Apple gripes about antitrust monitoring

[pwalker8]

Originally Posted by SteveEisenberg

See:



So she did think that Apple was guilty, and thought the trial would confirm her preconception. Not surprisingly, it did.

My personal view of the litigation is that to have the government give a publisher a legal monopoly, which is precisely what copyright is, and then go after them for being a monopolist, is absurd.

She also admitted writing much of the judgement prior to the actual trial.

[pwalker8]

Originally Posted by bgalbrecht

My understanding of the situation is that
A) The publishers thought they could raise ebook prices (by preventing epub discounting) so there would be less pricing pressure on their big profit maker, the hardcover book, if they could switch to ebook agent pricing agreements.
B) None of the publishers thought they alone could get Amazon to accept an agent pricing agreement, but if they all insisted on switching, Amazon would go along with it.
C) Apple didn't want to get into the ebook business if they thought Amazon could undercut them, but they really wanted to get into the ebook business so they were in favor of the agent pricing agreements.
D) Apple was involved in discussions with the publishers which allowed the publishers to know which other publishers were going to force Amazon to switch.
E) Even though they all professed innocence, the publishers all settled rather than go to court.
F) When Apple lost in court, the judge wrote a detailed decision in such a way that it is unlikely that Apple will get the decision reversed.

...

Quite a few misconceptions in there, but just to address the last two issue

e) it is quite common for companies to settle a case with the government without admitting guilt. The issue is a risk/reward question. If a publisher had actually gone to trial and lost, then they would have risked bankruptcy. It's much better to agree to a settlement without admitting guilt whither or not you are guilty. This particular tactic by prosecutors has become quite popular. The prosecutor gets a big headline, which helps their political career without actually having to prove anything. It's quite rare to run into a company that is willing risk going to trial in this situation. Frankly this is my major concern in this case, a prosecutor run wild. The biggest reason I'm rooting for Apple in this case is they have pockets deep enough and appear to care enough about their reputation to take this case as far as necessary. Many other companies don't have that luxury.

f) some people keep asserting this, however Judge Cote has frequently been overturned on appeal, even through she normally writes her decisions like this, the most recent being this past fall. Writing detailed judgments can be a two edged sword if the judgment is not legally sound. Apple has a number of legal rationals for appeal. Most of what I've read say that even if the 2nd doesn't overturn Cote, Apple is likely to take this all the way to the Supreme Court. Judge Cote's decision is a fairly radical departure to previous case law.

[fjtorres]

To the surprise of only one person on the planet, Apple's foot-dragging motion was denied:
http://mobile.reuters.com/article/id...40113?irpc=932

At a hearing, U.S. District Judge Denise Cote in Manhattan denied Apple's request to stay an order requiring an external compliance monitor pending the company's appeal.

"I want the monitorship to succeed for Apple," she said.

The judge also said there was "nothing improper" about a declaration filed by a lawyer chosen to serve as monitor, Michael Bromwich, that became the basis of Apple seeking his disqualification.

Cote said she will promptly issue a decision explaining her reasoning. Apple will then have 48 hours to seek an emergency stay from the federal appeals court in New York, she said.

[afv011]

Originally Posted by fjtorres

To the surprise of only one person on the planet, Apple's foot-dragging motion was denied:
http://mobile.reuters.com/article/id...40113?irpc=932

Oh noes!

[SteveEisenberg]

Originally Posted by Ralph Sir Edward

They have a monopoly on developing oil under my property. But that does not grant them the right to form a monopoly of all oil production.

The oil under your property (lucky guy if not hypothetical!) is pretty much the same as the oil under other producing properties in your area. After refining, it's identical to that from properties all over the world. So you do not have an oil monopoly.

But after I read a positive trustworthy review of a book on a subject that interests me, I want to read just that book, not the book your neighbor wrote. And if anywhere close to recent, someone does have a monopoly on that book I want to read. And they should, because without it, most books I read would not be written. And if book monopolies are watered down, the books I like probably would be written, but I doubt they would be as carefully edited and well-researched.

Originally Posted by Ralph Sir Edward

(Standard Oil, 1911 SOTUS ruling, the first anti-trust action approved by the US Supreme Court.) Substitute copyright for oil, and you have an exact mirror situation...

If that's what US law says, I respectfully disagree.

[Sydney's Mom]

Originally Posted by fjtorres

To the surprise of only one person on the planet, Apple's foot-dragging motion was denied:
http://mobile.reuters.com/article/id...40113?irpc=932

I prefer to think that Apple's attorneys are telling them the likelihood of success and Apple is just shooting the dice, hoping something sticks (double metaphor)

[tubemonkey]

Originally Posted by pwalker8

But hey, if you just assume that anyone who doesn't bash Apple at every opportunity must be an Apple fanboy,...

