Big surprise: Apple has just filed its formal request to the Supreme Court to reconsider its circuit and appeals court defeats. In the lawsuit, the Department of Justice accused the company of orchestrating the publishers’ campaign to fix prices. Apple doesn’t like that very much.

As far as the rationale goes, there’s not a whole lot that’s new there since we reported on Apple’s request for more time to file its request. Apple already stated the tack it was going to take in the appeal—claiming that there was a “circuit split” between the appeals court decision in its case and a decision in another case involving a manufacturer’s agency deal with retailers.

The lower courts said that the kind of price-fixing Apple and the publishers did is “per se illegal”—that is to say, it’s so blatantly illegal on the face of it that they don’t need to consider any potentially mitigating factors such as why Apple did it (in what’s called a “rule of reason” analysis). Apple argues that the other court said this particular kind of case has to consider those factors, so would the nine Justices kindly take a look at this case and iron out the differences?

Whether SCOTUS is likely to take the case is still a toss-up. It seems unlikely, but if they do, it could mean that a number of Justices are interested in making new law and hence be good for Apple. That being said, as The Digital Reader points out, the most likely outcome on an argument over a minor point of law like this is that SCOTUS asks Judge Cote for a formal rule of reason analysis (which she already did in capsule form as part of her original decision and found Apple failed that, too), and then that gets appealed up to the Supreme Court, and Apple’s lawyers enjoy job security for a couple more years.

Meanwhile, it took a few years to run out the clock on the publisher consent decrees that limited the kinds of contract they could make with Amazon and other retailers, but in the end, the Big Five publishers have gotten the agency pricing they wanted, and they’re cheerfully stifling reader demand with higher prices for their e-books as self-publishers proceed to make hay. The most we’re going to get out of this case even given the most positive possible outcome is a few bucks each of consumer credit at various e-book stores, and perhaps a little more schadenfreude at Apple’s black eye.


The TeleRead community values your civil and thoughtful comments. We use a cache, so expect a delay. Problems? E-mail