In a new twist in the long running antitrust case against Apple, an appeals court on Monday cast doubt on the Justice Department’s theory that the company brokered an illegal conspiracy among book publishers, and asked instead why the government’s focus has not been on Amazon.
The 90-minute hearing, which took place at the Second Circuit Court in Manhattan, represented a major shift in momentum in a case that has until now gone completely against Apple. On Monday, the three appeals court judges suggested that District Judge Denise Cote might have been too quick to conclude that Apple’s pricing arrangements with five publishers violated antitrust laws.
“Would it not matter that all those people got together to defeat a monopolist? It’s like the mice that got together to put a bell on a cat,” U.S. Circuit Judge Dennis Jacobs told the Justice Department’s lawyer, Malcolm Stewart.
Sounds bad for the DOJ and good for Apple, right?
As I read the coverage of Apple's hearing, I'm reminded of the several lawyers I know who have remarked that they would like to know what Apple's in house counsel were thinking when the lawyers didn't warn their bosses that the deals with publishers were veering into antitrust territory. And then there's the 160 page ruling against Apple, and the fact that after 17 months no one has shown that it is unsound.
But even if Apple does win their appeal, I'm fine with it. With the 5 conspiring publishers having settled rather than going to trial, I already have what I want: real competition restored to an ebook market where even Apple is now competing on price.
And what with S&S having signed a deal with Amazon which sounds an awful lot like the terms for KDP, and Hachette also tied down with a contract, it's going to be difficult to impossible for the publishers to conspire again (even if they didn't have antitrust observers watching their every keystroke).
In short, no issue I care about is going to be decided in this appeal, so I plan to just sit back and enjoy the show.
Pass the popcorn.
image by kyz