Why didn’t Apple executives (or, for that matter, the publishers) face criminal charges in the antitrust lawsuit stemming from agency pricing? Until now, the theory I had heard was that it was because none of the actions the publishers or Apple had taken was illegal by itself—there were no examples of bribery, falsifying documents, or any other overtly criminal activity. Everything they did would have been legal if they’d only done it by themselves; the antitrust violation came about because they got together and elected to do it all at once.

However, this New York Times article asks the same question and draws some different conclusions.

Why were no criminal charges filed? The Justice Department’s antitrust division chief, William J. Baer, recently noted that the department had filed 339 criminal antitrust cases since President Obama took office, many of them on charges of price-fixing. The issue is, of course, moot with Mr. Jobs, who died in 2011. But his co-conspirators in the publishing industry may have benefited from the relative novelty of e-books. “There’s a traditional reluctance to go for criminal liability over novel practices,” Professor Hovenkamp said. “There was probably some thinking that with e-books, the technology was so new, and it was disruptive. It’s tough to prove mens rea,” or criminal state of mind.

The article points out that the e-book affair is far from the only questionable dealings Jobs had. There was also the matter of Apple fomenting mutual agreements with many major Silicon Valley firms not to “poach” each others’ employees, and an issue of finance regarding backdating some stock options. But even when Apple did falsify documentation (as they did in the stock options matter), Steve Jobs basically skated, probably due to his “reality distortion field.”

[Steve Jobs biographer Walter] Isaacson added, “The rules just didn’t apply to him, whether he was getting a license plate that let him use handicapped parking or building products that people said weren’t possible. Most of the time he was right, and he got away with it.”

Of course, it’s academic now, at least where Jobs himself is concerned, since he passed away almost three years ago. (Found via The Passive Voice.)


  1. With journalism today, it’s all about the page views.

    No doubt the historians will sort all of this out in time – that’s what they do best. There are people alive today who know things relevant to these matters that they haven’t yet divulged so we will have to wait. Eventually it will all be in a book or three but will anyone care to read it then?

  2. If we look beyond the charisma of showman Jobs we find many examples of high-level Fortune 500 executives going uncharged in many criminal cases, and other cases where criminal cases seem like they ought to exist. For example, the Wall Street bankers. Even closer to home, Apple and Google and other tech firms were facing charges of illegally colluding not to try to hire employees from one another in a scheme to keep wages down. There have been introduced emails between Steve Jobs and Eric Schmidt of Google about a Google HR person who got fired for trying to hire Apple workers. Mr Schmidt is facing no charges and the various companies are simply settling the case – a civil suit if I recall aright – by charging off a business expense and buying out the plaintiffs.

  3. From what I remember, the law on the recruiting is more nuanced than is generally discussed.
    But to call Jobs a showman is the height of arrogance. When it comes to Jobs, there is more meat than in a military brigade, unlike most of competing CEOs. Jobs was one of the foremost innovators of the last 35 years. It is obvious that this site and most of its followers have zero awareness of what the hell is going on in the world of technology.
    Maybe you should refresh your cognitive awareness by viewing the 1984 introduction of the Macintosh. https://www.youtube.com/watch?v=2B-XwPjn9YY Skip to 4:00 and listen to the ovation of the crowd for a computer demonstration and reflect on everything that has come after that moment and you will have no doubt that Jobs is about much more than a showman.

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