Over the long haul, the federal case is weak, particularly in light of the DOJ’s non-action against Amazon. Going after someone with a 0% market share (at the time) for price fixing, while ignoring Amazon’s 90% market share and bullying tactics looks very suspicious.

I suspect the DOJ thought everyone in this dispute would roll over and settle out of court like several publishers did. That hasn’t happened. And I also suspect these state Attorney Generals jumped on board hoping for a quick buck. That was stupid. They ought to be paying more attention to tax-evading, local store-destroying Amazon.

Apple biggest problem may be the judge they’ve been assigned. Lose with her, and they’ll be forced to appeal, meaning more time and more legal expenses.

A judge’s good sense is very important. When I was involved in a copyright dispute, I breathed much more easily when I was able to see that the judge was extremely intelligent. My opponent’s case hinged on intimidating me and snowing the judge with irrelevant paperwork. Their original court filing was almost a foot-high. When I refused to be intimidated and summary judgment was but two weeks away, they bailed out, offering to settle out of court. And the judge wasn’t snowed in the least. She dismissed their lawsuit “with prejudice,” legal-speak for ‘you never had a case.’

From her remarks thus far, the judge that Apple is facing seems rather clueless and remarkably ignorant of the market conditions at that time. She also seems to have made a mistake, common among those in law, of confusing conversations with conspiracy. Apple had to talk with the Big Six publishers so it could release the iPad promising digital books. And since they were talking business, Apple needed to promise them profits. Does this judge really think that Steve Jobs should have said, “publish on our platform and you’ll lose money.” Alas, she may.

In the courtroom Apple’s greatest weakness is likely to be their attempt at price fixing through a contractual demand that an ebook not be sold elsewhere at a lower price. That sort of demand may make sense with identical printed books. But it makes no sense for digital books that, at present, often have to be custom formatted for each retail outlet and may, in the case of books done with iBooks Author, include additional elements.

Apple needs to announce that it is dumping that clause and allowing those who publish through the iBookstore to publish elsewhere at any price they choose. Without that clause, it’ll be much more difficult for the DOJ to prove any attempt at price-fixing. And dumping the clause should be accompanied with an apology to authors and publishers. As an author, I’m willing to cut Apple a bit of slack because it’s clear they know little about book publishing.

–Michael W. Perry, author of Untangling Tolkien