Settlement In DRAM Case

From the Maryland Attorney General press release: “The settlement provides restitution for consumers and state and local government agencies who paid more for computers and other electronic devices because of the price-fixing scheme.”

Viacom v Google on the Interpretation of DMCA "safe harbor" provision

Here. As the U.S. District Judge Louis Stanton put it, "the critical question is whether the statutory phrases “actual knowledge that the material or an activity using the material on the system or network is infringing,” and “facts or circumstances from which infringing activity is apparent” in § 512(c)(1)(A)(i) and (ii) mean a general awareness that there
are infringements (here, claimed to be widespread and common), or rather mean actual or constructive knowledge of specific and identifiable infringements of individual items".
According to the judge, "if a service provider knows (from notice from the owner, or a “red flag”) of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringements."

Entflechtungen von Unternehmen als Instrument des allgemeinen Wettbewerbsrechts?

Zum Referentenentwurf eines Gesetzes zur Einführung einer Entflechtungsbefugnis vom 8. Januar 2010, Andreas Klees / Sebastian Max Hauser

Sobre la disuasión de conductas anti-competitivas

Massimo Motta, aqui.

Aplicación de las normas de competencia al sector agroalimentario

Informe de Comisión Nacional de la Competencia hecho publico. 

Competition and agriculture: potential competition concerns with respect to the breeding and commercialisation of sunflower seeds and sunflower seed treatment products in Europe?

The European Commission opens an in-depth investigation under the EU Merger Regulation into the proposed acquisition of the global sunflower seed business of US company Monsanto by Syngenta of Switzerland.

WIPO SSCR/20: More on Limitations and Exceptions

WIPO's Second Analytical Document on Limitations and Exceptions. See US' Draft Consensus Instrument on needs of persons with print disabilities. See also EU's Draft Joint Recommendation concerning the improved access to works protected by copyright for persons with a print disability.
US' declaration at SSCR/20: need to keep an holistic approach on L&E; need to move forward swiftly. US' draft consensus instrument as initial step.
In the meanwhile, the US distributed a Background Paper and FAQs (submitted as an information document) on the proposed consensus instrument.
See a comparison of the four proposals presently being discussed (limited to aspects concerning persons with disabilities, the "African Proposal" covers further matters). The wording of the Conclusions was so  controversial, that no agreement could be reached. As the WIPO bravely puts it, "(D)uring a late night discussion, agreed language for final conclusions proved elusive. Member states had divergent views on the wording for future work on the scope of an international instrument relating to exceptions and limitations, and on whether and when informal consultations should take place on the protection of broadcasting organizations. Discussion on all these issues will continue at the next session of the SCCR from November 8 to 12, 2010."

Berliner Rede zum Urheberrecht

Rede der Bundesministerin der Justiz Sabine Leutheusser-Schnarrenberger. Mehr zum geplanten Leistungsschutzrecht für Verlage

FTC: Is There Life After Trinko and Credit Suisse? The Role of Antitrust in Regulated Industries

Here.

How the Federal Trade Commission Works to Promote Competition and Benefit Consumers in a Dynamic Economy

Prepared Statement of the Federal Trade Commission before the United States Senate Committee on the Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights

WIPO SCCR/20: Draft Treaty on Exceptions and Limitations Proposed by the African Group

Draft WIPO Treaty on Exceptions and Limitations for the Disabled, Educational and Research Institutions, Libraries and Archive Centers

UNESCO on Fighting Piracy with Non-Legislative Measures

PIRACY: CURRENT TRENDS AND NON-LEGISLATIVE MEASURES TO
COUNTERACT IT, Luis Villarroel (Corporacion Innovarte).

South Africa: Beyond Competition on the Pitch

"Unleashing Rivalry” 10 Years of enforcement by the South African competition authorities (1999-2009)

Toward An International Dialogue on the Institutional Side of Antitrust

Here, P.J.Weiser

Kartellrechtliche Schadensersatzansprüche: Strategische Überlegungen

Strategische Überlegungen bei der gerichtlichen Durchsetzung von kartellrechtlichen Schadensersatzansprüchen, T. Schreiber.

The “More Economic Approach” after 10 Years: Remarks by an Economist

Here, Justus Haucap.

