In fact, the government’s case is so compelling that the judge in the trial has already said she thinks it will prevail, despite Apple’s protests to the contrary. In pretrial comments, U.S. District Judge Denise Cote said she believes the government “will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case will confirm that.”

Apple: Amazon made us do it

Not surprisingly, Apple has complained that this amounts to pre-judging the case, but it’s not hard to see how the judge arrived at that conclusion: Emails sent from Steve Jobs and other Apple executives to various publishers as they tried to strike a deal make it obvious that the computer company wanted to see a united front from the book industry before it agreed to any terms, and that it essentially pressured publishers to collude in order to achieve that.

In the run-up to the antitrust trial, Apple and the Big Five publishers who were named in the lawsuit tried to make their case in the court of public opinion, and their argument was that while their behavior may have looked an awful lot like collusion, they needed to do so in order to blunt the effect of Amazon’s virtual monopoly over e-books — which they suggested was a far worse danger than cutting a deal with Apple, the underdog in the market.

In an open letter about the case published a year ago, Macmillan CEO John Sargent denied that his company colluded with anyone when it decided to move to what is called the “agency model” of pricing (in which the publisher gets to set the price for e-books, rather than the retailer), and argued that doing this was necessary to blunt the force of Amazon’s hold on the market. At the end of the letter, he quoted Authors’ Guild president Scott Turow:

“The irony of this bites hard: our government may be on the verge of killing real competition in order to save the appearance of competition. This would be tragic for all of us who value books and the culture they support.”

Were consumers harmed?

Very little of this is likely to be part of Apple’s legal arguments in the current trial, for the simple reason that it would never fly as an excuse for encouraging or facilitating collusion and price-fixing. If the major players in an industry get together and effectively agree on a strategy for keeping prices artificially high, it’s not enough to say “But your honor, we had to do this because our competitor is too large and it was the only way we could compete with them.”

As we’ve tried to point out in posts about the accusations against Google for its behavior, antitrust law in the U.S. isn’t designed to help prevent competitors from being squashed by a large player in an industry — even if that player has what amounts to a monopoly position. The key point is whether that particular company’s behavior alters or damages the marketplace in a way that harms consumers. And when it comes to that, the DoJ is on rock-solid ground.

As the Justice Department pointed out in its opening statement, the price of e-books climbed by as much as 50 percent in the weeks following Apple’s agreement with the Big Five publishers. Those two groups can — and have, on many occasions — make the argument that keeping prices higher than they would have been otherwise is in the long-term interests of the publishing industry (although that is also debatable), but that’s not what the DoJ or the court is interested in.

Apple took a risk, and it lost

Apple’s only argument is that while e-book prices rose and stayed high for some time as a result of its actions, they eventually came back down — but the judge is unlikely to find that persuasive either. In effect, Apple would be saying: “Yes, we colluded with publishers, but our attempt to keep prices artificially high eventually failed due to other market conditions we were powerless to affect.” That’s admitting guilt, but hoping to get a pass anyway.

So why is Apple bothering to fight this case, even though it knows that it will probably lose? Some of it could be sheer bloody-mindedness, but the company may also be worried about the potential implications of the ruling as it pertains to what are called “most-favored nation” agreements, which give partners the right of first refusal when it comes to pricing. As Zach Seward notes at Quartz, these agreements are everywhere in the entertainment business, and if they amount to collusion then Apple could find it harder to strike deals in other areas.

The bottom line is that Apple engaged in risky behavior with publishers because it felt it had to do so in order to break Amazon’s iron grip on e-books, and offering higher prices to publishers if they cut a deal with the company seemed like the best way to do that. Apple may even have been correct in that assessment — but collusion is still collusion. The only question now is how large the judgement against the company will be in terms of damages.

Post and thumbnail photos courtesy of Shutterstock / tlegend

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As Reuters explained, the Justice Department has shown a new confidence in recent years in going after antitrust cases, following an embarrassing loss in 2004 when it failed to stop Oracle from acquiring PeopleSoft. In the case of the Apple ebook case, which involves allegations that Apple colluded with five big publishers to fix prices, the Justice Department has been playing an aggressive PR game — sending out documents and press releases to pump up its case.

Following this morning’s session, the government sent out slides intended to highlight the nature of the alleged conspiracy.

