Intel Antitrust Suit Filed

Intel has been fighting an antitrust suit in Europe for years (recently getting hit with €1.06bn in fines) and now it must deal with essentially the same allegations in the United States.  According to the NY Times (found via Gizmodo, but there are more here), New York’s Attorney General–Andrew Cuomo–has filed a federal antitrust claim in the District of Delaware alleging that Intel “used bribery and coercion to maintain a stranglehold on the market.”

A copy of the 87-page complaint can be found here (PDF), and the first 77 pages or so lay out the alleged acts which led to the case being filed.   There are actually only four claims in the complaint, and only one of which is covered by the Sherman Act.  The other three claims involve New York state laws.  The Sherman Act claim alleges that Intel exercises monopoly powers, and by virtue of those powers, it “willfully maintained, and unless restrained by the Court may continue to willfully maintain, that power by anticompetitive and unreasonably exclusionary conduct.”

15 U.S.C. § 2 makes it a felony for a company or person to monopolize, or attempt to monopolize, any part of trade or commerce.  It’s punishable by up to ten years in prison, up to a million dollars in fines, or both.  But you’ll notice that this is a civil complaint, and not a criminal indictment.  This is because 15 U.S.C. § 15 gives an injured person the right to bring suit in federal court, and seek treble damages plus reasonable attorneys fees.

Naturally, Intel disputes the claims and promises to defend itself against the allegations.  (Link)

Where’s the Map for That?

It appears that at&t doesn’t like Verizon’s snarky “There’s a Map for That” commercials.  You know, the ones that somewhat inaccurately equate Apple’s “There’s an App for That” slogan with at&t’s native 3G service.  (Kinda shows you just how important the iPhone is to at&t’s viability, doesn’t it? Once that exclusivity is gone, I wonder what will happen to at&t…)

Anyway, at&t has filed suit against Verizon, in Georgia of all places, alleging false and deceptive trade practices. (source)  The ads are pretty aggressive, really, showing that at&t has pretty anemic 3G coverage while Verizon’s is quite extensive.  What at&t doesn’t like is the insinuation that somehow at&t customers aren’t able to access voice and data in the areas not covered by the 3G map.  at&t’s 3G implementation isn’t quite as robust as Verizon’s, but it does have the EDGE network in many places, so at&t customers get a sort of half-fast data network in the places where 3G isn’t available.

That’s why at&t is suing Verizon, because it feels that Verizon is insinuating that at&t customers don’t get any service in the areas where 3G has not been implemented.  Verizon is having none of it, saying that the ads are accurate because they clearly state that they are talking about 3G technology and that at&t data and voice access are still available in many places.

What’s funny is that the whole case has the potential to be completely moot if it actually goes to trial.  By the time that happens, 4G will be the new standard, and 3G probably won’t matter one whit.

Google Books and Antitrust Problems

The Antitrust Division of the DOJ has weighed in on the Google Books settlement, and rejection of the settlement is urged.  (See news articles on it here.)  According to the DOJ press release, “the Department proposed that the parties consider a number of changes to the agreement that may help address the United States’ concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement’s ultimate scope, providing some mechanism by which Google’s competitors can gain comparable access.”  (Source.)

But what’s actually in the Statement of Interest, which can be found here?  First, it assumes that the parties have been acting in good faith, that is “it should not be a surprise that the parties did not anticipate all of the difficult legal issues such an ambitious undertaking might raise.”  Authors Guild v. Google, No. 05-Civ-8136 (S.D.N.Y. 2009), Statement of Interest of the United States of America Regarding Proposed Class Settlement at 1.  Furthermore, it says that the basic idea is good: it would “breathe new life” into out-of-print books, which benefits the public.  Id.

Read more “Google Books and Antitrust Problems”

Indefinite Detentions

I am wary of brushing with broad strokes, and I suppose President Obama is deserving of a wee but of lee-way, but I’m getting sick of feeling the cynical “meet the new boss, same as the old boss.”  Again, at the risk of even pointing to an AP article, the AP says that U.S. District Judge John Bates has ruled that the United States can continue to hold detainees indefinitely.  This policy, of course, was created under the Bush administration with the help of a pliant Congress.  The reason why Obama is deserving of scorn is that it provided Judge Bates with a definition of who can continue to be held at Gitmo: those who the president has determined “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks,” as well as those “who are or were part of Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.”

Judge Bates opinion  (Hamlily et al., v. Obama, No. 05-0763 (JDB) (civil) (D.D.C. 2009) (and others)) is interesting in a number of ways.  

