Apple is agreeing to go along with the Department of Justice’s proposal that it renegotiate ebook-selling contracts with publisher defendants on a staggered basis, one every six months beginning two years after the judgment is final. But Apple wants to decide the order in which the contracts are written, not follow the schedule outlined by the DOJ.
Depending on the order, publisher defendants would have to wait anywhere from two to six years to renegotiate their contracts. In the meantime, they would be under a court-ordered ban on agency pricing.
That will be one of several issues considered tomorrow afternoon when Judge Denise Cote convenes a hearing to decide on an injunction against Apple for orchestrating an ebook price-fixing conspiracy. Ahead of the hearing, Cote told the DOJ and Apple to submit revised injunction proposals that narrow the chasm between their earlier filings.
But the two sides remain far apart on some key points, including a DOJ proposal that Apple allow other ebooksellers to conduct in-app purchasing with no commission due to Apple for a period of two years and that Apple pay for and submit to oversight by an external monitor.
Apple contends that it has “bolstered and improved its compliance programs,” and that the DOJ’s insistence on external oversight is intended not to prevent wrongdoing but to “inflict punishment.”