Apple 2.0

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Will the e-book judge give DOJ the Apple remedies it asked for?

August 2, 2013: 1:05 PM ET

Judging from Judge Cote's past performance, the odds are in Amazon's favor.

Screen Shot 2013-08-02 at 12.52.04 PMFORTUNE -- In another context -- or another courthouse -- the remedies the Justice Department and 33 states proposed Friday to address what they call Apple's (AAPL) "illegal conduct" in the e-book market might seem like an unreasonable intrusion by a government agency into a private company's business practices.

Among other things, the DOJ is demanding that Apple let Amazon (AMZN) and Barnes & Noble (BKS) sell their e-books on Apple's online store for two years without paying the 30% commission Apple has charged pretty much every other content provider since it launched the iTunes Music Store in 2003.

The proposed remedy also ties Apple's hands in future negotiations, prohibiting the company from entering into agreements to sell any digital content -- e-books, music, movies, television shows etc. -- that are, in the eyes of a court-appointed monitor, likely to increase the prices at which Apple's competitors might sell that content.

Will the DOJ get what it wants?

The odds are good that it will. Although there will be a separate trial to determine damages, the decision is entirely in the hands of U.S. District Judge Denise Cote, the same judge who ruled against Apple in the original antitrust case.

Despite her promise at the start of that trial to view the case with fresh, unbiased eyes -- setting aside the evidence presented when she supervised settlements with the five so-called publisher co-defendants -- in the end she rejected all of Apple's defenses and issued a decision that might as well have been written by the government's lawyers.

Having covered that trial, I don't expect anything different from Judge Cote this time around. Apple's best chance for an impartial hearing is in the Second Circuit Court of Appeals or -- if it comes to that -- the U.S. Supreme Court.

Link: Department of Justice Proposes Remedy to Address Apple's Price Fixing

See also: The view from the hard benches. 

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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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