[darryl]

Originally Posted by pwalker8

Once again, I point out that US law is not the same as Commonwealth law. I keep pointing you to sources, but you don't seem interested in educating yourself on the matter. Anti-trust law in the US has two very different schools of thought. If you accept the one school of thought, that anti-trust's purpose is to protect consumers and competition, then Jacob's ruling was devastatingly correct and got to the heart of the matter.

As far as the red herring about the Supreme Court electing not to hear the case, i.e. grant cert, that once again shows a lack of understanding of how the Supreme Court works. Just because the Supreme Court decides not to hear a case, doesn't mean that they think it was decided correctly. It simply means that they chose not to hear it which could be for a number of reasons. Once again, I've already pointed you to a number of sources that discuss the various reasons that the Supreme Court might choose to hear or not hear a case, but you seem to have decided to ignore those.

A total red herring. My correct statement was:

With all respect to Jacob he got it badly wrong. Even the best of us can do that. His colleagues on the Appeals Court found he got it badly wrong. They explained why very clearly in the passages above. The Supreme Court elected not to grant cert.

You repeat your two strands of US anti-trust law like a mantra. Jacob's dissenting judgement is not a straightforward application of one of two conflicting schools of thought. It is an incorrect application of precedent and of the rule of reason for the reasons pointed out by his colleagues in the majority. The majority applied the per se rule, whilst Jacobs would have applied the rule of reason to sanction Apple's conduct. However, Livingstone considered the rule of reason and came to the opposite conclusion. And the other member of the majority, Lohier, whilst having some sympathy with Apple and the Publishers, also recognised the fundamental problem with Apple's position, seizing on the single aspect of market vigilantism as decisive of any defence Apple would have had under the rule of reason if it had applied.

That said, I recognize that the publisher defendants, who used Apple both as powerful leverage against Amazon and to keep each other in collusive check, may appear to be more culpable than Apple. And there is also some surface appeal to Apple’s argument that the ebook market, in light of Amazon’s virtually uncontested dominance, needed more competition. But more corporate bullying is not an appropriate antidote to corporate bullying. It cannot have been lawful for Apple to respond to a competitor’s dominant market power by helping rival corporations (the publishers) fix prices, as the District Court found happened here. However sympathetic Apple’s plight and the publishers’ predicament may have been, I am persuaded that permitting “marketplace vigilantism,” Majority Op. at 9, would do far more harm to competition than good, would be disastrous as a policy matter, and is in any event not sanctioned by the Sherman Act.