Quote:
Originally Posted by bgalbrecht
This is the third time I've pointed out in this thread alone that Judge Cote wrote in her decision that even if the evidence did not support a per se violation, the case would come out the same under the rule of reason standard, because Apple cannot show any pro-competitive effect of the publisher agreements.
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Just because you keep repeating something doesn't make it particularly meaningful. The problem with her wave of the hand, is that for it _not_ to be per se, one has to present evidence that Apple was indeed involved in a conspiracy. As far as I can tell, there was no such evidence. Instead, she simply stated that she didn't believe the under oath testimony by Apple execs of what happened.
As far as the no pro-competitive effect, well that's simply laughable. At the time of the negotiations, Amazon held well over 90% of the ebook market, a virtual monopoly. Any ebook store entering the market that was able to capture some of that market was pro-competitive. What the government claimed was that prices went up after the agency price agreement went into effect, but that's hardly the same as anti-competitive.
What Apple is claiming is that for Apple to be guilty of anti-competitive actions, the government had to prove that 1) the publishers were engaged in a conspiracy and 2) that Apple both knew about the conspiracy and acted to aid it. While many here assume that just because the publishers accepted the deal, they must be guilty, but the publisher never admitted any guilt, they were just ponying up money to make it go away. A couple of the publishers explicitly said that they were not guilty and that they accepted the deal simply because if they went to trial and lost, they would be put out of business. Thus, Apple claims that the government had to prove in the trial that the publishers really were guilty of a conspiracy and that the government presented no such evidence.
This is all covered in Apple's appeal.