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Let Me Draw You Some Pictures: Bob Kohn Files 5-page Comic Book Amicus Brief in DoJ Agency Pricing Anti-Trust Settlement Hearing

ScreenClip(41) 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.

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fjtorres September 4, 2012 um 8:30 pm

Worse, the whole thing hinges on dragging Amazon into a case that is not about them, but about a frakking *conspiracy* to raise *consumer* prices.
All these apologist briefs are doing is trying to *justify* the conspiracy when they need to be arguing there was no conspiracy. With friends like that, the conspirators shouldn’t need to worry about Amazon destroying them…

Peter September 5, 2012 um 5:58 pm

" All these apologist briefs are doing is trying to *justify* the conspiracy when they need to be arguing there was no conspiracy."

You’re confusing Tunney act proceedings with the actual trial, my friend.

It doesn’t matter if there was a conspiracy or not at this point because the publishers (in question) have already agreed to settle.

The purpose of these proceedings is, basically, to put the terms of the settlement itself on trial. The Department of Justice is required to PROVE that the agreement they came up with is actually in the public interest as written. If not, they need to come up with a different settlement that actually makes sense.

The argument that it isn’t in the public interest because Amazon could become a monopoly is perfectly appropriate for these type of proceedings. The judge might not agree with it (the DoJ says it won’t happen and after US vs. Microsoft, the courts have customarily decided to basically just rubber stamp whatever the DOJ says) but it is valid and, in fact, the whole point of the Tunney act proceedings.

The existence/ non-existence of a conspiracy will matter for Apple and the non-settling publisher’s when they actually go to trial, but it is irrelevant for this portion of the the case.

fbr September 5, 2012 um 5:42 am

Whoa boy, now that’s clever idea a cartoon, (bound to impress a judge) just, too bad about the totally senseless argument.

DavidW September 5, 2012 um 7:16 am

I don’t think he understands what the term marginal cost means. It is the price to sell one more unit. Since the cost of producing the ebook is already accounted for including storing it on the server, the price to sell one more unit is NOTHING! $0.00. The marginal cost of an ebook is virtually nothing, and amazon is not undercutting that cost, so the argument is wrong.

The second part is this "efficient pricing" deal, but it hangs on the argument above which is wrong… so the whole argument posed smugly in comic form can simply be dismissed. And of course it doesn’t engage the real problem, which is collusion. Agency pricing is legal, collusion is not.

So that comic strip is just smug but stupid.

Nate Hoffelder September 5, 2012 um 11:08 am

Perhaps he’s adding in the cost of what Amazon has to pay to the author and publisher? Even if he is, I seriously doubt Amazon got below that number most of the time.

And I think you’re wrong about the marginal cost being zero. The cost is quite low for Amazon, yes, but it’s not zero. It would cost at least a few cents per ebook, IMO.

Peter September 5, 2012 um 6:30 pm

"I seriously doubt Amazon got below that number most of the time."

Which is exactly why he is demanding the DoJ release their numbers. At this point, this simple question (were publishers receiving more than $9.99 for ebooks when they were sold at that price?) should be a statement of public fact and not guessing. A punishment that requires a settling defendant to accept a subsidy is not a punishment.

However, it’s really hard to make a dent at this point as the judge normally doesn’t really care. Approving a settlement is just easy.

That’s the point of the cartoon- to make sure the judge knows people are paying attention.

Len Feldman September 5, 2012 um 10:46 am

My understanding is that courts require briefs to be filed in a specific format (so, for example, it’s easy to refer to a particular statement by page and line number.) As a lawyer, Kohn knows that, of course. This was a "slap in the face" at Judge Cote, who isn’t going to appreciate it. Luckily, filing a frivolous amicus brief usually doesn’t make you subject to a contempt of court citation…but there’s always a first time. (I’m not a psychologist, but it makes me wonder about Kohn’s mental state. Why deliberately and repeatedly antagonize a Federal judge?)

Timothy Wilhoit September 5, 2012 um 11:50 am

It’s incredibly childish and I can imagine it resulting in a contempt citation. After all, Kohn is genuinely showing an incredible amount of contempt toward the judge. He’ll be extremely lucky if the judge doesn’t punish him.

Bob Kohn Appeals Macmillan, Penguin eBook Settlements – Could he be a Cats-Paw for the Publisher's? – The Digital Reader December 23, 2013 um 10:13 pm

[…] Mr. Kohn wasn’t satisfied when Judge Denise Cote ignored his amicus curae pre-trial filing in September 2012, and he wasn’t satisfied when the judge shot him down when he made the same arguments in a […]

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