Recent Developments in EU Merger Control

Here, Nadia Calviño ( Deputy Director General DG Competition, European Commission)

WIPO's scoping study on the public domain

Here.

On the anticompetitive use of the DMCA

ANTI-CIRCUMVENTION OF COMPETITION: AVOIDING CONFLICT BETWEEN THE DMCA AND ANTITRUST, J. Schroeder; see also Antitrust Law - A Stranger in the Wikinomics World? Regulating Anti-Competitive Use of the DRM/DMCA Regime, Rachel Aridor-Hershkovitz

More on Behavioral Antitrust

Behavioral Antitrust and Merger Control, G. J. Werden, L.Froeb, M.Shor.

EGEDA: tarifas abusivas en concepto del derecho exclusivo de autorizar la comunicación pública?

La Dirección de Investigación de la Comisión Nacional de la Competencia (CNC), ha acordado la apertura de un expediente sancionador.

Joaquin Almunia on "New Transatlantic Trends in Competition Policy"

Here.

New Zealand's Divestment Remedies Guidelines

Here.

Three-Strike in practice

UK Ofcom, Online Infringement of Copyright and the Digital Economy Act 2010: Draft Initial Obligations Code

Proposed Horizontal Merger Guidelines: "Some" Economists' Comment

Here, see also the list of all the comments received so far. Interestingly, also the Russian Competition Authority decided to express its view. 

The European Commission's 2009 Report on Competition Policy is out.

Here.

Google/AdMob: AAI'S Analysis

Here.

Tenth year anniversary of the International Competition Policy Advisory Committee (ICPAC) Report

Brown Bag Teleconference, ICPAC at Ten and the ICN, ABA.

On the Economics of Copyright

The Economics of Copyright and Digitisation: A Report on the Literature and the Need for Further Research, C. Handke.

What motivates businesses to comply with competition law?

Some possible answers: Drivers of Compliance and Non-compliance with Competition Law, OFT.

Bid rigging in the UK construction industry: assessment of the impact of OFT's recent investigation

Evaluation of the impact of the OFT's investigation into bid rigging in the construction industry, Europe Economics.

Predatory models of selective price cuts: the Italian aerated autoclaved concrete case commented

Anticompetitive vs Competitive Explanations of Unilateral Practices: the Identification Problem, Michele Polo

AAI on the US Proposed Horizontal Merger Guidelines

AAI Submits Comments to FTC and DOJ on Proposed Horizontal Merger Guidelines, Robert Lande.

A retrospective study on a non-consummated merger: FTC v. H.J. Heinz Co. and Milnot Holding Corporation

The Evolution of the Baby Food Industry 2000-2008, Viola Chen

Consumer Harm, Consumer Choice and Innovation

Real Knowledge is to Know the Extent of One's Own Ignorance: On the Consumer Harm Approach in Innovation-Related Competition Cases, Josef Drexl

Swedish Competition Authority: Ex-Post Agency Effectiveness Evaluation

Ex-post evaluations initiated by the Swedish Competition Authority,

Dan Sjöblom and Arvid Fredenberg. See also London Economics' Evaluation of OFT Competition Advocacy

ICN 2010: the Executive Summary is out

Here.

Orange/Sunrise: Rekurs zurückgezogen

S. NZZ Online: Orange und Sunrise lassen Fusion definitiv fallen

Trento's "Festival of Economics"

This year's topic: "Information, Choices and Development".

My personal choice from the extremely rich programme: M. Boldrin and D.K.Levine,

Against intellectual monopoly

Harm Quantification in Damages Actions: On the Three-Step Procedure in the German Cement Case

Quantification of Harm in Damages Actions for Antitrust Infringements: Insights from German Cartel Cases, H.W. Friederiszick, L.-H. Röller

Canadian Copyright Modernization Act (or Bill C-32) introduced

Here.

WIPO Gold: one-stop gateway to the organization’s global collections of searchable IP data

Here.

Remedies in the EU Microsoft Case

A CRITICAL APPRAISAL OF REMEDIES IN THE E.U. MICROSOFT CASES, Nicholas Economides, Ioannis Lianos.

