Theodi.org, here.
Friday, May 10, 2013
Thursday, May 09, 2013
Wednesday, May 08, 2013
Public and Universal Service Obligations and Competition
M. Harker, A. Kreutzmann, C. Waddams, here.
Tuesday, May 07, 2013
Monday, May 06, 2013
EU Commission sends Statement of Objections to Motorola Mobility on potential misuse of mobile phone standard-essential patents
Press Release, here.
----------
Apple's "willingness" specified:
"Apple had declared that it would be willing to be bound by a determination of the FRAND royalties by the German court". Further, from the Memo:
"By contrast, a potential licensee which remains passive and unresponsive to a request to enter into licensing negotiations or is found to employ clear delaying tactics cannot be generally considered as willing."
Moreover, specifically to the relevance of the so-called German "Orange Book" case-law on injunctions:
"The 2009 "Orange Book" ruling of the German Supreme Court established that a potential licensee can raise a competition law defence against an application for an injunction by showing that (i) it has made an unconditional offer to license under terms that cannot be rejected by the patent-holder without abusing its dominant position, and (ii) it actually acted as if had entered into a valid patent licence. The Supreme Court's ruling did not specifically relate to SEPs. The Commission's preliminary view is that an interpretation of that ruling whereby a willing licensee is essentially not entitled to challenge the validity and essentiality of the SEPs in question is potentially anti-competitive."
----------
Apple's "willingness" specified:
"Apple had declared that it would be willing to be bound by a determination of the FRAND royalties by the German court". Further, from the Memo:
"By contrast, a potential licensee which remains passive and unresponsive to a request to enter into licensing negotiations or is found to employ clear delaying tactics cannot be generally considered as willing."
Moreover, specifically to the relevance of the so-called German "Orange Book" case-law on injunctions:
"The 2009 "Orange Book" ruling of the German Supreme Court established that a potential licensee can raise a competition law defence against an application for an injunction by showing that (i) it has made an unconditional offer to license under terms that cannot be rejected by the patent-holder without abusing its dominant position, and (ii) it actually acted as if had entered into a valid patent licence. The Supreme Court's ruling did not specifically relate to SEPs. The Commission's preliminary view is that an interpretation of that ruling whereby a willing licensee is essentially not entitled to challenge the validity and essentiality of the SEPs in question is potentially anti-competitive."
Copyright in the Digital Era: Building Evidence for Policy
US National Research Council of the National Academies, here.
Friday, May 03, 2013
Educational Fair Use: Amici Curiae in Support of Georgia State University
Academic Authors and Legal Scholars, here.
Thursday, May 02, 2013
Tuesday, April 30, 2013
How the Google Consent Order Alters the Process and Outcomes of Frand Bargaining
E. Dorsey, M. McGuire, here.
Who Needs Guidance from Above? District Court Finds its Own Way in Viacom v. YouTube
Aaronsanderslaw.com, here.
Monday, April 29, 2013
Microsoft-Motorola follow-up: A look at Judge Robart’s modified Georgia-Pacific RAND methodology
Essentialpatentblog.com, here.
European parliament starts discussing the proposed Directive on collective management of copyright
Communia-association.org, here.
Saturday, April 27, 2013
Friday, April 26, 2013
Google's rivals set to reject compromises around EC antitrust investigation
TheGuardian.co.uk, here.
Thursday, April 25, 2013
Wednesday, April 24, 2013
Canada: Privacy and Social Media in the Age of Big Data
Report of the Standing Committee on Access to Information, Privacy and Ethics, House of Commons, here.
Tuesday, April 23, 2013
Vers une redéfinition du « cercle de famille » en faveur du partage des oeuvres sur Internet ?
Scinfolex.wordpress.com, here.
Monday, April 22, 2013
The European Commission Policy on Open Access: the Importance of Text and Data Mining
J.-F. Dechamp, here (Presentation)
Brussels Court of Appeal: embedding illegal YouTube content is no copyright breach
Futureofcopyright.com, here.
