just to bring all the details to light.
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