Apple says DOJ's e-book settlement brief is improper, would give Amazon competitive advantage
An endorsed memo from Apple lawyer Orin Snyder entered into court records on Monday says the U.S. Department of Justice's latest filing regarding the recent e-book trial is "plainly improper," alleging it is less of a letter to the court than a "12-page broadside masquerading as a brief."
In his letter to U.S. District Court Judge Denise Cote, who in July ruled Apple was guilty of e-book price fixing, Snyder notes that both parties were to submit letters to the court if they could not reach an agreement on settlement terms.
According to Snyder, the DOJ instead "filed a 12-page broadside masquerading as a brief repeating their prior arguments and largely ignoring this Court's core guidance." Accompanying the brief was 72 pages of documents "simply pulled off the internet," not from trial records, looking to discredit Apple.
Apple's counsel characterizes the brief as an effort on the part of the Justice Department to win an injunction that is out of proportion to the evidence asserted during the trial. The issues raised by the DOJ are counterproductive, Snyder says, because they are separate from those already adjudicated.
In addition to chipping away at Apple's credibility, much of the brief focuses on how the company deals with purchases made through the Amazon Kindle app. Here Snyder points out the issue was not even raised during the trial, saying that any changes to the current arrangement could give Amazon a significant competitive advantage.
Another bone of contention is a proposed external antitrust monitor, which the DOJ wants installed at Apple for a minimum of five years.
Wrapping up, Snyder takes a final swipe at the Justice Department's brief, saying, "The parties have been litigating long enough to understand what it means to file letters setting forth their positions.There is simply no excuse for plaintiffs' disregard of the Court's order, and their inclusion of non-record material on issues not adjudicated by this Court in this case."
Judge Cote ultimately denied Apple's request to have the DOJ resubmit a more focused letter. The two parties are set to meet again on Tuesday for further discussions.
Snyder's Memo:
DOJ's Brief:
In his letter to U.S. District Court Judge Denise Cote, who in July ruled Apple was guilty of e-book price fixing, Snyder notes that both parties were to submit letters to the court if they could not reach an agreement on settlement terms.
According to Snyder, the DOJ instead "filed a 12-page broadside masquerading as a brief repeating their prior arguments and largely ignoring this Court's core guidance." Accompanying the brief was 72 pages of documents "simply pulled off the internet," not from trial records, looking to discredit Apple.
Apple's counsel characterizes the brief as an effort on the part of the Justice Department to win an injunction that is out of proportion to the evidence asserted during the trial. The issues raised by the DOJ are counterproductive, Snyder says, because they are separate from those already adjudicated.
In addition to chipping away at Apple's credibility, much of the brief focuses on how the company deals with purchases made through the Amazon Kindle app. Here Snyder points out the issue was not even raised during the trial, saying that any changes to the current arrangement could give Amazon a significant competitive advantage.
Another bone of contention is a proposed external antitrust monitor, which the DOJ wants installed at Apple for a minimum of five years.
Wrapping up, Snyder takes a final swipe at the Justice Department's brief, saying, "The parties have been litigating long enough to understand what it means to file letters setting forth their positions.There is simply no excuse for plaintiffs' disregard of the Court's order, and their inclusion of non-record material on issues not adjudicated by this Court in this case."
Judge Cote ultimately denied Apple's request to have the DOJ resubmit a more focused letter. The two parties are set to meet again on Tuesday for further discussions.
Snyder's Memo:
DOJ's Brief:
Comments
Hasn't that been its purpose from Day One? Isn't that Chicago politics in a nutshell--using governmental power to help a politically favored business by crushing its competitors? Eric Holder, head of the DOJ is from Chicago. Obama was active in the city's politics for 20 years without making the slightest squeak about the city's corruption.
Having Al Gore on Apple's board doesn't help. Gore is from Tennessee.
Yeah, I can see how that would be a bad thing.
Wait, no I can't.
Who decided what market value was when Amazon was the only game in town. You do realize it was selling them at a loss.
Quote:
Originally Posted by Inkling
"Apple says DOJ's e-book settlement brief is improper, would give Amazon competitive advantage"
Hasn't that been its purpose from Day One? Isn't that Chicago politics in a nutshell--using governmental power to help a politically favored business by crushing its competitors? Eric Holder, head of the DOJ is from Chicago. Obama was active in the city's politics for 20 years without making the slightest squeak about the city's corruption.
Having Al Gore on Apple's board doesn't help. Gore is from Tennessee.
Gore is a waste of oxygen. And that nitwit from Intuit who can't update his program for Apple, thought his company clearly does favor the Windows version. These guys are bums.
Amazon was selling books BELOW PUBLISHER COST... intentionally undercutting publishing house's retail pricing so that NO OTHER BOOK RETAILER COULD MATCH THEIR PRICES. Fortunately for Amazon, they sell enough other products they can subsidize those losses.
Apple on the other-hand was telling the publishing houses to set the prices they thought were appropriate (not attempting to fix prices at any particular number or range), and Apple would add on its 30% convenience fee. Yes, it increases the cost of books for people who choose to purchase them from the iBooks store, but it did NOT limit where you could purchase the books. The only concession Apple asked for was the ability to sell those books at the lowest price offered to other major retailers. You can still buy most of them on Amazon. You can still buy them at Barnes and Noble, you can still go to your local bookstore (if you're luck enough to have one that Amazon didn't already put out of business.) Not exactly a monopoly or anti-consumer now is it?
