by Kevin Coates | Aug 23, 2013 | News from around the Web
From Law360: Competition: DOJ Reins In Injunction Bid In Apple E-Books Fight “The U.S. Department of Justice proposed Friday a narrower injunction against Apple Inc. for its alleged e-book price-fixing that slashes the length of the restrictions on the iPad maker but stood by its call for an external monitor and limits on Apple’s dealings in other types of...
by Kevin Coates | Aug 23, 2013 | News from around the Web
From Regulation Watch Feed: Bridging the transatlantic divide in privacy “ A clash of privacy cultures If there is one lesson to be learned from the recent NSA surveillance scandal, it is that no government can guarantee the rights of its citizens beyond national borders – and that the internet, for better or worse, knows no borders. Nothing illustrates this better than the contentious debate on privacy in Germany and in the United States. In the United States, the right to privacy is primarily understood as a right to physical privacy, thus the protection from unwarranted government searches and seizures. In Germany, on the other hand, it is also understood as a right to spiritual privacy, thus the right of citizens to develop into autonomous moral agents. More fundamentally, American and German attitudes towards privacy reflect different underlying constitutional assumptions: privacy as an aspect of liberty or as an aspect of dignity. (Whitman, 2004: 1161; Post, 2001) As data flows defy jurisdictional boundaries, however, policymakers across the Atlantic are faced with a conundrum: how can German and American privacy cultures be reconciled? Freedom is the most valued social good in the American constitution, while the German constitution is grounded on the idea of human dignity. Nevertheless these two potentially conflicting notions of freedom and dignity can be reconciled in the name of freedom of choice. Both the United States and German constitutions are intent on protecting citizens from undue government intrusion into their personal sphere, albeit for different historical and cultural reasons. Furthering the freedom of personal choice in order to enhance privacy could thus fulfill both the conditions...
by Kevin Coates | Aug 22, 2013 | News from around the Web
From CPIP: The Myth of the “Patent Troll” Litigation Explosion “[Cross posted at Truth on the Market] In a prior blog posting, I reported how reports of a so-called “patent litigation explosion” today are just wrong. As I detailed in another blog posting, the percentage of patent lawsuits today are … Continue reading...
by Kevin Coates | Aug 22, 2013 | News from around the Web
From Regulation Watch Feed: No European net neutrality legislation after all Net or not neutrality? Just when activists and avant-garde regulators hoped for a European happy end on net neutrality, Digital Agenda Commissioner defended the right of content providers to negotiate with operators “flexible quality of service including lower levels of priority for traffic which is not time-sensitive.” The July 9 announcement puts at risk the very definition of “not neutrality,” as Europe Digital Rights (EDRI) warned. In July, the civil rights organisation EDRI had leaked Kroes’ draft regulation [PDF] “laying down measures to complete the European single market for electronic communications and to achieve a Connected Continent“. The draft proposal includes some provisions meant to help consumers, including broad transparency requirements. Under the proposal, users are granted rights to fully understand the nature of the service and its limitations with regards to bandwidth or data travel speed (see article 20 of the draft text). Throttling or blocking traffic – something Kroes said in a speech was not an annoyance, but a “death sentence for innovators“ – should be limited to the following situations: implementation of a court order or legislative provision (which might mean a Hadopi-like rule), securing the network, stopping spam (where users have agreed to it) and minimising the effects of exceptional congestion (“provided that equivalent types of traffic are treated equally.”) Obligations for network operators to allow switching include consumer friendly provisions like a 12 month period during which email is sent on to the lost customer’s new email address while the sender receives a notification about the move – all for free. Yet, net...
by Kevin Coates | Aug 22, 2013 | News from around the Web
From The IPKat: Apple Sales Preserved: White House Vetoes ITC’s Ban The United States Trade Representative (“USTR”) Michael Froman, on behalf of the White House, has intervened in the patent dispute between Samsung and Apple. Back in June, the United States International Trade Commission (“ITC”) determined that some of Apple’s older generation of products, including iPad 2 and iPhone 4 models that operate on the networks of AT&T and T-Mobile, were in violation of Samsung patents that cover methods of transmitting data. As a result, the ITC issued an exclusion order that would have banned the importation and sale of the infringing products. Taking into consideration that the Samsung patents are “standards-essential patents”, which the patent owner must offer under license to competitors on “terms that are fair, reasonable, and non-discriminatory (‘FRAND’)”, the USTR vetoed the ITC ban, explaining: “After extensive consultations with the agencies of the Trade Policy Staff Committee and the Trade Policy Review Group, as well as other interested agencies and persons, I have decided to disapprove the [ITC’s] determination to issue an exclusion order and cease and desist order in this investigation. This decision is based on my review of the various policy considerations … as they relate to the effect on competitive conditions in the U.S. economy and the effect on U.S. customers.” …...
