Some of the judges in Apple’s appeal of last year’s e-books verdict seem to sympathize with some of the company’s arguments in the case. Apple has argued that its deals with publishers helped, not hurt, competition.
Circuit Judge Dennis Jacobs asked a Department of Justice lawyer why it was wrong for the publishers to get together to defeat a “monopolist” that was using “predatory pricing.”
“It’s like the mice getting together to put a bell on the cat,” Jacobs said.
The court heard evidence earlier that at the time Apple entered the ebooks market, competitor Amazon held a 90% share of the market.
Circuit Judge, Debra Livingston, said it was “troubling” that Apple had been accused of antitrust action over contracts that would normally be “perfectly legal.”
Justice Department lawyer Malcolm Stewart countered Apple’s arguments, saying none of the publishers would have entered into the e-book deals alone, and that they knowingly worked to drive up e-book prices.
Apple’s barrister, Theodore Boutrous, saw it a different way, saying Apple’s conduct was innovative and pro-competitive,” noting that while some e-book prices did indeed rise, average prices across the ebook market as a whole fell.