Indian copyright organisation asks colleges to buy licence to photocopy book portions
Economictimes.indiatimes.com, here.
Friday, April 19, 2013
Competition Authority reminder to businesses: resale price maintenance is against the law
Competition Authority (Ireland), here.
Bußgeldbemessung bei Kartellverstößen wird an BGH-Rechtsprechung angepasst
Bundeskartellamt.de, hier.
The Future of Interoperable E-books: What Libraries Need to Know
Slides from NISO’s Virtual Conference, here.
Thursday, April 18, 2013
Bruno Lasserre on Competition Policy Attitudes in France
My quick take
on the very interesting speech given today in Trento by the Chairman of the
French Competition Authority.
- Sort
of schizophrenia between consumers (pro) and citizens (more skeptical) towards
competition policy.
- The
glorious days of competition policy in France go back to at least 1791, when guilds (corporations) were suppressed by initiative of the revolutionaries.
- Before
WWII, the attitude in France was generally very positive, at a time in which,
by contrast, Germany was much more in favor of cartelizing the economy.
-
After
WWII: public intervention into the economy much welcomed by French citizens,
competition policy experienced mostly as an external imposition.
-
Leftist
reason to support competition during last political election: fight against
privilege by birth; “equality of chances” (égalité) still very popular.
- Governments
in general less procompetition than members of Parliament because of economic
pressures by big players.
- French
civil servants not believing in competition: 77%; French judges: even more
(figure not disclosed).
- Going ahead, dramatically
important in order to convince citizens of the benefits of competition
policy: private/class actions!
- Draft
bill on class actions in France: too narrow.
- Average loss per mobile phone user due to 2005 telecoms’ cartel: 70 Euro per year (cartel’s duration: 2 ½ y.)Tuesday, April 16, 2013
Friday, April 12, 2013
Thursday, April 11, 2013
USPTO roundtables on software-related patents: materials available
Recordings and presentations here.
Wednesday, April 10, 2013
Tuesday, April 09, 2013
Abuse Of IP Rights Under China's Antitrust Rules: Recent Cases Have A Potentially Serious Impact
McDermott Will & Emery, here.
Microsoft and others file EU antitrust complaint over Android app bundling
TheVerge.com, here.
---------
Two central allegations, it seems:
I
- Android is the dominating mobile operating system (running in 70% of units shipped at the end of 2012)
- Android phone makers wanting to include "must-have" Google apps such as Maps or YouTube are required "to pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone"
- Other apps and services providers are disadvantaged
- Google’s Android is put in control of consumer data on a majority of smartphones shipped today.
II
- Google distributes Android open source operating system for free, i.e. below cost
- this makes it difficult for other providers of operating systems to recoup investments in competing with Google’s dominant mobile platform.
Fairsearch's 2011 White Paper indirectly provides some additional background information to the allegations, see e.g. p. 35: Google is also attempting to monopolize mobile search and search advertising through the Android operating system...According to some, Google is “not trying to make a profit on Android or [its web-browser] Chrome . . . .In essence [by giving Android away for free], they are not just building a moat; Google is also scorching the earth for 250 miles around the outside of the castle to ensure no one can approach it"(reference omitted).
An overview of the other competition complaints filed by Google's competitors (source: Fairsearcheurope.eu, here):
Read also Groklaw's take on the allegations, here.
---------
Two central allegations, it seems:
I
- Android is the dominating mobile operating system (running in 70% of units shipped at the end of 2012)
- Android phone makers wanting to include "must-have" Google apps such as Maps or YouTube are required "to pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone"
- Other apps and services providers are disadvantaged
- Google’s Android is put in control of consumer data on a majority of smartphones shipped today.
II
- Google distributes Android open source operating system for free, i.e. below cost
- this makes it difficult for other providers of operating systems to recoup investments in competing with Google’s dominant mobile platform.
