Apple Loses E-Books Appeal - Page 3

Sydney's Mom · 07-01-2015, 01:31 PM

Apple can easily recoup their costs by moving up the release cycle of their phones.

SteveEisenberg · 07-01-2015, 08:10 PM

Quote:

Originally Posted by fjtorres

(Of course, if there are enough Mac users on the SCOTUS...)

I can't put my finger on why, but I don't see them dividing on Mac vs. PC lines.

One big difference between appeals court and supreme court judges is the likelihood of being a trade book author.

The published authors on the court, I suspect, think that their eBooks are worth a heck of a lot more than Amazon wants to charge. And the ones who aren't big-five-published authors probably aspire to be. While this doesn't lead, in a straight logical line, to an Apple victory, I think it would be a factor it the Supreme Court actually took the case.

I do realize that the Supremes probably would not take the case, since they accept for review only a small portion of cases sent them.

pwalker8 · 07-05-2015, 12:14 PM

Quote:

Originally Posted by SteveEisenberg

I can't put my finger on why, but I don't see them dividing on Mac vs. PC lines.

One big difference between appeals court and supreme court judges is the likelihood of being a trade book author.

The published authors on the court, I suspect, think that their eBooks are worth a heck of a lot more than Amazon wants to charge. And the ones who aren't big-five-published authors probably aspire to be. While this doesn't lead, in a straight logical line, to an Apple victory, I think it would be a factor it the Supreme Court actually took the case.

I do realize that the Supremes probably would not take the case, since they accept for review only a small portion of cases sent them.

The key question as to whither or not the Supreme Court would take the case (assuming that Apple continues the appeals which isn't necessarily a done deal) is a point that is expressed in the dissent written by Judge Dennis Jacobs. To wit -

"On this appeal, a majority affirms only on the ground of liability per se. See Op. of Judge Lohier, ante, at 1. Since I would reverse, I consider as well the rule of reason. Judge Livingston’s opinion argues (for herself alone) that the judgment could be affirmed on that alternative ground."

He then says that the majority committed 3 errors (and I will paraphrase
1) the finding is in conflict with the Leegin's ruling which says that rule of reason should be used for a vertical agreement designed to facilitate a horizontal cartel.
2) The court should have considered Apple as a competitor to Amazon.
3) Apple's conduct is unambiguously pro-competitive.

The first one is why I think the Supremes would agree to hear it, assuming that Apple continues the appeal. In general, they are more likely to hear an appeal that disagrees with the most recent Supreme Court case (i.e. Leegin's) on the matter. Leegin's was decided in 2007, written by Kennedy with Roberts, Scalia, Thomas and Alito in agreement. All five are still on the court.

leebase · 07-07-2015, 04:12 PM

Quote:

Originally Posted by fjtorres

Looks like the legal experts were right and the random internet guys wrong.
Who knew?

A single vote would have changed the verdict. Clearly some of the judges thought the same right thoughts we "internet guys" thought

rcentros · 07-10-2015, 10:07 PM

Quote:

Originally Posted by leebase

A single vote would have changed the verdict. Clearly some of the judges thought the same right thoughts we "internet guys" thought

Yeah, but even that one judge thought Apple was involved in an anti-trust conspiracy. He just thought that -- somehow -- Apple had the "right" to play vigilante in order to take down Amazon. I don't think "the ends justifies the means" would go very far in an appeal.

pwalker8 · 07-11-2015, 11:40 AM

Actually, that's not what he said. He said that Apple was not guilty of per se Anti-Trust like the other two judges argued. As I mentioned earlier, he calls the book publishers a horizontal cartel and Apple a vertical enabler. He also said that "Apple's conduct, assessed under the rule of reason on the horizontal plane of retail competition, was unambiguously and overwhelmingly pro-competitive. "

No where in his dissent does he say that he thinks that Apple was involved in an anti-trust conspiracy, nor does he say that Apple has the right to play vigilante.

He also says that "A further and pervasive error (by the district court and by my colleagues on this appeal) is the implicit assumption that competition should be genteel, lawyer-designed, and fair under sporting rules, and that anti trust law is offended by gloves-off competition. "

By that, I believe that he means that the other judges don't understand how business is normally conducted in the real world. Pretty much any large company engages in the same sort of negotiations.

John F · 07-11-2015, 12:14 PM

Has Apple made any comments about the decision? Where are the standard "we vigourously deny ..." statements?

And how does this effect thier other case? Didn't they have to pay in the states case if they lost the appeal?

pwalker8 · 07-11-2015, 04:14 PM

Quote:

Originally Posted by John F

Has Apple made any comments about the decision? Where are the standard "we vigourously deny ..." statements?

