by Kevin Coates | Oct 22, 2009 | Net Neutrality
The FCC has published its notice of proposed rule-making on net neutrality rules (see also News Release, Genachowski Statement,
Staff Presentation). Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service: 1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet; 2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice; 3. would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network; 4. would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers; 5. would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and 6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking. One quick aside: the proposed rules are limited to broadband internet access providers: AT&T’s complaint against Google Voice will go nowhere. The relationship between this proposal and the FCC’s earlier deregulation of fixed broadband networks seems odd. In a range of decisions from 2003 to 2005, the FCC took cable, DSL and fibre out of the scope of access obligations under the 1996 Telecoms Act. The FCC then claimed that the broadband market...
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 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 | Mar 1, 1998 | Antitrust
[Note: A historical post. This was an article I wrote in 1998 on some of the early competition policy issues surrounding the then relatively new internet. It was republished in The Journal of World Intellectual Property, Volume 1, Issue 3, pages 571–582, May 1998] Competing for the Internet by Kevin Coates, DG IV- C-1, published in the EC Competition Policy Newsletter, February 1998 Introduction The Internet is not new: it has grown and developed over several decades. What has changed is the introduction of commerce to the Internet. Goods, services and information can be exchanged, bought and sold on the Internet; the provision of access to that marketplace has consequently become an increasingly commercial activity in its own right. As the importance of the Internet to commerce increases, so does the importance of the provision of access to the Internet. The purpose of this article is to set out briefly some of the main issues which have arisen in relation to the application of the EC competition rules to the commercial activities surrounding access to the Internet. This does not mean that all of the issues set out above have been the subject of cases before the Commission: a number of issues have been the subject of informal discussions but may well prove to be the subject of formal cases in the future. This article does not address the implications for the competition rules of the impact of the Internet on commerce generally, though these issues are being considered by the Commission. One area where the Commission has already considered these implications is in relation to the provision of...