Ars Technica reports that Apple has filed a 75-page opening brief in its appeal of Judge Cote’s decision finding it guilty of engaging in a conspiracy with the publishers to help raise prices. The Ars article has a reasonable summary of Apple’s arguments.
Fundamentally, many of them are the same arguments that lost it the case in trial court: it just negotiated the most favorable contract for itself, and couldn’t be blamed for what the publishers, busy little bees that they are, imposed on other retailers. It acted to increase competition by making it possible for new players to enter or other players to stay in the market, rather than be forced out by Amazon’s low prices.
Apple also complains that Judge Cote applied the wrong anti-trust standards to the case, and that anti-trust law isn’t always meant to ensure the lowest prices. It also holds that Judge Cote excluded expert testimony that could have been favorable to its case. (Some of these arguments are also reminiscent of the ones put forward by publisher advocate Bob Kohn in his various filings, including the comic book.) Apple also says Cote disregarded a later anti-trust precedent favoring deciding ambiguous evidence in Apple’s favor in favor of an earlier one. Apple also holds that agency pricing had pro-competitive market-wide effects, using essentially the same charts that failed to convince Judge Cote.
Finally, Apple argues that the injunction against it was unnecessarily harsh, affecting the app store which wasn’t involved in the issue at trial. It also complains that the publishers didn’t get anti-trust monitors and it did, which smacks of punishment for going to trial and appealing.
Some of Apple’s reasoning seems a little tortuous:
For example, Mr. Jobs’s statement to a reporter that the price of an e-book sold by Apple “‘will be the same’” as the same e-book sold by Amazon for $9.99 (Dkt326.85) was most reasonably viewed as a reference to the MFN, but the district court assumed the worst—that it referenced a conspiracy (Dkt326.86)—even though Mr. Jobs died in 2011 and thus could not explain his statements.
The MFN was the element through which the price-fixing was imposed. It’s not possible to refer to the MFN without referring to the conspiracy.
In any event, this is just the opening salvo of a much longer battle. Apple bends over backward to cast itself in the best possible light, which is what such a brief is for. We have yet to see the DoJ’s response. In any event, it won’t be over ‘til the fat appeals court panel sings, and even then we’ll likely have the Supreme Court to look forward to.
This is the same appeals court that effectively found nothing wrong with the anti-trust monitor’s job description in the recent appeal (they issued a “restriction” that basically echoed terms already written into the monitor’s job description to begin with). It remains to be seen how they look at the case overall.