And how does this effect thier other case? Didn't they have to pay in the states case if they lost the appeal?

I haven't seen any comments yet. I would imagine they are looking at the pluses and minuses of going forward. I'm sure that the possibility of others using this case as a basis for suing Apple enters into the equation.

DuckieTigger · 07-11-2015, 08:27 PM

Quote:

Originally Posted by pwalker8

I haven't seen any comments yet. I would imagine they are looking at the pluses and minuses of going forward. I'm sure that the possibility of others using this case as a basis for suing Apple enters into the equation.

Going forward you mean whether or not to appeal again? When it comes to PR and how to respond, maybe doing nothing is a strategy rather than indecision. Is that even possible on a case this big to just sweep it under the carpet and go on as if nothing happened?

pwalker8 · 07-12-2015, 07:26 AM

Yes, to appeal or not to appeal. In a case like this, there are a lot of complications. Some of it is emotional, as far as I can tell, upper management at Apple is firmly convinced they did nothing wrong and are angry they are being punished for doing nothing wrong. IMPO, Jobs would have taken it all the way to the Supreme Court for that very reason. Not so sure Cook has that sort of personal attachment to the case.

Second, you balance the cost of continuing the appeal verses the cost of not appealing. Even if Apple wins, they will never get all the money they have spent back. On the other hand, not continuing the appeal means that they will have to pay out and then there will be a bunch of copy cat suits trying to cash in. Companies are finding that the old tactic of paying the Danegeld to make the suit go away can get pretty expensive, and that it frequently can open them up to other suits (just ask BP how well offering the quick settlement worked out for them).

I really have no idea what Apple will decide to do.

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07-01-2015, 01:31 PM	#31
Sydney's Mom Wizard Posts: 2,899 Karma: 6995721 Join Date: Dec 2008 Location: Idaho, on the side of a mountain Device: Kindle Oasis, Fire 3d Gen and 5th Gen and Samsung Tab S	Apple can easily recoup their costs by moving up the release cycle of their phones.

07-11-2015, 11:40 AM	#36
pwalker8 Grand Sorcerer Posts: 7,196 Karma: 70314280 Join Date: Dec 2006 Location: Atlanta, GA Device: iPad Pro, iPad mini, Kobo Aura, Amazon paperwhite, Sony PRS-T2	Actually, that's not what he said. He said that Apple was not guilty of per se Anti-Trust like the other two judges argued. As I mentioned earlier, he calls the book publishers a horizontal cartel and Apple a vertical enabler. He also said that "Apple's conduct, assessed under the rule of reason on the horizontal plane of retail competition, was unambiguously and overwhelmingly pro-competitive. " No where in his dissent does he say that he thinks that Apple was involved in an anti-trust conspiracy, nor does he say that Apple has the right to play vigilante. He also says that "A further and pervasive error (by the district court and by my colleagues on this appeal) is the implicit assumption that competition should be genteel, lawyer-designed, and fair under sporting rules, and that anti trust law is offended by gloves-off competition. " By that, I believe that he means that the other judges don't understand how business is normally conducted in the real world. Pretty much any large company engages in the same sort of negotiations.

07-11-2015, 12:14 PM	#37
John F Grand Sorcerer Posts: 7,951 Karma: 70880793 Join Date: Feb 2009 Device: Kobo Clara 2E	Has Apple made any comments about the decision? Where are the standard "we vigourously deny ..." statements? And how does this effect thier other case? Didn't they have to pay in the states case if they lost the appeal?

07-12-2015, 07:26 AM	#40
pwalker8 Grand Sorcerer Posts: 7,196 Karma: 70314280 Join Date: Dec 2006 Location: Atlanta, GA Device: iPad Pro, iPad mini, Kobo Aura, Amazon paperwhite, Sony PRS-T2	Yes, to appeal or not to appeal. In a case like this, there are a lot of complications. Some of it is emotional, as far as I can tell, upper management at Apple is firmly convinced they did nothing wrong and are angry they are being punished for doing nothing wrong. IMPO, Jobs would have taken it all the way to the Supreme Court for that very reason. Not so sure Cook has that sort of personal attachment to the case. Second, you balance the cost of continuing the appeal verses the cost of not appealing. Even if Apple wins, they will never get all the money they have spent back. On the other hand, not continuing the appeal means that they will have to pay out and then there will be a bunch of copy cat suits trying to cash in. Companies are finding that the old tactic of paying the Danegeld to make the suit go away can get pretty expensive, and that it frequently can open them up to other suits (just ask BP how well offering the quick settlement worked out for them). I really have no idea what Apple will decide to do.

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