Apple 2.0

Covering the business that Steve Jobs built

The key to the e-book antitrust case: What Apple's deal meant

June 10, 2013: 1:15 PM ET

On day 5, the government uses HarperCollins's words against it.

PX 865. Click to enlarge.

PX 865. Click to enlarge.

FORTUNE -- Plaintiff's Exhibit 865, introduced for the Department of Justice by attorney Larry Buterman after he spent an hour cross examining HarperCollins CEO Brian Murray -- examination that was like pulling teeth -- illustrates as well as anything the gap between the government's case and Apple's (AAPL) defense.

It consists of four quotes from HarperCollins executives -- two from Murray himself -- that according to Buterman indicated that Apple presented publishers with a stark choice: Either force Amazon (AMZN) to switch to Apple's "agency" business model and raise e-book prices, or withhold their books from Amazon and the other e-book retailers.

Apple's attorneys have heard this before. And the argument they have made repeatedly is that Apple was simply trying to make the best deal it could, and that nothing in the contracts Apple and the publishers negotiated actually says what the government implies

What U.S. District Judge Denise Cote must decide is whether she can find Apple guilty of conspiracy to violate the Sherman antitrust act on the basis of the implications of its contracts, or whether the violation has to be spelled out in the language of the contracts themselves.

See also: Is the e-book judge starting to see things Apple's way?

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About This Author
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 Fortune.com.

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