Is There an APPLE in the Supreme Court’s Eye?
Apple has asked, but whether the Supreme Court will agree to review Apple’s conviction for price fixing is entirely up to the Justices.
The December 2 deadline for filing amicus briefs has passed, and Publisher’s Weekly reports the following filings:
- A brief filed jointly by the Authors Guild, Authors United, the American Booksellers Association and Barnes & Noble
- BSA, the software Alliance (members include IBM, Microsoft, Intel, Dell, Intuit)
- The Washington Legal Foundation
- The App Association
- The International Center for Law & Economics
The briefs appear to universally support Apple in their claim that application of the per se rule in this case was mistaken and the case could only be judged by “full-fledged rule-of-reason analysis.” (The Washington Legal Foundation brief).
While this all seems like Common Sense to anyone who has followed the case, it will be most interesting to see what the Justices do. Amazon has considerable weight to throw around and it will be very happy should the court to refuse to hear the case. But should the case wind up in the Supreme Court, Apple’s conviction will undoubtedly be overturned and Amazon does not want this.
Apple’s foray into ebook distribution through iBooks was the ONLY serious competition to Amazon’s monopoly on ebook sales. With little regard for consumers, Amazon pursued a strategy of discounting ebooks at prices set to put any competition out of business. Why enter a business where products are being sold at cost or less?
But here is where the shortsightedness of the circuit and appeals courts gets in the way. Because consumers could buy ebooks at cost, it was viewed as a good thing for the market. They ignored the fact that in a very short time all that remained of “the market” was Amazon. Competition and choice were allowed to die in favor of short-term low prices.
Well, the final act in this publishing drama is about to unfold. Make no mistake about it, this is less important for APPLE than it is for the entire publishing industry.
Will the Supreme Court hear the Apple Appeal? The Court hears a minuscule percentage of the thousands of cases put forward. Place your bets!