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Central to the U.S. Department of Justice’s e-book price fixing case against Apple are the Most Favored Nation (MFN) agreements the company struck with publishers that ensured it would always be able to sell e-books at least as cheaply as rival retailers. The government contends that Apple’s MFN agreements were a crucial part of the company’s conspiracy to raise e-book prices and reap the benefits.

But in vetting that argument, it failed to answer a key question about those arrangements prior to trial. Specifically, were they the same for each publisher or were they different? If, as the DOJ argues, Apple was facilitating collusion among a cabal of publishers, you’d think that MFN agreement terms would be identical across the cabal with all participants guaranteed the same terms. But they weren’t. Turns out, Apple negotiated different MFNs with each publisher. And in court, Apple’s lead counsel, Orin Snyder, repeatedly pointed that out. While the core price-matching provision was present in each of the five publisher agreements, guaranteeing Apple the ability to compete at the lowest price, the MFNs themselves were materially different.

[Commentary] From an early age we are taught the importance of fighting fairly. But as the vast number of frivolous patent lawsuits have shown, too many people are rewarded for doing just the opposite.

The onslaught of litigation brought by “patent trolls” — who typically buy up a slew of patents, then sue anyone and everyone who might be using or selling the claimed inventions — has slowed the development of new products, increased costs for businesses and consumers, and clogged our judicial system. Their business plan is simple: trolls (intellectual-property lawyers use less evocative terms like “non-practicing entities” and “patent-assertion entities”) make money by threatening companies with expensive lawsuits and then using that cudgel, rather than the merits of a case, to extract a financial settlement. In the apt summary of President Obama, who on Tuesday announced a plan to stave off frivolous patent litigation, trolls just want to “hijack somebody else’s idea and see if they can extort some money.”

It is apparent that the Department of Justice’s case against Apple case raises novel legal questions that could well end up commanding the attention of the U.S. Supreme Court.

For casual observers of the case, this had not been so obvious before. That's because the legal questions raised by the conduct of the five publishing companies who were also originally named as Apple's co-conspirators and co-defendants in the case -- Hachette, HarperCollins, MacMillan, Penguin, and Simon & Schuster -- did not pose comparably challenging questions. Apple had a vertical relationship to all the other players in the alleged plot. As a result, its conduct poses far less familiar factual and legal questions. While there have been prior cases in which vertical players have participated in horizontal antitrust conspiracies, these have usually involved situations where a behemoth vertical player was the instigator and chief beneficiary of the whole scheme—the "ringmaster," as courts have put it. Apple doesn't fit that template, though.

The Institute of Medicine (IOM), part of the National Academy of Sciences, issued a report finding that, due to a lack of research focused on guns, "a direct relationship between violence in media and real-life firearm violence has not been established and additional research is necessary," but that existing evidence points to a "significant relationship" between media and some real-world violence.

The report reviewed existing research, pointed out where more research could be done, but concluded that even from what it said was “limited” evidence, "a significant relationships exist between violent media exposure and some measures of aggression and violent behavior." The report is a response to President Barack Obama’s executive order -- following the Newtown (CT) school shootings -- requesting that the Centers for Disease Control and Prevention "immediately begin identifying the most pressing firearm-related violence research problems." IOM suggests conducting more research on copy-cat acts and suggestions media violence has been imitated in real life. It suggests such research might "advise media purveyors about changes in frequency or type of violent content to help reduce copy-cat effects or encourage help-seeking behaviors." The report also says that there are possible adverse effects from evening news reports about violent incidents and "ongoing, sensationalized stories about high-profile murders and mass shootings" that "has not been the subject of systematic research...Some evidence exists that these types of news stories are associated with unrealistic perceptions of low community safety as well as, in some cases, secondhand trauma-related fear, depression, feelings of vulnerability, and PTSD."

“The research agenda proposed by the IOM would improve our understanding of this content and how it is linked to behavior," said Senate Commerce Committee Chairman Jay Rockefeller (D-WV). "This will inform our work to develop policy that protects our children. We should take the IOM proposal seriously and make sure the research into causes of gun violence can begin in earnest. I have always believed that the cornerstone of good public policy is strong facts rooted in objective evaluation.”