Judge says evidence will likely show Apple culpable in e-book price fixing case

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  • Reply 101 of 136
    jragostajragosta Posts: 10,473member
    solipsismx wrote: »
    If she's taken off the case because of her comments I will concede that her comments did show she was bias. Otherwise, I wouldn't make a Federal case about it.

    It's already a Federal case - which is why I provided the rules for Federal cases which shows that she should be removed.
    solipsismx wrote: »
    PS: What if she actually thought the opposite of what she stated but did so because she felt Apple was likely to to be found not guilty and was planning ahead for the eventuality that the anti-Apple crowd would come out of the woodwork against her. Don't you remember when people said Judge Koh hated Korea… despite being of Korean descent?

    There are lunatics with every viewpoint you can imagine, but I can't speak for anyone else. For me, I would have had the same comment if she said that it looked like Apple was not guilty. Judges are not allowed to prejudge a case. Period.
  • Reply 102 of 136
    wigginwiggin Posts: 2,265member
    Quote:
    Originally Posted by SolipsismX View Post



    Now consider Apple's offer without the agency model. "We'll let you set the prices and we don't care if Amazon sells them at a loss like they've been doing." That's an automatic failure the Bookstore since the publishers could then set their own prices and Apple would still be undercut by Amazon dumping their content. That means no competition for the ebook market. That means no fair pricing ever because once Amazon had a total lock on the market they could adjust prices as they saw fit without concern about competition.

     

    So we are all in agreement that Apple didn't want to compete with Amazon's current business model and so Apple convinced the publishers to force Amazon to raise their prices to consumers so Apple could get their 30% cut of the selling price. Whether Apple did this by getting them to switch to the agency model is irrelevant. Apple could have chosen to compete by other means.



    The question is, would any one publisher have ever gone to Amazon independently and forced the switch to the agency model, knowing that their books would then be priced higher than their competitors books? Or was there a coordinated effort for all of the publishers to make that move at the same time? Would any publisher have made that agreement with Apple if they weren't confident that all of the other publishers were going to go along with it, too?



    I do think it was odd that the judge made just a clear indication of where she was leaning before the trail started. But on the other hand I don't know that it's necessarily improper to grounds for a mistrial. Perhaps it's simply a strong suggestion to Apple that they should settle because they had a weak case. Odd that it was made as a public statement if that was the case.



    As for the 2nd half of the above paragraph, about it being an "automatic failure" for the iBookstore and that it would inevitably lead to Amazon having total dominance is hogwash and pure conjection. To suggest that Apple couldn't have competed with Amazon is silly. It would have only meant that Apple's profit margins would have been slimmer. Which leads us back to the crux of the case...was their a coordinated effort across the publishing industry to artificially increase prices to consumers?

  • Reply 103 of 136
    gatorguygatorguy Posts: 20,894member

    Quote:

    Originally Posted by SolipsismX View Post





    If she's taken off the case because of her comments I will concede that her comments did show she was bias. Otherwise, I wouldn't make a Federal case about it.





    PS: What if she actually thought the opposite of what she stated but did so because she felt Apple was likely to to be found not guilty and was planning ahead for the eventuality that the anti-Apple crowd would come out of the woodwork against her. Don't you remember when people said Judge Koh hated Korea… despite being of Korean descent?


    Is it really unheard of for a Federal Judge to comment on a case not yet completed? I thought that Judge Ponder did much the same before eventually dismissing both Apple and Moto cases against each other. 


     


    FWIW, "federal trial judges have long had the authority to comment on the evidence. The judge “may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. ... This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided’; that ‘deductions and theories not warranted by the evidence should be studiously avoided.’” Quercia v. United States, 289 U.S. 466, 470 (1933)"


    www.lexisnexis.com/lawschool/study/outlines/word/evid.doc

  • Reply 104 of 136


    This whole matter has been interesting to follow and a bit hard to suss out but right now I see it as a framing dispute. Amazon (with the DOJ acting as proxy) frames Apples effort as price fixing, while it seems to me that Apple is guilty of trying to persuade the publishers to switch to the 'agency model' for pricing ebooks. But that doesn't equate to price fixing.


