Apple Defiant in Closing Statement for Ebook Antitrust Case

| Analysis

Apple's attorneys were defiant during their closing statement in the U.S. Department of Justice's antitrust lawsuit. Both sides delivered closing statements on Thursday, though Apple's lead attorney Orin Snyder took two and a half hours to deliver his, while the DOJ's attorneys spent just 90 minutes.

iBooks Trial

The case has taken many ups and downs in the three weeks of testimony, with a preponderance of outside observers opining that Apple's attorneys shot many holes through the plaintiff's arguments. In Thursday's closing statements, Mr. Snyder took to the offense, arguing that Apple, "walked into the middle of this e-book revolt" and was simply pursuing standard business negotiations.

According to The L.A. Times, Mr. Snyder also argued that a guilty verdict from Judge Denise Cote, who is presiding over the bench trial, would chill and confound business in the U.S. He accused the government of relying on inference and innuendo, rather than direct evidence, to present its case.

"All of the government's evidence is ambiguous at best," he said, adding that, "There's no such thing as conspiracy by telepathy."

The Washington Post added that Mr. Snyder said, “The government is taking perfectly sensible business agreements to infer sinister conduct. If Apple is found liable [...] that precedent will send shudders throughout the business community."

In his coverage of the closing statements, Fortune's Philip Elmer-Dewitt suggested that Apple threw the five publishers originally accused with Apple under the bus. Those five publishers settled before the trial began, but they still played a role in the trial against Apple (as Apple didn't settle).

When Judge Cote asked Mr. Snyder if he thought the publishers had conspired, he said, "I literally have no idea."

When pushed on the same subject later in his closing statement, he said, "We don't concede any aspect of the government's burden of proof of conspiracy. Apple was not aware in December [2009] and January [2010] of a conspiracy to raise prices."

If one wants to parse those words closely, one will realize that Mr. Snyder is in no way denying that a conspiracy existed, though he is denying that Apple has any knowledge of any such conspiracy. Of course, Apple's job isn't to defend the publishers at this point, but rather to defend itself against accusations from the DOJ.

What Judge Cote does with this information remains to be seen, but it was an interesting turn of events in the closing minutes of the trial.

Note that Jeff Gamet and I interviewed Philip Elmer-Dewitt on Wednesday's Apple Context Machine podcast, where he offered extended observations about the trial.

Judge Cote has not said when she will issue her ruling, and it is likely to be weeks, if not months, before she does so.

Sign Up for the Newsletter

Join the TMO Express Daily Newsletter to get the latest Mac headlines in your e-mail every weekday.

Comments

daemon

http://en.wikipedia.org/wiki/Collusion

I saw Apple’s iBooks announcement, it sure sounded like collusion.

mhikl

daemon, ‘collusion’. Please expound upon your rumination.

Bryan, your rumination has been much more clear than what I suffered,  over at AI. It was torture.  It had the slide show from hell. I was so exhausted, I couldn’t even try the next torture test, another slide show, I think. I’ll try again tomorrow, if I have the will and can leave off granny’s rheumatism medication.

Point: no such thing as “. . conspiracy by telepathy.” I don’t know. We boys tried to do-in our Grade Seven language teacher by mental concentration to explode her head. Didn’t work but it was still a conspiracy.

And “weeks, if not month, before” Judge Cote opens her big mouth? She’s been loose of lip prior to the trial and close to the end. I’d be shocked if she doesn’t ‘let loose’ by Friday, bar close, (and I don’t mean the legal one).

Bryan Chaffin

daemon, I thought the same thing based largely on that event and the tidbits we learned before the trial started. I argued, however, that there were dangers in quashing it, that Amazon dumping books below cost was crushing the industry, and that this would have a negative impact on books in the future.

The trial, however, has been eye opening. Based on the extensive coverage of on-hand reporters and columnists like Mr. Elmer-Dewitt (I have read a lot on this), I don’t think the government had a case in the first place. That’s irrespective of the wisdom of pursuing it.

