eBook settlement credit is on the way

[PatNY]

Originally Posted by pwalker8

Nope, not fact just your projection on the legal opinion of Judge Cote. I can just as easily point to the dissent which found no case existed.

You seriously don't understand how the legal system works. Appeals are based on legal doctrine, not facts. When the Supreme Court declines to hear a case, then that case has zero legal precedent. It would have had legal precedent if the Supreme Court had heard the case and decided to uphold the verdict. With a 4-4 Supreme Court, there are going to be a lot of cases that normally would have been heard and are now being declined.

Sigh ... in the American justice system, the judge or jury is the finder of FACT. And in this case, Cote found this FACT: Apple acted as ringleader and organizer of an illegal horizontal price fixing conspiracy. That, by the way, was Apple's evil deed. They were not dragged into court for simply "agreeing to allow the publishers to set prices" which completely misses the whole point of the case.

Cote's FACTS were upheld 2-1 at the circuit level. The fact that the Supreme Court declined to hear the case, means that Cote's FACTS were further upheld. While it is true that cases are less likely to be heard when the Supreme Court is short a justice, it is also true that it only takes 4 justices to grant cert -- a pretty low bar. Since Apple couldn't even muster the support of 4 justices, it is likely a full court would not have altered things.

As for precedent, from a legal perspective, this case will certainly hold sway within the second circuit at least. Moreover, courts from anywhere in the country can still base their rulings on and cite other circuit rulings in their opinions. From a practical everyday perspective, you better believe that company executives since Apple's court loss are much less likely to try to pull off the antics that Jobs did. A high profile case such as this is bound to have a lot of impact, with or without the Supremes weighing in.

So, bottom line, we are all getting our book credits now precisely because of this fact: Apple was guilty of breaking anti-trust law by playing a key role in a horizontal price fixing conspiracy.

--Pat

[HarryT]

Originally Posted by PatNY

So, bottom line, we are all getting our book credits now precisely because of this fact: Apple was guilty of breaking anti-trust law by playing a key role in a horizontal price fixing conspiracy.

--Pat

All getting it? Hardly. I was screwed just as much as people in the US were, and I'm not getting a penny.

[PatNY]

Originally Posted by HarryT

All getting it? Hardly. I was screwed just as much as people in the US were, and I'm not getting a penny.

"We are all" meaning all the ones who commented in this thread that they were getting a credit!

[ProfCrash]

I fail to understand the need to defend Apple when they lost in court and on appeal and are paying out a good deal more then the Publishers who they colluded with who were smart enough to see that they were going to lose the case.

But, if it makes you happy, go for it.

I was fine paying what I paid to buy what I wanted to read. I was annoyed that the price went up the way that it did but I wanted to read what I wanted to read and I could afford it so I paid it. I was pissed when it happened less because of the increase and more because it was a targeted attempt to attack Amazon because Apple wanted to dominate the book market the same way it did them music market.

So I will happily spend my refund and snicker at Apple's failed ploy.

[Robotech_Master]

Originally Posted by PatNY

Sigh ... in the American justice system, the judge or jury is the finder of FACT.

*picks mic back up*

Indeed. This is also why media outlets, when reporting on some person who is on trial, always refer to him as "the alleged criminal" rather than just "the criminal" even if he was caught red-handed. In our justice system, an entity (person or corporation) is considered innocent until proven guilty. By the same token, once that entity is proven guilty, it is considered guilty as a matter of fact.

Originally Posted by PatNY

And in this case, Cote found this FACT: Apple acted as ringleader and organizer of an illegal horizontal price fixing conspiracy. That, by the way, was Apple's evil deed. They were not dragged into court for simply "agreeing to allow the publishers to set prices" which completely misses the whole point of the case.

ADS is a great multi-purpose acronym. It can stand for "Amazon Derangement Syndrome" just as easily as it can stand for "Apple Demagogue Syndrome."

