• Home
  • Latest
  • Fortune 500
  • Finance
  • Tech
  • Leadership
  • Lifestyle
  • Rankings
  • Multimedia

Trendingnow

1

After forcing workers back to the office, Goldman Sachs and JPMorgan Chase are now letting their staff work remotely—but only for the World Cup

2

The Pentagon said Iran War costs $29 billion, but the real cost is closer to $200 billion—and counting

3

Markets tumble worldwide as Fed resets expectations: $400 billion wiped off SpaceX stock

1

After forcing workers back to the office, Goldman Sachs and JPMorgan Chase are now letting their staff work remotely—but only for the World Cup

2

The Pentagon said Iran War costs $29 billion, but the real cost is closer to $200 billion—and counting

3

Markets tumble worldwide as Fed resets expectations: $400 billion wiped off SpaceX stock
TechApple

Apple’s E-Book Battle: I Was Wrong

By
Philip Elmer-DeWitt
Philip Elmer-DeWitt
Down Arrow Button Icon
By
Philip Elmer-DeWitt
Philip Elmer-DeWitt
Down Arrow Button Icon
March 7, 2016, 3:56 PM ET
Add Fortune on Google for similar content.

The Supreme Court today punted on the e-book case, U.S.A. v. Apple.

I’m not a lawyer, an expert on the Supreme Court, or an Apple insider. But I sat through the original trial and the appeal, and I have three final thoughts:

  1. This was tricky case—one raising tough questions about how to apply 19th century antitrust laws to 21st century digital markets. I’m sorry the court declined to hear it.
  2. I wonder whether Judge Scalia’s absence was a factor. Will the rump Court be less inclined to sink its teeth into other tricky cases, like Apple vs. FBI?
  3. This doesn’t help Eddy Cue. (See below.)

Subscribe to Data Sheet, Fortune’s daily tech newsletter.

Otherwise, I have nothing to add to what I wrote nearly three years ago when U.S. District Judge Denise Cote issued her ruling. I thought the district court judge was coming around to Apple’s point of view. I was wrong.

Here’s that story, from July 2013:

The benches were hard. The courtroom was over-cooled. The reporting challenges were daunting (no Wi-Fi, no cellphones, no laptops). But the drama that unfolded over three weeks of testimony was compelling, and I was happy to be one of a handful of reporters who sat through the whole thing.

I thought I had a good handle on Apple vs. United States, a.k.a. the e-book antitrust case. I knew Judge Cote—a former prosecutor—had gone into the trial predisposed against the defendant. She said as much in a pre-trial hearing.

But I thought Apple (AAPL) had put forward a strong defense. Like the Author’s Guild and at least one U.S. Senator, I thought the government was prosecuting the wrong company. At several points during the trial, I thought the judge was coming around to Apple’s point of view.

Having read Judge Cote’s 160-page opinion, in which she questioned the credibility of Apple’s key witness, ridiculed its legal defense, and ruled decisively against the company, I see that my view from the benches wasn’t so good after all.

For more about Apple’s $450 million antitrust suit, watch:

How could I have been so wrong? In my post-game analysis, I see several factors that led me astray.

  • The Amazon factor: The context of the case, as I saw it, was Amazon’s (AMZN) monopoly control of the e-book market and the predatory $9.99 pricing rendering it impossible for Apple, Barnes & Noble (BKS), or anyone else to enter the market without selling its own e-books at a loss. But as many readers have correctly pointed out, Apple was on trial, not Amazon.
  • The publishing factor: Having worked in book publishing, I know how low the wages are, how thin the margins are, and what a crapshoot the bestseller game can be. Judge Cote may be an avid reader (she quoted an Emily Dickinson poem in an earlier e-book decision), but she came into the trial convinced that the publishers had colluded to raise the price of e-books and saw Apple’s role in that framework. Otherwise, why would they have agreed to the settlements she supervised?
  • The Cue factor: I may be a sucker for a skilled negotiator, but I found Eddy Cue—Steve Jobs’s point man in the e-book deals—to be an unusually credible witness. Judge Cote did not, as she makes clear in a series of acid footnotes. “Cue’s denial of prior knowledge of Sargent’s trip to Amazon,” she writes in No. 47, “was particularly brazen.”
  • The lawyering factor: The government’s lawyers, while competent, seemed plodding compared with Apple’s legal team, which wove complex legal arguments based on recent Supreme Court rulings that had me—but clearly not the judge—convinced. It didn’t help my objectivity that Apple’s lawyers were happy to talk on background, spinning the case their way. The only comment a government lawyer made was that in one of my stories, I’d misspelled his name.
  • The law: I am not a lawyer. Even if I were, antitrust law is a beast unto itself understood only by antitrust experts—and even they don’t agree among themselves. It seemed to me that there is fundamental difference between competitors forming a horizontal agreement to fix prices, and a vertical player negotiating deals to enter the business. It also seemed to me that there’s a difference between forcing companies to switch business models and writing a contract that creates a strong incentive for them to so. Judge Cote disagreed on both points. An appeals court may see things differently [in fact, they split 2-1 against Apple].

