Apple says DoJ "sides with monopoly, rather than competition"

[heySkippy]

Originally Posted by stonetools

Apple came out with both guns blazing, that's for sure. If there's any doubt whether Apple is up for the fight, that's over.
Reading the complaint. Apple poked some big holes in the DOJ's conspiracy theory and opens up discussion beyond price increases to consideration of the entire ebook market. I know folks here are going to dismiss Apple's arguments out of hand, but a federal judge may see it different.

I've read from the start that Apple had a decent chance of winning their part in this case.

[JSWolf]

Originally Posted by heySkippy

I've read from the start that Apple had a decent chance of winning their part in this case.

And who is stupid enough to think Apple is innocent?

[stonetools]

Originally Posted by LovesMacs

Apple says DoJ "sides with monopoly, rather than competition" because five or six publishers agreeing to raise prices at the same time is such an essential part of competition, right?

Well, isn't that the dispute?
Apple is arguing that :

A. There was no conspiracy
B. If there was a conspiracy, Apple wasn't in it.

The answer makes several points.
1. The DOJ timeline doesn't work. According to the DOJ, Apple and the publishers began this conspiracy from early 2009, yet they can't point to any communication between Apple and the publishers before December 2009.
2.There are innocent explanations as to why Apple was in communication with the publishers after December 2009.
3.There is a good business explanation as to why the Apple'sagreements with the publishers are so similiar.
4.The reason for all the publishers agreeing before April 2010 was because Apple wanted such agreement in time for theiPad launch.
5. Steve Job's statements in his biography are inadmissible hearsay, or can be interpreted as non-conspiratorial

Some of those arguments are better than others, of course, but Apple doesn't have the burden of proof.
Apple argues that agency pricing led to a more diverse and competitive market. Eventually, duelling economists will answer that but its seems clear that there would have been fewer competitors in the market, absent agency pricing.
THe DOJ strategy is to focus on price of bestsellers alone: Apple argues that there is more to a healthy ebook market than that. I think that eventually the Supreme Court will decide who is right under the law.

[fjtorres]

Apple's defense sounds a lot like their defense on their salary-fixing conspiracy.
http://www.macworld.com.au/news/appl...lawsuit-51566/

They certainly have a lot of experience litigating against conspiracy charges, that's for sure.

(They ended settling with the feds last time around, though.)

[DiapDealer]

Originally Posted by stonetools

THe DOJ strategy is to focus on price of bestsellers alone: Apple argues that there is more to a healthy ebook market than that. I think tat eventually the Supreme Court will decide who is right under the law.

The DoJ isn't focused on what's "healthy for the ebook market." Nor should they be. That's not their purview. That the defendants actions might have "led to a more diverse and competitive market" is completely irrelevant to the DoJ's case.

"Did the defendants break the law in how they breathed life into this agency model?" is the only question needing answered here. Not "would the agency model foster more competition?"... no matter how much the defendants want it to be about the latter.

Mitigation is not justification.

[stonetools]

Originally Posted by DiapDealer

The DoJ isn't focused on what's "healthy for the ebook market." Nor should they be. That's not their purview. That the defendants actions might have "led to a more diverse and competitive market" is completely irrelevant to the DoJ's case.

"Did the defendants break the law in how they breathed life into this agency model?" is the only question needing answered here. Not "would the agency model foster more competition?"... no matter how much the defendants want it to be about the latter.

Mitigation is not justification.

Well, Apple would argue that it did not break the law because there was no collusion. That's Apple's first line of defense.
Its second line of defense is that what they did led to a more competive market. As you know, the ant-trust laws speak of "competition" and "restraint of trade" , not "low prices".

[DiapDealer]

Originally Posted by stonetools

Well, Apple would argue that it did not break the law because there was no collusion. That's Apple's first line of defense.

A perfectly sound and reasonable defense. The only one that's applicable in fact.

Originally Posted by stonetools

Its second line of defense is that what they did led to a more competive market.