Fairsearch's 2011 White Paper indirectly provides some additional background information to the allegations, see e.g. p. 35: Google is also attempting to monopolize mobile search and search advertising through the Android operating system...According to some, Google is “not trying to make a profit on Android or [its web-browser] Chrome . . . .In essence [by giving Android away for free], they are not just building a moat; Google is also scorching the earth for 250 miles around the outside of the castle to ensure no one can approach it"(reference omitted).
An overview of the other competition complaints filed by Google's competitors (source: Fairsearcheurope.eu, here):
Monday, April 08, 2013
Conceptual Study on Innovation, Intellectual Property and the Informal Economy
WIPO Secretariat and J. de Beer, here.
The Single Market for financial services and competition policy
European Competition Forum 2013, Videos here.
Legal Assessment of Patent Settlement Agreements Containing “Reverse” Payments
R. Subiotto, Presentation here.
Walking the Data Protection Tightrope: The Google Privacy Policy Investigations
Europeanlawblog.eu, here.
Smokescreen: How Managers Behave When They Have Something to Hide
T. Artiga Gonzalez, M. Schmid, D. Yermack, here.
Wednesday, April 03, 2013
The Use of Standard Essential Patents: Competition Policy Issues
S. Vezzoso (this blog's author), Presentation here.
Tuesday, April 02, 2013
The Actavis case before SCOTUS shows that the weak patent issue is system-wide:
Patentprogress.com, here.
Friday, March 29, 2013
Google pledges not to sue open-source users or developers over specified patents
Computerworld.com, here.
Tuesday, March 26, 2013
Sunday, March 24, 2013
The Economic Impact of the Data Protection Regulation in the E.U
L. Christensen, A. Colciago, F. Etro and G. Rafert, here.
Saturday, March 23, 2013
Friday, March 22, 2013
Thursday, March 21, 2013
CJEU Referral in Huawei v. ZTE Concerning FRAND
Here (German).
Ehoganlovells.com, here.
See also Fosspatents.com, here and Juve.de, here (German).
-------------
My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents.
The questions essentially revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has been seeking an injunction. The concept at issue can obviously have even dramatically different shades and meanings. In fact, it can range from a mere “(oral) declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into negotiations” to “a binding offer to the SEP owner on terms that the SEP owner cannot refuse without treating the infringer unfairly or discriminatorily”, furthermore requiring that “the infringer, in anticipation of the license he is seeking, already complies with his contractual obligations with respect to past acts of infringement.”
A middle ground could be the requirement that “the infringer has indeed entered into negotiations, such as by, for example, communicating terms and conditions under which he is prepared to conclude a license agreement.”
Ehoganlovells.com, here.
See also Fosspatents.com, here and Juve.de, here (German).
-------------
My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents.
The questions essentially revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has been seeking an injunction. The concept at issue can obviously have even dramatically different shades and meanings. In fact, it can range from a mere “(oral) declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into negotiations” to “a binding offer to the SEP owner on terms that the SEP owner cannot refuse without treating the infringer unfairly or discriminatorily”, furthermore requiring that “the infringer, in anticipation of the license he is seeking, already complies with his contractual obligations with respect to past acts of infringement.”
A middle ground could be the requirement that “the infringer has indeed entered into negotiations, such as by, for example, communicating terms and conditions under which he is prepared to conclude a license agreement.”
In the event that “the [infringer's] submission of a binding
offer to conclude a license agreement is a requirement” it would then be
necessary to clarify whether that offer should “involve specific substantive and/or
chronological requirements”, whether it would “have to set forth all of the
commercial terms that in accordance with relevant industry practice are usually
set forth in such license agreements,” and whether it could “be conditioned
upon actual use and/or validity of the SEP-in-suit”. Moreover, “in the event
that the infringer's [precontractual] fulfillment of obligations arising from
the requested license is a requirement” for the finding of a “willing licensee,”
the Court asks whether the infringer could be “required, in particular, to make
disclosures relating to past acts of infringement and/or to pay
[precontractual] royalties”, and, finally, whether the “obligation to pay
[precontractual] royalties” could also “be fulfilled by giving security.”
