The lawyers amused themselves and their courtroom audience with a variety of picturesque, even playful images to describe the behavior of global leaders in technology and media. Apple’s encouragement of illegal price-fixing by publishers, said the US Deputy Solicitor, was like someone who chauffeured drug dealers to their deals – making the iPad manufacturer as guilty as the publishers themselves of breaking antitrust laws. According to another jurist, publishers might have colluded, but only like mice trying to bell a cat – an Amazon cat.
At the Second Circuit Court of Appeals in Manhattan on Monday, December 15, the atmosphere was lively and the language was colorful, but the stakes were high. Apple looked to reverse an earlier ruling against it, and Department of Justice attorneys struggled to hold their ground.
“Apple did quite well at the hearing, as the judges saved their toughest questions for the government,” notes Andrew Albanese, senior writer for Publishers Weekly, who was among the spectators. “U.S. Deputy Solicitor General Malcolm Stewart did not perform well. In fact, his inability to unpack the assumptions in one justice’s loaded questions—mainly that Amazon was a monopolist engaged in predatory pricing—gave the impression to some that the DoJ’s case was blown up.
“But I’d strongly caution against that conclusion,” Albanese tells CCC’s Chris Kenneally. “Judge Denise Cote thought the original case was very simple—and despite his weak performance overall, [Deputy Solicitor] Malcolm Stewart did nicely explain how she came to view the case as per se one of collusion and price-fixing.”
Every Friday, CCC’s “Beyond the Book” speaks with the editors and reporters of “Publishers Weekly” for an early look at the news that publishers, editors, authors, agents and librarians will be talking about when they return to work on Monday.