Judge Denise Cote likely wrote most of her U.S.A. v. Apple ebooks case decision before the trial

“The first 122 pages of the 160-page ruling against Apple (AAPL) that U.S. District Judge Denise Cote handed down on Wednesday could have been written before the trial began,” Phillip Elmer-Dewitt writes for Fortune. “In fact, most of them probably were.”

“Judge Cote was familiar with the case from having supervised the proceedings by which the five so-called Publisher Defendants settled without admitting guilt,” P.E.D. reports. “And when the judge who would decide the non-jury case on her own announced — even before the trial that Apple insisted on began — that she believed the government would prove that the company conspired to raise the price of e-books, she also let slip that she’d already begun writing her decision.”

P.E.D. reports, “It’s only in the last 38 pages that she addresses — and dismisses one by one — Apple’s defenses. Apple has announced that it will appeal her decision. And if it’s to prevail in the 2nd Circuit Court of Appeals or — if it comes to that — the Supreme Court, it will be on the strength or weakness of her responses to the six major arguments Apple raised in its defense.”

Read more in the full article here.

MacDailyNews Take: Miscarriage of justice.

[Thanks to MacDailyNews Reader “Rainy Day” for the heads up.]

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  1. You have to be a real Apple-Troll to believe Apple is right. That Amazon’s buissness model was unsustainable is irrelevant – if they want to sell ebooks as a loss leader that’s their right as long as they don’t use their might unfairly. Apple however DID use their might to push prices up, and it was clearly a concerted action by the five publishing houses in bed with Apple.

    But I fear most people here are too brain-washed by MDN. Might come as a shock to you, but Apple is not always right.

    1. So if it’s okay for Amazon to use its might to sell e-books at a loss, I guess it’s now okay for Apple to do so too. E-books for a blanket price of $0.99 here we come!

      Go for it, Apple! Make sure Amazon learns a lesson about unintended consequences…

    2. You have to be a real Apple-Troll to believe Apple is right.

      …more like, you have to be aware of the actual facts of the case. This judge fucked up, and the case will be appealed.


  2. Fanboi panties all in a great big wad.

    Apple colluded with publishers to force Amazon to a different pricing model and the end result was MORE expensive e-books for consumers. Gee, I wonder what part of that is wrong/illegal.

    Of course, in the land where Apple can do no wrong, this is an injustice of the first order.

    1. The problem is the pricing is the least important part of book distribution, the most important being free and unfettered access to information. The few dollars difference between one book source and another does not prevent people from accessing books and the information that they contain, whereas having only a single source Amazon as the sole source of books is extremely dangerous for the free distribution of ideas in the form of books.

      Even if it is true that Apple colluded to increase prices, which they demonstrably did not, the judge was just completely ignorant and uninterested in Apple’s defense having already made up her mind before trial, the fact that Amazon was close to having a complete monopoly for the future distribution of books should terrify anyone, and be FAR more important than the differential in cost for books.

    2. Apple should screw amazon on this harder than bezos has ever been screwed. The publishers can use this judgement to allow apple to sell those books for $4. Fsck amazon where it hurts. Let them pay 12.99 and sell for $3. Apple has real businesses that aren’t bullshit predatory scams, and they can funnel that money to destroy amazon overnight.

      And the asshole justice department couldn’t do jack shit about it. It’s not raising prices. Fsck em at their own game.

      1. You realize that, like every other fanboy, you have no idea what you’re talking about?


        From Greg Sandoval, The Verge’s senior reporter,”This came out in the trial. Amazon was NOT LOSING money on ebooks. Even the publishers acknowledged this in their emails presented as evidence in the case. And even if they were, it isn’t a violation to sell goods at lower prices than competitors.”

    3. Well the problem is that ALL the publishers testified in this farce and ALL denied that they colluded with Apple… or that Apple did what the judge has concluded.

      This… despite the fact they all settled with the DoJ and that it did absolutely nothing for them to testify so.