     


    Glossing over some of the comments, I note that books aren't a commodity like gasoline. Titles, which are exclusive to individual publishers, vary widely in popularity and obviously aren't inter-changable. I think that this is less about a $12.99, (or whatever) across the board price than putting the pricing power in the hands of the publishers. Since ebooks are intangible and don't require expensive printing, shipping, prepurchase by retailers, and stockpiling in warehouses and/or stores, it seems that a publisher would have more reason than ever to try to assert pricing control and allow less leverage by retailers. If the publisher of 'The Da Vinci Code' wants to set the price of their hot seller at $12.99 and the publisher of Harry Potter wants to set their ebook price at 13.99, and another publisher who has some new autobiography by a politico wants to sell it for 10.99, why shouldn't they be able to do that? And if you want to read 'The Da Vinci Code', you aren't going to buy 'Lean In', even though its publisher might have set that at a lower price. It seems that there are two issues that are getting confused by a lot of people - one is uniform ebook pricing and the other is who sets the price. Apple uses the agency model of course. If Apple doesn't want Frys to sell an iPod for less than their set price, Frys can't do it. They can offer other incentives to drive customer traffic if they think that makes sense, but that's it. Clearly Apples interest was in giving the publishers the power back and stripping Amazon of its power to offer loss leaders, but I don't think Apple cared much about what price books sold for. Apple is 'guilty' of persuading the major publishers to switch to the agency model for ebooks. I can see Amazon being upset by this, but don't see how its illegal.

  • Reply 105 of 136
    solipsismxsolipsismx Posts: 19,566member
    gatorguy wrote: »
    Is it really unheard of for a Federal Judge to comment on a case not yet completed? I thought that Judge Ponder did much the same before eventually dismissing both Apple and Moto cases against each other. 

    FWIW, <span style="line-height:1.231;">"federal trial judges have long had the authority to comment on the evidence. The judge “may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. ... This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided’; that ‘deductions and theories not warranted by the evidence should be studiously avoided.’”</span>
    <i style="line-height:1.231;">Quercia v. United States</i>
    <span style="line-height:1.231;">,</span>
    <span style="color:#0000ff;line-height:1.231;">289 U.S. 466, 470</span>
    <span style="line-height:1.231;">(1933)"</span>

    <span style="color:rgb(0,153,51);font-family:arial, sans-serif;font-size:14px;white-space:nowrap;">www.lexisnexis.com/lawschool/study/outlines/word/evid.doc</span>

    I certainly don't recall this ever happening before but as I've stated it seems like she worded it in a way I'd think was acceptable and fair.
  • Reply 106 of 136
    jungmarkjungmark Posts: 6,709member
    gatorguy wrote: »
    Well there you go, something I would agree with based on everything I've personally read. Apple did not set $12.99 as the specific minimum selling price on that group of books. The 7 major publishers all agreed to that mandated minimum and identical price with Amazon and every other e-book seller bound by it.

    At least you finally got past saying the $12.99 minimum didn't exist as you've been doing all along. Baby steps.

    The publishers agreed individually. Apple gave choices and that's why some negotiations took longer than others.
  • Reply 107 of 136
    gatorguygatorguy Posts: 20,894member

    Quote:

    Originally Posted by jungmark View Post





    The publishers agreed individually. Apple gave choices and that's why some negotiations took longer than others.


    ...and inexplicably all arrived at the exact same figures. 

  • Reply 108 of 136
    solipsismxsolipsismx Posts: 19,566member
    gatorguy wrote: »
    ...and inexplicably all arrived at the exact same figures. 

    So you're saying that even decades before the iBookstore was formed, before the iTS was created, before Apple was incorporated that any exact pricing models on print books would also be Apple's fault? Of course not! These similar prices exist across all industries for a variety of reasons that have nothing to do with an intermediary painstakingly telling them what every single one of their products will need to be priced at.
  • Reply 109 of 136
    gatorguygatorguy Posts: 20,894member

    Quote:

    Originally Posted by SolipsismX View Post





    So you're saying that even decades before the iBookstore was formed, before the iTS was created, before Apple was incorporated that any exact pricing models on print books would also be Apple's fault? Of course not! These similar prices exist across all industries for a variety of reasons that have nothing to do with an intermediary painstakingly telling them what every single one of their products will need to be priced at.


    I understand the intent of others to claim I'm saying Apple did something illegal. I'm pretty surprised to see you use the same tact.


    (by the way exactly the same and similar prices are obviously quite different, tho you're mixing and matching the two for convenience)

  • Reply 110 of 136
    hill60hill60 Posts: 6,992member

    Quote:

    Originally Posted by Gatorguy View Post


    Is it really unheard of for a Federal Judge to comment on a case not yet completed? I thought that Judge Ponder did much the same before eventually dismissing both Apple and Moto cases against each other. 