My colleague, Laura Owen, will have full details of this morning’s proceedings shortly. In the meantime, here’s some screenshots from the slides that the government is using to argue for Apple’s guilt. The government’s strategy appears intended to suggest that where there’s smoke, there’s fire — and that Apple must be at the end of the alleged conspiracy. Keep in mind this is just one side of the story, but here are slides showing communication between Apple SVP of Internet Services Eddy Cue and top publishing execs:

You can see the whole set of Justice Department’s “bad Apple” slides here:

U.S. v. Apple Et Al Opening Slides 6-3-2013

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Google is accused of surreptitiously favoring its own services in its search results, locking advertisers onto its platform and scraping content from rival, subject-specific search engines. To settle the Commission’s investigation, it proposed labelling links to its own services, letting websites opt out of having their content show up in Google’s specialized search, and taking some of the lock-in out of its ad contracts.

On Tuesday, according to a Reuters report, EU Competition Commissioner Joaquin Almunia told European parliamentarians that it was a near-certainty that Google would have to revise its proposals. Referring to the extended period that Google’s rivals have been given to formally respond to the proposals, he said: “After, we will analyze the responses we have received, we will ask Google, probably, I cannot anticipate this formally, almost 100 percent we will ask Google: you should improve your proposals.”

When those proposals were formally revealed in March, Foundem – a British vertical search and comparison site that’s part of Microsoft’s anti-Google FairSearch organization – was quick to issue a comprehensive counter-argument (PDF warning). This more-or-less came down to Foundem saying Google’s proposals wouldn’t change the alleged inherent bias in its search rankings.

The European consumer protection organization BEUC also noted that the proposed concessions wouldn’t stop Google from manipulating its natural search results. In the U.S., by the way, the Federal Trade Commission (FTC) cleared Google of so-called “search bias”.

The European Commission had originally set a deadline of May 26 for responses to Google’s concessions. That has been pushed back to June 27. Apart from giving a pretty clear characterization of the responses the Commission has already received, Almunia said on Tuesday that he had not yet decided whether to press on with a formal antitrust investigation over Android — an investigation that was again called for by FairSearch.

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The purpose of the hearing was to set schedules, review witness lists and go over last-minute evidence objections ahead of the trial. Cote proposed that each side should be given 22 hours over a four day period plus a final day for closing arguments; the federal government said it would need at least 30 hours to make its case, and Apple requested the same, meaning the total trial would last 12 days. Cote said she will decide in the near future.

The parties also reviewed the witness list, which includes prominent publishing CEOs like Macmillan’s John Sargent as well as Apple executive Eddy Cue. Today’s hearing also raised the possibility that News Corp executive James Murdoch, who exchanged a series of emails with Apple’s Steve Jobs, could take the stand for cross-examination; the federal government will decide in coming days, on the basis of an evidence issue, whether this will be necessary.

Much of the trial, however, is unlikely to feature dramatic CEO testimony. Instead, the core of the trial is likely to slog through recondite economic arguments and civil evidence issues; part of today’s hearing focused on expert witness opinion about the competitive effects of agency pricing and whether it coincided with Apple’s economic self-interest.

Today’s hearing also focused on an ongoing dispute in which Apple is attempting to force its competitors, especially Amazon, to unseal evidence they have submitted as part of the proceedings.

At the outset of the hearing, in a courtroom that rises 15 stories above lower Manhattan with a view of the Brooklyn Bridge, Cote stressed that the case represented an enormous amount or work, and told the parties to call her “day or night” if they decided to settle.

Update: Reuters reports that Cote indicated that she was “leaning towards” the Justice Department’s view of the case, and cited the following comment by the judge:

“I believe that the government will be able to show at trial direct evidence that Apple knowingly participated in and facilitated a conspiracy to raise prices of e-books, and that the circumstantial evidence in this case, including the terms of the agreements, will confirm that”

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According to a court filing released on Tuesday, CEOs of the same publishing houses that once rejected the price-fixing theory will now offer evidence to suggest they colluded with Apple in order to increase ebook prices. The case involves allegations that Apple and its late CEO Steve Jobs organized a conspiracy with the Big Six publishers to introduce a commission-style pricing system in order to wrest pricing power from Amazon.

The new filing, posted below, says that the CEOs of Macmillan, Hachette, Harper Collins, Simon & Schuster and Random House will testify about various aspects of Apple’s role in the alleged conspiracy. All of these companies with the exception of Random House were also named in the antitrust lawsuit brought by the Department of Justice and agreed to settle the case last year.

The government’s new filing says Macmillan CEO John Sargent is expected to testify that:

“[T]he deal that 5 of us did with Apple meant someone was gonna have to do it. Just luck of the draw that it was me. . . . The optics make it look like I stood alone, but in the end I had no doubt that the others would eventually follow.”