That's not a second line of defense. That's not even relevant—even if it were provably true. Illegal collusion to fix prices is the charge. Any other factors being introduced to the discussion are strictly diversionary in nature.

[Sil_liS]

Originally Posted by LovesMacs

Apple says DoJ "sides with monopoly, rather than competition" because five or six publishers agreeing to raise prices at the same time is such an essential part of competition, right?

Of course. And forcing Amazon to make more money on sales obviously weakens it's position in the market.

[stonetools]

Originally Posted by DiapDealer

A perfectly sound and reasonable defense. The only one that's applicable in fact.


That's not a second line of defense. That's not even relevant—even if it were provably true. Illegal collusion to fix prices is the charge. Any other factors being introduced to the discussion are strictly diversionary in nature.

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

Based on that case, the Supreme Court is at least open to a "second line of defense" argument, contrary to popular belief.

[DiapDealer]

Based on that case, the Supreme Court is at least open to a "second line of defense" argument, contrary to popular belief.

Stop it. I'm not trying to say the agency pricing model itself is on trial. Neither is the DoJ. That's just not the issue and you know it. The issue is if Apple and a group of competitors illegally colluded to bring their industry under that agency model. That is all.

[murraypaul]

Originally Posted by stonetools

LINK

Based on that case, the Supreme Court is at least open to a "second line of defense" argument, contrary to popular belief.

The issue is not, and never has been, whether any particular price-setting arrangement is legal. The issue is that colluding to introduce a price-setting arrangement, even a legal one, is illegal.

[Sil_liS]

Originally Posted by stonetools

1. The DOJ timeline doesn't work. According to the DOJ, Apple and the publishers began this conspiracy from early 2009, yet they can't point to any communication between Apple and the publishers before December 2009.

Where does it say that? From what I see in the file they say that Apple developed the strategy to enter the ebook market in February 2009. But the strategy at the beginning of the year was the opposite compared with the one that they went with at the end of the year.

Originally Posted by stonetools

2.There are innocent explanations as to why Apple was in communication with the publishers after December 2009.

I think that the problem was the nature of the communication:

As it negotiated with the Publisher Defendants in December 2009 and January 2010, Apple kept each Publisher Defendant informed of the status of its negotiations with the other Publisher Defendants. Apple also assured the Publisher Defendants that its proposals were the same to each and that no deal Apple agreed to with one publisher would be materially different from any deal it agreed to with another publisher.

Originally Posted by stonetools

3.There is a good business explanation as to why the Apple'sagreements with the publishers are so similiar.

Price colluding is good for business.

Originally Posted by stonetools

4.The reason for all the publishers agreeing before April 2010 was because Apple wanted such agreement in time for theiPad launch.

Which is an argument for collusion, not against it.

[heySkippy]

Originally Posted by JSWolf

And who is stupid enough to think Apple is innocent?

They don't have to be innocent, just not guilty.

[stonetools]

Originally Posted by DiapDealer

Stop it. I'm not trying to say the agency pricing model itself is on trial. Neither is the DoJ. That's just not the issue and you know it. The issue is if Apple and a group of competitors illegally colluded to bring their industry under that agency model. That is all.

Well, that's the argument to the Supreme Court.
"Yes, we colluded to fix prices BUT we did it for a good business reason, and we're asking you to make an exception to the general rule"
That's how the defendant won in the Leegin case. Now will the Supreme Court buy this in a case where there is not one supplier, but a group of suppliers acting in concert? Dunno. Possible, though.

[stonetools]

Originally Posted by Sil_liS

Where does it say that? From what I see in the file they say that Apple developed the strategy to enter the ebook market in February 2009. But the strategy at the beginning of the year was the opposite compared with the one that they went with at the end of the year.


I think that the problem was the nature of the communication:



Price colluding is good for business.


Which is an argument for collusion, not against it.

So you reject Apple's interpretations of what happened. Remember, though, Apple doesn't have the burden of proof. For example, if there is a good business reason why the agreements between Apple and the publishers are similar in wording,then the court will likely find for Apple. 50-50 means Apple wins.