Yesterday, the appeals court heard testimony from Apple and the Department of Justice relating to the e-book anti-trust trial appeal. To my surprise, two of the three judges seemed amenable toward Apple’s point of view. They expressed concern over why the publisher collusion was such a bad thing when it was for the sake of stopping monopolist Amazon, and hinted that Judge Cote might have erred when she ruled that Apple’s behavior constituted a pro se anti-trust violation—a violation so obvious that it doesn’t need the “rule of reason” test applied to it.

Apple attorney Theodore Boutros asked for the finding to be reversed, or for the case to be remanded to the lower court for the rule of reason test—by a different judge, given that Cote already set down in her opinion why Apple’s behavior fails that, too. The judges reserved their decision, meaning it could take as long as six months to hear what they finally decide.

The appeals court’s skepticism of the Department of Justice case is rather surprising, given that in every other ruling they’d issued on it so far Apple ended up with short shrift. And it seems to run counter to the feelings of legal experts that Cote’s decision was virtually bulletproof. It’s hard to say how they will rule based on just this. But it will be interesting to find out.

On The Digital Reader, Nate Hoffelder points out that no matter whether Apple wins or loses, the effects of the settlements in the case so far have already led to a better book market for everyone, and even a victory for Apple will not be able to change that now. And it’s also pretty clear that, whoever wins, the loser will appeal all the way to the Supreme Court if they can. So the matter still isn’t close to being settled yet.


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