The three-ring circus continues. Apple, the two non-settling publishers, and the Authors Guild have filed legal briefs in response to the Department of Justice’s proposed settlement with the three publishers who are settling. Unsurprisingly, they’re all against it, and tend to share similar arguments. One kind of funny thing here is that, though the judge had asked them to make their oppositions clear during the public comments period, these filings after it ended represent the first peeps we’ve heard out of some of them in terms of their precise feelings about it.
Apple insists (PDF) that by forcing those publishers to terminate their agency pricing contracts with it, the DoJ is punishing Apple a year before it even comes to trial. Bob Kohn, whose own brief I mentioned the other day, is against allowing Apple to skate while Amazon gets to terminate its own agency contracts—because Apple could use its “most-favored nation” clause, in which it is allowed to match the lowest price of a given e-book anywhere, to scoop the price advantage of non-agency without having to pony up its wholesale cost.
Penguin (PDF) is unable to resist making a literary allusion: “The Emperor has no clothes.” Interestingly enough, both Penguin and Macmillan (PDF) insist that there’s no actual evidence e-book prices even did rise during the agency pricing period. (In other news, black is white, love is hate, and short is tall. Just goes to show how easy it is to massage statistics into saying whatever you want them to say, no matter what side you’re on.) They also argue that the DoJ has not proven that overturning agency pricing actually is in the public interest, and insist that the settlement will do immeasurable harm by allowing Amazon to continue using predatory pricing to build its market share.
The Authors Guild likewise argues (PDF) that allowing Amazon to continue selling e-books at a loss is “destructive of competition” and requests a hearing into the matter.
I wonder if we will see a hearing? Given the dramatic levels of opposition to the settlement we’ve seen thus far (with the vast majority of (admittedly largely rubber-stamped xerox copies) comments being against it), it seems unlikely the judge would be able to get away with just rubber-stamping it. Either way, it should be interesting to find out.