Quote:
Originally Posted by Graham
Fair enough. Yes, woolly thinking from me above.
The link Robotech_Master supplied above supports this, agreeing that Apple are going to have to find some chink in the interpretation of the law to succeed:
Graham
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My basic understanding is that the main chink is the per se violation. Over the last twenty years, the Supreme Court has consistently said that per se only applies to horizontal not vertical. That is to say, while it may be a per se violation for several publishing firms to get together and discuss prices, it is not a per se violation for Apple to discuss prices with a publishing firm or multiple publishing firms. Thus Jobs discussion a price point with Murdock is _not_ a per se violation (even if those particular discussion were not rendered moot when Apple went with the agency pricing). Cote appears to have dismissed all of that with a wave of her hand. My understanding is that for a violation to have occurred by Apple, they have to have knowingly entered into a conspiracy with the publishers, and no, offering each publisher the same contract is not proof of a conspiracy.
Of course, we won't know exactly on what grounds Apple is appealing until Apple files the text of their appeal.
The legal questions aren't as straight forward as some wish to believe, nor do they go away because some simply mock anyone who raises those questions or accuses them of being an Apple fan boi. If Cote had followed the legal doctrine of stare decisis (i.e. binding precedent), then IMPO, the case would have been dismissed since the evidence isn't there that Apple did what is the normal standard for anti-trust for a vertical market company (and why I think Apple is fighting this so hard).
The flip side is that all bets are off once you get to the appellate courts. Some appellate judges tend to follow the doctrine of due deference to the trial judge in extreme, i.e. if at all possible, they don't like to overturn a judgment. On the other hand, the Supreme court tends to slap down judges who ignore Supreme Court precedence, especially something as recent as 2007.