2 of 3 Judges appear to favor Apple in ebook appeal

[SteveEisenberg]

Originally Posted by Jon_Doh

Amazon lowers book prices, which is a good thing for consumers and they're the bad guys and have to be stopped?

Consider that "consumer," as used here, is not a synonym for reader.

Most readers do not buy the bestselling new releases for which Amazon has often charged loss-leader prices. Instead, most readers, on our planet, wait until the prices are much lower and/or borrow from libraries.

What about US readers of older works by popular genre fiction writers like Leslie Charteris, Ian Fleming, Louis L'Amour, and Ed McBain? Rights to some or all of their titles have been purchased by Amazon Publishing. This makes them free to the generally affluent people who subscribe to Kindle Unlimited, but infinitely more expensive than they would otherwise be to public library borrowers. This is because Amazon Publishing, unlikely the allegedly nasty big five, boycotts (for eBooks, not always for audio books) Overdrive, 3M, and Axis360.

Originally Posted by fjtorres

Appearances can be deceiving, especially in appeals court.

I don't have any evidence for or against this, but it sounds plausible.

I wonder whether the US Supreme Court would be a more predictably big-publisher friendly body. I believe that most of the justices have authored traditionally published books. And they may not have much interest in low book prices due to Library of Congress borrowing privileges. (Now there's a job perk I'd like.) And since the big publishers wouldn't be directly involved, having settled, no justice would need to recuse themselves. Could be (from my POV) interesting if it gets that far.

[eschwartz]

Let's be fair -- 3M and Axis360 and OverDrive boycott Amazon, and they started it.

Amazon got ahold of some valuable possessions and countered.

[pwalker8]

A couple of point. First, fjtorres is absolutely right in that you have to take the initial reports with a grain of salt. While it might be an indication that the judges are skeptical of the government's case, a lot will come down to what the judges think is important. They probably aren't going to announce a decision for a good 3 to 6 months.

In regards to anti-trust, no Judge Cote was not suppose to ignore Amazon. The market situation is a very, very important part of anti-trust law. At the time, Amazon controlled 90 percent of the market. If the decision is overturned or returned to a lower court, I would expect the failure to consider the market situation at the time to be a major part of the decision to overturn.

While I'm not surprised that the judges questioned that Judge Cote wrongly applied the per se standard to Apple, I do find it very surprising that one of the judges questioned applying per se to the publishers. That, is of course, moot since the publishers settled out of court, but it will be interesting to see if that line of reasoning finds it's way into the decision.

[rcentros]

Originally Posted by leebase

Not that hard to understand. Judge Cote specifically forbid any considering of Amazon in the trial. These appeal judges are looking at the entire scenario.

And rightly so. The anti-trust violations had NOTHING to do with Amazon. Even if Amazon was in the wrong in any way (it looks like Apple's complaint was that they were too successful and Apple wanted their business), that was grist for a different lawsuit. Again, it's like a thief admitting he stole a thousand dollars, but then pointing to another person and saying, "but if I didn't steal it he would have!"

[rcentros]

Originally Posted by leebase

Among them:
- a new entrant into a market is a good thing

So long as the "new entrant" doesn't use illegal means to gain market share. Like collusion and disobeying anti-trust laws.

[rcentros]

Originally Posted by eschwartz

You don't understand. Apple lowered book prices overall.

Can't argue with that.

Yeah, right. That's why people were suddenly paying MORE for eBooks. Does Apple really think they'll get away with these lies?

Wait a minute ... did people actually pay less for eBooks when you factor in the court ordered Apple's and the publisher's rebates to customers for overcharging? Maybe that's what the judge is referring to?

[rcentros]

Originally Posted by eschwartz

Mice ganging up to bell the cat (whether you agree with that assessment or not) is still collusive violation of antitrust law, which is the point everyone else is trying to make.

The appropriate action for Apple and the publishers to take was of course to come to the courts and bring an antitrust claim against Amazon.

