2 of 3 Judges appear to favor Apple in ebook appeal

[leebase]

From Fortune: http://fortune.com/2014/12/15/monday...ell-for-apple/

Not expecting anyone's opinion to change. Clearly, though, those of us who have taken the "it's Amazon that's been acting anti-competitive" pov through all of this are seeing our perspective reflected by 2 of the three judges in the appeals case.

Among them:
- a new entrant into a market is a good thing
- Amazon's pricing was arguably predatory
- Amazon had the monopoly position of 90%

Meanwhile the attorney making the case against Apple likened them to a drug runner driving people to a drug deal.

[fjtorres]

Appearances can be deceiving, especially in appeals court.

[DiapDealer]

In all honesty, I've never understood the whole "something had to be done about Amazon" defense. Even IF it was a given (and it's not) that Amazon was guilty of predatory pricing and abusing a monopolistic position, how would that ever justify breaking the antitrust laws that they (Apple) were deemed to have broken in the first place? Violating antitrust to protect an industry from an antitrust violater (or to gain access to said industry) isn't actually a valid defense, is it? It sure shouldn't be if it is.

And if your appeal is predicated on the idea that you (Apple) never violated antitrust in the first place, then how is the suggestion that Amazon DID (or didn't, for that matter) violate antirust even relevant to your appeal, at all?

I truly don't get it. Is their appeal really based on "we don't think we broke the law, but if you say we DID ... then we're saying we only broke the law in self defense." ?

Either Apple broke the law (in which case Amazon isn't relevant). Or Apple didn't break the law (in which case Amazon STILL isn't relevant). With regard to their current predicament anyway.

[Shane R]

Thanks for posting:

“Judges Jacobs and Lohier seemed quite concerned that Judge Cote had used the wrong standard, but Jacobs’s qualms clearly went much further—seeming to question the government’s judgment in ever having brought the case."

At times Judge Jacobs came close to suggesting that the government had prosecuted the wrong company. At the very least, he said, a horizontal initiative “used to break the hold of a monopolist” ought not be found to be illegal per se. He likened any collusive conduct on the publishers’ part to “mice getting together to go put a bell on the cat.”

More laughter. More trouble for the government’s cause.

I don't understand why Judge Cote would pre-accept a judgement based on this appeals courts yet unmade decision.

[JoeD]

A Judge suggesting it's ok to break the law (i.e collusion) if you're doing it to break the hold of a monopolist? I hope I've either misread that or it has been misreported.

[Shane R]

Originally Posted by JoeD

A Judge suggesting it's ok to break the law (i.e collusion) if you're doing it to break the hold of a monopolist? I hope I've either misread that or it has been misreported.

I'm no judge, but according to Wikipedia collusion is not always anti-competitive. The judges were questioning whether this was a pro-competitive form of collusion.

[ApK]

Originally Posted by JoeD

A Judge suggesting it's ok to break the law (i.e collusion) if you're doing it to break the hold of a monopolist? I hope I've either misread that or it has been misreported.

There is a third option. Sadly, judges aren't always competent.

[Jon_Doh]

I don't get the Amazon hate and Apple love either. Amazon lowers book prices, which is a good thing for consumers and they're the bad guys and have to be stopped? Apple comes along and conspires with a number of book publishers to fix book prices, the end result is book prices on average going up over 100% and they are the victims and/or good guys? Boy, the world sure has changed since the "greed is good" crowd took over.

[fjtorres]

Originally Posted by JoeD

A Judge suggesting it's ok to break the law (i.e collusion) if you're doing it to break the hold of a monopolist? I hope I've either misread that or it has been misreported.

Probably misreported.
Appeals court judges often ask "devil's advocate" questions to get certain responses into the official record or to give the appearance of due dilligence in an open-and-shut case. The former is common at the SCOTUS level.

Let's wait for the final verdict.

[rcentros]

Originally Posted by leebase

Among them:
- a new entrant into a market is a good thing
- Amazon's pricing was arguably predatory
- Amazon had the monopoly position of 90%

What does Amazon have to do with Apple's collusion with the publishers. Apple has continually tried to link the two, which (in my opinion) is an act desperation and shows that they are guilty as hell.

[rcentros]

Originally Posted by DiapDealer

In all honesty, I've never understood the whole "something had to be done about Amazon" defense. Even IF it was a given (and it's not) that Amazon was guilty of predatory pricing and abusing a monopolistic position, how would that ever justify breaking the antitrust laws that they (Apple) were deemed to have broken in the first place? Violating antitrust to protect an industry from an antitrust violater (or to gain access to said industry) isn't actually a valid defense, is it? It sure shouldn't be if it is.

Absolutely.

[rcentros]

Originally Posted by Shane R

I don't understand why Judge Cote would pre-accept a judgement based on this appeals courts yet unmade decision.

Sounds to me that Apple has found a court with at least one judge who seems predisposed to rule in Apple's favor.

Again what does Amazon's supposed anti-trust violations have to do with Apple's anti-trust violations? Apple has continually tried to use the argument that comes down to "We had to break the law because Amazon was -- sort of -- we believe, breaking the law."

If that can work in a court of law, imagine what new defenses we'll have in criminal cases. "I had to kill him, your honor, because he was -- sort of -- looking at me funny."

[leebase]

Not that hard to understand. Judge Cote specifically forbid any considering of Amazon in the trial. These appeal judges are looking at the entire scenario.

Without considering Amazon...one could say "Apple's actions are anti competitive in that they raised prices." Considering Amazon, one could say that Amazon was limiting competition and that Apple's actions had a net positive effect on competition.

The phrase one judge used was something like "looks like the mice had to gang up to put a bell on the cat".

[eschwartz]

Originally Posted by Jon_Doh

I don't get the Amazon hate and Apple love either. Amazon lowers book prices, which is a good thing for consumers and they're the bad guys and have to be stopped? Apple comes along and conspires with a number of book publishers to fix book prices, the end result is book prices on average going up over 100% and they are the victims and/or good guys? Boy, the world sure has changed since the "greed is good" crowd took over.

You don't understand. Apple lowered book prices overall.

Can't argue with that.

[eschwartz]

Originally Posted by leebase

Not that hard to understand. Judge Cote specifically forbid any considering of Amazon in the trial. These appeal judges are looking at the entire scenario.

Without considering Amazon...one could say "Apple's actions are anti competitive in that they raised prices." Considering Amazon, one could say that Amazon was limiting competition and that Apple's actions had a net positive effect on competition.

The phrase one judge used was something like "looks like the mice had to gang up to put a bell on the cat".

Mice ganging up to bell the cat (whether you agree with that assessment or not) is still collusive violation of antitrust law, which is the point everyone else is trying to make.

The appropriate action for Apple and the publishers to take was of course to come to the courts and bring an antitrust claim against Amazon.


Judge Cote was supposed to ignore Amazon, because Amazon is outside the scenario.
The scenario is a collusive antitrust violation carried out by Apple and the publishers; whether they

a) took the law into their own hands, or
b) had unjustifiably ulterior motives

is irrelevant to the case.