Such evidence could prove damaging to Apple, which is also expected to confront testimony from Amazon executives. Apple will also be forced explain a growing list of possibly incriminating comments and emails. One of these, cited by the government to show Apple played an active role in the price changes, describes SVP of internet software and services Eddy Cue telling Jobs:

“In the end, they want us and see the opportunity we give them but they’re scared to commit! It [has] less to do with the terms and more about the dramatic business change for them. . . . They just have to get some balls.”

The new filing also includes the views of other prominent executives, including News Corp’s Rupert Murdoch. According to Harper Collins CEO Brian Murray, Murdoch was “pissed at Amazon” and wanted to “screw Amazon.”

In its own filings, Apple maintains its long-held position that it is not a “ringmaster” of a conspiracy, as the government alleges, but that it simply offered the same pricing system, which is based on a 30 percent commission, that it offers to any company that sells through its iTunes store. Apple also maintains that it helped to create competition at a time when Amazon dominated the ebook market.

The next important step of the proceedings will take place on May 23, when the parties meet before U.S. District Judge Denise Cote for a pre-trial conference.

Here’s the filing (all 156 pages of it!) with some of the key points underlined:

DOJ Motion of Facts and Law

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The case followed complaints by Microsoft and others over Google’s treatment of rivals’ web services in its search results. These companies argue that Google favors its own services, which are not clearly marked as such, and also that it unfairly locks advertisers onto its platform and scrapes content from third-party search and comparison sites without consent.

A recent leak outlined the terms of the proposed settlement deal, but here’s the official version:

To address these concerns, Google offers for a period of 5 years to:

(i) – label promoted links to its own specialised search services so that users can distinguish them from natural web search results,
- clearly separate these promoted links from other web search results by clear graphical features (such as a frame), and
- display links to three rival specialised search services close to its own services, in a place that is clearly visible to users,

(ii) – offer all websites the option to opt-out from the use of all their content in Google’s specialised search services, while ensuring that any opt-out does not unduly affect the ranking of those web sites in Google’s general web search results,
- offer all specialised search web sites that focus on product search or local search the option to mark certain categories of information in such a way that such information is not indexed or used by Google,
- provide newspaper publishers with a mechanism allowing them to control on a web page per web page basis the display of their content in Google News,

(iii) no longer include in its agreements with publishers any written or unwritten obligations that would require them to source online search advertisements exclusively from Google, and

(iv) no longer impose obligations that would prevent advertisers from managing search advertising campaigns across competing advertising platforms.

Authorities in the U.S. more-or-less cleared Google over similar complaints, but it’s important to note that Google’s share of the search market there is around 67 percent, whereas in the E.U, it’s around 90 percent. This gives it stronger market power in Europe, and forces the regulators’ hand somewhat (as do local laws).

A Q&A document, which outlines the Commission’s concerns in detail, points out that “it does not seem likely that another web search service will replace [Google] as European users’ web search service of choice.”

“In this context, it is important for the Commission to intervene in order to ensure that Google’s prominent market position in web search does not affect the possibility for other competitors to innovate in neighbouring markets, including in the long-term,” the document states.

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The long-awaited deal is significant because it concludes a multi-year investigation by EU competition authorities, and because it is the first time that Google has bent to government demands over how it presents its search results. The details of the five-year deal, which has yet to be formally announced, were reported on Saturday by the Financial Times.

The terms of the deal

According to the FT, Google’s obligations vary depending on the nature of the search results. The most onerous conditions relate to listings like travel or restaurants where Google has a clear financial interest. In these cases, the company must identify any search listings that are Google-owned, and also provide at least three links to competing search engines. For other Google-related listings that do not produce direct revenue — weather or news, for instance — the company must provide a label.

The labeling will involve markers like boxes, separate page placement and “hover links.” A third party will monitor for compliance with these and other parts of the agreement.

The deal also requires Google to honor requests from news agencies and other sites not to “scrape” their content for use in its search listings, and to provide assurances that it won’t punish these sites by deleting them from the search listings altogether.

The agreement also addresses Google’s advertising practices by preventing it from imposing exclusive ad deals on its partners, and by making it easier for those partners to switch their ad campaigns to rivals like Microsoft and Yahoo.

The FT has a detailed account of the obligations here.

A victory for the EU, the public or Google?

When the deal is formally announced by EU regulators, we can expect to see considerable spin from Google and its competitors about what it really means.

At this stage, it’s clear that the deal represents the largest regulatory imposition to date over Google’s search business, which is still the core of the company and its prime money maker. This amounts to a victory for the EU and its high-profile competition commissioner, Joaquín Almunia.

