Literary elites v. Amazon: yes, it's class warfare

[darryl]

Originally Posted by pwalker8

I don't think it's a coincidence that the DOJ filed their case in April of 2012, about 6 months after Steve Jobs died. Apple doesn't have near the influence without Steve Jobs. I would be surprised if the 5 publishers in this case has much influence in the government.

No doubt Apple lost some influence with the unfortunate death of Steve Jobs. But a good deal of it would have remained. Certainly enough that the combined influence of Apple and the BWM would at least match that of Amazon.

This was a very unremarkable case. It's most unique feature was probably the brazeness of the main players, though in this area of law even that is far from unique. It was an unremarkable case, started in an unremarkable way and handled by the courts in an unremarkable fashion. You are entitled to your conspiracy theories, but I would point out as other posters have that we are awaiting even a skerrick of evidence to support those theories.

[Ninjalawyer]

Originally Posted by pwalker8

Well, I'm expressing my opinion rather than arguing a case in court, so the only evidence is purely circumstantial. A bit more solid that the evidence you find so persuasive, but circumstantial none the less. We know that Bezo and his family have donated quite a bit to politicians. We now know that the DOJ seem to have derived their case from a white paper given them by Amazon.

White paper is a technical term. It does have special meaning. The point there is that Amazon didn't file a complaint against the publishers and Apple, which is the normal way of getting the DOJ to investigate. Instead they give what was apparently a secret briefing. It seems fairly likely that they choose this method to avoid getting bad press ("Dominate company charges new entry into ebook market with anti-trust violation". Yea, that would fly well).

When a company gives money to politicians, and then get favorable treatment from the government, then that is the definition of crony capitalism. If Bezos and company hadn't been given money to the right politicians, then I would yield your point, but they were. That's what makes it crony capitalism.

And what is the evidence that I find so persuasive, that is inferior to your "circumstantial" evidence? I can tell you that my opinion is based on the judge's opinion (which I've actually read), and some of the briefs (again, which I've actually read). Yours seems to be based on what you'd like to be true, mixed with some borderline conspiracy theorizing, and with a total lack of understanding of the judicial process in anti-trust cases.

As for the oh-so-secret briefing, it's apparently available for public viewing. Also, it's not a "white paper" in the technical sense, since a private party can't issue one. That's just the term the WSJ used to add some gravitas, and that you picked up because it slotted nicely into the story you've constructed.

Political donations alone don't make for crony capitalism.

Originally Posted by pwalker8

But that's not what happened. They met together and decided that they were going to hold out for the agency model. They didn't decide that all hard back books would be X dollars and all paperback books would be Y dollars and all ebooks would be Z dollars. Is that anti trust? Maybe yes, maybe no, as far as I can tell there is a fair amount of debate about it.

Was Apple using the offer of agency pricing to get into the ebook business in the face of what at the time was a dominate player (90% of the market at the time) anti-trust? I find that very hard to swallow.

What you just described is a classic breach of competition law. And what you do or don't find hard to swallow is irrelevant given the judge's opinion:

The Complaint alleges a straightforward, horizontal price-fixing conspiracy, which is per se unlawful under the Sherman Act.

The Complaint also details the defendants’ public statements, conversations, and meetings as evidence of the existence of the conspiracy. The decree is directed narrowly towards undoing the price-fixing conspiracy, ensuring that price-fixing does not immediately reemerge, and ensuring compliance. Based on the factual allegations in the Complaint and CIS, it is reasonable to conclude that these remedies will result in a return to the pre-conspiracy status quo. In this straightforward price-fixing case, no further showing is required.

And later:

Third, even if Amazon was engaged in predatory pricing, this is no excuse for unlawful price-fixing. Congress “has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies.” Socony-Vacuum Oil Co., 310 U.S. at 221. The familiar mantra regarding “two wrongs” would seem to offer guidance in these circumstances.

A couple things to note: (i) the "Complaint" is the complaint by the government, which does not match Amazon's complaint; and (ii) the court did not find any evidence that Amazon had engaged in predatory pricing.

It's unfortunate, pwalker, that the law (not to mention basic facts) don't support your preferred narrative. No doubt this will require you to allege an even more fantastical scheme by Amazon to subvert politicians, the DOJ and a judge.