Open Letter to Vice-President Almunia from 11 Complainants (Foundem/Google)
Searchneutrality.org, here.
Wednesday, March 20, 2013
Standard essential patents: who is really holding up (and when)?
G. Langus, V. Lipatov, D. Neven, here.
Tuesday, March 19, 2013
Parallel Exclusion
S. Hemphill, T. Wu, here.
"In industries marked by rapid technological change, the exclusion of entrants has a far greater impact on the development of the industry. In these industries, exclusion, not price-fixing, is the “supreme evil” that antitrust should address.", p. 1212.
"In industries marked by rapid technological change, the exclusion of entrants has a far greater impact on the development of the industry. In these industries, exclusion, not price-fixing, is the “supreme evil” that antitrust should address.", p. 1212.
Supreme Court on the "first sale" doctrine and copyrighted works lawfully made abroad
Kirtsaeng v. John Wiley & Sons, Inc., No. 11–697, here.
The questions:
"Putting section numbers to the side, we ask whether
the “first sale” doctrine applies to protect a buyer or other
lawful owner of a copy (of a copyrighted work) lawfully
manufactured abroad. Can that buyer bring that copy
into the United States (and sell it or give it away) without
obtaining permission to do so from the copyright owner?
Can, for example, someone who purchases, say at a used
bookstore, a book printed abroad subsequently resell it
without the copyright owner’s permission?", p. 6.
The answer:
"In our view, the answers to these questions are, yes. We
hold that the “first sale” doctrine applies to copies of a
copyrighted work lawfully made abroad."
Some competition scholar's highlights:
"The “first sale” doctrine is a common-law doctrine with
an impeccable historic pedigree", p. 18.
"American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer", p. 19.
"the Constitution’s language
nowhere suggests that its limited exclusive right should
include a right to divide markets or a concomitant right
to charge different purchasers different prices for the same
book, say to increase or to maximize gain...(T)o the contrary, Congress enacted a copyright law that
(through the “first sale” doctrine) limits copyright holders’
ability to divide domestic markets. And that limitation is
consistent with antitrust laws that ordinarily forbid market divisions.", p. 32.
The questions:
"Putting section numbers to the side, we ask whether
the “first sale” doctrine applies to protect a buyer or other
lawful owner of a copy (of a copyrighted work) lawfully
manufactured abroad. Can that buyer bring that copy
into the United States (and sell it or give it away) without
obtaining permission to do so from the copyright owner?
Can, for example, someone who purchases, say at a used
bookstore, a book printed abroad subsequently resell it
without the copyright owner’s permission?", p. 6.
The answer:
"In our view, the answers to these questions are, yes. We
hold that the “first sale” doctrine applies to copies of a
copyrighted work lawfully made abroad."
Some competition scholar's highlights:
"The “first sale” doctrine is a common-law doctrine with
an impeccable historic pedigree", p. 18.
"American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer", p. 19.
"the Constitution’s language
nowhere suggests that its limited exclusive right should
include a right to divide markets or a concomitant right
to charge different purchasers different prices for the same
book, say to increase or to maximize gain...(T)o the contrary, Congress enacted a copyright law that
(through the “first sale” doctrine) limits copyright holders’
ability to divide domestic markets. And that limitation is
consistent with antitrust laws that ordinarily forbid market divisions.", p. 32.
General Court on the "Bananas Cartel"
Case T‑588/08, Dole Food Company, Inc., and Dole Germany OHG, v European Commission, here.
Monday, March 18, 2013
The Register’s Call for Updates to U.S. Copyright Law
M. Pallante, here.
Some general points:
- Because the dissemination of content is so
pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it.
