Apple appeals to Supreme Court

[tubemonkey]

Originally Posted by fjtorres

Oh, I buy a lot of ebooks.
(Over a hundred a year. BAEN alone is 60-70 new ones.)
Just none from companies that break the law just to rip me off.

Only one pbook since 2010, though. And it was used.
I vote with my wallet.

I still get lots of ebooks, but they're free.

[Shane R]

Originally Posted by fjtorres

The Apple faithful are notoriously insensitive to price.

Maybe the PC people. The phone people are a big diverse bloc that defies easy pigeon-holing.

[HarryT]

Originally Posted by Shane R

Maybe the PC people. The phone people are a big diverse bloc that defies easy pigeon-holing.

I buy (very) expensive iPhones, but I keep them for a (very) long time. Had my iPhone 4 for five and a half years; I'll probably have my iPhone 6 just as long.

[murg]

Originally Posted by PatNY

Like with wiretaps? With wiretaps you have an activity which many would consider an invasion of privacy, yet when properly controlled through legislation, has not turned “only in specific, very rare circumstances” which need a court order to “Whenever we want.” And I can’t think of any similar type of activity which has. What happens with wiretaps is actually a good rough model for what should happen with cell phones and requests to crack them.

Do you mean the portable cell towers that the government is using to intercept ALL calls in their area (mostly along the Mexican border)?

Or the NSA's domestic activity?

[PatNY]

Originally Posted by murg

Do you mean the portable cell towers that the government is using to intercept ALL calls in their area (mostly along the Mexican border)?

Or the NSA's domestic activity?

No. I’m talking about longstanding federal wiretapping laws which strictly limit the ability of law enforcement agencies to eavesdrop on the phone conversation of individuals.

Regarding the fake cell towers, are you talking about Stingrays? If so, no content is collected, so that’s a different thing.

As for the NSA’s domestic activity, are you talking about the Patriot Act? If so, many parts of that act including some which allowed for limited wiretapping have not been renewed. Even when the act was in full force, the NSA did not turn wiretapping into “whenever we want.”

[pwalker8]

Originally Posted by PatNY

Judge Cote has been vindicated and deserves an apology from many, including some of the so-called legal experts in the media, who declared she was biased and didn’t know what she was doing in this case.

The cert denial also shows that all those who used Leegin as a rallying cry to defend Apple wrongly applied that case to Apple. Either they couldn’t see or refused to admit that Apple’s role was not really analogous to what Leegin did. While not exactly an apples & oranges difference, the roles and behavior of the two companies were sufficiently different to have separated them legally.

As for the monetary settlement, that’s of little importance to me, and I’ll probably only get a few dollars out of it. What’s important is to prevent the next big company from trying to manipulate market prices through widespread collusion with suppliers

Hardly. You misunderstand what the failure to grant cert actually means. The Supreme Court ruling against Apple might have meant what you say, but the Supreme Court declining to hear the case simply means that the ruling has no legal precedence in any other circuit other than the 2nd.

We are already seeing this court decline to hear a number of high profile cases. I suspect that will continue to be the case until we have an odd number of judges again. We really don't know why the Supreme Court declined to hear the case. It could be that it was likely to end up a 4-4 tie, it could be that they felt that they had more pressing cases to hear. I think that it's likely that if a majority of judges wanted to make the statement that you claim, then they would have heard the case and voted that way. Not hearing the case makes no statement at all.

[DiapDealer]

Originally Posted by pwalker8

Not hearing the case makes no statement at all.

Other than, "Suck it up, get your wallet out, and move on Apple," of course.

[dickloraine]

Originally Posted by pwalker8

Hardly. You misunderstand what the failure to grant cert actually means. The Supreme Court ruling against Apple might have meant what you say, but the Supreme Court declining to hear the case simply means that the ruling has no legal precedence in any other circuit other than the 2nd.

We are already seeing this court decline to hear a number of high profile cases. I suspect that will continue to be the case until we have an odd number of judges again. We really don't know why the Supreme Court declined to hear the case. It could be that it was likely to end up a 4-4 tie, it could be that they felt that they had more pressing cases to hear. I think that it's likely that if a majority of judges wanted to make the statement that you claim, then they would have heard the case and voted that way. Not hearing the case makes no statement at all.

Okay, I don't know the american law system, but wouldn't not hearing a case mean, that the majority of judges think that the appeal has no chance at all and don't need a full trial to come to that conclusion? Because the case appears to be clear for them?

[fjtorres]

Originally Posted by dickloraine

Okay, I don't know the american law system, but wouldn't not hearing a case mean, that the majority of judges think that the appeal has no chance at all and don't need a full trial to come to that conclusion? Because the case appears to be clear for them?

