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Apple defense to take over in final days of e-book antitrust case

post #1 of 38
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With just four days left in the U.S. government's antitrust case against Apple, the Department of Justice will rest and Apple's defense team will take over this week.

DOJ


Apple Senior Vice President of Internet Software and Services Eddy Cue first took the stand last week, and will return on Monday to complete questioning from Apple's attorneys. Following that, the DOJ is scheduled to rest its case, and Apple's defense will take the reins.

A list of witnesses scheduled to take the stand were presented on Monday by Apple 2.0. They include:
  • Rob McDonald, head of Apple's U.S. iBookstore operations
  • Eric Gray, director of iTunes operations
  • Theresa Horner, head of digital content at Barnes & Noble
  • A trio of experts are also scheduled to testify about Apple's effect on the e-book market

Apple's defense team will have three days to bring all of its witnesses to the stand. Summations are scheduled for Thursday, after which U.S. District Judge Denise Cote will write her decision, expected to be handed down within a matter of weeks.

The DOJ has attempted to prove that Apple was involved in a price fixing scheme, colluding with five of the world's largest book publishers to falsely inflate the cost of e-books. Apple entered the e-book business in 2010, when it launched the first iPad.

When he took the stand last week, Cue said Apple originally looked to adopt the wholesale model used by market leader Amazon, which allows retailers to price e-books after buying the titles from content owners. But after discussing the terms with publishers, the company decided to instead employ the agency model, allowing content owners to set prices under a most-favored-nations clause, which precluded them from selling the same titles to another reseller for less without offering the same to Apple.
post #2 of 38

Now things get interesting. Aple has done a good job handling the DOJ witnesses (making fools of some in the process). I can't wait to see what they present.

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post #3 of 38
While they will certainly put up a vigorous defense (although it's really obvious that there's not enough evidence to convict them, anyway), it really doesn't matter. If they lose, this one goes straight to the appeals court. The judge clearly pre-judged the case.
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post #4 of 38
Quote:
Originally Posted by jragosta View Post

While they will certainly put up a vigorous defense (although it's really obvious that there's not enough evidence to convict them, anyway), it really doesn't matter. If they lose, this one goes straight to the appeals court. The judge clearly pre-judged the case.

In case anyone wants to familiarize themselves with the appeals process in antitrust cases. Some of the precedents were established in the DoJ case against Microsoft in 2004.
http://www.justice.gov/atr/public/speeches/204136.htm
Edited by Gatorguy - 6/17/13 at 9:11am
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post #5 of 38
From what I've heard, it sounds like Apple is in the clear. Unfortunately, I don't think the facts will matter much. In the end, whether in this trial or others to come, Apple will be found guilty of collusion, criminal mischief, murder, larceny, tax evasion, money laundering, drug trafficking, you name it. They'll throw it all against the wall and see which false claim sticks. Whatever doesn't stick will probably hurt Apple's reputation anyway. Kind of like someone being falsely convicted of sexual harassment. They may be innocent but their name is still slightly tarnished.
post #6 of 38
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Originally Posted by james0378 View Post

From what I've heard, it sounds like Apple is in the clear.

That's my guess.
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post #7 of 38

Some really superb reporting by Fortune, over the weekend, on why the case might be falling apart for the DoJ: http://tech.fortune.cnn.com/2013/06/16/apple-ebooks-dinner-doj/

 

AI, can you please get Philip Elmer-DeWitt to write an occasional column for you guys? With both DED and PED on our roster, you'd have a pretty impressive tag-team! 

post #8 of 38

Didn't the judge herself already declare Apple guilty? I'm not sure why some people still have hope.

post #9 of 38
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Originally Posted by matrix07 View Post

Didn't the judge herself already declare Apple guilty? I'm not sure why some people still have hope.

No she didn't.
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post #10 of 38

I could see this going either way. Challenging the government in court isn't ever a sure bet.

post #11 of 38
Quote:
Originally Posted by matrix07 View Post

Didn't the judge herself already declare Apple guilty? I'm not sure why some people still have hope.

Quote:
Originally Posted by Gatorguy View Post

No she didn't.

Technically, she didn't, but she did say in pre-trial that it seemed like Apple was guilty.

Or, to quote Fortune:
http://tech.fortune.cnn.com/2013/06/07/apple-ebook-judge-cote/
Quote:
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.

The judge's pre-trial statement?
http://tech.fortune.cnn.com/2013/05/24/apple-ebooks-antitrust-judge/
Quote:
"I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that."

I don't know how she could demonstrate bias any more clearly than that.
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post #12 of 38
Quote:
Originally Posted by jragosta View Post


Technically, she didn't, but she did say in pre-trial that it seemed like Apple was guilty.

