The headline sums it up: “Judge scolds Apple for lack of remorse in e-book antitrust case.” The article quotes Judge Denise Cote’s statements to lawyers at a hearing last week. “None of the publishers nor Apple have expressed any remorse,” said Judge Cote, who recently found Apple liable for a Sherman Act violation. “They are, in a word, unrepentant.”
Apple intends to appeal, and so higher courts will decide the legal issue. But the moral issue is for each of us to decide. Regardless of what Judge Cote says, do you think Apple has behaved badly and should apologize? Here are some basic facts and legal considerations to help you decide.
Apple was found legally liable for having “restrained trade.” How? By offering five large publishers a great deal on e-book retailing, a deal so attractive that they all signed on, talked about it among themselves, and insisted that Amazon match it. In other words, the defendants’ illegal acts consisted of a series of entirely voluntary transactions in which each company set prices and terms for its own products and services only. There was no “restraint” that deprived any company or consumer of full control over their own property.
In short, there were no victims, and Apple did nothing wrong. But in the Kafkaesque world of antitrust law, business trading that violates no one’s rights can nevertheless be legally forbidden. In the e-book case, the defendants’ blameless conduct was transformed, by the linguistic alchemy of antitrust, into Apple being the “ringleader” of a “conspiracy” to “fix prices.” Under these circumstances, does Apple have a moral obligation to admit guilt and demonstrate repentance?
I say no. Whatever the company decides to do in the face of legal compulsion, the general public should not demand contrition from Apple. Quite the contrary—whether we use Apple products or not, we should voice admiration and appreciation for a company that is willing to succeed or fail in the marketplace solely on the value of its products and services, despite the omnipresent threat of punishment under this nation’s antitrust laws.