Attorney files brief defending Apple as a five-page comic

Watchmen it ain't, but the brief condenses complex arguments admirably.

The anti-trust case against Apple, Macmillan and Penguin, all accused of conspiring to fix ebook prices, thunders on, but one part of it is shortly to come to a close. Three of the originally accused publishers – HarperCollins, Hachette and Simon & Schuster – agreed to settle with the Department of Justice in April this year, and that settlement is finally coming through.

The DoJ's proposed settlement would require the co-operating publishers to end their existing agreements with Apple, and would also block them from using agency pricing for two years. Agency pricing is the retail model, at the heart of the case, by which publishers set the price of their books and the retailer (in this case, Apple) takes a percentage of that. The DoJ alleges that this model, which stands in opposition to Amazon's method of paying a flat price per book and setting the price themselves, is the result of an anticompetitive cartel aimed at raising prices of ebooks.

Although three of the five publishers have agreed to settle, there are calls from a number of parties to block that settlement. Apple has argued that it's unfair if it goes through before the actual trial begins, in June 2013, and over 800 public comments were filed requesting that the Justice Department modify the settlement.

As a result, the District Court allowed two of the opposing parties to file amici curiae (friends of the court) briefs. The Authors Guild and Bob Kohn, a well known attorney who specialises in intellectual property, were deemed to be interested third parties, as were Barnes & Noble and the American Booksellers Association, who had previously been given permission.

The Authors Guild filed their five page brief on 15 August, but Bob Kohn's original attempt was rejected by Judge Denise Cote for being too long, and she gave him until yesterday to file a five page version.

How can one get a complex legal argument across in just five pages? The New York Times' Julie Bosman reveals Kohn's plan:

“I thought of the idea of using pictures which, as we know, paint a thousand words,” Mr. Kohn said in an e-mail.

He called his daughter, Katie, who is studying for her Ph.D in film studies at Harvard, who connected him with a fellow student, Julia Alekseyeva. After conferring with Ms. Alekseyeva, Mr. Kohn wrote the script and she drew the illustrations. (Judge Cote and Mr. Kohn play a role in the fictional narrative.)

The full strip – plus a page of footnotes, which all the best comics have – is embedded below, via paidContent.

Six panels from Kohn's comic.

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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The Tories are the zombie party: with an ageing, falling membership, still they stagger on to victory

One Labour MP in Brighton spotted a baby in a red Babygro and said to me: “There’s our next [Labour] prime minister.”

All football clubs have “ultras” – and, increasingly, political parties do, too: although, in the case of political parties, their loudest and angriest supporters are mostly found on the internet. The SNP got there first: in the early days of email, journalists at the Scotsman used to receive bilious missives complaining about its coverage – or, on occasion, lack of coverage – of what the Scottish National Party was up to. The rest soon followed, with Ukip, the Labour Party and even the crushed Liberal Democrats now boasting a furious electronic horde.

The exception is the Conservative Party. Britain’s table-topping team might have its first majority in 18 years and is widely expected in Westminster to remain in power for another decade. But it doesn’t have any fans. The party’s conference in Manchester, like Labour’s in Brighton, will be full to bursting. But where the Labour shindig is chock-full of members, trade unionists and hangers-on from the charitable sector, the Conservative gathering is a more corporate affair: at the fringes I attended last year, lobbyists outnumbered members by four to one. At one, the journalist Peter Oborne demanded to know how many people in the room were party members. It was standing room only – but just four people put their hands up.

During Grant Shapps’s stint at Conservative headquarters, serious attempts were made to revive membership. Shapps, a figure who is underrated because of his online blunders, and his co-chair Andrew Feldman were able to reverse some of the decline, but they were running just to stand still. Some of the biggest increases in membership came in urban centres where the Tories are not in contention to win a seat.

All this made the 2015 election win the triumph of a husk. A party with a membership in long-term and perhaps irreversible decline, which in many seats had no activists at all, delivered crushing defeats to its opponents across England and Wales.

Like José Mourinho’s sides, which, he once boasted, won “without the ball”, the Conservatives won without members. In Cumbria the party had no ground campaign and two paper candidates. But letters written by the Defence Secretary, Michael Fallon, were posted to every household where someone was employed making Trident submarines, warning that their jobs would be under threat under a Labour government. This helped the Tories come close to taking out both Labour MPs, John Woodcock in Barrow and Furness and Jamie Reed in Copeland. It was no small feat: Labour has held Barrow since 1992 and has won Copeland at every election it has fought.

The Tories have become the zombies of British politics: still moving though dead from the neck down. And not only moving, but thriving. One Labour MP in Brighton spotted a baby in a red Babygro and said to me: “There’s our next [Labour] prime minister.” His Conservative counterparts also believe that their rivals are out of power for at least a decade.

Yet there are more threats to the zombie Tories than commonly believed. The European referendum will cause endless trouble for their whips over the coming years. And for all there’s a spring in the Conservative step at the moment, the party has a majority of only 12 in the Commons. Parliamentary defeats could easily become commonplace. But now that Labour has elected Jeremy Corbyn – either a more consensual or a more chaotic leader than his predecessors, depending on your perspective – division within parties will become a feature, rather than a quirk, at Westminster. There will be “splits” aplenty on both sides of the House.

The bigger threat to Tory hegemony is the spending cuts to come, and the still vulnerable state of the British economy. In the last parliament, George Osborne’s cuts fell predominantly on the poorest and those working in the public sector. They were accompanied by an extravagant outlay to affluent retirees. As my colleague Helen Lewis wrote last week, over the next five years, cuts will fall on the sharp-elbowed middle classes, not just the vulnerable. Reductions in tax credits, so popular among voters in the abstract, may prove just as toxic as the poll tax and the abolition of the 10p bottom income-tax rate – both of which were popular until they were actually implemented.

Added to that, the British economy has what the economist Stephen King calls “the Titanic problem”: a surplus of icebergs, a deficit of lifeboats. Many of the levers used by Gordon Brown and Mervyn King in the last recession are not available to David Cameron and the chief of the Bank of England, Mark Carney: debt-funded fiscal stimulus is off the table because the public finances are already in the red. Interest rates are already at rock bottom.

Yet against that grim backdrop, the Conservatives retain the two trump cards that allowed them to win in May: questions about Labour’s economic competence, and the personal allure of David Cameron. The public is still convinced that the cuts are the result of “the mess” left by Labour, however unfair that charge may be. If a second crisis strikes, it could still be the Tories who feel the benefit, if they can convince voters that the poor state of the finances is still the result of New Labour excess rather than Cameroon failure.

As for Cameron, in 2015 it was his lead over Ed Miliband as Britons’ preferred prime minister that helped the Conservatives over the line. This time, it is his withdrawal from politics which could hand the Tories a victory even if the economy tanks or cuts become widely unpopular. He could absorb the hatred for the failures and the U-turns, and then hand over to a fresher face. Nicky Morgan or a Sajid Javid, say, could yet repeat John Major’s trick in 1992, breathing life into a seemingly doomed Conservative project. For Labour, the Tory zombie remains frustratingly lively. 

Stephen Bush is editor of the Staggers, the New Statesman’s political blog.

This article first appeared in the 01 October 2015 issue of the New Statesman, The Tory tide