While Google will hardly be celebrating the regulations, the company could have fared far worse. The five-year deal, which is legally binding, means Google avoids the sort of heavy fines and bitter regulatory battles that ensnared arch-rival Microsoft for well over a decade.

Europeans consumers, meanwhile, are likely to continue using Google as they have done so far. Despite repeated accusation by groups and companies tied to Microsoft that Google manipulates its search results, there is little actual evidence that the company blatantly puts its thumb on the scale.

The agreement may, however, serve to give Google critics some peace of mind by providing legal assurances that their worst fears won’t come true. And, as the deal is not finalized, critics and others will have time to comment on its provisions.

A different outcome from America

One of the most noticeable features of the deal is how much it differs from the outcome of a similar investigation carried out by America’s Federal Trade Commission.

In a January report, the FTC concluded a two-year antitrust inquiry by announcing that Google had done nothing wrong in the field of search. While the FTC did extract a pledge the company related to patent abuse, this was more a face-saving measure for the FTC than a burden on Google. (Here’s a plain English summary of the US investigation).

Different laws in the US and EU explain the divergent outcomes. American antitrust laws, for instance, focus on harm to consumers not competitors — a different line of inquiry to what happens in Europe. America also has more robust speech laws. Google argued strenuously that its search results are protected by the First Amendment; the FTC likely folded its cards rather than risk losing a court case over the question.

Google also controls a higher share of the search market in Europe than it does in the U.S. — more than 90 percent, compared with around 67 percent.

According to a source familiar with the investigations, Google was also more willing to settle in Europe because a legally binding EU commitment  does not expose the company to civil lawsuits.

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The Microsoft-led group, called FairSearch, was already behind a previous (and as yet unresolved) complaint to the Commission over Google’s search practices, in particular its alleged tendency to rank Google services higher than those of rivals. However, Nokia (the handset maker) and Oracle (the anti-Android litigator) joined FairSearch last September, indicating that the fight would be further extended to the mobile sphere.

That has now happened. According to a FairSearch statement on Tuesday, “Google uses deceptive conduct to lock out competition in mobile”. The main issue at play here is the way in which Google bundles its suite of services with Android: if a phone manufacturer wants to build an Android phone that includes consumer favorites such as Maps or YouTube, the manufacturer is then also obliged to “pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone”, the complaint states.

The other issue is that of Google’s distribution method. FairSearch characterizes the giving-away of Android as “predatory” and “below-cost”, arguing that it “makes it difficult for other providers of operating systems to recoup investments in competing with Google’s dominant mobile platform”.

According to FairSearch counsel Thomas Vinje:

“Google is using its Android mobile operating system as a ‘Trojan Horse’ to deceive partners, monopolize the mobile marketplace, and control consumer data. We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google’s Android operating system.”

So far, Google’s only response has been to say: “We continue to work cooperatively with the European Commission.” Meanwhile, a New York Times interview with EU Competition Commissioner Joaquín Almunia suggests that European antitrust officials had already been looking into Android separately from their long-running Google desktop search investigation.

Is there a case here?

The fundamental concept in antitrust regulation is that of market dominance – if the target of the regulation doesn’t dominate the market in a way that potentially lets them stunt competition, regulators can’t hold them back, as that would mean distorting the market unnecessarily. That’s why I don’t believe anything will come of complaints made over Apple’s carrier contract terms, for example – iOS devices don’t actually dominate their market.

The case for Android dominating the smartphone market, though, is much stronger. We’re not talking about the levels of dominance Google enjoys in desktop search – there, it owns just under 90 percent of the market – but, as FairSearch has noted, around 70 percent of smartphones shipped worldwide at the end of 2012 carried Android. That is a lot, but does it amount to market dominance?

There are three main problems with this theory. The first is that iOS, while not dominant, is very strong; much stronger than OS X was as a rival to Windows when Microsoft (oh, the irony) got hit with a $794 million EU antitrust fine for bundling Windows Media Player with its OS. Indeed, in the EU, iOS has a market share of around 25 percent, and Android has a market share of just over 60 percent (the 70 percent figure quoted by FairSearch is weighted somewhat by the high numbers of Android phones being shipped to developing countries).

Secondly, it is viable to fork Android and forego the standard Google suite. Amazon has done just that with its Kindle Fire range of tablets, which is doing just fine. In China, Baidu has done the same, replacing the Google suite with its own services. In Russia, Yandex is also developing its own set of rivals to Google’s services, although its strategy is more a case of piggybacking on standard Android than of rip-out-and-replace – in itself, this demonstrates that rival services can get a chance on Android, particularly if the operator rolling out the phone is keen.

