Unites States of America v. Apple, Inc. et al

Filing 101

MEMORANDUM OF LAW in Support re: 100 MOTION to File Amicus Brief and Participate as Amicus Curiae.. Document filed by The Authors Guild, Inc.. (Attachments: # 1 Exhibit Memorandum of [Proposed] Amicus Curiae the Authors Guild, Inc.)(Levien, Jan)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
:
:
Plaintiff,
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:
v.
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APPLE, INC. et al.,
:
:
Defendants.
:
:
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12 Civ. 2826 (DLC)

MEMORANDUM OF THE AUTHORS GUILD, INC.
IN SUPPORT OF MOTION FOR LIMITED PARTICIPATION
AS AMICUS CURIAE IN TUNNEY ACT PROCEEDINGS
The Authors Guild, Inc. respectfully submits this memorandum in support of its
motion pursuant to 15 U.S.C. § 16(f) for limited participation as amicus curiae in the
Court’s Tunney Act proceedings regarding the United States’ (“DOJ”) Proposed
Judgment against three of the defendant publishers.
I.

BACKGROUND
On June 25, 2012, the Authors Guild submitted to the DOJ, pursuant to 15 U.S.C.

§ 16(b), an eight-page comment on the Proposed Judgment.1 In sum, the Authors Guild
argued that the Proposed Judgment is not in the public interest, particularly because it
requires the settling publishers to routinely allow e-book vendors -- notably Amazon -- to
sell e-books below cost, which would have devastating effects on the literary market.
On July 23, 2012, the DOJ filed its Response to all of the comments, which
specifically addressed the Authors Guild’s comment. Dkt. 81. However, the Response
ignores the far-reaching effects of the Proposed Judgment that the Authors Guild

1

The comment (ATC-0214) is available at http://www.authorsguild.org/advocacy/articles/guilds-tunneyact-filing-to-the.html and at http://www.justice.gov/atr/cases/apple/comments/atc-0214.pdf.
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identified. Therefore it impedes the Court’s ability to fully assess “the impact of entry of
[the Proposed Judgment] upon competition in the relevant market or markets” as the
Tunney Act requires. See 15 U.S.C. § 16(e)(1)(B).
By this motion, the Authors Guild seeks to remove that impediment, clarifying for
the Court what the true “impact of entry of” the Proposed Judgment will be in “the
relevant market or markets.” The Authors Guild respectfully requests that the Court (i)
accept the attached five-page reply to the Response (Exhibit 1), and (ii) permit the
Authors Guild to participate in any hearing or oral argument the Court may hold on the
Proposed Judgment.
II.

THE AUTHORS GUILD’S INTEREST AS AMICUS
The Authors Guild is the nation’s oldest and largest professional society of

published authors, representing 8,500 published book authors. As its members’ advocate,
the Authors Guild has a significant interest in this matter, which could reshape the
markets in which authors sell their work. For example, entry of the Proposed Judgment
would allow Amazon to sell e-books below cost, which would enable it to further
entrench its dominance over the entire literary marketplace. Such dominance has, and
will continue to have, devastating effects on authors. Those effects include, but are not
limited to, the reduction of Amazon’s traditional bookstore competitors which play vital
roles in the literary market. For instance, they provide showrooms for new books,
introduce new authors to readers, host gatherings of authors and readers, and facilitate
other functions that diversify and enrich our culture.

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III.

APPLICABLE LAW
A court determining whether, under the Tunney Act, an antitrust consent decree is

in the public interest “must ensure that it is adequately informed about the intricacies and
complexities of the industry affected by the consent decree.” United States v. Microsoft
Corp., 159 F.R.D. 318, 324-25 (D.D.C. 1995), rev’d on other grounds, 56 F.3d 1448
(D.C. Cir. 1995). See Dkt. 93 at 3 (granting ABA/Barnes & Noble’s amici curiae motion
and noting Court’s responsibility under the Tunney Act).
Industry participants’ and other outsiders’ input is “vital” to this determination.
Microsoft, 159 F.R.D. at 325 (quoting Judge J. Skelly Wright’s observation during the
1973 hearings on the Tunney Act that such input “helps to correct [any] oversights” by
the DOJ). Accordingly, the Tunney Act permits “full or limited participation in
proceedings” by such outsiders as amici curiae. See 15 U.S.C. § 16(f)(3); Dkt. 93 at 3.
Courts -- including this one -- frequently permit industry participants, such as the
Authors Guild, who previously submitted comments on a proposed judgment to
subsequently submit responses, appear at hearings, and otherwise continue to participate
in proceedings to help the Court’s determination. See Dkt. 93 (permitting ABA/Barnes &
Noble’s response); Dkt. 94 at 3 (noting that oral argument or a hearing may be held on
the Proposed Judgment); United States v. Microsoft Corp., 2002 WL 319366, at *3
(D.D.C. Feb. 28, 2002) (Microsoft competitor that submitted 160-page comment
subsequently permitted to reply to DOJ’s response and participate in a hearing because it
“may be of use to the Court”); United States v. AT&T, 552 F. Supp. 131, 147 (D.D.C.
1982) (outsiders who previously submitted comments were invited to “further elucidate[]
and refine[] . . . key issues” in subsequent briefs and at a hearing).
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IV.

THE COURT SHOULD PERMIT THE AUTHORS GUILD TO
PARTICIPATE AS AMICUS CURIAE.
The Authors Guild’s perspective on the book industry is not represented by any

party to this matter. Thus it is uniquely equipped to provide the Court with valuable
information “about the intricacies and complexities of [that] industry” which will assist
the Court’s public interest determination. See United States v. Microsoft, 159 F.R.D. at
324-25; see also Microsoft, 2002 WL 319366, at *3. Further, accepting the attached
reply would cause no undue delay or prejudice. The reply complies with the page and
time limits on parties’ replies, thus it adds minimal additional work for the Court and no
delay. See Dkt. 93 at 3 (citing Fed. R. Civ. P. 24); Dkt. 71 ¶ 3; Dkt. 94. And the Authors
Guild would similarly limit its participation in a hearing or argument to any Courtestablished limits, and of course to its most salient points. See Dkt. 94 at 3.
V.

CONCLUSION
For these reasons, the Authors Guild respectfully requests that the Court (i) accept

the attached five-page reply to the DOJ’s Response (Exhibit 1), and (ii) permit the
Authors Guild to participate in any hearing or oral argument on the Proposed Judgment.
Dated: August 15, 2012

Respectfully submitted,

THE AUTHORS GUILD, INC.
By: /s
Jan Friedman Levien
Jan Friedman Levien (Constantine)
[e-mail]
Paul D. Aiken
[e-mail]
31 East 32nd Street, 7th Floor
New York, New York 10016-5509
[phone]
Motion for Leave to Appear as
Amicus Curiae Pending
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