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TOTM In my view, the Second Circuit’s decision in Apple e-Books, if not reversed by the Supreme Court, threatens to undo a half century of progress in reforming antitrust . . .
In my view, the Second Circuit’s decision in Apple e-Books, if not reversed by the Supreme Court, threatens to undo a half century of progress in reforming antitrust doctrine. In decision after decision, from White Motors through Leegin and Actavis, the Supreme Court has repeatedly held—in cases involving both horizontal and vertical restraints—that the only test for whether an agreement can be found per se unlawful under Section 1 is whether it is “a naked [restraint] of trade with no purpose except stifling competition,” or whether it is instead “ancillary to the legitimate and competitive purposes” of a business association. Dagher. The cases in which the Court has consistently applied this test read like a litany of antitrust decisions we all now study in law school: White Motors, Topco, GTE Sylvania, Professional Engineers, BMI, Maricopa, NCAA, Business Electronics, ARCO, California Dental, Dagher, Leegin, American Needle, and, most recently, Actavis. Significantly, more than two-thirds of these cases involved horizontal, not vertical restraints.
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TOTM As ICLE argued in its amicus brief, the Second Circuit’s ruling in United States v. Apple Inc. is in direct conflict with the Supreme Court’s 2007 Leegin decision, and creates . . .
As ICLE argued in its amicus brief, the Second Circuit’s ruling in United States v. Apple Inc. is in direct conflict with the Supreme Court’s 2007 Leegin decision, and creates a circuit split with the Third Circuit based on that court’s Toledo Mack ruling. Moreover, the negative consequences of the court’s ruling will be particularly acute for modern, high-technology sectors of the economy, where entrepreneurs planning to deploy new business models will now face exactly the sort of artificial deterrents that the Court condemned in Trinko…
TOTM On balance the Second Circuit was right to apply the antitrust laws to Apple. Right now the Supreme Court has before it a petition for . . .
On balance the Second Circuit was right to apply the antitrust laws to Apple.
Right now the Supreme Court has before it a petition for Certiorari, brought by Apple, Inc., which asks the Court to reverse the decision of the Second Circuit. That decision found per se illegality under the Sherman Act, for Apple’s efforts to promote cooperation among a group of six major publishers, who desperately sought to break Amazon’s dominant position in the ebook market. At that time, Amazon employed a wholesale model for ebooks under which it bought them for a fixed price, but could sell them for whatever price it wanted, including sales at below cost of popular books treated as loss leaders. These sales particularly frustrated publishers because of the extra pressure they placed on the sale of hard cover and paper back books. That problem disappeared under the agency relationship model that Apple pioneered. Now the publishers would set the prices for the sale of their own volumes, and then pay Apple a fixed commission for its services in selling the ebooks.
TOTM For a few months I have thought that the Apple eBooks case would find an easy fit within the Supreme Court’s antitrust decisions. The case . . .
For a few months I have thought that the Apple eBooks case would find an easy fit within the Supreme Court’s antitrust decisions. The case that seems closest to me is Business Electronics v. Sharp Electronics, an unfortunately under-appreciated piece of antitrust precedent. One sign of its under-appreciation is its absence in some recent editions of antitrust casebooks.
TOTM The appellate court’s 2015 decision affirming the district court’s finding of per se liability in United States v. Apple provoked controversy over the legal and . . .
The appellate court’s 2015 decision affirming the district court’s finding of per se liability in United States v. Apple provoked controversy over the legal and economic merits of the case, its significance for antitrust jurisprudence, and its implications for entrepreneurs, startups, and other economic actors throughout the economy. Apple has filed a cert petition with the Supreme Court, which will decide on February 19th whether to hear the case.
Amicus Brief Although the immediate question presented in this case is whether Internet-based retransmission services are eligible for the compulsory license made available by Section 111 of the Copyright Act, this statute does not exist in a vacuum.
Although the immediate question presented in this case is whether Internet-based retransmission services are eligible for the compulsory license made available by Section 111 of the Copyright Act, this statute does not exist in a vacuum. Rather, Congress has established a comprehensive statutory regime governing the retransmission of broadcast television through several laws that span two titles of the United States Code. In particular, Section 111’s compulsory license is available only to a “cable system”—a type of broadcast retransmission service that is also subject to, and defined by, a host of statutory requirements enacted by Congress in the 1992 Cable Act. When the Copyright Act is read in conjunction with the Cable Act, as it must be, along with other provisions of the Communications Act and a long line of judicial decisions, the unmistakable conclusion is that Defendants’ service cannot be a “cable system” within the meaning of the Copyright Act.
Of greatest importance to Congress’s legislative framework governing retransmission is the requirement that any entity retransmitting broadcast television—regardless of the technical means—first obtain consent from the owner or primary transmitter of the television programming. By interpreting the Copyright Act’s compulsory license to make it available to Internet-based retransmission services, the lower court undercuts that legislative framework. Although cable systems (and satellite carriers) are eligible for a compulsory copyright license for which they do not need explicit permission from television program owners, under the Communications Act they must still generally obtain a broadcast station’s consent before retransmitting its signal. To obtain this consent, cable companies must generally pay an agreed upon amount to broadcasters on top of statutory copyright royalties. For all other entities that wish to retransmit broadcast television, no compulsory copyright license is available; they must bargain for the right to publicly perform television shows with the shows’ owners.
Defendants seek to sidestep both of these obligations by concocting a supposed loophole in federal law—engaging in a sort of regulatory arbitrage between the Communications Act and the Copyright Act. Thus, Defendants claim that they are both eligible for the compulsory copyright license available to cable systems, and also that their service is technically configured to escape the reach of the Communications Act’s provision empowering broadcast stations to decide whether to consent to a cable system’s retransmission of their signals. Not surprisingly, and as the text and purpose of the Copyright Act and the Communications Act reveal, Congress never authorized this ploy.
Popular Media Internet content and service providers are poised to offer an economically and socially transformative service to millions of people in developing countries: low-cost access to the Web. That is, if regulators and self-proclaimed consumer advocates don’t stop them.
Internet content and service providers are poised to offer an economically and socially transformative service to millions of people in developing countries: low-cost access to the Web. That is, if regulators and self-proclaimed consumer advocates don’t stop them.
The latest skirmish in the never-ending net-neutrality wars concerns Facebook ’s Free Basics, a “zero-rated” service that allows users to access Facebook—and other useful websites—without incurring data charges.
Presentations & Interviews Geoff Manne took part in the Fifth Annual Henry G. Manne Law & Economics Conference in a session on the economic aspects of required disclosure . . .
Geoff Manne took part in the Fifth Annual Henry G. Manne Law & Economics Conference in a session on the economic aspects of required disclosure under federal securities law. Video of the event is embedded below.
Presentations & Interviews The Federal Trade Commission held a conference on January 14, 2016 to bring together a diverse group of stakeholders, including whitehat researchers, academics, industry representatives, consumer advocates, and government regulators...
The Federal Trade Commission held a conference on January 14, 2016 to bring together a diverse group of stakeholders, including white-hat researchers, academics, industry representatives, consumer advocates, and government regulators, to discuss the latest research and trends related to consumer privacy and data security. The FTC called for research to be presented at the conference. Geoff Manne’s slides can be found here. Video of the event is embedded below.