Finally, this is a market in constant flux. Android’s rise has certainly been meteoric, but there is a chance that some alternative, whether it be Firefox OS or a Kindle phone or a de-Googlified Samsung OS, will stop it in its tracks. Microsoft and Nokia would certainly have something to gain from straitjacketing Google in the near future, as they want Windows Phone to succeed, but the regulators may be queasy at the thought of interfering in an already tumultuous scene.

In short, this one is complicated. Whatever happens, though, it’s a formal complaint, so the EU will be forced to acknowledge it and decide whether or not to launch a formal investigation.

Anything else?

Glad you asked! Almunia also dropped a few interesting tidbits in that NYT interview about the Google search case. He insisted that the Commission wouldn’t require Google to change its ranking algorithms, but he did say Google would need to start more clearly identifying results that link to its own services.

“Maybe we will ask Google to signal what are the relevant options, alternative options, in the way they present the results,” he suggested.

According to Almunia, Google will submit proposals this week about settling the investigation. In the U.S., the Federal Trade Commission (FTC) has already concluded a similar investigation without any major crackdown on Google, but that will not necessarily influence the Commission’s thinking, particularly as Google has a greater share of the European search market than it does in the U.S.

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“Amazon’s acquisition of Goodreads is a textbook example of how modern Internet monopolies can be built,” said Guild president Scott Turow in a statement issued on Friday. Turow claims that Amazon sought to eliminate Goodreads as a future competitor and that it has “squelched” an important source of independent discussion and reviews.

It’s unlikely anything so dramatic will occur in the short term. As executives from Goodreads and Amazon told my colleague Laura Owen, the book network will remain for now a standalone site and the first goal of the merger is to “do no harm.”

The data and marketing insight Amazon receives from Goodreads is likely to strengthen the retailer’s already powerful position in book selling. The question of whether this will lead to an Amazon “monopoly” is another matter altogether. Under American rules on vertical integration, a company breaks antitrust laws only it obtains a dominant positions and abuses that position to harm consumers.

Turow and the Authors Guild have already been vociferous critics of Amazon. Last year, Turow accused the company of using discounting to “destroy bookselling.” More recently, the Guild joined with the Association of American Publishers to demand that Amazon be denied control over new internet suffixes “.book” and “.author.”

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The details of this information remain sketchy, although the report suggests that French carriers are concerned that Apple’s contracts hold back competition by setting excessively high quotas for iPhone sales, thereby making it difficult to assign marketing resources to rival smartphones. While no one is forcing the operators to sell the iPhone, they really want to do so because customers want it, and that means agreeing to Apple’s demands. The terms of such contracts are always secret.

Here’s a statement sent out on Friday by Antoine Colombani, spokesman for Competition Commissioner Joaquín Almunia:

“The markets for smartphones and tablets are very dynamic, innovative and fast-growing. Samsung’s growing market position and the success of Google’s Android platform are good reasons to believe that competition is strong in the markets for smartphones and tablets.

“The Commission has been made aware of Apple’s distribution practices for iPhones and iPads. There have been no formal complaints, though. The Commission is currently looking at the situation and, more generally, is actively monitoring market developments. We will intervene if there are indications of anticompetitive behaviour to the detriment of consumers.”

I find it hard to believe this will come to anything. As the statement suggests, iOS devices are not the only game in town — in fact, the iPhone only has around 25 percent share of the smartphone market across the five biggest European economies. Apple certainly has a lot of weight to throw around in the mobile market, but nowhere near enough as to constitute a monopoly.

A good (though not perfect) point of comparison here would be Intel, which found itself the subject of a $1.45 billion EU fine back in 2009 for abuse of its dominant position. Intel, which utterly dominated the x86 processor market as it does now, gave secret kickbacks to computer manufacturers and retailers for not stocking AMD-based products. It even paid manufacturers to delay or cancel the launch of non-Intel products.

That was a clear-cut case of illegal practices, hurting consumers by limiting their choices. It’s hard, if not impossible, to argue that consumers in the EU do not have easy access to non-Apple mobile devices. In the Intel case, those manufacturers and retailers did not seriously have the option of telling the chipmaker to show itself the door. In this Apple business, the anonymous carriers in question could likely have done what U.S. Cellular did, and just not stock the iPhone. There are plenty of alternatives.

I suspect that the carriers in this situation are simply trying to weaken Apple’s hand in contract negotiations, and that the Commission is highly unlikely to step in and help.

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