.

At this point, what do I know?

About the Author
By Philip Elmer-DeWitt
See full bioRight Arrow Button Icon
Add Fortune on Google for similar content.

Latest in Tech

Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025

Most Popular

Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Finance
Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam
By Fortune Editors
October 20, 2025
Fortune Secondary Logo
Rankings
  • 100 Best Companies
  • Fortune 500
  • Global 500
  • Fortune 500 Europe
  • Most Powerful Women
  • World's Most Admired Companies
  • See All Rankings
  • Lists Calendar
Sections
  • Finance
  • Fortune Crypto
  • Features
  • Leadership
  • Health
  • Commentary
  • Success
  • Retail
  • Mpw
  • Tech
  • Lifestyle
  • CEO Initiative
  • Asia
  • Politics
  • Conferences
  • Europe
  • Newsletters
  • Personal Finance
  • Environment
  • Magazine
  • Education
Customer Support
  • Frequently Asked Questions
  • Customer Service Portal
  • Privacy Policy
  • Terms Of Use
  • Single Issues For Purchase
  • International Print
Commercial Services
  • Advertising
  • Fortune Brand Studio
  • Fortune Analytics
  • Fortune Conferences
  • Business Development
  • Group Subscriptions
About Us
  • About Us
  • Press Center
  • Work At Fortune
  • Terms And Conditions
  • Site Map
  • About Us
  • Press Center
  • Work At Fortune
  • Terms And Conditions
  • Site Map
  • Facebook icon
  • Twitter icon
  • LinkedIn icon
  • Instagram icon
  • Pinterest icon

Latest in Tech

NYC Mayor Zohran Mamdani 3 for 3 on his ‘better Democrats’ endorsements: ‘Put working people back at the heart of politics’
PoliticsNew York City
NYC Mayor Zohran Mamdani 3 for 3 on his ‘better Democrats’ endorsements: ‘Put working people back at the heart of politics’
By The Associated Press, Jesse Bedayn, Thomas Beaumont and HUMERA LODHIJune 24, 2026
4 minutes ago
a
RetailAmazon
Amazon’s record Prime Day masks a darker truth: Americans are spending more and getting less
By Nick LichtenbergJune 24, 2026
17 minutes ago
Current price of Ethereum for June 24, 2026
Personal FinanceEthereum
Current price of Ethereum for June 24, 2026
By Joseph HostetlerJune 24, 2026
2 hours ago
Taktile cofounders Maik Taro Wehmeyer (left) and Maximilian Eber (right) stand side by side, smiling at the camera.
Startups & VentureVenture Capital
Exclusive: Taktile raises $110 million from Goldman Sachs, Tiger Global to automate high-stakes financial decisions 
By Camila Grigera NaónJune 24, 2026
2 hours ago
Sarah Youngwood, EVP and CFO at Nasdaq.
AICFO Daily
Nasdaq’s CFO says leaders must learn AI—not just their teams
By Sheryl EstradaJune 24, 2026
2 hours ago
steve
Commentary250 Years of Innovation
Steve Case: America was built by entrepreneurs. Here’s how we keep that edge for the next 250 years
By Steve CaseJune 24, 2026
3 hours ago

Most Popular

After forcing workers back to the office, Goldman Sachs and JPMorgan Chase are now letting their staff work remotely—but only for the World Cup
Success
After forcing workers back to the office, Goldman Sachs and JPMorgan Chase are now letting their staff work remotely—but only for the World Cup
By Orianna Rosa RoyleJune 23, 2026
1 day ago
The Pentagon said Iran War costs $29 billion, but the real cost is closer to $200 billion—and counting
Economy
The Pentagon said Iran War costs $29 billion, but the real cost is closer to $200 billion—and counting
By Jacqueline MunisJune 24, 2026
8 hours ago
Markets tumble worldwide as Fed resets expectations: $400 billion wiped off SpaceX stock
Banking
Markets tumble worldwide as Fed resets expectations: $400 billion wiped off SpaceX stock
By Jim EdwardsJune 23, 2026
1 day ago
Current price of oil as of June 23, 2026
Personal Finance
Current price of oil as of June 23, 2026
By Joseph HostetlerJune 23, 2026
1 day ago
Texas and Charlotte used to build huge McMansions—now they're copying the California design tricks they once mocked
Real Estate
Texas and Charlotte used to build huge McMansions—now they're copying the California design tricks they once mocked
By Sydney LakeJune 22, 2026
2 days ago
Current price of gold as of June 23, 2026
Personal Finance
Current price of gold as of June 23, 2026
By Danny BakstJune 23, 2026
1 day ago

© 2026 Fortune Media IP Limited. All Rights Reserved. Use of this site constitutes acceptance of our Terms of Use and Privacy Policy | CA Notice at Collection and Privacy Notice | Do Not Sell/Share My Personal Information
FORTUNE is a trademark of Fortune Media IP Limited, registered in the U.S. and other countries. FORTUNE may receive compensation for some links to products and services on this website. Offers may be subject to change without notice.