A dissent is nice in terms of providing ammunition down the road for someone trying to defend a similar case and hope for a different outcome, but it doesn't have the weight of legally-established fact behind it. Not that I'm a lawyer or anything, but I read a lot.

*drops mic again*

[Catlady]

I finally got an e-mail from BN but no amount was mentioned; since I believe I got something around $25 last time, I'm thinking I should be getting about $50 now. I got a whopping $3.14 from Kobo (I think most of my Kobo purchases were RH before it went with Agency pricing). Nothing from Amazon, alas, as I was only buying epubs then.

[ProfCrash]

That is weird. That points to two books that were not bestsellers while the first payment suggests a good deal more then that. I want to say I had about $40 the first time around and I ended up with $148 this time.

[pwalker8]

Originally Posted by Robotech_Master

*picks mic back up*

Indeed. This is also why media outlets, when reporting on some person who is on trial, always refer to him as "the alleged criminal" rather than just "the criminal" even if he was caught red-handed. In our justice system, an entity (person or corporation) is considered innocent until proven guilty. By the same token, once that entity is proven guilty, it is considered guilty as a matter of fact.


ADS is a great multi-purpose acronym. It can stand for "Amazon Derangement Syndrome" just as easily as it can stand for "Apple Demagogue Syndrome."

A dissent is nice in terms of providing ammunition down the road for someone trying to defend a similar case and hope for a different outcome, but it doesn't have the weight of legally-established fact behind it. Not that I'm a lawyer or anything, but I read a lot.

*drops mic again*

Actually once again, not quite. Dissent is generally how judges influence the legal system. Scalia was famous for how he used his dissent to influence the legal system and pull it towards his judicial philosophy of originalism.

I am interested in the legalities, not the companies involved. Yes, it does make a nice strawman argument to simply dismiss any disagreement as Apple lover, but it would be nice if people understood the legal issues and how the legal system actually works rather than simply grunt "hum, Apple bad, Amazon good".

[pwalker8]

Originally Posted by ProfCrash

I fail to understand the need to defend Apple when they lost in court and on appeal and are paying out a good deal more then the Publishers who they colluded with who were smart enough to see that they were going to lose the case.

But, if it makes you happy, go for it.

I was fine paying what I paid to buy what I wanted to read. I was annoyed that the price went up the way that it did but I wanted to read what I wanted to read and I could afford it so I paid it. I was pissed when it happened less because of the increase and more because it was a targeted attempt to attack Amazon because Apple wanted to dominate the book market the same way it did them music market.

So I will happily spend my refund and snicker at Apple's failed ploy.

Discussing legal distinctions is not defending Apple. What Apple was found guilty of was conspiracy to commit per se anti-trust violations, not of fixing prices or driving prices up.

There are two different approaches to Anti-trust. The tradition view is that a company is guilty of per se violations if they do certain things regardless of the circumstances. The more recent view (which is still the legal precedent, btw) is that under certain circumstances, you have to prove that the public was harmed. This is known as rule of reason.

[DiapDealer]

I sure am going to enjoy spending my conspiracy-to-commit-per-se-antitrust-violations money from Apple et al. It'll spend just like illegal-collusion-to-raise-ebook-prices money would.

[Robotech_Master]

Originally Posted by pwalker8

Discussing legal distinctions is not defending Apple. What Apple was found guilty of was conspiracy to commit per se anti-trust violations, not of fixing prices or driving prices up.

Oh, go right on and pick at those nits. Those per se anti-trust violations in question were driving the price up, and Judge Cote said so at great length.

From Judge Cote's opinion (again, emphasis added):

SUMMARY OF FINDINGS

The Plaintiffs have shown that the Publisher Defendants conspired with each other to eliminate retail price competition in order to raise e-book prices, and that Apple played a central role in facilitating and executing that conspiracy. Without Apple’s orchestration of this conspiracy, it would not have succeeded as it did in the Spring of 2010.