  3. So, why couldn’t Amazon continue their pricing model to this day? They had their own arrangements with the publishers and could’ve easily maintained them. The fact that Apple worked out a relationship that was more fair to the publisher’s than Amazon is irrelevant. Amazon could’ve stuck by their agreements, instead it choose to move to the model Apple worked out. In the grand scheme of things, only the Publishers or Amazon are guilty. Simply put, Apple was not able to work out as good of deal with the Publishers because they were tired of losing money with Amazon’s model.

    1. Because the publishers threatened to make it so that new books wouldn’t be available in Amazon ebook format upon release (what’s the term? windowing?), similar to how theaters release major films before they are released on home media, or how RedBox doesn’t get home releases for a few weeks. So either Amazon’s Kindle userbase would have to wait for new releases, buy them in paper format, or buy them for another device (like the Nook or iPad).

      1. Wrong…. According to the judge. She specifically stated that there was no evidence that that would happen and specifically stated that the 37 books that were windowed were not enough. Had she been convinced that windowing was to be more prevalent then she would had had to make the different decision.

    2. Picture this: Hollywood studios decide to sell their films through a middleman. Somehow, the studios fail to protect their own rights to valuable box-office receipts of first run films. Consequently, the middleman exploits this failure and starts selling the New Release films at very cheap prices. Of course, the studios realize too late that they blew it. They did not expect this. They intended to gain incremental business by selling e-films, which was meant to be in addition to their box office receipts: they did not intend for the e-films to undercut their New Release box-office business. Though perhaps slow, the studios chiefs are not totally stupid, and they try to take steps to rectify the whole unfortunate situation. But, lo and behold, the Federal Court of the land steps in and tells the studios: No, you cannot change the arrangements with the middleman: you must live with your stupidity — which, incidentally, is still not a crime in this country — since doing anything else would RAISE PRICES TO CONSUMERS, AND WOULD ALSO CONSTITUTE COLLUSION, SINCE WE KNOW THE STUDIOS CHIEFS DISCUSSED WHAT A FRICKIN MESS THEY MADE OF THIS !

      Sounds silly, doesn’t it? But this is the story of the publishers.

    1. No, they did not and they proved it, but the judge they were in front of already had her mind made up and was not interested in justice, facts, or truth. That’s well known and established.

      You are correct that they will likely have to pay the consequences of this, but not of their actions but rather government corruption. Very sad day for Apple and the world.

    1. I think that was her intention from the start. I think she was given “suggestions” and she didn’t like receiving instructions from officialdom and while she couldn’t stand alone and expose it, she could derail their purpose by stating her inclination prior to trial. And that will force an appeal and make the final decision someone else’s.

  4. Dumb me. I thought the judge was to be impartial. Being impartial would entail using only the facts presented at trial and not studying all the filings on her own, including many not presented at trial, perhaps. Was there an option of a jury trial? Why was there no offer of a consent agreement like the Google agreement, rather than require a guilty plea. Could have had the same outcome other than giving Feds and states a shot at Apple’s bank account. Lawyers and Guvment are the winners. Consumers won’t get sh*t. If this can get to supreme Court before Obama packs it with another political hack, it will be overturned.

  5. The government’s own slide on “price fixing”

    Notice with great care the disparity in pricing before and after the agency model took effect:

    Should you not care to look at the slide, I’ll provide written interpretation: Prior to the agency model being implemented by Amazon the “majors” prices varied by the extreme of $2 (approx. $7 to $9). Afterwards, prices among the majors varied by $4 (from $8 to $12). Care to argue that “Apple colluded with publishers to raise prices”? Random House shows no price increase pre-agency model to post-agency model.

  6. So it sounds as if the trial was a waste of time if the decision was made before it began. Which just proves further she was paid off by the government. Hopefully the appeals court judge won’t except the bribes and get to the obvious truth that was so clearly proven already.

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