by Kevin Coates | Feb 21, 2012 | Competition Law and Regulation of Technology Markets, Reviews
Riccardo Sciaudone of Grimaldi e Associati has reviewed my book in the International Journal of Law and Information Technology. He concludes: Competition Law and Regulation of Technology Markets is a very valuable work and will become a leading text in the field. Although intended to be, in the author’s view, mainly a reference text for practitioners, it will certainly reach a much wider audience. Its reference to historical developments, discussion of doctrinal bases of laws and judgments and the constant comparative approach, in addition to a thorough and lucid analysis of a considerable amount of case-law and decisions both in the EU and in the USA, it will also be of particular interest for academics, antitrust enforcers, regulators and policy makers. International Journal of Law and Information Technology Vol. 20 No....
by Kevin Coates | Feb 20, 2012 | Antitrust, Competition, Featured, Fines
My third column for the E!Sharp website has been published. It looks at the arguments for and against rewarding corporate compliance programmes by granting a reduction in competition fines if the companies are nevertheless caught breaking the competition rules: If a company stays out of just one cartel because of the compliance programme, the fine that it avoids will pay for the programme many times over. If you think compliance programmes are expensive, try non-compliance. And if that is not a sufficient incentive, a reduction of a fine where they have engaged in a cartel will make no difference at all. UPDATE: The article is no longer available on the ESharp website, so I’m reposting it here: Complicity and Compliance “Does the defence have anything to say in mitigation before I pass sentence?” “Yes, my lord. If it please the court, before robbing the bank in question, my client walked past three other banks. As he did so, he repeated to himself a mantra, ‘I must not rob banks, I must not rob banks.’ He had taught himself this mantra as a way to avoid falling into the temptation of criminal activity. However, he finally succumbed to that temptation and robbed the fourth bank. My client would like his sentence for robbing the fourth bank reduced on account of his not having robbed the first three.” “Really, counsel?” “Yes, my lord.” This is absurd, but it is very similar to a campaign by some multi-national corporations to reduce their – potential future – fines for breaking competition rules. The analogy isn’t perfect, but it’s closer than they would like....
by Kevin Coates | Feb 20, 2012 | Competition Law and Regulation of Technology Markets, Featured, Reviews
Concurrences has published a great review of my book in the latest edition of their Concurrences journal. Written by Thomas Vinje of Clifford Chance, the review concludes: One consistent and welcome aspect of this book is its focus on economics and its application in contemporary competition cases related to technology. The analysis is not stuck in the past, but focuses on up-to-date economic thinking and anticipates how that thinking might be applied going forward. Apart from its substantive depth, this book benefits from a fluent writing style: for a book on the law, it’s a real page-turner. For someone interested in the topic of technology markets and competition law, this book is no remedy for sleeplessness. It races through the key topics in a rather exciting way, without sacrificing substance. Not an easy...
by Kevin Coates | Dec 22, 2011 | Competition, Fines
My second column for the E!Sharp website has now been published. It looks at the European Commission’s fining policy and sets out some of the difficulties and constraints that make getting the fines right complex. It also debunks the main arguments about fines now being too...
by Kevin Coates | Dec 22, 2011 | Competition Law and Regulation of Technology Markets, Reviews
Another endorsement for the competition law and technology book, this one from a highly respected private practitioner based in London and Brussels: This is a thorough and thoughtful review by someone who is extremely well informed and an excellent exposition and analysis of the issues and challenges facing the IT sector. I will have this book on my desk at all times, and it is a “must have” for all ICT lawyers. Maurits Dolmans, Cleary Gottlieb Steen & Hamilton...