The battle lines are drawing up! Last week, both parties in the Apple e-book antitrust case consented to the filing of amicus curae briefs—briefs filed by parties who could be affected by a decision supporting the arguments of one side or the other—in Apple’s request to have it reheard by the Supreme Court. And here comes the first one.
All the usual suspects just got together: signers include the Authors Guild, Douglas Preston’s Authors United, the American Booksellers Association, and Barnes & Noble—pretty much every major anti-Amazon voice that’s made a peep in the last couple of years. (I’m surprised Melville House didn’t join in—though they do get mentioned on page 24 of the brief itself.) The Authors Guild has a press release that includes an embed and link of the brief as a PDF.
They trot out all the usual arguments, too. Letting the verdict against Apple stand could “undermine the very objective of antitrust law—to ensure robust competition.” (Never mind that the thing about agency pricing was that it entirely removed the ability of smaller retailers to compete on price.) Amazon controlled too much of the e-book market at the time, and still controls an awful lot, and it does bad things to companies it doesn’t like. Agency pricing increased competition by causing a drop in Amazon’s market share, and reduced the ability of Amazon to stifle publishers or ideas it didn’t like by making their works unavailable.
The brief’s authors hold that Apple’s behavior should have been adjudicated under the Rule of Reason, in which the behavior is considered on its merits, rather than deemed per se illegal with no such consideration required. And they think that under the Rule of Reason, it would have a pretty good chance of being deemed legal.
So far, the lower courts haven’t found these arguments convincing. It remains to be seen whether they’ll move the Supreme Court to take up the case.
Any other parties who want to file amicus briefs have until January 4th to get theirs in. It’s still unknown whether the Department of Justice plans to file a brief of its own.