Yup. She certainly answered a question put forth by the attorneys that she was under no obligation to answer. Personally I read that as a last ditch effort to suggest Apple might consider reaching a pre-trial settlement, a favor to them so to speak.

IMO Apple didn't need a favor tho as they've done a fine job of leaving enough questions in the DoJ's arguments to get them off the hook.
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post #13 of 38
Quote:
Originally Posted by jragosta View Post

While they will certainly put up a vigorous defense (although it's really obvious that there's not enough evidence to convict them, anyway), it really doesn't matter. If they lose, this one goes straight to the appeals court. The judge clearly pre-judged the case.

No she didn't - her statement has been grossly misconstrued (though Apple might cite it in an appeal if she rules against them). She was asked to make that statement after looking over the preliminary filings. It has nothing to do with the actual court proceedings or ruling on the case - those filings had not been presented in court, had not been subject to cross-examination, etc. As you can see by Apple's cross-examinations, many of those filings were incomplete or out of context, or contradicted by other evidence.

 

She made this emphatically clear on the first day of the trial, when Apple's attorney brought up the statement. She said strongly that she will make her ruling based solely on the evidence presented in court. I'd suggest waiting for the ruling..

post #14 of 38
Quote:
Originally Posted by jragosta View Post



Technically, she didn't, but she did say in pre-trial that it seemed like Apple was guilty.

Or, to quote Fortune:
http://tech.fortune.cnn.com/2013/06/07/apple-ebook-judge-cote/
The judge's pre-trial statement?
http://tech.fortune.cnn.com/2013/05/24/apple-ebooks-antitrust-judge/
I don't know how she could demonstrate bias any more clearly than that.

People have interpreted her statement to mean a lot more than it actually does.


Edited by elroth - 6/17/13 at 1:02pm
post #15 of 38
Quote:
Originally Posted by james0378 View Post

From what I've heard, it sounds like Apple is in the clear. Unfortunately, I don't think the facts will matter much. In the end, whether in this trial or others to come, Apple will be found guilty of collusion, criminal mischief, murder, larceny, tax evasion, money laundering, drug trafficking, you name it. They'll throw it all against the wall and see which false claim sticks. Whatever doesn't stick will probably hurt Apple's reputation anyway. Kind of like someone being falsely convicted of sexual harassment. They may be innocent but their name is still slightly tarnished.

Paranoid much?

post #16 of 38
Quote:
Originally Posted by anantksundaram View Post

Some really superb reporting by Fortune, over the weekend, on why the case might be falling apart for the DoJ: http://tech.fortune.cnn.com/2013/06/16/apple-ebooks-dinner-doj/

 

AI, can you please get Philip Elmer-DeWitt to write an occasional column for you guys? With both DED and PED on our roster, you'd have a pretty impressive tag-team! 

I've been following his stories - it's really the best detailed reporting on the case I've seen. The testimony so far (the DOJ's case) seems to be a lot in Apple's favor - I hope that's accurate.

post #17 of 38
Oooohhh, watch out, looks like we got a badass over here.

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post #18 of 38
Quote:
Originally Posted by Gatorguy View Post

Yup. She certainly answered a question put forth by the attorneys that she was under no obligation to answer. Personally I read that as a last ditch effort to suggest Apple might consider reaching a pre-trial settlement, a favor to them so to speak.

Quote:
Originally Posted by elroth View Post

No she didn't - her statement has been grossly misconstrued (though Apple might cite it in an appeal if she rules against them). She was asked to make that statement after looking over the preliminary filings. It has nothing to do with the actual court proceedings or ruling on the case - those filings had not been presented in court, had not been subject to cross-examination, etc. As you can see by Apple's cross-examinations, many of those filings were incomplete or out of context, or contradicted by other evidence.

Baloney. Her statement was "I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that."

That is a very clear statement of her position. She believed that Apple was guilty before the trial began and believed that the government would be able to prove that guilt.

The only ones mis-interpreting her statement are the paid shills.
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post #19 of 38
Quote:
Originally Posted by jragosta View Post


Baloney. Her statement was "I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that."

That is a very clear statement of her position. She believed that Apple was guilty before the trial began and believed that the government would be able to prove that guilt.

The only ones mis-interpreting her statement are the paid shills.

Even tho you meet the condition you set I hadn't ever considered you to be a paid shill.
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post #20 of 38
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Originally Posted by EricTheHalfBee View Post

Oooohhh, watch out, looks like we got a badass over here.

I think that's TS. One account after another all day and part of yesterday ever since he was banned.
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post #21 of 38
Quote:
Originally Posted by EricTheHalfBee View Post

Oooohhh, watch out, looks like we got a badass over here.