~~ WARNING ~~

Severe Apple Bashing @ 0:55

Spoiler:

[bgalbrecht]

Originally Posted by pwalker8

Quite a few misconceptions in there, but just to address the last two issue

e) it is quite common for companies to settle a case with the government without admitting guilt. The issue is a risk/reward question. If a publisher had actually gone to trial and lost, then they would have risked bankruptcy. It's much better to agree to a settlement without admitting guilt whither or not you are guilty. This particular tactic by prosecutors has become quite popular. The prosecutor gets a big headline, which helps their political career without actually having to prove anything. It's quite rare to run into a company that is willing risk going to trial in this situation. Frankly this is my major concern in this case, a prosecutor run wild. The biggest reason I'm rooting for Apple in this case is they have pockets deep enough and appear to care enough about their reputation to take this case as far as necessary. Many other companies don't have that luxury.

f) some people keep asserting this, however Judge Cote has frequently been overturned on appeal, even through she normally writes her decisions like this, the most recent being this past fall. Writing detailed judgments can be a two edged sword if the judgment is not legally sound. Apple has a number of legal rationals for appeal. Most of what I've read say that even if the 2nd doesn't overturn Cote, Apple is likely to take this all the way to the Supreme Court. Judge Cote's decision is a fairly radical departure to previous case law.

I understand that companies often settle out of court because they calculate the risks of losing are more expensive than the settlement, and I believe that at least Macmillan still maintains innocence and settled just to limit their lawsuit costs. I'm personally rooting for Apple to lose (even though I'm in an investment club that owns Apple stock) because I personally saw the price of ebooks that I was interested in buying more than doubled because I could no longer cherry pick the sales and get them at a price I was willing to pay. Even if there was no collusion, the end result was certainly like it from what I could see.

However, as the judge presiding over the publisher settlements, and someone who had already read the emails entered into evidence for this trial, I think anyone trying to read that she was biased based on the comment at the pretrial hearing and that she will be overturned because of it is probably reading more into it than it deserves. I also think the claim that she is frequently overturned without quantifying sounds like an ad hominem attack. How frequently? 1 out of 100, 1 out of 10, once a year? How does that compare to other high profile Federal judges?

I am not a lawyer, so I can't speak to the legal merits of the decision. Are you, or are you just regurgitating the Apple fanboi articles by the same people who were sure before the trial that Apple was going to win? For what it's worth, here is an article claiming that several legal scholars think that Apple's chances of winning the appeals are poor.

“Apple may have a tough time getting this ruling reversed because the judge made findings of fact about the antitrust violation that appellate courts typically defer to,” Samuelson told AllThingsD. “Most reversals happen as to interpretations of the law.”

Samuelson’s point: Apple argued that the facts show no conspiracy in restraint of trade. But Cote found that the company’s actions were a per se violation of antitrust law. In other words, they were inherently illegal, so there was no need to prove that they had any anticompetitive effect on the e-books market. And Cote’s opinion relies so heavily on facts that it leaves very little room for an appellate court reversal.

[Sil_liS]

Originally Posted by pwalker8

She also admitted writing much of the judgement prior to the actual trial.

Can you give a link?

Originally Posted by pwalker8

f) some people keep asserting this, however Judge Cote has frequently been overturned on appeal, even through she normally writes her decisions like this, the most recent being this past fall. Writing detailed judgments can be a two edged sword if the judgment is not legally sound. Apple has a number of legal rationals for appeal. Most of what I've read say that even if the 2nd doesn't overturn Cote, Apple is likely to take this all the way to the Supreme Court. Judge Cote's decision is a fairly radical departure to previous case law.

Can you give a link that you found showing that she "frequently been overturned on appeal"?

[Greg Anos]

Originally Posted by SteveEisenberg

The oil under your property (lucky guy if not hypothetical!) is pretty much the same as the oil under other producing properties in your area. After refining, it's identical to that from properties all over the world. So you do not have an oil monopoly.

But after I read a positive trustworthy review of a book on a subject that interests me, I want to read just that book, not the book your neighbor wrote. And if anywhere close to recent, someone does have a monopoly on that book I want to read. And they should, because without it, most books I read would not be written. And if book monopolies are watered down, the books I like probably would be written, but I doubt they would be as carefully edited and well-researched.



If that's what US law says, I respectfully disagree.

