Apple gripes about antitrust monitoring

[pwalker8]

Originally Posted by shalym

Wait--are you saying that every book in the iBookstore is the same price??

Shari

No, I'm saying that the contracts negotiated ended with the publishers setting the prices, which was the publishers negotiating position, not Apple's.

[pwalker8]

Originally Posted by eschwartz

And negotiating with all the industry leaders in unison is what anti-trust calls a "conspiracy". Do you have a point?



irrelevant.

You have a fairly unique definition of conspiracy. By your definition, every company in the world is guilty of conspiracy. While quite a few prosecutors would love to get that definition into law, I'm pretty sure that simply negotiation isn't the actual legal definition of conspiracy.

[eschwartz]

Well, yes -- the united approach is the conspiracy part. That was the fundamental meaning of my post, and the specific way in which "my" definition differs from yours. So I am actually rather surprised that my post could've been misinterpreted quite that badly.

[fjtorres]

Originally Posted by eschwartz

Well, yes -- the united approach is the conspiracy part. That was the fundamental meaning of my post, and the specific way in which "my" definition differs from yours. So I am actually rather surprised that my post could've been misinterpreted quite that badly.

http://legal-dictionary.thefreedicti...com/Conspiracy

Conspiracy

An agreement between two or more persons to engage jointly in an unlawful or criminal act, or an act that is innocent in itself but becomes unlawful when done by the combination of actors.

None so blind as those who refuse to read.

Time to let it go.
You've got better fights to waste time on.

[pwalker8]

Originally Posted by fjtorres

http://legal-dictionary.thefreedicti...com/Conspiracy



None so blind as those who refuse to read.

Time to let it go.
You've got better fights to waste time on.

Yep, none so blind as refuse to read. I said that negotiating with all the industry leaders in unison is not the definition of conspiracy. It's not.

Conspiracy - company goes to the entire group and says, "let's all agree on a contract together". That's not what happened.

not conspiracy - company negotiates with each company separately. That is what happened.

Apple negotiated with the various music companies to get them to put their music on iTunes? Was that a conspiracy? The music companies later decided that Apple controlled too much of the digital music market. Amazon was trying to enter the digital music market. The music companies went to Amazon and offered their music for digital down load without DRM. Did Amazon engage in a conspiracy with the music companies against Apple? You can't have it both ways. Either Amazon engaged in a criminal conspiracy or Apple did not. I happen to think that in both cases, it was simply a good business move by the media companies trying to increase competition.

[tubemonkey]

Naughty Apple - guilty as sin

[eschwartz]

Originally Posted by pwalker8

Yep, none so blind as refuse to read. I said that negotiating with all the industry leaders in unison is not the definition of conspiracy. It's not.

Conspiracy - company goes to the entire group and says, "let's all agree on a contract together". That's not what happened.

not conspiracy - company negotiates with each company separately. That is what happened.

Apple negotiated with the various music companies to get them to put their music on iTunes? Was that a conspiracy? The music companies later decided that Apple controlled too much of the digital music market. Amazon was trying to enter the digital music market. The music companies went to Amazon and offered their music for digital down load without DRM. Did Amazon engage in a conspiracy with the music companies against Apple? You can't have it both ways. Either Amazon engaged in a criminal conspiracy or Apple did not. I happen to think that in both cases, it was simply a good business move by the media companies trying to increase competition.

Yes, this would be the longstanding argument between you on one side and the Supreme Court, legal experts in general, and most MR members on the side -- you assert that Apple did not negotiate a contract together with all the BWMs.

Glad we got that cleared up.

[pwalker8]

Originally Posted by eschwartz

Yes, this would be the longstanding argument between you on one side and the Supreme Court, legal experts in general, and most MR members on the side -- you assert that Apple did not negotiate a contract together with all the BWMs.

Glad we got that cleared up.

Well, actually not. Currently it's Judge Cote, Judge Livingston and Judge Lohier on one side and Judge Jacobs and myself on the other. Neither the full 2nd nor the Supreme Court have weighted in on the matter. Fairly interesting that Lohier simply found that Apple was per se guilty and disagreed with Livingston on the rest. As far as legal experts in general, glad to know that you have done an extensive survey. Care to share the data on your survey, or is "most legal experts" an assertion on your part because you are trying the classic rhetorical device of appealing to authority?

[eschwartz]

As for legal experts in general, I suggest you look back through previous discussions here. You weren't convinced in the past, I see no reason why regurgitating names will change anything today.

