Apple’s prospects of a successful appeal against the ruling in the ebooks trial may be improved by a brief filed by two economists from Caltech and NYU who suggest that the ruling was in error and call for it to be reversed.
Apple was found guilty of anti-competitive practices on two grounds. First, it asked publishers to switch from a wholesale pricing model – where publishers sold books in bulk and retailers set their own prices – to an agency model, where publishers set prices and retailers took a percentage cut. This, the court found, reduced price competition …
Second, Apple sought agreement from publishers that it would never pay more for books than any of its competitors – the so-called Most Favored Nation clause. The court found that this had the effect of keeping prices higher than they would otherwise have been by preventing other retailers negotiating better deals.
Caltech’s Bradford Cornell and NYU’s Janusz Ordover have filed what’s known as an amicus curiae brief – literally ‘a friend of the court’ – an unsolicited legal opinion by someone uninvolved with the case but feels they have information or opinions relevant to that case.
Courts are not obliged to allow amicus curiae briefs to be admitted into evidence, so we’ll need to wait and see whether this argument is considered. The DOJ plans to file its own response to Apple’s appeal by May.
