“The Rule of Reason, as established to be used by the lower courts by the US Supreme Court, to be applied to a vertical participant in such activity, “
Have your forgotten that this was NOT a vertical conspiracy but a horizontal conspiracy?
You keep repeating that like a broken record. . . but it is irrelevant.
Have you forgotten that Apple is NOT a publisher?
The LAW differentiates such participants, and THAT is what matters. It is what determines who is a horizontal participant and who is a horizontal participant. It does not matter what form the conspiracy takes. What matters is what rule you use on the PARTICIPANTS in that conspiracy. Each are to be judge separately. The per se rule can be used on the horizontal participants, those who are normally competitors but who have joined anti-competitively together in conspiracy to pursue joint goals.
That per se standard, according to the US Supreme Court, is the wrong rule to use on vertical participants who are not normally in competition with the other members of the group, and are not normally adversaries, but would normally considered cooperative partners in selling products.
Apple like Areeda & Hovenkamp , 2004, and Leegin, 2007, falls into that category, where the normal business would naturally lead the businesses to cooperate, not compete to further their mutual goals of selling their products. For those, the Rule of Reason must be used to see if competition is increased or if the participation of the vertical participant was designed to seize control of the market and limit or lock out others' participation. If the Court finds the later is the case, then the vertical participant is found guilty, but if it is the former, not guilty.
Why is this so hard for you to comprehend, Tex?
I have no problem grasping the differences. . . but then my background is business and economics. I inherently see the huge differences in outlook, philosophy, economic drivers, motives, and legal ramifications between a horizontal conspiracy of competitors joining together to pursue joint goals and those of an independent actor, working for its own enlightened self-interest.. YOU obviously do not grasp them, nor did the DOJ lawyers driving this case, Judge Cote, or the two justices of the 2nd Appellate Court District.
A horizontal conspiracy is defined in LAW and economics to be among organizations at the same level of competition who set aside their natural enmity to cooperate.
Apple is not a publisher, they don't compete with publishers, they don't sell eBooks to other retailers. They are a customer of the publishers, they essentially buy eBooks from publishers to resell them to consumers. . . just as Amazon is a customer of the publishers who in turn resells to consumers. . . as is Barnes & Noble. . . as is the book seller in the strip mall.
Apple could only be part of a horizontal conspiracy with like competitors, businesses with which they would have a natural enmity because of that competition and would be unlikely to have a cooperative relationship, forming a horizontal conspiracy with competitors such as Amazon, Barnes & Noble, and the book seller to raise eBook prices for their mutual benefit and profit, because, by definition, they are in the same tier of economic activity as Apple. That obviously did not happen.
No, Apple is competing AGAINST Amazon's Kindle books, Barnes & Noble's Nook books, and, in a way, the book seller in the strip mall's hard cover books and did not conspire with any of them to raise prices. Instead, Apple's supposedly anti-competitive but entirely legal contracts were, in every instance, clause, and paragraph, about competing against other companies in the same level as Apple, assuring that Apple would not be placed at a competitive disadvantage because of any potential anti-competitive actions of the publishers.
I have an attorney on my payroll. He is co-author with me on a series of books we are writing. In discussions, I've run what I've told you past him. He agrees in every major thing I've written to you (with a few quibbles, but every lawyer will quibble because I haven't used quite exactly the right legal word here and there, and it is the nature of lawyers to quibble.). He especially agrees you are a babe in the woods as far as legal theory and practice goes. You'd get chewed up and spit out in any legal argument because you don't even have a clue of the hierarchy of legal decisions and what trumps what.
Tex, he said to tell you the Law is not just what is written in the codes, it is what is in the legislated codes, plus over two centuries of case law and decisions made by the courts and the Supreme Court trying to interpret what amateurs in the legislatures have written and passed, plus thousands of regulations that have just as much force as legislated law. . . all of it making a mess of things because the legislators write 2700 page laws that are internally inconsistent and also inconsistent with the laws that are already on the books. They leave it to the courts to make those laws agree by interpreting them and excising the disagreements the older laws may have with the newer laws.
Again, Tex, WORDS MEAN THINGS in law, economics, as well as the English Language. You cannot willy-nilly redefine them merely because it is convenient or politically expedient to do so. If that happens, we no longer have a system of laws. Whatever the law is, is subject to change on the whims of Liberal Judges, as Apple has learned to the cost of $450 million.
I find it very telling that the DOJ chose to completely ignore the second section of the Sherman Antitrust Act:
"Section 2:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony [. . . ]
You like to ignore that section also, where Amazon was concerned too. . . as you said above:
Me: "Was not turning off the “Buy” buttons of any publishers who raised their wholesale prices a “restraint of trade of trade or commerce” when the monopolist had 90% power in the market and could starve a supplier of sales?"
You: "Those actions would be outside the scope of the Sherman act as described in 15 U.S. Code § 1."
Obviously, you are totally wrong, as 15 U.S. Code § 2 quite explicitly states such actions by a monopolist would be felony. The Sherman act is more than just 15 U.S. Code § 1, but you ignored the existence 15 U.S. Code § 2. I'm still looking for your providing a citation of anti-competitive price fixing in the law. I told you it was established not by an enacted law but by a judge determining through CASE LAW that such price fixing was an anti-competitive action constituting an antitrust violation and survived a Supreme Court review, just like the Leegin, 2007, setting a precedent about Vertical participants being judged only by the Rule of Reason.