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Authors and booksellers back Apple in ebook appeal to Supreme Court, say Amazon should be investigated instead

While the ebook trial may seem like old news now, the case is not yet finally settled. Apple was found guilty of anticompetitive behavior in its ebooks pricing and practices back in 2013, and lost a subsequent federal court appeal – despite some judges expressing sympathy with Apple’s position.

Apple then decided to take the case to the Supreme Court, and today got the backing of both authors and distributors, reports The Bookseller.

A group of authors and booksellers have filed a motion in the US asking for the […] decision against Apple’s role in a 2010 conspiracy to fix the price of e-books to be overturned […]

The Authors Guild, along with Authors United, the American Booksellers Association, and Barnes & Noble filed an “amicus brief” in the US which asserts that the government’s focus on Apple’s “allegedly anti-competitive activities” was “misplaced” … 

An amicus brief is a motion filed by parties not directly involved in a case, but who wish to express a view as ‘a friend of the court.’

Apple said when it lost its federal court appeal that it still believed it had done nothing wrong and might therefore continue to fight for the “principles and values” involved. The amicus brief supports that position, saying that history proved Apple was right – and that if anyone was guilty of anti-competitive behavior, it was Amazon.

It said Apple’s entry into the market increased competition, “as demonstrated by the fall of Amazon’s market share from 90% in 2010 to around 60% two years later”. The brief went onto say the Department of Justice should instead apply anti-trust scrutiny to Amazon over its past anticompetitive behaviour in the e-book marketplace.

Publisher’s Weekly notes that the Author’s Guild argued that Apple had a positive impact on the ebook market by breaking Amazon’s near-monopoly at the time.

“With a 90% market share, nearly every customer who wanted to purchase an e-book had to do so through Amazon,” the brief states. […] “Amazon controlled what e-books were promoted on its home page, what e-books were recommended to consumers, and what books appeared at the top of a consumer’s search results when she searched for e-books on the Amazon.com website.”

The Department of Justice has not yet responded to Apple’s petition to the Supreme Court. If it intends to do so, it doesn’t have long to do it, with a deadline of January 4th, just a month from now.

Via CoM

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Comments

  1. For the record, the Authors Guild is not the same thing as authors in general. Not everyone agrees with them.

    (Says an author.)

  2. johnmfoley - 8 years ago

    The Bookseller quote is confusing me…
    “A group of authors and booksellers have filed a motion in the US asking for the Supreme Court’s decision against Apple’s role…”

    The Supreme Court is deciding whether or not to hear the case or already ruled against Apple? It’s not easy to overturn a Supreme Court ruling.

  3. just-a-random-dude - 8 years ago

    I don’t understand what they’re talking about and how they are relevant to the charges.

    Apple is guilty of colluding with several companies to adjust prices/agreements, not for entering the market or whatever these groups are talking about. No one is saying Apple hasn’t changed stuff for the better or for the worst, that’s not the problem. It is clearly illegal on how Apple approached all of these companies at the same time to change the market and it does not really matter if you’re doing this to break up monopoly, the law unfortunately does not have an exception for Apple’s situation.

    I fail to see why SCOTUS should take this case and overturn it. The laws are clear, the only thing SCOTUS can do is strike down the law as unconstitutional or set limits on how the laws can be used in this case (reasonable cause or something to help Apple)

    • Wade Mason (@wademason) - 8 years ago

      That’s exactly the point, to “set limits on how the laws can be used in this case” in your own words. An amicus brief is a third party intervention that basically makes the court aware of broader implications of the law, including unintended consequences and negative repercussions of the law’s enforcement.

      At the end of the day it boils down to this… The DOJ, using the letter of the law and its own paradigms thereof, got convinced that Apple acted “anti-competitively”. One judge agreed. Then Apple appealed, and another court agreed. So Apple has appealed all the way to SCOTUS. The court needs to answer this single question… If the ebook industry claims that Apple’s actions have benefitted everyone by boosting competition, did they in fact act “anti-competitively”?

      See the issue there? And that’s why this amicus brief is a big deal. It’s basically several groups saying that Apple was acting pro-competitively. It’s just a piece of testimony for the court to consider.

      Then there’s the issue of the DOJ singling out Apple and leaving Amazon alone… Selective enforcement of the law seems a bit “anti-competitive” to me. They should be made to answer for that.

      • just-a-random-dude - 8 years ago

        Acting pro-competitively does not negate the collusion action, it is still illegal for companies to make agreements for their own benefits against a specific competitor. It does not matter if it benefits customers, both good or bad. Amazon does have rights against this type of action.

        Apple would’ve never been called for collusion if each publisher made the agreement selectively on their own but instead, Apple was caught bring in all of them together to make a consistent agreement for their own benefits against Amazon.

    • wordpling - 8 years ago

      Correct. Their behavior was clearly illegal regardless of the impact to the marketplace. The impact can be considered as a mitigating factor in deciding the sentence. It is a bit disingenuous of Apple to apply the same FUD to Amazon that they often receive.

      • BY (@bmy1000) - 8 years ago

        Actually not Correct. The whole point of the appeal is that the government and courts used an inappropriate legal approach “per se” rather than “the rule of reason”. The rule of reason allows a deeper investigation of the effects of the action to determine guilt. Under the rule of reason Apple can bring in the current history (since the creation of the book store) to show that their actions clearly created a better eBook market for all involved. Given that, the court would rule that Apple’s actions were legal.

  4. I’m still trying to figure out what is wrong here. eBooks cost the same on the Google Play Store as they do on Apple’s site. So Apple is guilty of doing something to enter the market to sell stuff at the same rate as someone else? Does that not make any sense to anyone else?

    • just-a-random-dude - 8 years ago

      Apple is not guilty of setting or adjust the price. They’re guilty of colluding with all 5 publishers at the same time for their own benefits against the competition. That’s illegal and it was clear from the get go, everyone is focusing on the wrong aspect of the case.

      It’s not about the prices of books, it’s about Apple getting everyone together at the same table excluding the main competitor and making agreements that would impact the competition negatively, aka for their own benefits. It does not matter if it is a good or bad thing, it is illegal to do this. It’s the same as if Amazon got together with these companies to make it difficult for Apple and it would’ve made the ebooks 90% cheaper, it is still illegal even if everyone benefits from it.

  5. Leif Paul Ashley - 8 years ago

    I 100% agree with this title. Been saying this since it started. Nothing Apple did at all was illegal.

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Avatar for Ben Lovejoy Ben Lovejoy

Ben Lovejoy is a British technology writer and EU Editor for 9to5Mac. He’s known for his op-eds and diary pieces, exploring his experience of Apple products over time, for a more rounded review. He also writes fiction, with two technothriller novels, a couple of SF shorts and a rom-com!


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