Some of the judges in Apple’s appeal of last year’s ebook trial verdict appear sympathetic to the company’s argument that its deals with publishers helped, rather than hindered, competition, reports Reuters.
Circuit Judge Dennis Jacobs asked a Department of Justice lawyer why it was wrong for the publishers to get together to defeat a “monopolist” that was using “predatory pricing.”
“It’s like the mice getting together to put a bell on the cat,” Jacobs said.
The court had earlier heard evidence that at the time Apple entered the ebooks market, Amazon held a 90% market share …
Another Circuit Judge, Debra Livingston, had said it was “troubling” that Apple had been accused of antitrust action over contracts that would normally be “perfectly legal.”
Justice Department lawyer Malcolm Stewart argued that none of the publishers would have entered into the deals alone, and that they were knowingly acting to drive up ebook prices. Apple’s lawyer, Theodore Boutrous, described Apple’s conduct as “innovative and pro-competitive,” observing that while the prices of some ebook titles increased, average prices across the ebook market as a whole fell.
The case continues.