PublishersLunch
Wednesday afternoon brought the expected
additional filings with the court regarding the ebook pricing settlement. Two
of the litigating defendants, Apple and Penguin, already had the right to be
heard in 5 pages or fewer. The Authors Guild, like attorney Bob Kohn, have
asked for permission to file additional remarks as a friend of the court and
provided their brief on a conditional basis, subject to Judge Denise Cote's
ruling.
Apple's
argument is the boldest--that they are being denied due process of law and
penalized by having their ebook contracts with the settling publishers (the
Settlers) voided and their MFNs with those publishers barred in advance of any
trial or finding of guilt.
Penguin's
comments are more philosophical than legal, in advance of their own
forthcoming trial. They argue that government has not shown any evidence to
back their claims that ebook prices went up after agency was introduced, and
there is no economic analysis to back either the government's conclusion or
their remedy. Mostly it is a chance to pre-argue part of the case they will
make at trial, and they present some of their own analysis of Penguin prices at
Amazon prior to the agency that we detail in the story below.
Macmillan
agrees with Penguin on the lack of government analysis, saying "the size
of Amazon's market share is at the center of this proceeding regardless of
whose narrative the Court accepts."
The Authors
Guild joins Bob Kohn in asking permission to file a second brief. Like a
portion of Kohn's argument (though not his primary one), they say that the DOJ
defined the "relevant markets" far too narrowly, and remind the court
they are not acting only to protect authors' income, since the agency model
pays lower royalties (on hardcovers, at least).
The extent to which Judge Cote will
entertain any of these arguments at this stage of the proceedings is unclear.
In her August 7 ruling limiting Apple to five pages, she underscored that she
had "emphasized" to the defendants in an April conference "that
the principal response by any party to the settlement itself should be made
during the public comment period." And she reminded Apple in particular
that they it "was required to set forth its analysis of any 'substantive
deficiencies in the proposed settlement' in its submission during the public
Comment period." So why are they arguing something so fundamental now?
Justice will certainly ask that when they respond, and Judge Cote may, too.
(NB, other parties have until midnight tonight to file with the court.
Macmillan is the only other party entitled to file five pages; anyone else must
seek permission to serve as as a friend of the court. The government now has
until August 22 "to file any reply.")
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