It was hypothetical...(I should be so lucky.)

And yes, that is established US law, (the first major test of the Sherman Anti-Trust Act, and John D Rockefeller lost, big time. Standard Oil was broken up into multiple smaller companies.)

You miss the point, I can buy book x or book y or book z, all of which are on the exactly the same subject. Each one is a monopoly (copyright), but each one competes for the purchaser's dollar. They do not have to exactly identical in order to compete. You may prefer book x, and I may prefer book y, but I could use book x and you could use book y, if necessary.

[fjtorres]

Details from yesterday's hearing, vis Publishers' Weekly:

http://www.publishersweekly.com/pw/b...h-monitor.html

After a roughly hour-long hearing, during which Apple reiterated its complaints over Bromwich, and DoJ attorneys rebutted, Cote held that Bromwich’s actions were in fact within the bounds of his narrow mandate to help Apple craft a suitable antitrust training program.

At times, the judge appeared annoyed, and cautioned Apple attorney Theodore Boutrous twice for his characterizations of Bromwich’s conduct. She suggested that interviewing Apple executives was essential to Bromwich's task, to help him understand Apple's business and and its corporate culture. While Boutrous sought to portray Bromwich as a meddling, partisan prosecutor, Cote told Boutrous that “the record is what it is,” and that “just because you say it does not make it so.”

At one point, Cote noted that Bromwich had conducted just 11 interviews for a total of 13 hours so far, which the DoJ argued was hardly evidence of any "roving" investigation.

In delivering her ruling from the bench, Cote reminded Apple attorneys that she ordered the monitor reluctantly, and had greatly reduced the monitor's scope from the DoJ's initial proposal. But Apple’s price-fixing conspiracy reached to the highest levels of the company, she stressed, and was assisted by Apple's in-house counsel.

She also specifically reminded Apple that under the terms of the final order—the language of which Apple attorneys helped to draft, and approved—the monitor has the explicit power to interview any Apple personnel, and to access records, and that Apple attorneys have "no say" in how the monitor carries out his duties. Apple officials are also to “assist” the monitor, she noted, and not to interfere in any way with his work, citing the language of the final order.

[Graham]

And in response to the complaints about the monitor's fees of $1200 an hour (my bold):

Bromwich was said to be charging over $1200 an hour, including fees. Apple, the judge noted, had proposed $800 an hour. Cote ordered the parties to hammer out the fee dispute with the help of a magistrate, but not before she handed out copies of a recent billing survey from the National Law Journal, which showed Apple's firm, Gibson, Dunn & Crutcher, to be the highest billing firm in the country, with top partner billing rates at $1800 an hour.

Graham

[pwalker8]

Originally Posted by fjtorres

To the surprise of only one person on the planet, Apple's foot-dragging motion was denied:
http://mobile.reuters.com/article/id...40113?irpc=932

I doubt that you could find one person on the planet who actually expected Judge Cote to grant a stay. It simply isn't her reputation. What will be interesting to watch is to see if the appeal of the stay is granted by the court of appeals. My understanding is that granting a stay requires either they show that damage will occur if the stay is not granted (that one seems pretty obvious unless Apple can get their money back if they win the appeal), or that there is a likelihood that the appeal will succeed (it can also be granted if it is shown that a third party will be damaged or for the public good, but I don't think either apply here). My understanding is that they look at it on a sliding scale.

[cfrizz]

I absolutely LOVE this judge! Apple is run by a bunch of hypocritical, lying thieves, I hope they keep pushing until the judge decides they need to be monitored until they go belly up!

[SteveEisenberg]

Originally Posted by cfrizz

Apple is run by a bunch of hypocritical, lying thieves, I hope they keep pushing until the judge decides they need to be monitored until they go belly up!

Civil antitrust is not a way to punish individuals. The people who now run Apple will have left with golden parachutes before the company goes bankrupt.

I will however go a little in the anti-Apple direction by saying that there is more moral justification for minimum book prices than there is for Apple setting minimum hardware prices, as it does.

Originally Posted by Ralph Sir Edward

You may prefer book x, and I may prefer book y, but I could use book x and you could use book y, if necessary.

So long as I live in a country with good library services, I could, at worst, get book x by interlibrary loan. So it wouldn't ever be necessary for me to read y.

That is -- so long as x was created.

By making it less likely that Amazon would gain control over the publishers, I think the agency years increased the chance that when I want book x, it will be in existence.

The illegal agency pricing conspiracy reduced Amazon's book market share, and that share doesn't seem to have bounced back to where it was. For me, as a reader, I think the publishers' violation of law worked.