The Department of Justice doesn’t seem to like Royalty Share CEO and attorney Bob Kohn very much. It went out of its way not merely to respond to his comments but actually to ridicule him on page 52-3 of the response it filed (PDF) to the comments it received on its proposed settlement.
Now it seems that Kohn is returning the favor. PaidContent reports that he filed a motions today (PDF) in the pricing settlement, asking that the Court (PDF) relating to its investigation of Amazon’s allegedly-predatory pricing practices, and instead of just approving or denying it herself, so he could “participate in oral argument” to discuss the aforementioned DoJ response to comments.
As PaidContent notes, Kohn is filing a considerably longer brief than Barnes & Noble or Apple were allowed—he seems to see himself as a self-appointed gadfly to keep the Department of Justice honest—and it’s anyone’s guess whether Judge Cote will approve the brief. Still, Kohn makes a few interesting arguments.
He argues that the DoJ is mistaking e-books for printed books—because e-books don’t require taking a copy away from one person to give one to another, supply and demand don’t work the way they usually do, but the DoJ isn’t taking notice of this. He also notes the DoJ itself called Amazon a pricing predator in its original complaint, though it backpedaled in the response to comments. He also takes issue with the definition of predatory pricing relying on overall profitability that the DoJ trotted out in the response. And he quibbles with the DoJ’s contention that anti-trust law is about ensuring low prices—it is actually, he says, about ensuring efficient prices, which is not necessarily the same thing.
It’s unclear whether Judge Cote will go for this. To my reading of the response, the DoJ seems to be trying to leave Amazon’s behavior out of the matter as much as it can, making the case strictly about the illegal thing the publishers did rather than how much that big bully Amazon scared them into doing it. If she agrees with their reading of the scope, I wonder whether she might be inclined to find his harping on Amazon a little annoying?