- central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age
- apply fresh eyes to the next great copyright act to ensure that
the copyright law remains relevant and functional
- keeping the public
interest at the forefront, including how to define the public interest and who may speak for it
- possible and necessary to have a copyright law that combinessafeguards for free
expression, guarantees of due process, mechanisms for access, and respect for intellectual
property
- authors are intertwined with the interests of the public. As the first beneficiaries of the copyright
law, they are not a counterweight to the public interest but instead are at the very center of the
equation
To do list:
- clarifying the scope of exclusive rights revising exceptions and
limitations for libraries and archives, addressing orphan works, accommodating persons who
have print disabilities, providing guidance to educational institutions, exempting incidental
copies in appropriate instances, updating enforcement provisions, providing guidance on
statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims,
reforming the music marketplace, updating the framework for cable and satellite transmissions,
encouraging new licensing regimes, and improving the systems of copyright registration and
recordation
"Bold" adjustments to the general framework:
- reverting works to the public
domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office
- requiring copyright owners to object or “opt
out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries
Some general points:
- Because the dissemination of content is so
pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it.
- central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age
- apply fresh eyes to the next great copyright act to ensure that
the copyright law remains relevant and functional
- keeping the public
interest at the forefront, including how to define the public interest and who may speak for it
- possible and necessary to have a copyright law that combinessafeguards for free
expression, guarantees of due process, mechanisms for access, and respect for intellectual
property
- authors are intertwined with the interests of the public. As the first beneficiaries of the copyright
law, they are not a counterweight to the public interest but instead are at the very center of the
equation
To do list:
- clarifying the scope of exclusive rights revising exceptions and
limitations for libraries and archives, addressing orphan works, accommodating persons who
have print disabilities, providing guidance to educational institutions, exempting incidental
copies in appropriate instances, updating enforcement provisions, providing guidance on
statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims,
reforming the music marketplace, updating the framework for cable and satellite transmissions,
encouraging new licensing regimes, and improving the systems of copyright registration and
recordation
"Bold" adjustments to the general framework:
- reverting works to the public
domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office
- requiring copyright owners to object or “opt
out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries
Digital Music Consumption on the Internet: Evidence from Clickstream Data
L. Aguiar, B. Martens, here.
Friday, March 15, 2013
Au nom du droit à l'oubli, quel patrimoine pour l'Europe de demain ?
Association des archivistes français, ici.
Datenschutz in Europa stärken
Pressemitteilung, Konferenz der Datenschutzbeauftragten des Bundes und der Länder, hier.
Thursday, March 14, 2013
Wednesday, March 13, 2013
Vous allez pouvoir revendre vos livres numériques… mais pas librement
Lafeuille.blog.lemonde.fr, ici.
Tuesday, March 12, 2013
México:Iniciativa de Reforma Constitucional en materia de Telecomunicaciones
Presidencia.gob.mx, aquì.
Privacy, technologie en de wet
J. Bloem, M. van Doorn, S. Duivestein, T. van Manen, E. van Ommeren, hier
Monday, March 11, 2013
Friday, March 08, 2013
Thursday, March 07, 2013
Television broadcasters may prohibit the retransmission of their programmes by another company via the internet
Judgment in Case C-607/11, ITV Broadcasting Ltd and Others v TVCatchup Ltd, Press Release here.
What Constitutes a Diligent Search Under Present and Proposed Orphan Work Regimes?
D. Hansen, G. Hinze, J.Urban, here.
Wednesday, March 06, 2013
Tuesday, March 05, 2013
Standard Setting Organizations Can Help Solve the Standard Essential Patents Licensing Problem
K.-U. Kühn, F. Scott Morton, & H. Shelanski, here.
Monday, March 04, 2013
Les données culturelles, absentes de la feuille de route du gouvernement sur l’Open Data
Scinfolex.wordpress.com, here.
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Centre for a Digital Society , Video here . These are my very rough talking points on pay or okay in full length (more than I actually had...
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LG Frankfurt am Main, 2-06 O 172/09 (verkündet am 13.05.2009). Lesenswertes aus der Begründung (meine Hervorhebungen): "Vorstellbare ...
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Stratechery, here .
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Here (thanks to Netzpolitik).
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G. Kallfass, presentation here .
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Public Knowledge, here .
