The DOJ-Apple Trial Starts Today

Granted I haven't practiced law for six years and I've let my license lapse, but it doesn't take an Apple genius to figure out which way the shit's going to fly in the trial that started this morning.

- Apple has been accused of breaking Section 1 of the Sherman Anti-trust in regards to conspiring with five publishing companies to fix the price of e-books.

- Apple's five co-defendents have all settled with the DOJ. While the DOJ is staying mum about certain details, in most cases where a defendent settles with the government, they "roll over" on their co-defendents, i.e. they cooperate with the government and provide information to assist in the prosecution of any remaining defendents.

- Apple's only defense in a charge of conspiracy is to provide evidence that they did not conspire. Their big problem is Steve Jobs boasted about the "deal" in interviews before his death. In my reading of their pleadings, they admitted to the conspiracy but have tried to claim they are justified based on Amazon's actions. First of all, Amazon has not been accused of any illegal action. Second of all, Apple is providng an excuse, not a valid legal defense (which there isn't in price fixing).

- Apple claims the DOJ is being controlled by Amazon. (Excuse me a moment while I laugh hysterically.) Is Amazon the largest online retailer in the U.S.?  Possibly. Are they THE largest retailer in the U.S.? No. Are they the largest bookseller in the U.S.? Depends on if you're talking volume of units sold (no) or number of titles offered (yes)? Is Amazon anywhere near big enough to control the U.S. government? No.

- Apple's supporters claim Judge Denise Cote is biased against Apple. No, she isn't. In fact, she's given Apple and their attorneys a lot of leeway. She's told Apple's attorneys what evidence they need to present to win this case. Judge Cote has practically drawn them a GODDAMN FUCKING MAP on what to do. Have they listened to her? No.

So what it comes down to is that Apple is screwed and their attorneys are getting rich over Apple's executives refusal to stop acting like dicks.

For the record, Angry Sheep Publishing sells e-books through both Amazon and Apple. In February, sales through Apple beat sales through Amazon and have continued to do so through March and April. Needless to say, I have an investment in Apple not doing stupid shit. But for Apple to deliberately commit business suicide? Every executive and board member at Apple needs a fucking CAT scan because brain tumors are the only explanation I can come up with for handing your business to your competitor on a silver platter.

[Editor's Note: Thoughts on the decision is this case can be found here.]

Why Apple and Five of the Big Six Are Really in Trouble

In law school, I had a fabulous criminal law professor. Prof. Ota had a unique talent for explaining the most bizarre concepts of law in plain English. A lot of folks are up in arms over the Department of Justice's lawsuit against Apple and five of the six largest publishing companies in the U.S., so I'm going to try to emulate her style of simplicity.

The elements of a criminal conspiracy consists of:

1) The intent of two or more persons to commit a crime together

2) An agreement between the persons to engage in the crime to be performed

3) An overt act by any one of the parties to the agreement to perform the agreed crime

The Sherman Anti-trust Act of 1890 (15 U.S.C.A Section 1 et seq.) specifically forbids ANY two or more persons or companies from agreeing to a set market price, i.e. price fixing. Self-defense from another competitor is NOT a defense to charge of price fixing.

Here's the problems for the six defendants: Performing #2 or #3 above can be used to show their intent, i.e. #1.

They've boasted quite a bit about how they're going to take down Amazon. They've all but admitted in their press statements that they agreed to set their prices above Amazon's $9.99 price point in order to increase their income. The prices for products of five of the conspirators were raised nearly simultaneously. In these same statements, they've said that even if they're guilty of price fixing, Amazon's market share justifies their illegal acts, plus prices actually fell.

Seriously, guys?

Have many of you out there have been stopped for speeding? Of those who have, how many of you have given an excuse, like you're late for work, etc? How often has the cop who stopped you let you off for whatever excuse you gave him or her?

And guess what, Defendant Publishers? A lot of indies, including me, took advantage of your naivete by undercutting your high prices.

This is my point. Breaking the law is breaking the law. It doesn't matter what justification is given. And in the end, Karma, the Golden Rule, the Threefold Law or whatever you want to call it will bite your ass.

As for the folks who claim the DOJ should be going after Amazon, then please show me exactly what law they broke. Like I've told lots of clients over the years over the years, it's not illegal for someone to be a jerk.