In a decisive move in the legal battle surrounding Apple's fishy e-book pricing practices, the US Department of Justice has issued a proposed remedy aimed at leveling the playing field. The terms of the proposal, which requires approval by the court, call for an end to Apple's deals with major publishing houses, as well as allowing rival e-book apps, like Amazon's, to link to their own online bookstores. The announcement is hardly surprising, considering that it comes just a few weeks after US District Judge Denise Cote ruled that Apple had conspired to bump up the retail prices of e-books. In the official brief, Assistant Attorney General Bill Baer said, "Under the department's proposed order, Apple's illegal conduct will cease and Apple and its senior executives will be prevented from conspiring to thwart competition in the future." You can read the release in full after the break.
Update: Apple has formally responded to the Department of Justice's proposal and predictably, the company isn't happy. In a filing with the United States District Court, Apple said, "Plaintiffs' proposed injunction is a draconian and punitive intrusion into Apple's business, wildly out of proportion to any adjudicated wrongdoing or potential harm." Apple also disputed the DOJ's assertion that its plan is intended to foster healthy competition, arguing that the "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." While the tides seem to be turning against Apple as the case moves forward, Cupertino is evidently not going down without a fight.
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Friday, August 2, 2013
Department of Justice Proposes Remedy to Address Apple's Price Fixing
Remedy Would Require Apple to Terminate Agreements with Five Publishers; Provide for a Court-Appointed External Monitor; Allow Competitors to Provide Links from Their E-Book Apps to Their E-Bookstores
The Department of Justice and 33 State Attorneys General today submitted to the court a proposed remedy to address Apple Inc.'s illegal conduct, following the July 10, 2013, U.S. District Court for the Southern District of New York decision finding that Apple conspired to fix the prices of e-books in the United States. The proposed relief is intended to halt Apple's anticompetitive conduct, restore lost competition and prevent a recurrence of the illegal activities.
"The court found that Apple's illegal conduct deprived consumers of the benefits of e-book price competition and forced them to pay substantially higher prices," said Bill Baer, Assistant Attorney General in charge of the Department of Justice's Antitrust Division. "Under the department's proposed order, Apple's illegal conduct will cease and Apple and its senior executives will be prevented from conspiring to thwart competition in the future."
The department's proposal, if approved by the court, will require Apple to terminate its existing agreements with the five major publishers with which it conspired – Hachette Book Group (USA), HarperCollins Publishers L.L.C., Holtzbrinck Publishers LLC, which does business as Macmillan, Penguin Group (USA) Inc. and Simon & Schuster Inc. – and to refrain for five years from entering new e-book distribution contracts which would restrain Apple from competing on price. Under the department's proposed remedy, Apple will be prohibited from again serving as a conduit of information among the conspiring publishers or from retaliating against publishers for refusing to sell e-books on agency terms. Apple will also be prohibited from entering into agreements with suppliers of e-books, music, movies, television shows or other content that are likely to increase the prices at which Apple's competitor retailers may sell that content. To reset competition to the conditions that existed before the conspiracy, Apple must also for two years allow other e-book retailers like Amazon and Barnes & Noble to provide links from their e-book apps to their e-bookstores, allowing consumers who purchase and read e-books on their iPads and iPhones easily to compare Apple's prices with those of its competitors.
Additionally, the Department of Justice is asking the court to appoint an external monitor to ensure that Apple's internal antitrust compliance policies are sufficient to catch anticompetitive activities before they result in harm to consumers. The monitor, whose salary and expenses will be paid by Apple, will work with an internal antitrust compliance officer who will be hired by and report exclusively to the outside directors comprising Apple's audit committee. The antitrust compliance officer will be responsible for training Apple's senior executives and other employees about the antitrust laws and ensuring that Apple abides by the relief ordered by the court.
On April 11, 2012, the department filed a civil antitrust lawsuit in the U.S. District Court for the Southern District of New York against Apple, Hachette, HarperCollins, Macmillan, Penguin and Simon & Schuster, for conspiring to end e-book retailers' freedom to compete on price by taking control of pricing from e-book retailers and substantially increasing the prices that consumers paid for e-books.
At the same time that it filed the lawsuit, the department reached settlements with three of the publishers – Hachette, HarperCollins and Simon & Schuster. Those settlements were approved by the court in September 2012. The department settled with Penguin on Dec. 18, 2012, and with Macmillan on Feb. 8, 2013. The Penguin settlement was approved by the court in May 2013. Final approval of the Macmillan settlement is pending before the court. Under the settlements, each publisher was required to terminate agreements that prevented e-book retailers from lowering the prices at which they sell e-books to consumers and to allow for retail price competition in renegotiated e-book distribution agreements.
The department's trial against Apple, which was overseen by Judge Denise Cote, began on June 3, 2013. The trial lasted for three weeks, with closing arguments taking place on June 20, 2013. The court issued its opinion that Apple Inc. violated Section 1 of the Sherman Act on July 10, 2013. The court will hold a hearing on remedies on Aug. 9, 2013.