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.
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