Apple 2.0

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U.S. Judge in e-book antitrust trial says Apple is likely to lose

May 24, 2013: 8:05 AM ET

It doesn't start until June 3, but the judge is already working on a draft of her decision.

iBooks on the iPad.

iBooks on the iPad.

FORTUNE -- This does not bode well for Cupertino.

Asked during a preliminary hearing Thursday to share her thoughts about the Department of Justice's case against Apple (AAPL) in the long-awaited e-book antitrust trial, U.S. District Judge Denise Cote said this, according to Reuters:

"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."

Here's the thing: The trial doesn't begin until June 3. Also, there's no jury, so Judge Cote's decision is final, and she says she's already begun writing a draft of it.

In her defense -- a strange phrase to use about a judge -- she's had a chance to read some of the evidence. Much of it is contained in e-mails and correspondence exchanged over a six-week period before the launch of the iPad, when Apple and five book publishers worked on alternatives to Amazon's (AMZN) below-cost pricing model of $9.99 for bestsellers.

The book publishers have long since settled with the DOJ, leaving Apple as the sole defendant. It could be that Judge Cote is trying to put pressure on Apple to settle as well, something federal judges with heavy schedules have been known to do.

A lawyer representing Apple, unsurprisingly, took issue with the views Judge Cote expressed.

"We strongly disagree with the court's preliminary statements about the case today," said Orin Snyder of the firm Gibson, Dunn & Crutcher. "We look forward to presenting our evidence in open court and proving that Apple did not conspire to fix prices."

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Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for

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