As for Judge Jacobs, you are wrong. He agreed with the majority ruling that Apple did indeed conspire -- but he said that Apple should get a free pass on having done so, on the grounds that a conspiracy was pro-competitive in breaking the legendary Amazon stranglehold -- and therefore it shouldn't be an anti-trust offense.

Go read this thread from post #426. Oh, wait, you did -- because at the time you engaged in the discussion.

Must've slipped your mind.

[pwalker8]

Originally Posted by eschwartz

As for legal experts in general, I suggest you look back through previous discussions here. You weren't convinced in the past, I see no reason why regurgitating names will change anything today.

As for Judge Jacobs, you are wrong. He agreed with the majority ruling that Apple did indeed conspire -- but he said that Apple should get a free pass on having done so, on the grounds that a conspiracy was pro-competitive in breaking the legendary Amazon stranglehold -- and therefore it shouldn't be an anti-trust offense.

Go read this thread from post #426. Oh, wait, you did -- because at the time you engaged in the discussion.

Must've slipped your mind.

Yea, that's pretty much what I thought. Standard rhetorical appeal to "experts".

Judge Jacobs ruled that it was not a per se violation, but rather required the rule of reason, which is what I was saying. You continue to misuse the word conspiracy. You use the word in place of negotiation or agreement. Used the way you are trying to use it, every company in the world that negotiates with more than one supplier is guilty of conspiracy.

The legal definition of conspiracy, from the Cornell University Law School -

An agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement's goal. Most U.S. jurisdictions also require an overt act toward furthering the agreement. An overt act is a statutory requirement, not a constitutional one. See Whitfield v. United States, 453 U.S. 209 (2005). The illegal act is the conspiracy's "target offense."


For something to be conspiracy, the act must be illegal. My argument is that under the Leegin doctrine, Apple negotiating the same basic deal with the various publishers is not illegal or at least has not been proven to be illegal yet.

[pwalker8]

Ok, just to make things clear here is an example -

I say to a group of friends, "let's go out and get some beer". Is that conspiracy?

Answer, it depends. If my friends and I are under the legal age to buy beer, then yes it is. On the other hand, if we are all over 21 (in the US), then it's not. It depends on if the act is legal or not. Suggesting that we go out and get beer is not per se illegal, i.e. it's not illegal regardless of the circumstances.

Apple negotiating with the various publishing firms is not per se illegal. Every large corporation does it all the time. The terms that Apple negotiated, agency pricing model and most favored nation, is not per se illegal either. It would only be illegal if the rule of reason was applied and it was found that the agreement harmed competition. (note, that is competition in general not individual competitors). If Apple had said that you can only sell ebooks to me, then that would have hurt competition. Most favored nation doesn't hurt competition, it simply means that if Amazon was selling an ebook for less money, then the publisher had to lower the price in the iBook store. The publishers using the Apple contract to pressure Amazon into giving them agency pricing may or may not be per se illegal, but that does not imply that Apple is involved in that.

If you sell someone a car that is later used as a get away car, that does not automatically make you an accessory to a crime.

[tubemonkey]

Originally Posted by pwalker8

Ok, just to make things clear here is an example -

I say to a group of friends, "let's go out and get some beer". Is that conspiracy?

No, because Apple isn't involved

[pwalker8]

Originally Posted by tubemonkey

No, because Apple isn't involved

unfortunately, some here seem to want to believe that if Apple is involved then it must be a crime, but if Amazon is involved, then it's all good. It doesn't come down to who is involved, but rather the legalities of what is done. Under anti trust laws, if Amazon had done it, then it would have been illegal given their market position at the time. Apple, who had no market position at the time, should be considered under the rule of reason, i.e. does their action harm or help competition.

[murg]

Originally Posted by pwalker8

unfortunately, some here seem to want to believe that if Apple is involved then it must be a crime, but if Amazon is involved, then it's all good. It doesn't come down to who is involved, but rather the legalities of what is done. Under anti trust laws, if Amazon had done it, then it would have been illegal given their market position at the time. Apple, who had no market position at the time, should be considered under the rule of reason, i.e. does their action harm or help competition.

There is a grain of truth in this.

If anyone had done this, it would be illegal.

And Apple did do it. And Amazon didn't.

[SteveEisenberg]

Originally Posted by murg

If anyone had done this, it would be illegal.

Then why aren't OPEC executives arrested?

I know, oil is different. We can live without iPhones and eBooks but not without our cars. Or something like that.

Of course, Apple executives weren't arrested either. It seems the Justice Department reserves criminal antitrust for executives in less prominent industries having, I'm thinking, fewer lobbyists, like auto parts. Apparently, getting the whole car to move is more important than the parts that make it up. Or, again, something like that.