John Paczkowski

Recent Posts by John Paczkowski

Apple Slams Feds’ Proposed E-Book Remedies as a “Draconian and Punitive Intrusion”

The Department of Justice’s proposed remedies in its ebook price fixing case against Apple havent changed much since the agency first filed suit, nor has the company’s dim view of them.

Responding to the announcement Friday of the restrictions the DOJ wants to place on its ebook and digital content businesses in a brief opposing injunctive relief, Apple slammed them as unwarranted, overreaching and at times unconstitutional.

Here’s an excerpt from the introduction.

“Plaintiffs’ proposed injunction is a draconian and punitive intrusion into Apple’s business, wildly out of proportion to any adjudicated wrongdoing or potential harm. Plaintiffs propose a sweeping and unprecedented injunction as a tool to empower the Government to regulate Apple’s businesses and potentially affect Apple’s business relationships with thousands of partners across several markets. Plaintiffs’ overreaching proposal would establish a vague new compliance regime—applicable only to Apple—with intrusive oversight lasting for ten years, going far beyond the legal issues in this case, injuring competition and consumers, and violating basic principles of fairness and due process. The resulting cost of this relief—not only in dollars but also lost opportunities for American businesses and consumers—would be vast.”

A brutal first volley. And Apple continues it for the remainder of the brief, arguing that the DOJ’s proposed remedies are essentially untethered to the actual findings of liability case. As such, it claims the they are not only overbroad, vague, and punitive, but totally unnecessary.

So what sort of remedies would Apple prefer? None, really. “Apple does not believe it violated the antitrust laws, and, in any event, the conduct for which the Court found it liable has ended and cannot recur as a result of the publishers’ consent decrees,” it argues. “In light of these facts, no further injunction is warranted.”

But if the Court can’t help but issue one, Apple suggests it scrap most of the remedies for which the DOJ is angling, especially those messing with the terms on which it offers e-reader apps on its App Store and its business dealings with other content suppliers. And it proposes more “modest” injunction.

A potentially valid injunction could include: (1) reasonable limitations on Apple’s ability to share information (akin to the publishers’ consent decrees, see ECF No. 259 at 12-13; ECF No. 119 at 12-13; ECF No. 174-1 at 11-12); (2) a prohibition, tracking the publishers’ consent decrees, on retail price MFNs in agreements with the publisher defendants; and (3) reasonable antitrust training obligations for Apple, lasting a reasonable term. No further relief can be justified under the legal standard governing antitrust injunctions or the Constitution.

In other words, a “potentially valid injunction” wouldn’t really include any of the remedies the DOJ is asking for …

Here’s Apple’s filing:

8.2.13 Apple's Brief Opposing Injunctive Relief by jmurrell4037


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