Have you followed it? I’m curious as to your take.

mhikl, thanks for the kind words. I’m very interested in this case and have put a lot of time in trying to understand and explain the issues.

Stanley Platt

The antitrust case against Apple was set forth in the Walter Isaacson book whereby Steve Jobs proves the US Government case against Apple.

BurmaYank

Stanley Platt said:
“The antitrust case against Apple was set forth in the Walter Isaacson book whereby Steve Jobs proves the US Government case against Apple.”

Stanley, I would be very grateful if you would kindly explain exactly how those Steve Jobs quotes in that book truly did demonstrate collusion specifically according to legal definition (eg, as provided by daemon’s Wikipedia link, below).  At this point I’m inclined to doubt your judgement about this in your statement, but I haven’t read the book yet, so I know my strong skeptical hunch here might be wrong (and you might be right - but you’ll have to prove it to get me to believe you).

daemon said: 
http://en.wikipedia.org/wiki/Collusion”
“I saw Apple’s iBooks announcement, it sure sounded like collusion.”

How so?  I’m no lawyer, but nevertheless, to me, Apple’s iBooks announcement sure did NOT sound like what your Wikipedia source defined “collusion”, because, where was the essential component

”... to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage”?

 

BurmaYank

Stanley Platt said:
“The antitrust case against Apple was set forth in the Walter Isaacson book whereby Steve Jobs proves the US Government case against Apple.”

Stanley, I would be very grateful if you would kindly explain just exactly how those Steve Jobs quotes in that book truly did demonstrate collusion, specifically according to legal definition (eg, as provided by daemon’s Wikipedia link, below).  At this point I’m inclined to doubt your judgement about this in your statement, but I haven’t read the book yet, so I know my strong skeptical hunch here might be wrong (and you might be right - but you’ll have to prove it to get me to believe you).

BurmaYank

daemon said: 
[url=http://http://en.wikipedia.org/wiki/Collusion]
“I saw Apple’s iBooks announcement, it sure sounded like collusion.”[URL]

How so?  I’m no lawyer, but nevertheless, to me, Apple’s iBooks announcement sure did NOT sound like what your Wikipedia source defined “collusion”, because, where was the essential component

”... to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage”?

 

BurmaYank

daemon said: 
“I saw Apple’s iBooks announcement, it sure sounded like collusion.”

How so?  I’m no lawyer, but nevertheless, to me, Apple’s iBooks announcement sure did NOT sound like what your Wikipedia source defined “collusion”, because, where was the essential component

”... to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage”?

 

mblaydoe

IANAL, but if the prosecuting attorney has no idea if any conspiracy occurred, then I don’t think think the “beyond a reasonable doubt” standard for conviction has been met.

gnasher729

Surely anything in Jobs’ biography would be hearsay? First, Isaacson would have to testify in court - clearly the fact that Isaacson claims in a biography that Steve Jobs said something doesn’t prove that Jobs actually said it, unless Isaacson testifies. Without court testimony, anything that Isaacson wrote could be a bunch of lies.

Second, even if Isaacson testified in court, that doesn’t mean that what Steve Jobs told him was the truth. Jobs had no legal obligation to make sure his biography contains the truth.

They did the same with email drafts. A very real possibility would be that a business man comes up with what he thinks is a good idea, writes an email draft, then thinks that it might be a good idea to consult a lawyer who then tells him that the idea would be illegal. And the plan is promptly dropped, the email draft never sent. That’s quite a normal thing to happen, and in no way illegal.

ctopher

I’m just commenting to see if it’s in italics!

I really appreciate TMOs coverage. It seems to me that Apple called the DOJ bluff and the latter had to put up a case, threadbare though it may seem.

Lee Dronick

Closing the italics

I hope that works

Bryan Chaffin

Italics issued corrected.

mrhooks

“Beyond a reasonable doubt” only applies to criminal suits.  I believe this one is civil.

Log-in to comment