By Porter Anderson | @Porter_Anderson
From May 17, 2012
Part of my series of columns on publishing, Writing on the Ether, appearing Thursdays at the invitation of Jane Friedman at JaneFriedman.com
Rumors of Water:
Thoughts on Creativity & Writing
Named a Best Book of 2011: Englewood Review of Books and Hearts & Minds Books
“I read it in three sittings. Then I read it again. It’s a beautiful book, easily my favorite book on writing since Bird by Bird.”
—author Kimberlee Conway Ireton
Find out more on Amazon and download a sample to your Kindle.
The Dance Darkens
The class-action suit in question is the one brought by a number of US states, filed on the same day (April 11) as the Department of Justice’s own action against the companies. The number of states involved in the class has since ballooned from 16 to 31.
Jacqui Cheng, writing from the Ars Technica vantage point in Judge: Ample evidence that Apple “knowingly joined” e-book conspiracy, looks first, of course, for the tech-defendant’s position after Tuesday’s U.S. District Court opinion.
Not a pretty sight. Cheng’s second-deck headline:
Apple hasn’t been found guilty yet, but the judge’s comments don’t bode well.
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Alison Frankel at Reuters Legal is even clearer in her headline: Ruling in ebooks class action is blow to defense in DoJ antitrust suit. Frankel writes:
The publishers were hoping that the class action didn’t meet the high pleading standard for antitrust complaints under the U.S. Supreme Court’s ruling in Bell Atlantic v. Twombly, but (US District Court Judge Denise) Cote found there were plenty of the specific, well-supported allegations of collusion that Twombly demands.
Jim Milliot at Publishers Weekly headlined his story with as little emotion as possible: Court Rejects Motions to Dismiss Class Action Against Apple, Publishers. He maintained an admirable level of restraint throughout his write:
In her decision to let the civil suit move into the discovery phase, Judge Cote wrote that the suit “plausibly alleges that Apple and the Publisher Defendants took part in a conspiracy in restraint of trade, that an object of this conspiracy was to raise prices for eBooks, and that this restraint was unreasonable per se.”
Judge Cote had, as Milliot wrote, “rejected all of Apple and the publishers’ arguments to dismiss.”
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Judge comes down hard on publishers, Apple in e-book case, wrote paidContent’s Jeff John Roberts.
Cote’s opinion is at times remarkable for the emphatic language in which she decries the alleged conspiracy….(Her) opinion is at times remarkable for the emphatic language in which she decries the alleged conspiracy.
Roberts adds:
Three of the publishers (Hachette, Harper Collins and Simon & Schuster) have already settled an antitrust lawsuit with the Department of Justice and agreed to change their pricing practices. The three publishers are also in negotiations with state governments under which they are likely to pay tens of millions in consumer restitution. In plain English, this means that people who bought an e-book in the last few years may receive a small settlement payment.
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Robert’s paidContent colleague Laura Hazard Owen looked over the states’ amended complaint paperwork and found that portions that had been redacted in April (for unknown reasons) now has been left visible. Her write is headlined As 17 more states join class action against book publishers and Apple, new details revealed.
For example:
“The Club”: In September 2009 as the publishers considered “windowing,” or staggering the print and digital releases of a book, they “referenced themselves in one email as ‘the Club!’” This was in reference to windowing discussions and not to agency pricing discussions with Apple.
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Indeed, much of the “stupid DoJ!” crowd noises that had followed the original filing in April were missing this week. An email list or two had a few spirited exchanges, but without the feisty, devil-may-care, you-call-that-collusion? wit we’d seen for a month. Some called the newly revealed bit of the complaint in Owen’s story “damning.” Others took issue with the term.
More fuss, less debate, this time. #haha at best. No #hahaha’s to be heard. It got more serious this week.
And Michael Cader at Publishers Lunch wrapped some pretty painful sobriety in the grace of clarity. In Judge Cote Rejects Motions to Dismiss Agency Class Action Suit; Shows Sympathy for the Plaintiffs, his reasoned, helpful assessment:
The initial read of Tuesday’s ruling can only give encouragement to the plaintiffs and pause to the defendants (and their defenders) at this stage, as Judge Cote confidently swats away all of the arguments made by the defendants in their dismissal motions.
Cader went even further, in order to assist book-biz observers parse legal implications:
Some people in the book industry wondered how a case could be built around mostly circumstantial evidence and inferences, but Judge Cote writes that since “unlawful conspiracies tend to form in secret, such proof will rarely consist of explicit agreements.”
Indeed, Cader explained, Cotes has gone to some length on the lay assumption that circumstantial evidence might be inadequate.
She (Judge Cote) cites case law that indicates “the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the [defendant] and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.”
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The dance being celebrated in Montevideo in our lead Ether image above is a tango, “La cumparsita.” You’d know it if you heard it. The 95th anniversary of this work by Gerardo Matos Rodriguez — originally a carnival march — arrived on April 19. Our photo was taken at an event held on the site of the song’s original performance, at a cafe, La Giralda.
The tango’s opening lyric, by Pascual Contursi, seems to speak to how things felt this week in our unhealthy industry. In one translation:
The masked parade
of endless miseries
promenades
around that sick being…
Click to read this week’s full Writing on the Ether column at JaneFriedman.com.
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