There is, at the end of the day, very little dispute about many of the most material facts in this case. Before Apple even met with the first Publisher Defendant in mid-December 2009, it knew that the “Big Six” of United States publishing -– the Publisher Defendants and Random House (collectively, the “Publishers”) -- wanted to raise e-book prices, in particular above the $9.99 prevailing price charged by Amazon for many ebook versions of New York Times bestselling books (“NYT Bestsellers”) and other newly released hardcover books (“New Releases”). Apple also knew that Publisher Defendants were already acting collectively to place pressure on Amazon to abandon its pricing strategy.

At their very first meetings in mid-December 2009, the Publishers conveyed to Apple their abhorrence of Amazon’s pricing, and Apple assured the Publishers it was willing to work with them to raise those prices, suggesting prices such as $12.99 and $14.99. Over the course of their negotiations in December 2009 and January 2010, Apple and the Publisher Defendants educated one another about their other priorities. Apple strongly hoped to announce its new iBookstore when it launched the iPad on January 27, 2010, but would only do so if it had agreements in place with a core group of Publishers by that date, could assure itself it would make a profit in the iBookstore, and could offer e-book titles simultaneously with their hardcover releases. For their part, if the Publisher Defendants were going to take control of e-book pricing and move the price point above $9.99, they needed to act collectively; any other course would leave an individual Publisher vulnerable to retaliation from Amazon.

Apple and the Publisher Defendants shared one overarching interest -- that there be no price competition at the retail level. Apple did not want to compete with Amazon (or any other e-book retailer) on price; and the Publisher Defendants wanted to end Amazon’s $9.99 pricing and increase significantly the prevailing price point for e-books. With a full appreciation of each other’s interests, Apple and the Publisher Defendants agreed to work together to eliminate retail price competition in the e-book market and raise the price of e-books above $9.99.

Apple seized the moment and brilliantly played its hand. Taking advantage of the Publisher Defendants’ fear of and frustration over Amazon’s pricing, as well as the tight window of opportunity created by the impending launch of the iPad on January 27 (the “Launch”), Apple garnered the signatures it needed to introduce the iBookstore at the Launch. It provided the Publisher Defendants with the vision, the format, the timetable, and the coordination that they needed to raise e-book prices. Apple decided to offer the Publisher Defendants the opportunity to move from a wholesale model -- where a publisher receives its designated wholesale price for each e-book and the retailer sets the retail price -- to an agency model, where a publisher sets the retail price and the retailer sells the e-book as its agent.

The agency agreements that Apple and the Publisher Defendants executed on the eve of the Launch divided New Release e-books among price tiers. The top of each tier, or cap, was essentially the new price for New Release e-books. The caps included $12.99 and $14.99 for many books then being sold at $9.99 by Amazon.

The agreements also included a price parity provision, or Most-Favored-Nation clause (“MFN”), which not only protected Apple by guaranteeing it could match the lowest retail price listed on any competitor’s e-bookstore, but also imposed a severe financial penalty upon the Publisher Defendants if they did not force Amazon and other retailers similarly to change their business models and cede control over e-book pricing to the Publishers. As Apple made clear to the Publishers, “There is no one outside of us that can do this for you. If we miss this opportunity, it will likely never come again.”

Through the vehicle of the Apple agency agreements, the prices in the nascent e-book industry shifted upward, in some cases 50% or more for an individual title. Virtually overnight, Apple got an attractive, additional feature for its iPad and a guaranteed new revenue stream, and the Publisher Defendants removed Amazon’s ability to price their e-books at $9.99. A detailed explanation of how Apple facilitated this conspiracy and changed the face of the e-book industry follows.

[pwalker8]

Originally Posted by PatNY

Sigh ... in the American justice system, the judge or jury is the finder of FACT. And in this case, Cote found this FACT: Apple acted as ringleader and organizer of an illegal horizontal price fixing conspiracy. That, by the way, was Apple's evil deed. They were not dragged into court for simply "agreeing to allow the publishers to set prices" which completely misses the whole point of the case.