[Fluribus]

Originally Posted by pwalker8

It seems fairly likely that they choose this method to avoid getting bad press ("Dominate company charges new entry into ebook market with anti-trust violation". Yea, that would fly well).

Why would they need to worry? I think that Apple is slightly too big to pose as a plucky David against Amazon's Goliath.

[rhadin]

Originally Posted by Ninjalawyer

As for the oh-so-secret briefing, it's apparently available for public viewing. Also, it's not a "white paper" in the technical sense, since a private party can't issue one. That's just the term the WSJ used to add some gravitas, and that you picked up because it slotted nicely into the story you've constructed.

I'm wondering: When you make your pronouncements, are they based on Canadian law and politics? In the United States, white papers are not limited to governments as they are in other countries. In fact, the U.S. government rarely, if ever, releases something it calls a white paper.

I have also noted that many of your pronouncements on law don't quite mesh with what I was taught in law school or was understood when I practiced law in the United States, which admittedly was a long time ago.

Finally, I also note that you give a lot of credence to what Judge Cote had to say and what evidence Cote admitted. I am not familiar with how things work in Canada (or other countries) but I do know that in the United States, judges often manipulate evidence (by their determination as to what is and is not admissible or can be considered) in order to get a particular result. Comparing what Cote admitted to what was offered, I think Cote did a masterful job of selectively admitting evidence to support what struck me as her predetermined decision.

[rhadin]

Originally Posted by Ninjalawyer

A couple things to note: (i) the "Complaint" is the complaint by the government, which does not match Amazon's complaint; and (ii) the court did not find any evidence that Amazon had engaged in predatory pricing.

What you say is, on the surface, true. As to (i), the question is not did the DOJ submit Amazon's complaint verbatim, which is what you say did not happen, but whether the DOJ in (a) deciding to pursue the matter and (b) in drafting its own complaint was strongly influenced by the matters of which Amazon was complaining rather than from the results of an independent unbiased analysis of the facts. I think it is fair to say the DOJ was relying on Amazon's groundwork research. That the DOJ made the words fit what the court would expect to read, is not relevant to the underlying issue of Amazon's influence over the DOJ.

As to (ii), the court couldn't find predatory pricing on Amazon's part because the court excluded all evidence there of and any reference thereto. When the court determines that there was no evidence supporting a claim of predatory pricing, all the court is really saying is that "I excluded all evidence that would support such a claim, so now I can truthfully say no such evidence was provided." This is a sample of where a judge's bias can prevail -- if I don't admit evidence of wrongdoing, I can't find that there was wrongdoing. When I practiced, we called this the blinders effect (from the blinders that were put on horses to make them unaware of predators off to the sides.

[Ninjalawyer]

Originally Posted by rhadin

I'm wondering: When you make your pronouncements, are they based on Canadian law and politics? In the United States, white papers are not limited to governments as they are in other countries. In fact, the U.S. government rarely, if ever, releases something it calls a white paper.

I have also noted that many of your pronouncements on law don't quite mesh with what I was taught in law school or was understood when I practiced law in the United States, which admittedly was a long time ago.

Finally, I also note that you give a lot of credence to what Judge Cote had to say and what evidence Cote admitted. I am not familiar with how things work in Canada (or other countries) but I do know that in the United States, judges often manipulate evidence (by their determination as to what is and is not admissible or can be considered) in order to get a particular result. Comparing what Cote admitted to what was offered, I think Cote did a masterful job of selectively admitting evidence to support what struck me as her predetermined decision.

I make these "pronouncements" based on my understanding as a currently practicing lawyer who works with American entities (although I don't provide legal advice in the U.S.). I follow U.S. competition law matters closely.

I'll grant your point on the price fixing issue - if evidence of predatory pricing was submitted, it is likely that it would have been deemed irrelevant to the matter, because of course it is irrelevant (you can't illegally collude because your competitor may be doing something bad).

What evidence was it that Judge Cote excluded that would have painted a different picture on the issue of illegal price fixing? Aside of course, from not arriving at your preferred result?

[Barcey]

Originally Posted by pwalker8

I don't think it's a coincidence that the DOJ filed their case in April of 2012, about 6 months after Steve Jobs died. Apple doesn't have near the influence without Steve Jobs. I would be surprised if the 5 publishers in this case has much influence in the government.

