by Kevin Coates | Sep 29, 2009 | Antitrust, Google
The DOJ and FTC have filed a joint statement of interest in respect of the proposed Google Books settlement. It’s noteworthy for a couple of things. First, they agreed a joint response. Given relations between the FTC and DOJ in recent years, that’s already an achievement. I met Tom Barnett’s chief of staff for an informal chat last September, and he said that even if there were a change in administration, he did not anticipate a fundamental change in enforcement policy, given that the DOJ staff largely agreed with the then enforcement policy. In light of the comments from Christine Varney and Jon Leibowitz in recent months – repeated again at Fordham last week – and in light of the joint filing in Google Books, it looks as though the chief of staff’s views were more optimistic than realistic. Second, the filing gives strong support in its opening paragraphs to the service that Google is trying to create – albeit balanced with an extensive analysis of the legal shortcomings of the proposal as it currently stands: The Proposed Settlement has the potential to breathe life into millions of works that are now effectively off limits to the public. By allowing users to search the text of millions of books at no cost, the Proposed Settlement would open the door to new research opportunities. Users with print disabilities would also benefit from the accessibility elements of the Proposed Settlement, and, if the Proposed Settlement were approved, full text access to tens of millions of books would be provided through institutional subscriptions. Finally, the creation of an independent, transparently-operated Book Rights...
by Kevin Coates | Sep 29, 2009 | General
At the 2009 Fordham Antitrust conference, there was a long session on EU and US approaches to the control of state aid (state subsidies), in the context of the financial and economic crisis. The EU has an extensive State aid control regime, which requires notification to the European Commission of any aid that may distort competition and that affects inter-state trade. One of the US panelists indicated that there was no mechanism under US law to enforce a similar control over state aid by US states, and nor could there be. I had understood that the US commerce clause (whereby Congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;”) to be an equivalent of the EU principle that – in this case – the competition rules, including the State aid rules, apply where trade between Member States is affected. To determine whether a law violates this so-called “dormant” aspect of the Commerce Clause, we first ask whether it discriminates on its face against interstate commerce. American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n, 545 U.S. 429, 433 (2005); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353(1992). In this context, ” ‘discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93 (1994); New Energy Co. of Ind. v. Limbach, 486 U.S. 269(1988). United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority 127 S.Ct. 1786 (2007) This reference to...
by Kevin Coates | Sep 8, 2009 | Competition, Regulation
That is what real revolutions are like. The old stuff gets broken faster than the new stuff is put in its place. Clay Shirky, Newspapers and Thinking the Unthinkable, March 2009 Different people draw different conclusions about law-making from this type of problem. For some, we cannot reasonably hope to understand the consequences of law or regulation in a fast-moving world, so we should avoid trying. (Though those who argue that we be slow to apply the antitrust rules in these areas, may also be the same people who argue for the introduction of software patents. What’s sauce for the goose is often not sauce for the gander.) At the 2009 Fordham antitrust conference, John Fingleton, the CEO of the UK’s Office of Fair Trading, asked the Commission’s Chief Economist, Damien Neven, whether there was a danger in drawing conclusions about innovative changes to markets on the basis of the marginal evidence that would be all that would be available. The context was a debate about the application of the antitrust laws to vertical restraints that affect online trading: should we be more concerned than we currently are about limitations on online commerce. Leaving aside the specific question for the moment, the real problem with a simple “stay out of it” line, is that it takes the status quo – both in terms of law and markets – as the default state. That might be fine if breaking the status quo were easy. I suspect it’s not: We must bear in mind, then, that there is nothing more difficult and dangerous, or more doubtful of success, than an attempt...
by Kevin Coates | Sep 8, 2009 | Google
A lot has been written about Google trying to capture the second-click: the age-old conflict that Google faces between being a pure navigation service – “We get you where you want to go” – and being a media company – “We get you to our properties, where we make more money if you stay.” Now take a look at a Techcrunch interview with Eric Schmidt: So I don’t know how to characterize the next 10 years except to say that we’ll get to the point – the long-term goal is to be able to give you one answer, which is exactly the right answer over time. Okay, you know, the question I’ll ask today, how many Americans have – what percentage of Americans have passports?…The Google’s answer was a site, which was somebody who had attempted to answer that question and had multiple answers. It’s quite interesting actually to read…So you go to a very good definitive site. And what I’d like to do is to get to the point where we could read his site and then summarize what it says, and answer the question…Along with the citation and so forth and so on. This would take Google beyond the second click and make them the ultimate destination (and a lot closer to what Wolfram Alpha is trying to be). Google already has to deal with complaints – and litigation – from third party content providers arguing that Google piggy-backs on their content without providing an adequate return. Today Google can argue that the return they provide is driving traffic to third party sites. The more Google captures...
by Kevin Coates | Jul 5, 2009 | General
This website will be – mostly – about technology and regulation: competition law – antitrust, merger control, State aid control – intellectual property law and sector regulation, in particular as these relate to information and communication markets, and in particular comparing EU and US approaches. I am an antitrust lawyer, and I have worked in this area for a while – in both public and private sectors. Now, I have just started a one year research fellowship at NYU School of Law comparing EU and US approaches. For the last couple of years I have been out of the sector, handling external communications for DG Competition (the part of the European Commission that handles competition enforcement – fining cartels, prohibiting anti-competitive mergers, vetting government aid to industry). High level presentation rather than low level detail. So when I decided to apply for a research fellowship I decided to get into the detail. I looked around at the main issues of the day – the collapse of the financial services system, the economic crisis in the real economy, the impending global disaster of climate change – and decided to research the regulation of technology markets. I decided to party like it’s...