Cote's FACTS were upheld 2-1 at the circuit level. The fact that the Supreme Court declined to hear the case, means that Cote's FACTS were further upheld. While it is true that cases are less likely to be heard when the Supreme Court is short a justice, it is also true that it only takes 4 justices to grant cert -- a pretty low bar. Since Apple couldn't even muster the support of 4 justices, it is likely a full court would not have altered things.

As for precedent, from a legal perspective, this case will certainly hold sway within the second circuit at least. Moreover, courts from anywhere in the country can still base their rulings on and cite other circuit rulings in their opinions. From a practical everyday perspective, you better believe that company executives since Apple's court loss are much less likely to try to pull off the antics that Jobs did. A high profile case such as this is bound to have a lot of impact, with or without the Supremes weighing in.

So, bottom line, we are all getting our book credits now precisely because of this fact: Apple was guilty of breaking anti-trust law by playing a key role in a horizontal price fixing conspiracy.

--Pat

No, not even close.

1) the appeal court didn't even consider the facts in the matter. They considered the specific legal points that Apple appealed on. So the 2-1 ruling says nada about the facts in the case.

2) The fact that the Supreme Court declined to review the case meant that the Supreme Court declined to review the case period. For those who haven't been paying attention, the Supreme Court is currently in a 4-4 split. Thus they are declining to hear a number of cases that they would have normally since they know that it will end in a deadlock. If the Supreme Court had chosen to hear the case and it ended in a deadlock, then the finding would have been upheld and it would have established precedent. By declining to hear it, they simply say the equivalent of "no comment". It's a rather important distinction.

3) You are correct that other judges (and lawyers) may point to the case. Of course, it's equally correct that Judge Jacobs' dissent may also be pointed at by other judges and lawyers. Certainly, lawyers will be advising their clients based on the decision, but then again, anti-trust law being the mess that it is, lawyers have been advising their clients to tread carefully in such cases for quite a while, as one can tell by reading the various anti-trust articles over the past decade. I rather doubt this case will make much of an impact in that regard. Just my opinion, of course.

[wodin]

The only thing I've ever bought from Apple was QuickTime, and then only because at the time it was the only thing that would reliably play .mov files. Now Jeff is telling me that Steve/Tim has to give me a hundred bucks because they ran up the prices of the books that I didn't buy from them. The folks (publishers) that got the money have already refunded it but Apple has to double down on that?

I don't like Apple as a company, or a business model, or a philosophy, or a walled garden and I don't buy their stuff; and I don't want their money. But I'll take it only because I don't know how to not.

[Robotech_Master]

Originally Posted by wodin

The only thing I've ever bought from Apple was QuickTime, and then only because at the time it was the only thing that would reliably play .mov files. Now Jeff is telling me that Steve/Tim has to give me a hundred bucks because they ran up the prices of the books that I didn't buy from them. The folks (publishers) that got the money have already refunded it but Apple has to double down on that?

Yes, because they were an integral part of the conspiracy to run up the prices you paid for e-books everywhere—the ringleader, in fact—and they have to pay more because they opted to drag the affair out by going to trial instead of settling the way the publishers did. Being willful leads to additional punishment.

I don't like Apple as a company, or a business model, or a philosophy, or a walled garden and I don't buy their stuff; and I don't want their money. But I'll take it only because I don't know how to not.

If you wanted to not, you had 'til October, 2014 to opt out of participating in the settlement. Unfortunately, that deadline's already gone by.

[wodin]

Originally Posted by Robotech_Master

If you wanted to not, you had 'til October, 2014 to opt out of participating in the settlement. Unfortunately, that deadline's already gone by.

I had no problem taking the money from the publishers. It's Apple's money that I don't think I deserve.