I believe that Steve Jobs' celebrity, illness and death all had an impact on the DoJ's decision to not proceed with criminal charges but I don't believe it had any impact on the charges being filed.

[pwalker8]

Originally Posted by darryl

No doubt Apple lost some influence with the unfortunate death of Steve Jobs. But a good deal of it would have remained. Certainly enough that the combined influence of Apple and the BWM would at least match that of Amazon.

This was a very unremarkable case. It's most unique feature was probably the brazeness of the main players, though in this area of law even that is far from unique. It was an unremarkable case, started in an unremarkable way and handled by the courts in an unremarkable fashion. You are entitled to your conspiracy theories, but I would point out as other posters have that we are awaiting even a skerrick of evidence to support those theories.

There has been a fair amount of evidence, but you and others simply blow it off because it doesn't fit your opinion. We have gone over this ground many times. I seriously doubt anyone here will change their mind until either new evidence appears, or the final ruling of the case by either the district court or the supreme court.

[pwalker8]

Originally Posted by Ninjalawyer

And what is the evidence that I find so persuasive, that is inferior to your "circumstantial" evidence? I can tell you that my opinion is based on the judge's opinion (which I've actually read), and some of the briefs (again, which I've actually read). Yours seems to be based on what you'd like to be true, mixed with some borderline conspiracy theorizing, and with a total lack of understanding of the judicial process in anti-trust cases.

As for the oh-so-secret briefing, it's apparently available for public viewing. Also, it's not a "white paper" in the technical sense, since a private party can't issue one. That's just the term the WSJ used to add some gravitas, and that you picked up because it slotted nicely into the story you've constructed.

Political donations alone don't make for crony capitalism.



What you just described is a classic breach of competition law. And what you do or don't find hard to swallow is irrelevant given the judge's opinion:



And later:



A couple things to note: (i) the "Complaint" is the complaint by the government, which does not match Amazon's complaint; and (ii) the court did not find any evidence that Amazon had engaged in predatory pricing.

It's unfortunate, pwalker, that the law (not to mention basic facts) don't support your preferred narrative. No doubt this will require you to allege an even more fantastical scheme by Amazon to subvert politicians, the DOJ and a judge.

No, I actually did read the judges opinion as well as various analysis of that opinion. My opinion is based on my understanding of the current state of anti-trust law as defined by the US Supreme Court in the 2007 Leegin case.

Apple's appeal is based on the idea that Judge Cote completely and utterly misapplied the law in this case. If that is correct, then simply quoting Judge Cote's ruling doesn't really prove much. Just because _she_ says it's the law, doesn't make it the law. That is why Apple is appealing.

[pwalker8]

Originally Posted by Fluribus

Why would they need to worry? I think that Apple is slightly too big to pose as a plucky David against Amazon's Goliath.

Why would they worry? No company particularly wants bad press. Many companies also prefer to work behind the scenes.

[pwalker8]

Originally Posted by Barcey

I believe that Steve Jobs' celebrity, illness and death all had an impact on the DoJ's decision to not proceed with criminal charges but I don't believe it had any impact on the charges being filed.

I don't disagree.

[John F]

Originally Posted by pwalker8

There has been a fair amount of evidence, but you and others simply blow it off because it doesn't fit your opinion. We have gone over this ground many times. I seriously doubt anyone here will change their mind until either new evidence appears, or the final ruling of the case by either the district court or the supreme court.

If the final ruling upholds the ruling, and there is no new evidence, will you change your mind?

[John F]

Originally Posted by pwalker8

...

Apple's appeal is based on the idea that Judge Cote completely and utterly misapplied the law in this case. If that is correct, then simply quoting Judge Cote's ruling doesn't really prove much. Just because _she_ says it's the law, doesn't make it the law. That is why Apple is appealing.

I would think if something was "completly and utterly misapplied", the courts would act to rectify it fairly quickly. My ignorant and naive opinion. .

[darryl]

Originally Posted by pwalker8

There has been a fair amount of evidence, but you and others simply blow it off because it doesn't fit your opinion.

So please provide it?

[pwalker8]

Originally Posted by John F

If the final ruling upholds the ruling, and there is no new evidence, will you change your mind?

Given that the Supreme Court is the final voice with regards to the law in the US, then yes. I might not like it, but they are the final voice.