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Quelle Surprise: ABA, B&N, And Other Mice Ask US Supreme Court to Bell the Cat

10289716126_a3593a6a0e_hFollowing last week’s news that the USSC was accepting amicus briefs related to Apple’s ebook antitrust appeal, the usual collection of Amazon-haters, has-beens, and the second-rate have spoken up in support of Apple.

The Authors Guild, in partnership with Barnes & Noble, Authors United, and the American Bookseller Association, asks the US Supreme Court to ignore the rule of law and instead decide that two wrongs make a right.

In its amicus brief, the group asks that the Supreme Court accept Apple’s petition for appeal. You can read the press release over on TAG’s website, or the filing itself (PDF). PW and Teleread summarize the filing adequately, which is pretty simple on the face of it.

Edit: You might also want to read David Vandagrif’s commentary on The Passive Voice.

This amicus brief more or less echos the arguments Apple made in the appeal itself., that Judge Denise Cote erred in her July 2013 per se ruling that Apple violated antitrust law by conspiring to raise and fix ebook prices.

Instead, everyone’s arguing that the case should have been decided under the rule of reason:

In the brief, the author and book industry groups argued that the government’s focus on Apple’s allegedly anti-competitive activities was misplaced, because Apple’s conduct, in fact, enhanced competition by increasing e-book output, the number of e-book titles, and the number of e-book distributors, which led to technological improvements in the e-book market and enhanced freedom of expression and access to e-books.

It’s the usual arguments, and it’s backed by the usual statements by support. "Booksellers firmly believe in the importance of competition, a robust and diverse environment for authors and readers, and a healthy marketplace of ideas. We believe Apple’s participation in the e-books market strengthened all those goals, and the American Booksellers Association is pleased to join with our friends and colleagues at the Authors Guild, Authors United, and Barnes & Noble to support this matter,” said Oren J. Teicher, CEO of the American Booksellers Association.

It’s pretty standard stuff, although there was one detail that surprised me.

Barnes & Noble joined in filing the amicus brief, which was a surprise given that they did not participate in Authors United’s ridiculous antitrust letter to the DoJ. B&N wouldn’t even comment on that letter, but now they’re joining the rest of the usual suspects in the brief.

Do you think the shift in policy comes from the change in management (B&N has a new CEO)?

image by grongar

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Syn December 3, 2015 um 2:02 pm

Apple couldn’t compete against Amazon. It wasn’t even that the couldn’t compete, they didn’t WANT to compete. So the conspired. We got stuck with Agency, and Indie titles began to soar, and continue to do so now that people realize they don’t HAVE to buy a book that has a publisher behind it.

Are you sure on B&N Nate? I seem to remember they wrote something favoring Agency but my memory is fuzzy. I don’t remember the details. B&N is no surprise they would favor Agency. They are already Anti Consumer just as Authors Guild is Anti Author. Why Author pay good money to join them, I have no idea.

Anne December 3, 2015 um 5:04 pm

No kobo? Maybe their hands are full since Canada’s Federal Court of Appeal turned down their appeal of the Competition Tribunal’s decision.

Can the AG sound any more anti author/pro publisher than it does in this brief? In addition to being just wrong about some of the points they’re trying to make? It’s like they’re totally disregarding pertinent testimony and discovery.

Nate Hoffelder December 3, 2015 um 5:08 pm

@ Anne Did the competition tribunal release a decision? I thought everything was still up in the air.

Anne December 3, 2015 um 5:34 pm

Not really a decision. Kobo had appealed the Canadian price fixing settlements and wanted to limit the scope of what the Competition Bureau was doing in regards to the matter. The Federal Court of Appeal sided with the CB.

I haven’t been able to find anything more recent than the link above but I’m assuming kobo now has to provide the CB the stuff they were asking for.

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