Chris Sagers notes, as did Jonathan Jacobson in an earlier entry, that the Apple case is by and large an open-and-shut plain-vanilla antitrust case, but finds it remarkable that such a case could have generated quite so many and so strong reactions from both Apple’s supporters and its critics, on both sides of the political spectrum. Apple’s supporters (and Amazon’s critics) include liberals like the New American Foundation’s Barry Lynn and conservatives like dissenting Second Circuit Judge Dennis Jacobs, with nearly identical points of view. Sagers thinks that the reason might be that, inasmuch as America is ostensibly based on capitalism and competition, deep down many Americans don’t like the fact that competition produces losers as well as winners—and the Apple case reminds us of that in spades. He also points out, as have many others, that every antitrust defendant thinks its own case is a special case—usually incorrectly.
Thomas Hazlett is another one to point out some other case that has bearing on this one. In this case, it’s Dr. Miles, a 1911 Supreme Court decision whose precedent was countered by many of the other cases discussed in conjunction with the Apple case—GTE Sylvania, Leegin, and Business Electronics v. Sharp Electronics. Hazlett’s argument is that people who see Apple as an open-and-shut antitrust case are as wrong as the justice who wrote the majority opinion in Dr. Miles. Apart from that, Hazlett effectively reiterates the same arguments as Judge Jacobs’s Second Circuit dissent.
Morgan Reed uses Philip K. Dick’s short story, “We Can Remember It For You Wholesale,” the inspiration behind the Total Recall movies, as a metaphor to suggest that Apple’s critics have had false memories inserted into their heads. His central argument is that the idea that the publishers originated agency pricing is a “false memory,” since Apple had been using agency pricing for apps sold via its iTunes Store for some time. (I personally don’t think that renders invalid the idea that it was the publishers who suggested Apple use it for e-books, when Apple previously had shown no inclination to do so. But whatever.) He also suggests Apple’s vertical contracts should insulate it from any complicity in the publishers’ horizontal conspiracy, and that consumers benefited from the new technology Apple incorporated into its iPad.
Finally, William Kolasky takes a second bite at the Apple discussion. I covered his earlier post contending that the courts should have considered whether Apple’s conduct constituted “a [naked] restraint of trade with no purpose except stifling competition.” In his follow-up, he addresses some of the other bloggers’ contention that horizontal conspiracies are generally considered per se unlawful. Kolasky points to case precedent showing that “even horizontal restraints of trade [are] not necessarily unlawful if they [are] ancillary to some legitimate business transaction or arrangement.” He thinks Apple erred in its defense by trying to insist it did not help facilitate a horizontal arrangement—instead, it should have freely admitted to that, but argued the arrangement was ancillary to launching its e-book store, and not a naked horizontal price fixing agreement.
It’s been fascinating reading so many different opinions so close together. It’s remarkable that some people consider the case open and shut and others believe it entails important legal precedents that have been misapplied. It will be interesting to see whether enough of the remaining Supreme Court Justices believe it is worthy of discussion to take it up—and what they conclude if they do.
One thing I read somewhere lately—I’m not sure if it was in one of these 12 blog posts, or somewhere else—is that the more conservative Justices tend to be more suspicious of antitrust enforcement. If that’s the case, it means the Apple case could be a good prospect for a 4-4 split if the Court does take it up. In any event, I look forward to finding out whether the case gains certiorari. We should know by the end of the week.