It is not possible. In the market Apple was not even yet a participant, but was going to be, by definition, a RETAILER, a VERTICAL relationship, NOT a HORIZONTAL publisher or wholesaler of eBooks to other retailers. The only way Apple could be in a horizontal conspiracy would be if Apple cooperated with Amazon to fix prices. Apple did NOT at any time approach or discuss pricing with Amazon.
If the government were correct, every time a retailer sent a price list or a contract offering to sell a product line to multiple suppliers with the same terms, it would be a conspiracy. EVERY ACTION APPLE UNDERTOOK WAS COMPLETELY LEGAL. The government claimed that doing completely legal actions somehow became illegal. A patently illogical legal theory.
That is why you are mistaken. . . and why this VERY DEFINITION SHOULD NOT HAVE APPLIED TO APPLE, by the rules the US Supreme Court established as the very guiding principles of the Rule of Reason that MUST be used to judge these cases against a vertical participant!
The Supreme Court REVERSED an earlier conviction based on exactly such a mistaken application of the law in which a RETAILER was accused of price fixing with several suppliers. They set deliberate and explicit rules, and SPECIFIED THEM AS SUCH, so that a RETAILER could NOT be held as a anti-competitive conspirator by offering the same contracts to suppliers, or if there was a legitimate business advantage to such a plan.
Apple is a RETAILER selling content for the publishers, not a WHOLESALER. It has a legitimate business advantage for Apple for offering what it did to the publishers. It was NOT for the benefit of the publishers but for Apple's benefit. Therefor, Apple must be judged on the Rule of Reason, not the Rule of per se, which is what Judge Côte applied. Apple met every single one of the tests that the US Supreme Court laid out to be held NOT acting illegally. . . yet Judge Côte and the two Appelate Justices ignored the entire set of rules they Court had REQUIRED they must use and went with the set of per se rules used only for those who are in the same TIER of competition. . . The publishers who compete directly against each other. . . and ignored the far more restrictive Rules of Reason.
The Supreme Court stated that, under these rules they established in 2006 defining the entities involved as a defense—in this case only Apple because they were the only ones who had the means to fight—merely had to show that the Pro-competition of any collaboration outweigh any potential anti-competitive effects to pass muster under the antitrust laws. That was a statement IN THE RULES ESTABLISHED BY THE MAJORITY DECISION!
Apple not only met THAT bar, but exceeded it by showing that competition was vastly INCREASED by their entry into the market, and showing that in fact, overall prices had DROPPED, completely invalidating the basic premise of the DOJ's case and their evidence of "price fixing" for the purposes of increasing prices, demonstrating that except for a very small segment of the overall market, the best-seller and A-List segment, which increased prices for a short introductory period, which the plaintiff DOJ had focused all attention on, and Judge Côte complete discounted the expert testimony about, the effect of Apple's entry in the eBook market had the opposite effect of what the government claimed.
The affect of competition on the pricing of Best Selling eBooks August 2012 to April 2014.
Source—DigitalBookWorld.com April 30, 2014
As I said, the only thing Apple, under the LAW, was supposed to have had to show, according to the US Supreme Court, was that the Pro-competition aspects outweighed any potential anti-competitive effects to pass muster under the antitrust laws. They did that in spades! The Supreme Court said that vertical participants had to be judged under the Rule of Reason, not the Rule of per se (Illegal on its face). The Supreme Court's Guideline's were completely ignored because our "Justice System" has been replaced by the rule of men, rather than the rule of law, and if you two bozos can't see that because of your overweening hatred of Apple, you are not true conservatives. Instead, you two apparently approve the replacement of the rule of Law with the rule of Whim, merely because you don't like the defendant. That is sad.