Authors Group Urges Opposition to E-Book Settlement

[stonetools]

Originally Posted by Ninjalawyer

This, a thousand times this. The publishers either colluded or they didn't; it makes no difference to the legal question of whether or not they acted illegally if they only did it because they were just protecting those poor, poor consumers from mean ol' Amazon.

The Supreme Court of the United States- who are the the only people who count, in the end- has held that in certain cases the they would look beyond whether there was an agreement or decision to fix prices.

On June 28, 2007, the Supreme Court overruled Dr. Miles, discussed below, holding that such vertical price restraints as Minimum Advertised Pricing are not per se unlawful but, rather, must be judged under the "rule of reason." Leegin Creative Leather Products, Inc. v. PSKS, Inc., Slip Op. No. 06–480 (Decided June 28, 2007).[4] This marked a dramatic shift on how attorneys and enforcement agencies address the legality of contractual minimum prices, and essentially allowed the reestablishment of resale price maintenance in the United States in most (but not all) commercial situations.

LINK

Now people can repeat ad nauseam about what the courts should be looking at, and ascribe any kind of motives to me, but what they can't say is that I am wrong on the law. Because I'm not wrong.
There is a reason why the best legal talent the defense can buy make arguments other than collusion. Because they know the law, and they're not wrong either.
Now Canadian law may be different. May be the law there is that the courts will look only on the issue of collusion, and I bow to your superior expertise there. But US law is different. THE END.

[DiapDealer]

But US law is different. THE END.

"Whose a big boy? And just look at those big-boy pants." He's at a fun age, right now, isn't he mom?

[stonetools]

Originally Posted by Fbone

The judge can't control it. She won't be present during jury deliberations.

Its really up to the defense to elect whether they want a jury or court trial. AFAIK they haven't made the call yet.

[stonetools]

Originally Posted by DiapDealer

"Whose a big boy? And just look at those big-boy pants." He's at a fun age, right now, isn't he mom?

Mock ( or try to mock me ) all you want, bub. I'd prefer that you and others just address my arguments. On this point, of course, you can't.

[Elfwreck]

Originally Posted by stonetools

The Supreme Court of the United States- who are the the only people who count, in the end- has held that in certain cases the they would look beyond whether there was an agreement or decision to fix prices.
LINK

There's a difference between "minimum prices are sometimes legal" and "it's okay for competitors to get together and agree to all raise their minimum prices at the same time."

[cjr72]

Originally Posted by stonetools

Mock ( or try to mock me ) all you want, bub. I'd prefer that you and others just address my arguments. On this point, of course, you can't.

IANAL but I'll give it a shot. Your quote above is an example of vertical price fixing which has been found in the US to be a legal form of price fixing. What we are discussing is horizontal price fixing among competing book manufacurers which is not legal in the US.

Since 1997, the US Court divided price fixing into two categories: vertical and horizontal maximum price fixing.[5] In State Oil Co. v Khan,[6] the US Supreme Court held that vertical price fixing is no longer considered a per se violation of the Sherman Act, but horizontal price fixing is still considered a breach of the Sherman Act.

http://en.wikipedia.org/wiki/Price_f...tes_and_Canada

[DiapDealer]

Originally Posted by stonetools

Mock ( or try to mock me ) all you want, bub. I'd prefer that you and others just address my arguments. On this point, of course, you can't.

I'm sorry... I wasn't aware that you'd actually made an argument. I thought you were simply declaring a complete and incontrovertible understanding of US case law and how it applies to this particular case... which deserves mocking (whether it comes from you, me or the lawyer next door quoting Shatzkin's quotes of previous cases).

[stonetools]

Originally Posted by Elfwreck

There's a difference between "minimum prices are sometimes legal" and "it's okay for competitors to get together and agree to all raise their minimum prices at the same time."

Sure there's a difference. The point is that the defense can argue that the exception created by Leegin be extended from one supplier acting alone to a group of suppliers. Will that work? Maybe.
Defense counsel, however, can make that argument and they would be crazy not to. After all, its a very corporate friendly court. You have to be realistic about these things, and there aren't nine consumer advocates sitting up there. From the holding:

A single manufacturer’s use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in services or promotional efforts that aid the manufacturer’s position as against rival manufacturers. Resale price maintenance may also give consumers more options to choose among low-price, low-service brands; high-price, high-service brands; and brands falling in between. Absent vertical price restraints, retail services that enhance interbrand competition might be underprovided because discounting retailers can free ride on retailers who furnish services and then capture some of the demand those services generate. Retail price maintenance can also increase interbrand competition by facilitating market entry for new firms and brands and by encouraging retailer services that would not be provided even absent free riding. Pp. 9–12.

DEfense counsel arguments track the holding almost word for word. Just substitute "independent booksellers" for "high-price, high-service brands" and "online retailers"for "discounting retailers" .
Are non -collusion defense arguments inappropriate or hopeless? I think not.

[stonetools]

Originally Posted by cjr72

IANAL but I'll give it a shot. Your quote above is an example of vertical price fixing which has been found in the US to be a legal form of price fixing. What we are discussing is horizontal price fixing among competing book manufacurers which is not legal in the US.



http://en.wikipedia.org/wiki/Price_f...tes_and_Canada

You are correct. They would be arguing for an extension of the law. Thats how new law gets made.
Prior to 2007, vertical price fixing was per se illegal as well-until this SCOTUS agreed with the defense.

[MovieBird]

Originally Posted by stonetools

You are correct. They would be arguing for an extension of the law. Thats how new law gets made.
Prior to 2007, vertical price fixing was per se illegal as well-until this SCOTUS agreed with the defense.

