The ridiculousness currently emanating from ICANN and the NTIA (see these excellent posts from Milton Mueller and Eli Dourado on the issue) over .AMAZON, .PATAGONIA and other “geographic”/commercial TLDs is precisely why ICANN (and, apparently, the NTIA) is a problematic entity as a regulator.

Read the full piece here.

Last week, over Commissioner Wright’s dissent, the FTC approved amendments to its HSR rules (final text here) that, as Josh summarizes in his dissent…

Read the full piece here.

The Federalist Society has started a new program, The Executive Branch Review, which focuses on the myriad fields in which the Executive Branch acts outside of the constitutional and legal limits imposed on it, either by Executive Orders or by the plethora of semi-independent administrative agencies’ regulatory actions.

I recently posted on the Federal Trade Commission’s (FTC) ongoing investigations into the patent licensing business model and the actions (“consent decrees”) taken by the FTC against Bosch and Google.  These “consent decrees” constrain Bosch’s and Google’s rights in enforce patents they have committed to standard setting organizations (these patents are called “standard essential patents”). Here’s a brief taste:

One of the most prominent participants at the FTC-DOJ workshop back in December, former DOJ antitrust official and UC-Berkeley economics professor Carl Shapiro, explained in his opening speech that there was still insufficient data on patent licensing companies and their effects on the market.  This is true; for instance, a prominent study cited by Google et al. in support of their request to the FTC to investigate patent licensing companies has been described as being fundamentally flawed on both substantive and methodological grounds. Even more important, Professor Shapiro expressed skepticism at the workshop that, even if there was properly acquired, valid data, the FTC lacked the legal authority to sanction patent licensing firms for being allegedly anti-competitive.

Commentators have long noted that courts and agencies have a lousy historical track record when it comes to assessing the merits of new innovation, whether in new products or new business models. They maintain that the FTC should not continue such mistakes by letting its decision-making today be driven by rhetoric or by the widespread animus against certain commercial firms. Restraint and fact-gathering, institutional virtues reflected in a government animated by the rule of law and respect for individual rights, are key to preventing regulatory overreach and harm to future innovation.

Go read the whole thing, and, while you’re at it, check out Commissioner Joshua Wright’s similar comments on the FTC’s investigations of patent licensing companies, which the FTC calls “patent assertion entities.”

Filed under: antitrust, doj, error costs, federal trade commission, intellectual property, licensing, patent, regulation Tagged: bosch, consent decree, Executive Branch Review, Federal Trade Commission, Federalist Society, FTC-DOJ workshop, google, joshua wright, patent assertion entity, patent licensing, patent troll, regulatory overreach

Over at the blog for the Center for the Protection for Intellectual Property, Wayne Sobon, the Vice President and General Counsel of Inventergy, has posted an important essay that criticizes the slew of congressional bills that have been proposed in Congress in recent months. 

In A Line in the Sand on the Calls for New Patent Legislation, Mr. Sobon responds to the heavy-handed rhetoric and emotionalism that dominates the debate today over patent licensing and litigation. He calls for a return to the real first principles of the patent system in discussions about patent licensing, as well as for more measured thinking and analysis about the costs of uncertainty created by never-ending systemic changes from legislation produced by heavy lobbying by interested parties.  Here’s a small taste:

One genius of our patent system has been an implicit recognition that since its underlying subject matter, innovation, remains by definition in constant flux, the scaffolding of our system and the ability of all stakeholders to make reasonably consistent, prudent and socially efficient choices, should remain as stable as possible.  But now these latest moves, demanding yet further significant changes to our patent laws, threaten that stability.  And it is in fact systemic instability, from whatever source, that allows the very parasitic behaviors we have termed “troll”-like, to flourish.

It is silly and blindly ahistoric to lump anyone who seeks to license or enforce a patent right, but who does not themselves make a corresponding product, as a “troll.” 

Read the whole thing here. Mr. Sobon’s essay reflects similar concerns expressed by Commissioner Joshua Wright this past April on the Federal Trade Commission’s investigation of what the FTC identifies as “patent assertion entities.”

Filed under: intellectual property, licensing, patent, politics Tagged: Center for the Protection of Intellectual Property, Josh Wright, PAE, patent assertion entity, patent licensing, patent reform, patent troll, Patents, SHIELD Act, wayne sobon

FTC Commissioner Wright issued today his Policy Statement on enforcement of Section 5 of the FTC Act against Unfair Methods of Competition (UMC)—the one he promised in April. Wright introduced the Statement in an important policy speech this morning before the Executive Committee Meeting of the New York State Bar Association’s Antitrust Section. Both the Statement and the speech are essential reading, and, collectively, they present a compelling and comprehensive vision for Section 5 UMC reform at the Commission.

Read the full piece here. 

Summary

“Today’s video marketplace is shaped by a byzantine set of rules from a bygone era. In the 1990s, cable was as mighty as the Byzantines themselves were at the height of their power: Cable’s control over the single physical conduit to the home gave cable providers gatekeeper power over video programming, much as the Byzantines’ control over the Eastern Mediterranean gave them control over commerce.

But cable today is simply one of several competing conduits for video programming distribution. Today’s regulations were intended to prevent cable from thwarting the rise of satellite DBS service. They have succeeded: Virtually the entire country has access to the two primary DBS providers in addition to a cable provider. Meanwhile, telcos like AT&T and Verizon have offered a fourth alternative to cable in a third of the country. Even more importantly, the MVPD paradigm is increasingly being challenged by consumers either switching to an OVD like Netflix, Hulu or Amazon (“cord-cutting”) or cutting back on their MVPD subscription and relying, in part, on an OVD (“cord-shaving”)….”

“Rather that continuing to try to tweak the laws of a bygone era, Congress should embrace the default tool for dealing with market power across the economy: antitrust law. Properly applied, antitrust is perfectly capable of governing a market in which programmers have clear property rights for their content. Indeed, antitrust is the best tool for policing market power in evolving (if not perfectly competitive) markets, to ensure that distributors with market power do not use their power to harm consumers, while recognizing the benefits that come from experimentation in new ways and business models for delivering video content to consumers….”

Satellite Television Law Media and cable executives from small and large companies testified on the Satellite Television Extension and Localism Act (STELA), scheduled to expire on December 31, 2014. The hearing focused on whether to reauthorize, repeal, or revise the law.

ICLE President Geoffrey A. Manne testified before the U.S. House Energy and Commerce Subcommittee on Communications and Technology in a hearing about the Satellite Television Extension and Localism Act (STELA), scheduled to expire on Dec. 31, 2014. The hearing focused on whether to reauthorize, repeal, or revise the law. Video of the full hearing is embedded below.