  1. First, it notes that the Government no longer argues that authorization for detention comes from the President’s authorities under Article II of the Constitution, but from Congress’s Authorization for the Use of Military Force.  Hamlily at 1 n.1.  I suppose that’s refreshing from an overreaching-Executive perspective, but it still doesn’t change the fact that indefinite detention is still being sought.  
  2. Second, Judge Bates bases his opinion on a prior, substantially similar case, Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009) which states that the law of war actually supports the detentions.  
  3. Third, Judge Bates rejects the Government’s detainability framework–which includes “substantially support” (language cribbed from 18 U.S.C. § 2339A)–insomuch as it includes “support.”  (Everything else, as I’ve noted, is fine.)  The reason for this?  Judge Bates “can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of ‘support’ as a valid ground for detention.”  Hamlily, at 7.
  4. Fourth, Judge Bates has noted that the government has abandoned the argument that the detainees are “enemy combatants,” because such a classification doesn’t exist in a “non-international” conflict.  Id. at 13, citing Int’l Comm. of the Red Cross, Official Statement: The Relevance of IHL in the Context of Terrorism (July 21, 2005) available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/terrorism-ihl-210705. As such, “The Court also concludes that the authority claimed by the government to detain those who were “part of . . . Taliban or al Qaida forces” is consistent with the law of war. Even though this portion of the government’s framework is consistent with the law of war, however, the government’s position cannot be said to reflect customary international law because, candidly, none exists on this issue.” Id. at 15.

There are other nuggets in there, but that’s the gist of the opinion.  It’s surprising to see some of the things the Obama administration was asking for (such as advocating for the indefinite detention of those who provide financial support), and it really does make one ask what’s going on?  Is it, like some are arguing vis-a-vis the release of the abuse photos, that the Obama administration is really just trying to lay out a sop that will eventually get rejected?  If so, that’s a risky move, in my opinion, as Courts have been brow-beaten into submission to make sure they don’t step on the President’s toes.  See Hamlily at 6.  Or is it that Obama really has no interest in the Change message he ran on, as satirized by the Daily Show? 

Yes We Can…

I don’t know the answer, but I know I’m not the only one getting restive.

Changing Antitrust Landscape

The United States Department of Justice Antitrust Division has signaled a change in how the federal government will be looking at anticompetitive behavior.  According to a press release issued today, “the Department is withdrawing, effective immediately, a report relating to monopolization offenses under the antitrust laws that was issued in September 2008. As of today, the Section 2 report will no longer be Department of Justice policy. Consumers, businesses, courts and antitrust practitioners should not rely on it as Department of Justice antitrust enforcement policy.”

Behind this shift in policy appears to be recognition that “recent developments in the marketplace should make it clear that we can no longer rely upon the marketplace alone to ensure that competition and consumers will be protected.”  

The New York Times has a little more information about the shift, including Assistant Attorney General Varney’s speech.  We are apparently about to see the return of late-90s enforcement policies, which led to suits against Intel and Microsoft.  Additionally, Google may be under the microscope, though Bloomberg states that Ms. Varney has declined to name the tech behemoth individually; speculation has been rampant as of late, however.  (See Ars Technica, TechCrunch, and others…)

COPA Dies

Well, it’s been a while since I last posted.  Not like there hasn’t been wonderful things that have happened since December. A movie about a mall cop, for example, is numero uno at the box office.  And the weather has been very nice lately, which is always nice.  Oh, and something about an inauguration, that happened too.

In any event, a very controversial law is no more. COPA (or the Child Online Protection Act) was passed in 1998, and it imposed criminal penalties against those who posted “any material” that was “harmful” to minors.  (This was not one of the great things to come out of the Clinton era.)  The case bumped along for a decade, as detailed in this CNET article, until the Third Court of Appeals in Philly ruled that there were less-restrictive ways to keep minors from seeing “harmful” material.  The government petitioned for a writ of certiorari, but the SCOTUS has declined to hear the case.

So COPA is dead.

Apple Not A Monopoly (For Now)

Hmmm…  Well, I can’t say I’m that surprised, but U.S. District Judge William Alsup has rejected Psystar’s claim that Apple is a monopolist.  (Psystar markets the OpenMac, which runs OSX on non-Apple hardware, which violates the OSX license, and thus led to them being sued for copyright infringement.) According to CNN Money, Judge “Alsup ruled Apple’s products don’t constitute a market to dominate. As a consequence, Apple then can’t be considered a monopolist.”

The problem, of course, is market definition.  And it’s not as easy as simply telling the court that the relevant market is computers running OSX, because Apple will turn around and try to convince the court that the relevant market is actually all computers, whether they run OSX, Linux, Windows, FreeBSD, or Solaris.  Clearly, then, with Apple’s miniscule (though growing) market-share amongst all computers, well, it can’t exert monopoly power when the market is defined as all computers.  And that, it appears (I haven’t looked at the order), is what has happened.

Anyway, ars technica has a little write-up, and they have thoughtfully provided the case number: 3:08-cv-03251-WHA  (N.D. Cal.)

(Justia, too, has the case number, and an as-yet non-updated reproduction of the PACER docket sheet.)

FEMA Delays

The Houston/Galveston region has been largely ignored nationally in the wake of Hurricane Ike, and this chron.com story is truly amazing.  Apparently, according to the article, “federal officials have approved only about 13 percent of requests for money to repair damaged houses or replace ruined belongings.”  Hurricane Ike was six weeks ago, in case anyone had forgotten.

No doubt, some of the slow federal response is to prevent instances of disaster fraud, but members of Congress and other elected officials are saying that FEMA is moving too slowly.

In other Ike-related news, it appears a lot of individuals who came to the area to find work and help with reconstruction efforts have yet to be paid.  The Chronicle’s Bill Murphy has more.