Judge Cote: Uh, maybe I prejudged this Apple e-book case too soon?

“A subtle but potentially important shift took place Thursday in the Manhattan federal courthouse where U.S. District Judge Denise Cote just wrapped up the first week of what is expected to be a three week trial for the civil antitrust case known as U.S.A. v. Apple,” Philip Elmer-DeWitt reports for Fortune.

“The lawyers at Apple’s table snapped to attention,” P.E.D. reports. “It was the first time in four days of trial that the judge — who in pre-trial statements seemed to have already decided the case against their client — asked a clarifying question that not only favored Apple, but seemed to get to the heart of its defense.”

Much more in the full article here.

MacDailyNews Take:

The e-book case to me is bizarre. We’ve done nothing wrong there, and so we’re taking a very principled position… We’re not going to sign something that says we did something we didn’t do… So, we’re going to fight. – Apple CEO Tim Cook, May 28, 2013

Related articles:
U.S. v. Apple e-book case: The meeting in Amazon’s Jeff Bezos’ boathouse – June 6, 2013
U.S. v. Apple: If what Amazon did was lawful, why isn’t Apple’s behavior also lawful? – June 6, 2013
Apple says differences in publisher deals disprove U.S. DOJ’s e-book conspiracy allegation – June 5, 2013
U.S. v. Apple iBookstore case could go to the Supreme Court – June 5, 2013
Apple accuses DOJ of unfairly twisting Steve Jobs’ words in e-book case – June 4, 2013
U.S. DOJ prosecutors accuse Apple of driving up e-book prices – June 3, 2013
U.S. v. Apple goes to trial; DOJ claims e-book price-fixing conspiracy with Apple as ringmaster – June 3, 2013
U.S. DOJ takes Apple to trial alleging e-book price-fixing – June 2, 2013
In pretrial view, judge says leaning toward U.S. DOJ over Apple in e-books case – May 24, 2013

26 Comments

    1. You don’t understand the legal system, whatever. The judge reads thousands of pages of evidence and testimony before the trial starts, and holds dozens of hearings and asks hundreds of questions of the lawyers. She then issues a tentative opinion, which if both parties accept saves the time and expense of a trial. But either or both parties can demand their day in court, have a full trial and try to change the judge’s mind. Apple is doing that. This is just normal US legal procedure.

    2. This actually is a major bombshell in Apple’s favor – a Perry Mason moment, which almost never, EVER happens in trials.

      The modern day trial is essentially a performance to satisfy legal requirements such as witnesses testifying, officially entering evidence, etc. Both sides pretty much know what the other is going to do, say, call as a witness, enter into evidence, months before the trial begins. The judge has read it all and, like any human, forms opinions on the case and what are the important issues.

      With this testimony, all that just got turned upside down. This is where the distinction in words used, in small things like who took notes or who emailed whom, become critical. It’s the difference between “Apple told us to change agreements” to “Apple’s contracts won’t allow us to enter into wholesale agreements”.

      Very, very big legal difference – Apple isn’t ordering publishers to make Amazon, Google, etc. change their contracts. It’s the contracts the publishers agreed to with Apple that contains terms which prohibit new wholesale contracts.

      And I’m sure the publishers love Apple’s agency model – that lets the publishers control pricing, not Amazon and Google.

  1. Read to the end of the story on the link… it’s not the DOJ – it’s the Google and/or Amazon lobbies pushing this. After apple offered the agency model versus the wholesale model, publishers had leverage to renegotiate their Amazon and Google contracts on more favorable terms. Amazon and Google preferred the wholesale model which is more profitable for them. Apple’s Agency model allows publishers to set the selling prices of their e-books. Egg on Amazon / Google’s Face

    1. Lobbying the DOJ does not relieve the DOJ from intelligent fact checking, investigating and conclusion before bringing frivolous unfounded allegations to court.

      DOJ ultimately has more egg on their face and their credibility at stake.

    2. Amazon for Kindle, Google for Android both wanted cheap e-books so they could profit from the sales of hardware (for Amazon) or a platform for advertising (Google) — all at the expense of the publisher. Apple gave the publishers a model that allowed them sell product a prices set by market dynamics. This sounds very natural to me. Why shouldn’t a product manufacturer (that’s what publishers are) be able to price the product the way they see fit. The book at a given price is either a good value or not to the prospective buyer. If companies like Amazon, Google and Apple are going to profit by selling hardware/software that reads e-books, shouldn’t the publishers be allowed to profit as well? Whether a book is printed on paper or saved to a digital file, there are still set costs for authors, development, editing, advertising and promotion like book tours, etc. It it unrealistic to suppose that e-books should cost next to nothing because they are distributed digitally. There is nothing in these deals, I think, that precludes low price e-books. It’s up to the publishers to price them competitively to sell.

    3. It’s not more profitable at all. Quite the opposite. Amazon was paying publishers the full 12.99 price for each book, while losing money to sell the book at retail for only $9.99.

      Apple was paying the publishers $9.99, and selling the book for 12.99. A rationale arrangement.

      Publishers were being destroyed by amazon selling at a loss. It’s a scummy and predatory way of doing business. Amazon wasn’t merely taking less profit, they were outright giving the books away to consumers for less than they paid for them.

      Amazon and google are getting busted for lying to the doj and the court. They claimed apple negotiated unfair terms, yet amazon bullied the publishers, not apple. Amazon got caught removing the buy button from entire publisher print and ebook catalogs to force them to cave in.

      They are assholes.

    1. Perhaps a new low for BLN? This is an extremely offensive statement. Better not to post if this is the kind of thinking issuing from your brain.

    2. Dude, what the hell? Unacceptable.

      Furthermore, if you bothered to read the article, you’d realize that Judge Cote is actually helping Apple make its case with some of the questions she’s been asking.

      And even though I don’t care for Judge Koh, that is just an unacceptable comment on your part.

  2. I hope everyone reads the comments on that sight. How different. Thoughtful, intelligent remarks. The exact opposite of the general tone here with idiots like BLN and other potty mouth fools.

  3. An interesting note to consider here also that probably won’t come out in this trial is that Apple offered a self publishing tool that could undermine the publishers position as well as Amazon and Googles positions. The publishers may have colluded and conspired, but with each other not Apple, they sought to throw Apple under the bus to save their own sorry skins.

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