If a picture is really worth a thousand words, Bob Kohn may have found a clever way to get around Judge Cote’s insistence that he get only the same five pages for an amicus brief that everyone else does. He has submitted his brief in the form of a five-page comic book. I heard about this in a number of places, though I should credit that the first one I actually noticed was on my old home venue, TeleRead. There’s also a New York Times piece on the brief.
Starting with Kohn’s disgruntlement at the judge limiting him to only a five page brief, the comic covers Kohn’s concern that the DoJ’s conclusions are not really reasonable, his insistence that—due to piracy—the law of supply and demand does not operate normally on e-books, and that prior precedents say that “if the restraint [of trade] is reasonably necessary to achieve the [pro-competitive] benefits [in different markets], it’s legal” and that “[selling] e-books below marginal cost” is “presumed illegal.” Thus, the DoJ must either turn over the results of its investigations into Amazon’s pricing “or the court must find that Amazon engaged in predatory pricing.”
Kohn also insists that the DoJ hasn’t truly shown agency pricing caused harm to consumers, and that it goofed when it said “low” prices, rather than efficient prices, are a goal of antitrust law. And he compares the “one-time event” of the implementation of agency pricing to “ASCAP & BMI, who each spend over $150m a year to maintain their price fixing activity.”
First of all, I’ll admit that the idea of a comic book brief is quite novel, and it’s certainly garnered Kohn a lot of media attention. (And, yes, here’s some more. Yay for you, Bob Kohn.) But should that really be the point of an amicus curae brief? After all, it’s amicus curae, not amicus populi. The only opinion that really matters for such a brief is that of the court itself, and I can’t imagine the judge being terribly thrilled by the subtext of, “I didn’t think you could understand it if I wrote it out in prose, so I’ll draw you some pictures."
The repeated complaint of “Oh noes, only five pages???” that pops up three or four times over the course of the five-page comic doesn’t exactly help matters, either. Mr. Kohn, you are not a special snowflake. There’s nothing about you or your arguments, no matter how persuasive they might be, that merits you more pages than every other amicus curae filer in this hearing has been granted.
And if you can make those arguments colloquially over the course of five pages of drawings with relatively little text, you could make them even better in five pages of legal prose. Everyone else filed their five pages without sneering at the judge in comic panels. Why didn’t you? Do you really think that’s going to make the judge receptive to your arguments?
And honestly, it’s not even that good of a comic. Three and a half out of the five pages consist of Kohn and (I assume) his wife merrily expositing to each other as talking heads on a park bench, with his novelist wife being granted (for the sake of being able to say “How right you are, Bob!”) considerably more in-depth legal knowledge than it seems to me is actually realistic for her to have.
Why did he do it? Perhaps he figured that the court wasn’t going to pay any attention to him no matter what he said and he might as well score points with the general public instead? Perhaps he expects the judge to reject it and he’ll then file his “real” five page brief but still reap the benefits of the additional publicity? Or maybe it just seemed like a good idea at the time? Whatever the reason, I don’t expect this grandstanding to give Kohn’s arguments much additional weight with the judge in any event.