     


    FWIW, "federal trial judges have long had the authority to comment on the evidence. The judge “may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. ... This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided’; that ‘deductions and theories not warranted by the evidence should be studiously avoided.’” Quercia v. United States, 289 U.S. 466, 470 (1933)"


    www.lexisnexis.com/lawschool/study/outlines/word/evid.doc



     


    Convenient that you leave out that this case has not yet started.

  • Reply 111 of 136
    gatorguygatorguy Posts: 20,894member

    Quote:

    Originally Posted by hill60 View Post


     


    Convenient that you leave out that this case has not yet started.



    Wasn't that in the AI article? And of course it's "started", with most/all of the discovery process now complete, hearings and judicial orders made and settlements discussed, negotiated and approved with the other players, the last one this week. As far as I know Apple is the last one involved now.

  • Reply 112 of 136
    ankleskaterankleskater Posts: 1,287member
    solipsismx wrote: »
    1) From what I read the judge only say a part of an email before making this statement.

    2) My statement "Based on the known emails..." indemnifies my comment quite well.

    3) I don't care about anyone's title. I hold no one is such esteem that they are beyond reproach or incapable of being bias or wrong. I will question everything and everyone were I see fit and expect all other reasonable people to do the same.

    Agree with you by and large except ...

    You're not just questioning. You're making conclusions.

    A judge is to be respected not because of her title but because of the process of how she got her job. Despite what you wrote, I believe you're someone who respects that because you are more rational anx thoughtful than other slurpy jrky turkeys here. But it's easy to dismiss get because she's a judge mentioned in the media as opposed to one presiding over one of your cases.
  • Reply 113 of 136
    9secondko9secondko Posts: 929member
    A judge giving a PRE-trial "tentative view" is nothing more than a judge revealing their bias against the defendant before any trial has even started! that garbage should be illegal and any judge thinking that way, barred.

    Judges are supposed to be objective, weighing ALL the evidence, event he evidence that goes against the evidence that warranted a trial to begin with.

    Wow.

    No wonder the American legal system is in trouble.
  • Reply 114 of 136
    gatorguygatorguy Posts: 20,894member

    Quote:

    Originally Posted by Gatorguy View Post


    Wasn't that in the AI article? And of course it's "started", with most/all of the discovery process now complete, hearings and judicial orders made and settlements discussed, negotiated and approved with the other players, the last one this week. As far as I know Apple is the last one involved now.



    A further comment:


     


    It seems to me that Judge Cote is making a strong suggestion to Apple that a pre-trial settlement would be their best option. Based on what evidence she is familiar with, and it's probably a lot since she's already had to make several rulings on the publishers settlement offers, Apple is going to find it tough disproving the governments charges. Note this is going to be a bench trial heard by Judge Cote, not a jury trial. If she's familiar enough with the documents submitted so far to form a preliminary opinion she's doing Apple a favor in offering it since no jury is going to be arriving at a verdict in this civil case. It's gonna be her. Judges suggesting pre-trial settlements after reviewing the pertinent docs is nothing new.

  • Reply 115 of 136
    dasanman69dasanman69 Posts: 12,984member
    wiggin wrote: »
    So we are all in agreement that Apple didn't want to compete with Amazon's current business model and so Apple convinced the publishers to force Amazon to raise their prices to consumers so Apple could get their 30% cut of the selling price. Whether Apple did this by getting them to switch to the agency model is irrelevant. Apple could have chosen to compete by other means.


    The question is, would any one publisher have ever gone to Amazon independently and forced the switch to the agency model, knowing that their books would then be priced higher than their competitors books? Or was there a coordinated effort for all of the publishers to make that move at the same time? Would any publisher have made that agreement with Apple if they weren't confident that all of the other publishers were going to go along with it, too?


    I do think it was odd that the judge made just a clear indication of where she was leaning before the trail started. But on the other hand I don't know that it's necessarily improper to grounds for a mistrial. Perhaps it's simply a strong suggestion to Apple that they should settle because they had a weak case. Odd that it was made as a public statement if that was the case.


    As for the 2nd half of the above paragraph, about it being an "automatic failure" for the iBookstore and that it would inevitably lead to Amazon having total dominance is hogwash and pure conjection. To suggest that Apple couldn't have competed with Amazon is silly. It would have only meant that Apple's profit margins would have been slimmer. Which leads us back to the crux of the case...was their a coordinated effort across the publishing industry to artificially increase prices to consumers?

