As U.S. District Judge Denise Cote prepares to issue a verdict on the Department of Justice’s proposed ebook pricing settlement with three publishers, she has granted two parties that oppose the settlement — the Authors Guild and attorney and licensing expert Bob Kohn — permission to weigh in as amici curiae, or “friends of the court.” Judge Cote previously granted Barnes & Noble and the American Booksellers Association, which also oppose the settlement, permission to file an amicus brief.
A bit of background first: The Department of Justice’s proposed final settlement with HarperCollins, Hachette and Simon & Schuster would require the settling publishers to terminate existing agreements with Apple and would end agency pricing for those publishers for two years. Apple, Macmillan and Penguin are fighting the case in court, but the trial will not begin until June 2013. Apple has argued that it is unfair for the settlement to go through before the trial.The DOJ received 868 public comments on the settlement, nearly all of which opposed it. For more, see our guides “What does the DOJ ebook pricing lawsuit mean for readers now?” and “Everything you need to know about the ebook lawsuit in one post.“
Judge Cote has now decided to accept the entirety of a brief that the Authors Guild proposed on August 15. However, she is limiting Kohn’s submission to five pages. He had submitted a 55-page brief and will have to file a new, five-page one by September 4 in order for it to be accepted by the Court.
The Authors Guild and Kohn both argue that the DOJ defines the ebook market too narrowly, disregarding interrelated devices like e-readers. The Authors Guild also says the proposed settlement would harm traditional bookstores and destroy competition. Kohn additionally argues that the DOJ’s own investigation into Amazon’s ebook pricing reveals that the company engaged in predatory pricing, and had demanded that the DOJ turn over all documents relating to its investigation of Amazon.
Kohn will now have to choose which of his arguments are most important and can fit into five pages. Both the Authors Guild and Kohn have called for a hearing, which the DOJ opposes.
Kohn is an attorney and the CEO of RoyaltyShare, a company that handles royalties for digital music, ebooks and other products. He founded MP3 download service eMusic in 1998 and reports on entertainment law.
Kohn’s original proposed brief is here; the Authors Guild’s brief is here; Judge Cote’s motion is embedded below and also here as a PDF.
