Episode 54: Apple Sandwich
Apple revises their advertising policy, Traffic Cam Gripe Site, New York Times Demands Apple Takedown a RSS Reader App
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Apple Revises Rules for in App Advertising
Apple revises iOS rules on outside advertisers, cuts out Google, Adobe by implication
FTC Preps Investigation Against Apple’s Ad Tactics
Apple’s Mobile Rules To Get FTC Scrutiny
Traffic Cam Gripe Site
Anti-speed camera activist nabs Bluff City PD’s expiring web domain
Bluff City, TN Speed Camera information
UDRP Policy
NY Times Demands App Takedown
New York Times to iPad App Developers: Hands Off Our RSS
NYT demands Pulse app be pulled from App Store
Pulse app cheered, then pulled, now back
The Takedown Notices
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Posted in: Podcast on June 14, 2010
Episode 49: Alphabet Soup
The FCC takes another stab at net neutrality and gives content companies control over your outputs. Adobe brings up a new theory for Apple’s anti-competitive activity.
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FCC Takes Another Stab at Net Neutrality
FCC to claim some broadband regulatory power
FCC Statement
FCC To Content Owners: All Your Customers Televisions Are Belong to You
FCC Gives Hollywood The Right To Break Your TV/DVR… Just ‘Cause
FCC Opinion
DOJ and FTC Investigate Apple for Antitrust Violations
DOJ and/or FTC may launch antitrust inquiry against Apple for developer policies
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Posted in: Podcast on May 10, 2010
NY Post: Apple May Be Facing Antitrust Scrutiny
The New York Post, of all news outlets, is reporting that Apple may be facing an anti-trust investigation over its requirement that developers use Apple’s XCode to program apps for the iPhone.
We discussed this briefly on Podcast 46.
There’s a more in depth discussion in the podcast, but the short of it is that a court would be doing a tying analysis. The inquiry there is whether the company is leveraging their market power in one sector to promote sales in another. There are many ways you could frame the quesion, but in the end it’s unlikely that Apple would be found to be violating antitrust laws. Yes, Apple is has control over the market for installable iPhone apps, but the competition to installable applications on the iPhone includes HTML5 web apps and installable applications on other platforms, like Window Mobile, Android, Symbian, WebOS or BlackBerry.
In short, a court would be unlikely to find that Apple had enough power over the market to drive sales of Macs, which run XCode, when you can develop for the iPhone (by making a web app) or other platforms with a PC.
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Posted in: Analysis on May 3, 2010
Episode 46: This Episode is Copyrighted
Activision Scuffle, Adobe Squares Off with Apple, Are Tweets Copyrightable
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Activision Scuffle
Activision: West, Zampella wanted to steal Infinity Ward
The Ides of Harsh
Apple v. Adobe
Adobe vs. Apple is going to get uglier
Are Tweets Copyrightable
You Cannot Copyright a Tweet
Are Tweets Copyright-Protected?
Copyright Protection Not Available for Names,
Titles, or Short Phrases
Episode 26: Steamrolled by a Snowball
A first decision in the Psystar case, Google Bing and Mark Cuban, and the Google Book Settlement.
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Psystar Decision
Apple Wins Like a Champ – Psystar is Toast — What? You’re Surprised?
The opinion.
Google, Bing and Mark Cuban
Google Books Settlement
Google Book Search Settlement Revised: No Reader Privacy Added
Revised Settlement
Technically Legal Podcast: Episode 21
IBM Antitrust Inquiry, Is the GPLv2 Legally Sound?, and Final Briefs Submitted in Bilski.
You can download the podcast, and send us comments, questions, or story requests.
IBM Antitrust Inquiry
Antitrust Inquiry for I.B.M.
The Sherman Act
Is the GPLv2 Legally Sound
GPLv2 – copyright code or contract?
GPL v. 3
Bilski Briefs
Final Bilski Briefs Filed – Microsoft, Google, FFII, ABA, etc.
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Posted in: Podcast on October 19, 2009
Ending Exclusive Handset Agreements
Recently, Congress and the FCC have been looking into exclusive deals between handset manufacturers (like Apple, Palm, and Motorola) and carriers (Verizon, Sprint, AT&T). The focus of the inquiry is whether they are anti-competitive, and whether they should be banned. The FCC is in a unique position to stop this practice because they are not bound by the same, narrow, requirements of antitrust law.
The FCC
The Federal Communications Commission is allowed to regulate wired and wireless communication and equipment necessarily associated with those. The regulations they pass have to be in the “public interest, convenience and necessity.” If the FCC were to conduct hearings and find that it would be in the “public interest, convenience and necessity,” it could ban the practice of exclusive licenses.
If the FCC were to make a rule like this, it would be subject to what is called a notice and comment period. The FCC would publish the proposed rule, and anyone could write in and make suggestions, or ask for explanations. The FCC would then respond to the comments and publish a final rule.
The final rule would almost certainly be challenged in court. The court would look at whether or not the regulation was within the power of the FCC (probably yes), and whether or not banning these exclusive license agreements was actually in the “public interest, convenience and necessity.” It is possible that without these exclusive licenses development costs would be higher, or they would be borne entirely by the developer, reducing innovation in the handset market. It would be hard to prove this one way or the other. So the FCC would likely get the benefit of the doubt unless the challenger could present some hard evidence.
Even with these limitations, the FCC has a better chance of stopping exclusive agreements than the the Federal Trade Commission, Department of Justice, or Private Parties.
FTC, DOJ and Private Suits
If the FCC doesn’t stop these exclusive agreements, the Department of Justice (and their Antitrust Division), the Federal Trade Commission (and their Antitrust Division), or private parties could try to stop these exclusive arrangements too.
While the Sherman Antitrust Act says that “Every contract, combination . . . or conspiracy, in restraint of trade . . . is declared to be illegal.” It doesn’t really mean that. From very early on the Supreme Court has taken this to mean that only unreasonable restraints on trade are illegal.
The DOJ and the FTC each have their own guidelines to apply when going after alleged antitrust violations. In the end, though, it comes down to whether or not a court thinks that the contract is an illegal restraint on trade.
Antitrust law is really to complicated to go into any detail here. Suffice it to say, there would be a lengthy court battle about a number of antitrust theories. Chief among the arguments would what the relevant market was (all cellphones or just smart phones), how much of the market the handset maker had, and whether the exclusive deal had an adverse effect on competition.
It is notoriously hard to guess how courts will rule on these issues, making it very difficult to predict an outcome. The cases would also be very specific from phone to phone. So the outcome would not be as even as it would be if the FCC or Congress acted to stop these exclusive agreements.
Technically Legal Podcast: Episode 4
Jammie Thomas Trial, and IE Antitrust Litigation in the EU.
Download the podcast here. Send any comments to podcast@technicallylegal.org.
Jammie Thomas Trial
17 USC 106, Exclusive Rights.
RIAA v. The People.
Copyright Registration
Registration as a Prerequisite for Statutory Damages.
IE Anti-Trust Litigation
Europe cool to Microsoft’s offer to sell browser-less Windows system.
United States v. Microsoft.
