Faced with a paucity of evidence, Federal Judge Jed Rakoff yesterday appeared poised to dismiss a lawsuit filed by independent booksellers against Amazon and the big six publishers over Amazon’s use of proprietary DRM in the Kindle e-reading platform. With plaintiff attorneys conceding there was no evidence of any conspiracy beyond the fact that the publisher contracts merely “allowed” Amazon to use its proprietary platform, Rakoff sounded deeply skeptical of the booksellers’ conspiracy claims, at one point saying he could not recall any case in “Anglo-American” law where “a conspiracy” was anything other than “a conscious agreement to commit an unlawful act.”

The oral arguments followed last week’s final briefings in Book House of Stuyvesant Plaza, Inc. et al v. Amazon.Com, in which lawyers for the big six publishers and Amazon argued the case should be dismissed. First filed in February by three named plaintiffs (The Book House of Stuyvesant Plaza of Albany, N.Y.; Fiction Addiction of Greenville, S.C.; and Posman Books of New York City), the suit alleges that Amazon’s use of proprietary DRM amounts to an illegal restraint of trade, and seeks an injunction that would essentially prohibit Amazon from “selling e-books with device and app-specific DRM.”