Yup.
Normally it only takes a four judge minority to grant a hearing.
With a short court, 3 would've done it.
Didn't happen.

[PatNY]

Originally Posted by pwalker8

Hardly. You misunderstand what the failure to grant cert actually means. The Supreme Court ruling against Apple might have meant what you say, but the Supreme Court declining to hear the case simply means that the ruling has no legal precedence in any other circuit other than the 2nd.

We are already seeing this court decline to hear a number of high profile cases. I suspect that will continue to be the case until we have an odd number of judges again. We really don't know why the Supreme Court declined to hear the case. It could be that it was likely to end up a 4-4 tie, it could be that they felt that they had more pressing cases to hear. I think that it's likely that if a majority of judges wanted to make the statement that you claim, then they would have heard the case and voted that way. Not hearing the case makes no statement at all.

I disagree. The Supreme Court denying cert leaves the lower court rulings to stand intact, essentially rubber-stamping them. And while courts in other districts won’t be bound by this case, they are often persuaded to rule similarly in cases that have similar circumstances.

The Supreme Court in essence said the DOJ and Cote were right, Apple is guilty, and Leegin does NOT apply to vertical players who orchestrate a horizontal conspiracy.

As for a possible 4-4 tie had they decided to hear the case, that doesn’t seem likely. I think it’s much more likely that – at best – 3 justices were sympathetic to Apple’s side, since it only takes 4 justices to grant cert. If more than 3 justices had found there to be significant value to the appeal, there is no reason not to grant cert. There is no law that says the justices have to decide a case in the term in which it was submitted. So if they felt, as constituted, they would have simply ended up 4-4, they could have instead granted cert, then tabled the case until Scalia’s replacement was on board – even if that isn’t until 2017 – since oral arguments had not even been heard yet.

And it’s not like SCOTUS passed on this because they think they’ll be presented with similar cases in the future. It took a company with very deep pockets and an extraordinary amount of arrogance – which Jobs and Cue had in overabundance at the time – to do what Apple did, then appeal it all the way to SCOTUS when they get nailed for it. I’ve heard some say Cook wouldn’t have done what Jobs did, and I agree. So, a case like this may never again get to SCOTUS in the foreseeable future. If SCOTUS wanted to adjust these rulings in relation to Leegin, here was the chance.

The Supremes turn down high profile cases every year and deny cert for most. They only accept something like 10% or less of the cases presented to them annually. What evidence do you have that they are turning down more cases than normal now?

Leegin was not the proper standard to use in the Apple case. That's what the denial of cert essentially means.

[MikeB1972]

Originally Posted by PatNY

Like with wiretaps? With wiretaps you have an activity which many would consider an invasion of privacy, yet when properly controlled through legislation, has not turned “only in specific, very rare circumstances” which need a court order to “Whenever we want.” And I can’t think of any similar type of activity which has. What happens with wiretaps is actually a good rough model for what should happen with cell phones and requests to crack them.

Interesting
I though the Edward Snowdon thingy showed that they had actually got to the "whenever we want" stage but just happened to get caught at it.

[pwalker8]

Originally Posted by PatNY

I disagree. The Supreme Court denying cert leaves the lower court rulings to stand intact, essentially rubber-stamping them. And while courts in other districts won’t be bound by this case, they are often persuaded to rule similarly in cases that have similar circumstances.

The Supreme Court in essence said the DOJ and Cote were right, Apple is guilty, and Leegin does NOT apply to vertical players who orchestrate a horizontal conspiracy.

As for a possible 4-4 tie had they decided to hear the case, that doesn’t seem likely. I think it’s much more likely that – at best – 3 justices were sympathetic to Apple’s side, since it only takes 4 justices to grant cert. If more than 3 justices had found there to be significant value to the appeal, there is no reason not to grant cert. There is no law that says the justices have to decide a case in the term in which it was submitted. So if they felt, as constituted, they would have simply ended up 4-4, they could have instead granted cert, then tabled the case until Scalia’s replacement was on board – even if that isn’t until 2017 – since oral arguments had not even been heard yet.

And it’s not like SCOTUS passed on this because they think they’ll be presented with similar cases in the future. It took a company with very deep pockets and an extraordinary amount of arrogance – which Jobs and Cue had in overabundance at the time – to do what Apple did, then appeal it all the way to SCOTUS when they get nailed for it. I’ve heard some say Cook wouldn’t have done what Jobs did, and I agree. So, a case like this may never again get to SCOTUS in the foreseeable future. If SCOTUS wanted to adjust these rulings in relation to Leegin, here was the chance.

The Supremes turn down high profile cases every year and deny cert for most. They only accept something like 10% or less of the cases presented to them annually. What evidence do you have that they are turning down more cases than normal now?