This does not agree with this:

Originally Posted by stonetools

Now people can repeat ad nauseam about what the courts should be looking at, and ascribe any kind of motives to me, but what they can't say is that I am wrong on the law. Because I'm not wrong.
There is a reason why the best legal talent the defense can buy make arguments other than collusion. Because they know the law, and they're not wrong either.
Now Canadian law may be different. May be the law there is that the courts will look only on the issue of collusion, and I bow to your superior expertise there. But US law is different. THE END.

When you make idiotic pronouncements about your expertise, and that no one can reasonably doubt you, you deserve the mocking that comes your way. Particularly when you're arguing for nonexistent laws.

[Ninjalawyer]

Originally Posted by stonetools

The Supreme Court of the United States- who are the the only people who count, in the end- has held that in certain cases the they would look beyond whether there was an agreement or decision to fix prices.



LINK

Now people can repeat ad nauseam about what the courts should be looking at, and ascribe any kind of motives to me, but what they can't say is that I am wrong on the law. Because I'm not wrong.
There is a reason why the best legal talent the defense can buy make arguments other than collusion. Because they know the law, and they're not wrong either.
Now Canadian law may be different. May be the law there is that the courts will look only on the issue of collusion, and I bow to your superior expertise there. But US law is different. THE END.

You're confusing questions of fact and questions of law in the above. Whether or not their was an agreement between the publishers to fix prices is a question of fact. Whether or not their was a violation of competition laws is a question of law (obviously). On the question of fact, it's irrelevant what Amazon did or didn't do because there either was or was not an agreement (and you don't necessarily need a written agreement in cases of collusion). On the question of law, it's also likely irrelevant what Amazon did or didn't do; in any event, the court would be unlikely to give that much consideration as Amazon is not a party to the DoJ action so cannot cross-examine witnesses or call evidence.

And with respect to your scholarly knowledge of U.S. laws, note that Canadian law and American law are generally very similar as both countries use the Common Law system (well, Quebec uses French Civil Law, but that's an annoyance for another day), they differ mainly in the specifics. I would suggest that this thread probably isn't the place to start a conversation about the rules of precedent, what is or isn't obiter and and the merits of the Wikipedia article you cited.

Oh, and since we're declaring ourselves to be expert in things - I'm now a doctor.

[stonetools]

Originally Posted by MovieBird

This does not agree with this:



When you make idiotic pronouncements about your expertise, and that no one can reasonably doubt you, you deserve the mocking that comes your way. Particularly when you're arguing for nonexistent laws.

Its the other folks-the folks who insist that the courts do or should ONLY look at whether there was collusion and that there are no exceptions to that rule -who are being dogmatic and claiming an expertise they don't have.I'm claiming no expertise-I'm just being open minded and noting that there is room for debate and arguments for other than collusion. .

[jgaiser]

Originally Posted by stonetools

I'm claiming no expertise-I'm just being open minded and noting that there is room for debate and arguments for other than collusion. .

[stonetools]

Originally Posted by Ninjalawyer

You're confusing questions of fact and questions of law in the above. Whether or not their was an agreement between the publishers to fix prices is a question of fact. Whether or not their was a violation of competition laws is a question of law (obviously). On the question of fact, it's irrelevant what Amazon did or didn't do because there either was or was not an agreement (and you don't necessarily need a written agreement in cases of collusion). On the question of law, it's also likely irrelevant what Amazon did or didn't do; in any event, the court would be unlikely to give that much consideration as Amazon is not a party to the DoJ action so cannot cross-examine witnesses or call evidence.

And with respect to your scholarly knowledge of U.S. laws, note that Canadian law and American law are generally very similar as both countries use the Common Law system (well, Quebec uses French Civil Law, but that's an annoyance for another day), they differ mainly in the specifics. I would suggest that this thread probably isn't the place to start a conversation about the rules of precedent, what is or isn't obiter and and the merits of the Wikipedia article you cited.

Oh, and since we're declaring ourselves to be expert in things - I'm now a doctor.

Whatever dude. You don't have to be an expert on US antitrust law to note that the courts since 2007 changed on whether they look beyond just whether there was collusion- you just have to be open minded and see what the experts are saying.

Here is what one expert says:

“Plenty of business practices raise prices that aren’t antitrust violations,” says Donald Knebel, an IP and antitrust attorney affiliated with Indiana University’s Center for Intellectual Property Research. “Agency pricing is perfectly legal. But something isn’t an agency relationship just because you call it that.”

Knebel says there are three major points of law at stake in both the class-action suit and the Justice Department investigation against Apple and the five publishers:

1.Whether and how the agency model applies to virtual goods;
2.Whether Apple and publishers engaged in a “hub-and-spoke” conspiracy or simply “conscious parallelism”;
3.The status of the “most-favored nation” clause, common to many legal contracts today, which Apple used to ensure that books could not be sold elsewhere at a lower price than in the iBooks store.

LINK

That seems to me to go beyond an issue of "just collusion"-way beyond. And it doesn't even the address the issue of whether there is a legal justification if collusion is proved-the Leggit argument.

The point is that this is not just a simple "Was there proof of collusion" case. I'm saying that not because I'm an expert-I'm not. I'm saying that because the experts are saying that -and I'm reading what they're saying.

[murraypaul]

We know agency pricing is not per se illegal.
The question is whether there was collusion or not, or in the words you quotes:

2.Whether Apple and publishers engaged in a “hub-and-spoke” conspiracy or simply “conscious parallelism”;

If they colluded, they are guilty. If they did not, they are not.