    Good questions. I'd also like to know is did a publisher try to get Amazon to agree to the agency model beforehand and failed?
  • Reply 116 of 136
    tomdri wrote: »
    It looks like Judge Cote isn't in Love with Tim Cook and Apple the same way all the US Senators are. He wasnt about to complain that he had to update his apps everyday. What a shameful bunch of idiots we have working for us in the Government. The court was also not going to apologize like Rand Paul about being here for not paying your Taxes. Can you imagine... its like being on the Comedy Channel with these bunch of KooKs... Oh wait, it will probably go to the Supreme court and then Apple will get away with the ebooks also.

    Wait, what?!? Please tell me you are being sarcastic here. "Get away with [it]" suggests that they have been found guilty. That just isn't the case. Also, based on all of the emails that I have seen, I am hard pressed to see where the colluding is happening. Also, you suggest that Apple was wrong about the whole taxes thing. Like I said before, they should pay more, but that is my opinion. The tax laws, however, say they only have to pay the amount they paid (approx. 6 billion dollars). So realistically, Apple wasn't at fault about that, the tax laws are.

    Now, back on topic. My largest concern is the judge gave their opinion very publicly about the way the case could go. This is like saying that contestant A on a game show will win (or lose), and I am the person who gets to decide that. Guess what, I will make it happen that way, because I am human and I don't like to be wrong. And I consider myself to be a person of high character and can admit when I am wrong. Without meaning to sound like an egotistical asshat, I am betting that this Judge doesn't have superior character compared to me. So, more than likely, she has just declared which way she is going to rule. As such, that is bias and she should be removed.
  • Reply 117 of 136
    jessijessi Posts: 302member
    Wait, so the company that offers to allow book sellers to set their own prices, is the one engaging in "price fixing", but the monopolist-- amazon-- which was paying book sellers $13 to sell books at $10, or in other words, engaging in dumping to maintain their monopoly-- gets off scott free?

    This just shows how this is not just a witch hunt from the Dept of Justice, but also using corrupt judges that tell all american business that they cannot get a fair trial.

    Apple's real "crime" was not caving in to the DoJ like the publishers did.

    This is the rule of pull, not the rule of law. It's profoundly unamerican, but then, the US government hasn't been operating on american principles for quite awhile.
  • Reply 118 of 136
    dasanman69dasanman69 Posts: 12,984member
    jessi wrote: »
    Wait, so the company that offers to allow book sellers to set their own prices, is the one engaging in "price fixing", but the monopolist-- amazon-- which was paying book sellers $13 to sell books at $10, or in other words, engaging in dumping to maintain their monopoly-- gets off scott free?

    This just shows how this is not just a witch hunt from the Dept of Justice, but also using corrupt judges that tell all american business that they cannot get a fair trial.

    Apple's real "crime" was not caving in to the DoJ like the publishers did.

    This is the rule of pull, not the rule of law. It's profoundly unamerican, but then, the US government hasn't been operating on american principles for quite awhile.

    Amazon would've been in trouble had it been all ebooks they were taking a loss on but it was really just a small selection. Loss leaders are not illegal.
  • Reply 119 of 136
    ericthehalfbeeericthehalfbee Posts: 4,079member


    blah blah blah....


     


    Who cares what evidence has been released or what the e-mails say - nobody here knows if Apple is guilty or not.


     


    The disturbing fact about this case is the actions of the DOJ who seem content to try this case in the court of public opinion by releasing bits & pieces of evidence to make Apple look guilty. Or having a judge make a comment about Apple's guilt without even having seen all the evidence herself (she admitted it). That's just downright unprofessional.

  • Reply 120 of 136
    jragostajragosta Posts: 10,473member
    gatorguy wrote: »
    Is it really unheard of for a Federal Judge to comment on a case not yet completed? I thought that Judge Ponder did much the same before eventually dismissing both Apple and Moto cases against each other. 

    FWIW, <span style="line-height:1.231;">"federal trial judges have long had the authority to comment on the evidence. The judge “may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. ... This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided’; that ‘deductions and theories not warranted by the evidence should be studiously avoided.’”</span>
    <i style="line-height:1.231;">Quercia v. United States</i>
    <span style="line-height:1.231;">,</span>
    <span style="color:#0000ff;line-height:1.231;">289 U.S. 466, 470</span>
    <span style="line-height:1.231;">(1933)"</span>

    <span style="color:rgb(0,153,51);font-family:arial, sans-serif;font-size:14px;white-space:nowrap;">www.lexisnexis.com/lawschool/study/outlines/word/evid.doc</span>

    So?

    Your article says that judges have the authority to comment on the evidence. That's certainly true - and happens all the time. That's not at all what we're talking about here.

    Judges do NOT have the right to prejudge the conclusions - which is what this judge did. See the link I provided.
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