Exactly. I still don't understand why Apple-ites are so gullible as to believe the one has something to do with the other. As if Apple has the right to change anti-trust law just because it is inconvenient for them.

[rcentros]

Originally Posted by pwalker8

In regards to anti-trust, no Judge Cote was not suppose to ignore Amazon. The market situation is a very, very important part of anti-trust law.

Or so Apple claims. What difference does Amazon's percentage of the market make when Apple and the Publishers illegally collude to set prices -- which is what anti-trust is all about. It's not about whether an illegal act helps to "even" the market -- it's about collusion and anti-trust violations.

[SteveEisenberg]

Originally Posted by rcentros

What difference does Amazon's percentage of the market make when Apple and the Publishers illegally collude to set prices -- which is what anti-trust is all about.

I wonder if the law is worded clearly enough to know what it is all about.

The federal conviction rate, generally, is 99 percent:

http://open.salon.com/blog/barry60x/...er_one_percent

But anti-trust is an exception, with acquittals being common:

http://antitrustcommentary.com/?p=201

It seems like this is an area of US law where outcomes are hard to predict. Not that's there's any harm in predicting here.

P.S. Given the tremendously high federal conviction rate, I wonder if defendants might have a better chance at appeal than at an initial trial. Of course, this is civil litigation and my links are mostly about criminal. And the government does usually win at every level. Apple is, just this once, an underdog.

[Shane R]

Originally Posted by pwalker8

A couple of point. First, fjtorres is absolutely right in that you have to take the initial reports with a grain of salt.

Seems like there's some nervousness on the part of those who are already convinced that the case is open and shut.

It is. Apple pays in two of the three outcomes that this appeal may produce, and nothing at all in the other.

[crossi]

There is nothing wrong with having even 100% of a market. If you are the first to do something there simply ARE no competitors, or the first to do something well, or even if your product is markedly better than your competitors and the customers refuse to buy theirs. Chanting "but Amazon had 90% of the market" as if that proves some wrongdoing on Amazon's part is just stupid.

[SteveEisenberg]

Originally Posted by Shane R

Seems like there's some nervousness on the part of those who are already convinced that the case is open and shut.

If it was open and shut, wouldn't the Justice Department have gone for a criminal anti-trust conviction?

[rcentros]

Originally Posted by SteveEisenberg

If it was open and shut, wouldn't the Justice Department have gone for a criminal anti-trust conviction?

Even when Apple loses (as they lost in a patent lawsuit against Samsung) there's a chance the government will step in and bail them out (as Obama did in the case against Samsung). "Justice" (so-called) often goes to highest and/or most influential bidder.

[FizzyWater]

Originally Posted by rcentros

Yeah, right. That's why people were suddenly paying MORE for eBooks. Does Apple really think they'll get away with these lies?

Wait a minute ... did people actually pay less for eBooks when you factor in the court ordered Apple's and the publisher's rebates to customers for overcharging? Maybe that's what the judge is referring to?

I think that one of the things that came out of Agency pricing was that folks became much more willing to try indi books, and since those tend to have lower prices, they say that prices came down as a result of Agency.

But books from the Agency publishers on average went up, no matter what they want to claim. And while I'm not surprised, I'm still disappointed they are bringing it back.

I'll be disappointed if this gets overturned.

[eschwartz]

Originally Posted by pwalker8

In regards to anti-trust, no Judge Cote was not suppose to ignore Amazon. The market situation is a very, very important part of anti-trust law. At the time, Amazon controlled 90 percent of the market. If the decision is overturned or returned to a lower court, I would expect the failure to consider the market situation at the time to be a major part of the decision to overturn.

Okay, to belabor the point even more...


NO!

The market situation is a very, very important part of... a different case altogether. The case where Amazon is brought to court for antitrust violations in regards to unfairly dominating the ebook market.

That is where you may discuss whether or not something may or should be done about Amazon.

Regarding Apple -- they cannot absolve themselves of an illegal act by saying someone else did an illegal act first.
That is taking the law into their own hands, something the law frowns upon -- and rightly so.