Report and move on, I say. 1smile.gif
post #22 of 38

Hilarious observation in the NYT piece re: the trial this afternoon:

 

Quote:

Throughout the testimony, Apple’s presentation of e-mails and evidence was notably smooth compared with the government’s. Both parties showed their evidence on a projector screen. A member of Apple’s legal team was using a MacBook to artfully shuffle between evidence documents, stacking them side by side in split screens and zooming in on specific paragraphs when needed.

In contrast, the Justice Department’s lawyers could show only one piece of evidence at a time on the screen. One video that Mr. Buterman played as evidence failed to produce the audio commentary needed to make his point. Judge Denise L. Cote of the Federal District Court for the Southern District of New York provided some comic relief when she asked whether the government lawyers were using a Mac. The Justice Department said it was a Hewlett-Packard computer.

 

http://www.nytimes.com/2013/06/18/technology/apple-executive-defends-pricing-and-contracts-in-antitrust-case.html?partner=yahoofinance&_r=0

 

Oh, please DOJ, just a few more days of this free advertising...

post #23 of 38
Quote:
Originally Posted by Gatorguy View Post


I think that's TS. One account after another all day and part of yesterday ever since he was banned.

 

Confused, why would he insult himself?

post #24 of 38

TS banned? Considering all the trolls still present on AI I find that surprising.

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post #25 of 38
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Originally Posted by Pendergast View Post

Confused, why would he insult himself?
You've read enough TS posts to know he wouldn't look at it as an insult. Whoever it is is taunting the ad mins/mods, making sure they know he can make them miserable. Don't know of another ban that matches the timing for this guy showing up.
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post #26 of 38
Quote:
Originally Posted by jragosta View Post



Baloney. Her statement was "I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that."

That is a very clear statement of her position. She believed that Apple was guilty before the trial began and believed that the government would be able to prove that guilt.

The only ones mis-interpreting her statement are the paid shills.

Maybe it would help you to read the Reuters story, which presents it more in context, instead of just reading a blogger's report.

 

Judge says leaning toward U.S. in Apple e-books case | Reuters

 

Highlights: 1.She was asked by the Justice Department lawyer to give her pre-trial thoughts - she called it a "tentative" view. 2."She emphasized that no final decision woud be made until after the trial takes place", and she said he hadn't read many of the submitted affadavits, she had basically only read some of the evidence (emails, etc.), mostly submitted by the Justice Department.

 

Then, on the first day of the trial, she reiterated to Apple's lawyer that the case will be decided on the evidence that the lawyers present in court, not on anything presented pre-trial.

 

Again, her statement may be unusual, but it means nothing to the outcome of the case. She will decide on the evidence presented (and cross-examined) in court, and on the law.

 

I don't know why people can't grasp this issue. Maybe it's because she's not explaining how courts work to the bloggers and the public. Would it be better if her language were slightly different, and instead of saying "I believe that the government will be able to show..." , she said "it appears the government will be able to show..."? Then would you understand?


Edited by elroth - 6/17/13 at 3:05pm
post #27 of 38
@ "I don't know how she could demonstrate bias any more clearly than that."

Except that from everything I've read, DoJ has come up spectacularly short in offering "direct evidence."

A lot of 'Isn't it true/fact that%u2026' which their own witnesses couldn't collaborate when under oath.
post #28 of 38
Quote:
Originally Posted by Gatorguy View Post


You've read enough TS posts to know he wouldn't look at it as an insult. Whoever it is is taunting the ad mins/mods, making sure they know he can make them miserable. Don't know of another ban that matches the timing for this guy showing up.

 

Really? I can think of several drive-by trolls who have appeared since WWDC who were very prolifics until they got banned. And two of them (that I saw) had similar posting styles. I haven't even been on AI much the last couple weeks and even I can come up with two.

 

Forgot to add. There was even that idiot who copied TS's name by changing one letter. That makes 3 recent ones I know about.


Edited by EricTheHalfBee - 6/17/13 at 2:46pm

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post #29 of 38
Quote:
Originally Posted by elroth View Post

That's a pre-trial statement that she was asked to give. It's a moment in time with no legal consequences, and no bearing on the actual trial. It seems contradictory or confusing, but it is what it is, which is basically nothing.

 

It's not unlike a pre-trial hearing in which the judge rules that there is enough evidence to hold someone for trial. It may be worded differently, but it's more or less the same. It carries no legal weight, it means absolutely nothing in regards to her "bias." Another example is in cases where the defense submits a "motion to dismiss" on the grounds that the government didn't prove its case, and the judge rejects the motion. That also has no bearing on whether the defendant is ultimately convicted - many times they are still acquitted, because of the evidence subsequently presented.

 

There are a lot of ins and outs in criminal proceedings.

