Why Apple took its ebook antitrust battle to the U.S. Supreme Court

“Having maintained its innocence throughout the federal district court trial, which it lost, and in the appeal, which it lost in a split decision, it should surprise no one that Apple is taking its e-book antitrust case to the highest court in the land,” Philip Elmer-DeWitt reports for Fortune.

P.E.D. reports, “Accompanying Thursday’s 250-page petition was a brief statement to the press: ‘When Apple launched the iBooks Store in 2010, we brought choice to consumers and innovation to ebooks. We have always acted in the best interest of customers and content creators of all sizes. We did nothing wrong, and stand by our principles. At this point, our only recourse is to take this to the Supreme Court.'”

Read more in the full article here.

MacDailyNews Take: This case against Apple has everything: A clueless U.S. DOJ, whiny, a jealous rival seeking to protect an actual ebooks monoploy, a rubber-stamping, prejudiced U.S. federal puppet, a nasty court-appointed crony, etc., but it lacks one important thing, actual hard evidence proving that Apple did anything wrong. And that’s why the U.S. Supreme court should agree to hear the case.

In pretrial view, judge says leaning toward U.S. DOJ over Apple in e-books case – May 24, 2013
Lawyers have complained for years that Judge Denise Cote pre-judges cases before she enters the courtroom – August 14, 2013

Apple asks U.S. Supreme Court to toss e-books antitrust decision – October 29, 2015
U.S. federal puppet Denise Cote says Apple e-books antitrust monitor’s term to end – October 13, 2015
U.S. DOJ says Apple e-books antitrust monitor no longer necessary – October 13, 2015
Apple is its ‘own worst enemy,’ U.S. antitrust monitor Bromwich claims – October 6, 2015
WSJ: U.S. Supreme Court should strike down the risible antitrust campaign against Apple – July 1, 2015
Apple is headed to the Supreme Court over e-book antitrust case? – June 30, 2015
Apple loses appeal in e-book price-fixing case – June 30, 2015

[Thanks to MacDailyNews Reader “Dan K.” for the heads up.]


  1. I think the SCOTUS should hear the case because it affects our contemporary understanding of anti-trust laws in a digital age. However, since both lower courts affirmed the ruling, there is an additional burden of proof on Apple to be granted an appeal.

    1. I think we’ve gone over that great idea before. It would be a great disincentive for bad lawsuits, like this one. I think we originally discussed the idea in the context of patent trolls. Make the dummies who created the bad lawsuit pay for the show when they lose.

  2. Here is a Wikipedia excerpt on the Standard Oil of New Jersey case of 1911 heard by the Supreme Court, considered a landmark in anti-trust:

    “Standard Oil allegedly used its size and clout to undercut competitors in a number of ways that were considered “anti-competitive,” including underpricing and threats to suppliers and distributors who did business with Standard’s competitors.”

    => Underpricing and threats to suppliers & distributors — sound familiar? Does it sound like Amazon? Underpricing publishers’ new and best-selling tittles, and threatening publishers (Hachette and others) who do not agree to Amazon’s terms.

    Apple and the independent publishers were not the monopolists here. They were the “freedom fighters” trying to counter the monopolist — Amazon.

    Okay, the publishers never should had agreed to sell e-books to Amazon on the traditional “wholesaler basis” as was the typical sales basis for paper books. But they probably never saw it (ie, what Amazon did to undercut the publisehrs) coming. Rather, it makes rational sense for publishers to sell e-books on the “agency basis” whereby publishers retain legal ownership (eg, legal title) to the books and ultimate pricing authority, and the distributor gets an appropriate commission. Incidentally, this is how most of Amazon’s sales are made.

    Given the publishers’ collective mistake — once they realized it — are they not entitled to change their mind and sell to Amazon on the agency basis? Will the country’s legal system require businesses to conduct business on terms that are contrary to their own best interests? How does this meet the definition of a free market. Or capitalism?

    The lower courts got this wrong. The Supreme Court must rectify it.

    1. The publishers admitted they worked together and got a hand slap. NONE of them pointed to Apple as a ring leader. They told the truth!

      Apple was trying to join an already illegally monopolistic market and got back stabbed by Amazon. the bad guy cheats!

      Justice in this country is a crap shoot cause many of these sitting judges do not care about the law, only in their power and its perks. So sad but so true.

  3. I like Amazon and its services and I use them a lot. They were a godsend when I lived in coyote hollow. Some day they will unleash a fleet of delivery drones to cross borders for same-day deliveries (once the regs have been updated to allow this). Bruce Sterling envisioned this fantastic world of zip and zap commerce in Heavy Weather (1995) although he posited jumpers rather than airborne drones. His landborne delivery vehicles never had to worry about the FAA.

  4. Sorry, eldernorm. I like a lot of your posts. But I’ve gotta disagree with you here.

    Cooperation is not necessarily collusion. Collusion is, specifically, cooperation TO DO SOMETHING ILLEGAL.

    But the publishers did nothing wrong. Yes, they talked among themselves. Yes, they wanted to switch Amazon to the “wholesaler basis” of e-books sales …to regain authority over pricing their own products …and avoid e-books from undercutting their “bread-and-butter” business of selling new and best-selling paper books. (Incidentally, the “wholesaler basis” is the only logical basis for these sales. Any decision-analyst worth their salt can tell you that.) But does this make the publishers criminals? I don’t think so.

    The publishers caved-in because they did not have unlimited funds to fight the US government. Legal fees …plus fees exacted by the DOJ in the event they lost their cases (in puppet courts?). Paying fixed fines (and publicly admitting so-called guilt) was not necessarily illogical in the circumstances. But it was bullshit.

    Having to spend a huge amount of money to prove one’s innocence in the face of a costly and uncertain outcome is essentially …a form of blackmail.

    Luckily, Apple has the principle and the money to challenge bogus assertions of illegal business principles, policies, and behavior. DOJ is barking up the wrong tree. It is Amazon that is the culprit.

    Shame on this country.

    1. corrections to para 3. [Publishers} wanted to switch Amazon FROM the wholesaler basis [ie, TO the agency basis]. Sorry. Text somehow got twisted… But the intended meaning should be clear to those who understand the underlying issue.

  5. PED says: “…Apple can afford to wage quixotic fights. …Especially if a large segment of its customer base is inclined to see the case its way.”

    I love PED’s articles overall. But I disagree with his characterization of Apple’s appeal to the Supreme Court as “quixotic” — defined as: “Caught up in the romance of noble deeds and the pursuit of unreachable goals; idealistic without regard to practicality” [Wordnik]

    (1) This is neither an unreachable goal, nor idealistic w/o regard to practicality. This is a categorical imperative for Apple: it _should_ do this, therefor it _will_ do this. They are left no choice. Apple’s situation is more like freedom fighters throwing off an oppressive unreasonable tyrant …than an aging, romantic Don Quixote tilting at windmills.

    (2) It is not only Apple’s customer base that might be inclined to see the case the same way as Apple does. Those with an understanding of the purpose of antitrust laws, and those with an appreciation for fair competition in a “free market capitalist system” should also see the case Apple’s way.

    PED, love your stuff. But please do not color Apple’s case as hopelessly idealistic. It is far more important than that. The outcome of this case will legally clarify, limit, and define the notion of “fair competition” in the US for years to come. This case will define the context of free market capitalism for many years to come.

    Hopefully, however, level heads at the Supreme Court shall prevail, and the case will not turn out to be a travesty of justice, like the “Citizen’s United” decision. I predict, or hope, that one day, the bogus Citizen’s United case will be overturned. The country is still reeling from the aftermath of that heinous decision. The country deserves much better. Lord help us.

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