Tag Archives: appeal

Appeals court denies Apple request to stay anti-trust monitor

The appeals court has issued its ruling on Apple’s request to have the anti-trust monitor stayed in the e-book price-fixing anti-trust trial. Perhaps unsurprisingly, Apple’s appeal has been denied. That being said, the appeals court did issue what it saw as instructions “narrowing” the monitor’s focus. The monitor is, the court said, supposed to make sure Apple has an anti-trust compliance program in place and that employees are being taught about what it means and how it works. He is not supposed to rummage around looking for violations of anti-trust or other laws.

In the two-page document (PDF), court clerk Catherine O’Hagan Wolfe writes:

Thus, according to appellees, the monitor was empowered to demand only documents relevant to his authorized responsibility as so defined, and to interview Apple directors, officers, and employees only on subjects relevant to that responsibility. We agree with that interpretation of the district court’s order. In addition, we take counsel’s statement as a formal representation that appellees also accept that interpretation, and that the monitor will conduct his activities within the bounds of that order, absent further action by the district court or by the panel that will in due course hear the merits of the appeal.

Note that bit in there explicitly recognizing that “the monitor was empowered […] to interview Apple directors, officers, and employees” as part of his job. Apple partisans might try to spin this “limitation” as a victory, but all the appeals court really did is restate the limitations that were already in effect from Judge Cote’s final order (PDF). From that perspective, it’s hard to see this as anything more than another in a series of total legal losses for Apple, and perhaps a sign that the court is inclined not to find fault with the way Cote is doing things as of yet.

Now that the appeal of the monitorship is out of the way, perhaps monitor Michael Bromwich and his team can get on with interviewing the people he’s supposed to. Will Apple continue to try to block him from talking to their executives? Will Apple actually bother to use the dispute resolution procedure Judge Cote reminded them they were supposed to? Or will Apple just keep pushing until Cote has to impose further sanctions? It should be interesting to find out.

The Bloomberg story also notes that Apple lawyer Theodore Boutrous filed a court document opposing the awarding of treble damages to state plaintiffs as part of the damages phase of the case. I wasn’t able to find this document in PACER, though.

Bob Kohn files appeal of publisher anti-trust settlements

Ah, the schadenfreude continues. Andrew Albanese at Publishers Weekly reports that Bob Kohn has filed his appeal of the approval of the Macmillan and Penguin e-book settlements. In the hearing a couple of weeks ago, Judge Cote suggested it was unlikely he would be found to have standing to appeal the case, since he’s not a direct party to the case. However, Kohn is clearly going to keep filing appeals until the appeals courts turn him down.

Kohn’s stance is that the price-fixing conspiracy entered into by the publishers and Apple was not actually illegal, since it served to address “inefficiencies” in the market. He suggests that, despite the higher prices, consumers benefited from the change because it made the e-book market more efficient.

Kohn also argued that, if he is not given standing to appeal, the settlements will not face any appeal scrutiny at all on behalf of consumers. After all, Apple, which is appealing its own case, is not involved in the publisher settlements. And while the publishers surely agree with Kohn’s view that their actions were legal, they are not about to challenge their own settlement deals.

I must admit, I kind of hope Kohn is found to have standing, just because it would be interesting to see how the case goes. But my suspicion is that the appeals court will feel, as Cote does, that he is not involved enough to have a say.

Google appeals class action certification in Google Books case

The Google Books lawsuit proceeds apace. paidContent and CNet report that, in Google’s latest filing, the search giant is appealing the court’s decision to certify class action status for the Authors Guild. Google argues that the majority of writers actually approve of its scanning (58% according to a Google-commissioned survey), and that its scanning to provide search capability is a transformative fair use. Google suggests that even if the court rules it is not fair use in general, it will still have to decide on a case by case basis whether each individual book is or not.

Is Google Books really a fair use? It’s an interesting question. The funny thing to me is that the comments on the paidContent article and the CNet article take entirely different tacks. paidContent commenters insist that fair use was never meant to cover this sort of situation, and a win for Google would open the door to expanded uses later that might not be so fair. But on CNet, the commenters “see what Google is doing as a plus for humanity” and laud Google for “making a reasonable effort to preserve information that might otherwise be lost to the masses one day.”

The longer this goes on, the more interested I am in seeing exactly how the judge chooses to decide the case. Needless to say, it could have major implications for the future of copyright and the Internet. And of course the first ruling is just the beginning—the appeals will go on for years, I’m sure. It’s also possible Congress may make it irrelevant in the long run by passing legislation that specifically addresses Google Books style initiatives.

At any rate, we’ll see what happens sooner or later.