Throughout its long e-book battle with the Department of Justice, Apple vowed to appeal any injunction brought against it. Today it did just that, filing a notice with the Second Circuit Court of Appeals in New York announcing its intent to appeal a July ruling by U.S. District Judge Denise Cote that found it had conspired with the major book publishers to raise e-book pricing, along with the sanctions that followed in a September 6 injunction. “Apple also hereby appeals from any and all orders and rulings that were adverse to it,” the company said in its notice.
Apple declined comment on the filing and the tack it will take as it ramps up for appeal, but if you’ve paid any attention to the case at all, you have a good idea of the argument the company will mount: The DOJ not only failed to meet its burden of proof, but overreached by seeking to prosecute Apple for legitimate business practices. As lead counsel Orin Snyder said in his closing arguments, “Apple did not conspire with a single publisher to fix prices in the e-book industry. All of the government’s evidence is ambiguous at best … its case is built on word games and inferences.”
But can Apple convince an appeals court of that?
As I reported earlier this year, legal scholars think it will have a tough time. Said Philip Weiser, dean of the University of Colorado law school and a former DOJ official: “This is a decisive defeat for Apple’s theory of the case. It will have a significant hurdle on appeal given the judge’s careful findings.”