I've read through a lot of the "evidence" produced by the DOJ on this case, and find it lacking. Yes, Apple negotiated with a large number of publishers at the same time. Yes, Apple offered all of those publishers the same terms. Yes, Apple wants a 30% cut of any digital media sold through iOS and use their standard payment API. How does that constitute and antitrust case? Especially when you consider that the company the DOJ keeps referencing as the target of Apple's strategy held a > 90% market share? If anyone should be the target of an antitrust case, it should be Amazon for artificially lowering the price to a point where anyone who hoped to match their pricing would lose money.
Sorry, I decided to post again after a glass of scotch and a bit of additional in-depth reading on the subject. It just seems absurd, and I wonder how a competent judge could come to this decision if they had any relevant knowledge on the subject.
Amazon contributed huge sums to Obama's election campaigns. Apple didn't. Payback time.
I hope Apple wins still.
I don't know that anyone has shown Amazon to be selling all "best-sellers" below cost, much less the rest of their book and magazine line. Be that as it may, Walmart had decided to undercut Amazon "best-seller" pricing by another 10%, dropping prices on some e-books to just $9 compared to Amazon's $10. Perhaps they thought that simple aggressive pricing would negate any Amazon advantage. Afterall, "discount pricing" works for many of their other product lines.
Eventually they determined that it wasn't just about price in the first place. Amazon was still maintaining it's market leader status, in large part due to the incredibly popular and well-designed Kindle. Worse, the newer Kindle Fire brought attention to Amazon's entire online store, not just books. That's what Amazon really wanted to accomplish. it was never about just books. So how did Walmart decide was one of the better ways to answer competition from Amazon? Stop selling the Kindle Fire.
Now when it came to toys Walmart didn't have to deal with Amazon in the same way. Aggressively low pricing was enough to force KBToys into bankruptcy and leave ToysRUS teetering on the edge. Another example of predatory pricing?
That's a misconception Sony's ebook store predates Amazon's and B&N's store is almost as old as Amazon's.
Is price the only way a company can compete? Offer a better product or experience and customers will pay more. Apple does that quite well so why not this time?
Btw you're wrong, Apple does not use the agency model on all media, they use the wholesale model for TV shows, movies, and music.
Quote:
Originally Posted by dasanman69
Is price the only way a company can compete? Offer a better product or experience and customers will pay more. Apple does that quite well so why not this time?
Good point. iBooks are much higher quality than Kindle books. iBooks seem to be copy-edited while Kindle books seem to be OCRed without any checking for OCR errors.
Quote:
Originally Posted by jungmark
Who decided what market value was when Amazon was the only game in town. You do realize it was selling them at a loss.
Well we can tell you obviously have no idea what you're talking about. Before Apple joined the party, Amazon, Barnes & Noble, AND Sony, had ebook readers AND stores, along with a few smaller groups. Sony was there well before Amazon started with the Kindle in 2007, charged way too much for ebooks, usually around $30 for a book that cost $6 for the paperback. Amazon joined in and priced retail at similar prices, Sony was also retail set prices, even though Sony's prices were so high. The Kindle was so successful both because of the prices AND the ease of use, in that you didn't need a stupid program on your computer to buy books, you only needed to head to the website, order, and download your file, you didn't even need to have your device hooked up to the computer you purchased from. They introduced wireless connectivity, when Sony was still ignoring it.
Because of the success of the Kindle, B&N released the Nook, with the SAME game plan as the Kindle, retail pricing, no computer needed, order from the web, wireless downloads. The publishers got scared because the ebooks started to cannibalize sales of PAPER BOOKS, that is the only reason they went with the iBookstore deal, they make LESS with agency than they were with retail pricing. It is ONLY because they did not want ebooks to be priced lower than hardcover books or the same as the paperback versions that they freaked out.
AGAIN, Sony, B&N, AND Amazon were in the game before Apple. But continue to tell yourself that ignorant story that Amazon was the only one and fixing prices. AFAIC if you support Apple & the publishers in raising prices YOU OWE ME MONEY for the increase in price!
Quote:
Originally Posted by mcarling
Amazon contributed huge sums to Obama's election campaigns. Apple didn't. Payback time.
Prove it. AFAIK Apple DID donate to Obamas campaign, but blame the black guy again. Typical CONservative. Oh and before you argue with me, if you DO support the troops, shut your mouth, by arguing with me you ARE arguing with a soldier, therefore you would NOT be supporting the troops doing so.
Quote:
Originally Posted by dasanman69
Is price the only way a company can compete? Offer a better product or experience and customers will pay more. Apple does that quite well so why not this time?
Btw you're wrong, Apple does not use the agency model on all media, they use the wholesale model for TV shows, movies, and music.
This discussion is about BOOKS, where Apple gave the publishers exactly what they wanted, a way to stop Amazon. The idea may be Apples, but they knew it was what the publishers wanted by talking with the publishers BEFORE development. That is the KEY to collusion. If you support agency and higher prices YOU OWE ME MONEY!
Of course. Her mind was made up from the start, so why drag things out.
Yep. I would expect the Appeals court to stay Cole's decisions and remand the entire matter back to her - although it is at least slightly possible that they'll simply overturn her decision without remanding it to her.