Leegin was not the proper standard to use in the Apple case. That's what the denial of cert essentially means.

Actually they pass on cases all the time when they are not ready to address a specific situation. You have internalize this case way, way more than the Supreme Court ever does. For them it's about overarching legal issues, i.e. addressing anti-trust, not about if they think that Cote was correct or not, or if they dislike Apple or not. For the most part, they accept cases when they want to make a statement and decline cases when they don't want to make a statement.

The Supreme Court declining to hear a case is a blank slate. They never say why they decided not to hear this or any other case. So you are simply projecting your view on an empty screen. There are many different possibilities. They may simply view the case as moot since for all practical purposes it is (Even if Apple won, that wouldn't change anything in the ebook market place). There may simply not be enough judges who are interested in addressing anti-trust at this time. There were a series of interviews with the various Supreme Court justices that use to be on Audible that are quite interesting with regard to how the Supreme Court works. If I recall correctly a couple (I specifically remember Scalia) talked about why they decide to pick cases in general terms. You should listen to them.

[PatNY]

Originally Posted by MikeB1972

Interesting
I though the Edward Snowdon thingy showed that they had actually got to the "whenever we want" stage but just happened to get caught at it.

I don’t think Snowden was about wiretaps. As for other eavesdropping, what exactly was “whenever we want?”

[PatNY]

Originally Posted by pwalker8

Actually they pass on cases all the time when they are not ready to address a specific situation. You have internalize this case way, way more than the Supreme Court ever does. For them it's about overarching legal issues, i.e. addressing anti-trust, not about if they think that Cote was correct or not, or if they dislike Apple or not. For the most part, they accept cases when they want to make a statement and decline cases when they don't want to make a statement.

The Supreme Court declining to hear a case is a blank slate. They never say why they decided not to hear this or any other case. So you are simply projecting your view on an empty screen. There are many different possibilities. They may simply view the case as moot since for all practical purposes it is (Even if Apple won, that wouldn't change anything in the ebook market place). There may simply not be enough judges who are interested in addressing anti-trust at this time. There were a series of interviews with the various Supreme Court justices that use to be on Audible that are quite interesting with regard to how the Supreme Court works. If I recall correctly a couple (I specifically remember Scalia) talked about why they decide to pick cases in general terms. You should listen to them.

Of course SCOTUS is all about legal issues, and they don’t make it personal. Not sure why you think I said otherwise. However, I don’t know how you can say opinions about whether a lower court judge got a decision right or wrong is not a legal issue. That certainly is and forms the heart of many SCOTUS decisions.

Why is SCOTUS “not ready to address” a specific case? Let’s look at some of the possible reasons.

1) Not enough justices feel that there are substantive merits to the plaintiff’s arguments, and the lower courts got it right.

2) There was some procedural error in the case.

3) The case doesn’t touch on important enough issues, and so they have nothing to say (or, as you put it, they “don’t want to make a statement”).

Regarding #3, I don’t believe this fits the Apple case, where you have one of the world’s top companies involved in an important anti-trust matter with large potential repercussions for the economy. It is a high-profile case for these reasons. At any rate, if the justices felt the lower courts got this wrong because of Leegin -- as you and many Apple defenders kept asserting -- then that would likely negate #3 being the reason for denying cert, as Leegin was a very major anti-trust case.

Regarding #2, this is highly unlikely. Apple retained some of the best lawyers in the country, and they likely dotted all their i’s and crossed all their t’s.

The most likely conclusion, then, is #1. And while it might be difficult to say for sure that is the reason, for all intents and purposes, that is how the case will be viewed – that Cote did get it right and Apple is guilty. Moreover, going forward, it is very likely quotes from both Cote and Livingston in this case will be used to support other similar decisions in other circuits, not just in the 2nd.

This decision is a blank slate to you because you, like many of Apple’s staunch defenders, refuse to admit Apple did any wrong, and you don’t want to see it any other way. You are projecting a “blank slate” on a case in which it is generally viewed as a big LOSS for Apple.

I can find many articles about this decision to deny cert using the words “lost” and “loser” to describe Apple. This includes one on the SCOTUS blog. You want me to list some of them?

Of course, if someone lost, there has to be a winner, right? And the winners here are the DOJ, the attorney generals of the states that filed suit – and Cote and Livingston!

You are also wrong when you say SCOTUS never explains why they won’t grant cert. They often do, writing either a dissenting or concurring opinion about the decision. These are formal and official writings that go into the court record. There was an interesting article in the Yale Law Journal about Justice Sotomayor’s frequent certiorari-stage writings. You should read it.

[fjtorres]

Here's the view from Apple land:

http://www.macnn.com/articles/16/03/....right.132927/

They'll never surrender, never give up.