 

One would expect an impartial judge to answer such a question along the lines of "At this stage I have no comment to make until the facts have been presented", which is far more professional than the pronouncement of guilt this moron made.

 

btw it's a civil case, the DoJ would not even get in the door with a criminal case.

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post #30 of 38
Quote:
Originally Posted by Felix01 View Post

@ "I don't know how she could demonstrate bias any more clearly than that."

Except that from everything I've read, DoJ has come up spectacularly short in offering "direct evidence."

A lot of 'Isn't it true/fact that%u2026' which their own witnesses couldn't collaborate when under oath.

That's true, but it doesn't change the fact that she clearly demonstrated her bias before the trial.

Quote:
Originally Posted by hill60 View Post

One would expect an impartial judge to answer such a question along the lines of "At this stage I have no comment to make until the facts have been presented", which is far more professional than the pronouncement of guilt this moron made.

Exactly.
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post #31 of 38
Quote:
Originally Posted by EricTheHalfBee View Post

Really? I can think of several drive-by trolls who have appeared since WWDC who were very prolifics until they got banned. And two of them (that I saw) had similar posting styles. I haven't even been on AI much the last couple weeks and even I can come up with two.

Forgot to add. There was even that idiot who copied TS's name by changing one letter. That makes 3 recent ones I know about.
This started yesterday afternoon
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post #32 of 38
Edit: Deleted. Thanks mods.
Edited by ChristophB - 6/17/13 at 7:43pm
post #33 of 38
Quote:
Originally Posted by Gatorguy View Post

This started yesterday afternoon

I missed it, what all went down? I could have made popcorn or something.
post #34 of 38
Quote:
Originally Posted by jragosta View Post


That's true, but it doesn't change the fact that she clearly demonstrated her bias before the trial.
Exactly.

If she did anything out of sorts, she would be disciplined and removed from the bench.

 

You just keep pushing an invalid point. She said it was a "tentative" read of part of the evidence, and the case will be decided on the evidence presented in court. She said she believes the DOJ will be able to show Apple conspired... That doesn't mean the DOJ has shown it already - that has to be done in court. You are really dense today.

post #35 of 38
Quote:
Originally Posted by hill60 View Post

 

One would expect an impartial judge to answer such a question along the lines of "At this stage I have no comment to make until the facts have been presented", which is far more professional than the pronouncement of guilt this moron made.

 

Ridiculous. Read the Reuters story referenced above, and try to understand something about court cases.

 

To give you another example, Judge Lucy Koh in the Apple vs. Samsung patent trial (the new one), said in pre-trial that "Apple has shown that it is likely to succeed on the merits at trial in its claims that the Samsung Galaxy Nexus infringes claims 18, 19, and 27 of the '172 Patent." That's a statement of what the preliminary evidence looks like - it doesn't mean that it will necessarily turn out that way. Would you accuse Judge Koh of being biased against Samsung? It sure didn't look that way during the first patent trial that she presided over (she overturned part of the jury verdict, and reduced the damages awarded to Apple).

 

Learn how courts work, please. There was no "pronouncement of guilt", and calling the judge names is pretty infantile.


Edited by elroth - 6/17/13 at 10:36pm
post #36 of 38
The DOJ seems to be making too much of "Apple's effect on the e-book market", as if any effect at all would somehow indicate proof of collusion?

It's true that the overall prices of e-books increased a bit after iBooks came online. However, I think it was less a case of Apple "causing" an increase through collusion, and more a case of the new model removing the effects of artificially low prices due to Amazon's fixed lowball pricing.
post #37 of 38
Quote:
Originally Posted by elroth View Post

Ridiculous. Read the Reuters story referenced above, and try to understand something about court cases.

 

To give you another example, Judge Lucy Koh in the Apple vs. Samsung patent trial (the new one), said in pre-trial that "Apple has shown that it is likely to succeed on the merits at trial in its claims that the Samsung Galaxy Nexus infringes claims 18, 19, and 27 of the '172 Patent." That's a statement of what the preliminary evidence looks like - it doesn't mean that it will necessarily turn out that way. Would you accuse Judge Koh of being biased against Samsung? It sure didn't look that way during the first patent trial that she presided over (she overturned part of the jury verdict, and reduced the damages awarded to Apple).

 

Learn how courts work, please. There was no "pronouncement of guilt", and calling the judge names is pretty infantile.

 

"I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that."

 

I believe Judge Denise Cote is a moron.

 

I believe her statement will provide more than enough grounds to appeal for a mistrial to the Supreme Court.

 

I believe Supreme Court Judges will not be so gullible when it comes to the DoJ's, largely circumstantial "evidence".

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post #38 of 38
Wait, that was the prosecution that just went? lol, g-man, lol.
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