E-book trial: judge has suggestions for enforcing the guilty verdict against Apple

A DOJ lawyer shot down the objections of publishers over suggested measures for Apple, while the judge involved in the e-book price fixing case offered a modified version of the DOJ proposal.

Marcio Jose Sanchez/AP
A sign with Apple's logo is seen outside the company's headquarters in Cupertino, Calif.

The e-book price fixing trial saga continues. Now that Apple has been found guilty of conspiring to raise e-book prices, the judge involved in the case is offering her suggestions as to how she thinks Apple should be limited in its future business dealings.

The five publishers who had settled in the case and were accused of collaborating with Apple to raise e-book prices had objected to the Department of Justice’s proposal for enforcing the guilty verdict against Apple. The DOJ had suggested Apple be forbidden to make agency model agreements (where a publisher sets the price, not a retailer) with the five publishers for five years.

According to their separate settlement with the DOJ, the five publishers – Hachette, Penguin Random House, HarperCollins, Simon & Schuster, and MacMillan – would have to wait two years before entering into agency model agreements. They were angered by the suggestion that Apple would have to wait five years before engaging with them, stating they would lose business if they couldn’t work with the tech company.

But DOJ lawyer Lawrence Buterman filed a letter with the court that stated the Department wasn’t forcing the publishers to do anything, just stopping Apple from being able to engage in agency model agreements. 

“Apple should not be rewarded with the same terms received by those that chose to settle to avoid the risks of litigation,” he wrote.

In addition, he wrote that the fact that the publishers had banded together to object to the proposal looked bad.

“The Publisher Defendants may be positioning themselves to pick things back up where they left off as soon as their two-year clocks run,” Buterman stated.

But the judge involved in the case, Judge Denise L. Cote, said she didn’t feel all of the measures suggested by the DOJ were necessary. One part of the proposal, a monitor appointed by the court that would work with Apple, might not be needed as long as Apple set up a program within the company focusing on antitrust efforts, Cote said.

In addition, rather than requiring Apple to wait five years, Cote proposed the tech giant wait two years like the five publishers, then have to enter into agreements with the publishers on a staggered basis, perhaps waiting six to eight months between the negotiations.

The judge, however, was also unimpressed with the publishers, calling them “unrepentant.”

“None of the publisher defendants have expressed any remorse,” Cote said.

Representatives for Apple and the DOJ will now have meetings to discuss the measures, and Cote has asked for an outline from the two companies on proposed restrictions for Apple sometime this week.

Apple has stated it will appeal the guilty verdict delivered by Cote. 

The driving factor behind efforts on the part of Apple and the publishers to raise e-book prices was believed to be the fact that books giant Amazon was selling many new e-book titles at at a loss. Unlike Apple and the publishers, Amazon is not facing any proposed new restrictions on its business practices. It remains to be seen what this will all mean for the book world.

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