WIPO SCCR/19: the draft report is out

Here. Looking ahead for SCCR/20. Read also Key's post on WIPO SCCR open ended consultation on the treaty for the blind

Reflecting on the best antitrust regime: a view from the US

Rewriting History: Antitrust Not As We Know It . . . Yet, J. Thomas Rosch

Commissioner, Federal Trade Commission.

Almunia on the future of public services

The role of public services in “Europe 2020”, Madrid, 31 May 2010.

Apple's App Store and GPL

The Free Software Foundation was alleging non-compliance with sec. 6 GPL v.2. Apple reacted by removing the product from its store.

Fusion untersagt: Magna/Karmann (Cabriodach-Hersteller)

Pressemitteilung und Beschluss des Bundeskartellamtes.

Revised competition rules for motor vehicle distribution and repair in the EU

Commission Regulation (EU) 461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector. See also the press release.

On the United/Continental Airlines Merger

The United/Continental Airlines Merger: How Will Consumers Fare?, Darren Bush, before the

US Senate Judiciary Committee, Subcommmittee on Antitrust, Competition Policy and Consumer

Rights.

Discussing the Goals of Competition Law

The 5th ASCOLA Conference “Goals of Competition Law”, May 27-29, 2010

Rheinische Friedrich-Wilhelms-Universität Bonn

Bonn, Germany.

Open Access in Italy

Report 2009, Paola Gargiulo, Maria Cassella.

OFT's Market Study on Behavioural Advertising and Consumer Protection

Online Targeting of Advertising and Prices.

Sport Leagues: Single Entity Defence in Antitrust Revisited

US Supreme Court, American Needle, Inc. v. National Football League. See also AAI's Amicus Curiae.

Google AdMob Deal: FTC Closes its Investigation

Read Press Release and Statement. See also AAI's first reaction.

Competition and regulatory objectives in the framework of the financial crisis

Financial Crisis Remedies in the European Union: Balancing Competition and Regulation in the Conditionality of Bailout Plans, Damien Gerard.

On Competition Authorities and National Regulators

The Relationship between Competition Authorities and Sectoral Regulators: An International-Comparative Perspective, Maher Dabban

Intellectual Property Regimes in a Global Context

Winston Tabb (convener), Nancy Weiss and Michael Geist, Proceedings of the 156th Association of Research Libraries Membership Meeting.

WIPO: On-line Forum on Access to Copyrighted Works by Visually Impaired

Here. See also WIPO's announcement.

Joaquin Almunia on the first European Commission Cartel Settlement

Read the transcript of his (short) speech. See also OECD, EXPERIENCE WITH DIRECT SETTLEMENTS IN CARTEL CASES, 2009.

Bulgarian Competition Authority (Комисия за защита на конкуренцията - КЗК): independence at risk?

Read this from EurActiv.

On Banks and Competition Policy

St Gallen International Competition Forum, ‘Too big to fail, but not too big to be unbundled’, Peter Freeman, UK Competition Commission's Chairman.

A Digital Agenda for Europe

See the Communication.

Jane Ginsburg on Mandatory Copyright Formalities

The U.S. Experience with Mandatory Copyright Formalities: A Love/Hate Relationship, 33 Columbia Journal of Law and the Arts 311 (2010), p. 311.

DRAM producers fined € 331 million for price cartel

Press release. It is also the first settlement decision adopted by the European Commission according to Articles 7 and 23 of Regulation 1/2003 (Q&A) .

Filmmakers and the use of fair dealing in Canada

See the new guide released by the Documentary Organization of Canada.

Strategies for opening up content

See this special issue of Research Library Issues (RLI), Association of Research Libraries.

Italian Google Competition Case: Undertakings Made Public

Here.

On Behavioral Economics and Antitrust

Behavioral Antitrust, A. P. Reeves, M. E. Stucke. See also OFT's  What does Behavioural Economics mean for Competition Policy?

Google/AdMob: diminishing competition in the market for advertising on mobile phones?

S. this article from the NYT.

Fotos in Personensuchmaschinen

OLG Köln, Urteil v. 09.02.2010, Az. 15 U 107/09.

On E-Books, Copyright and DRM

S. Sara Bannerman's post.

DRM in motion

A motion infographic project about Digital Rights Management (DRM), Vancouver Film School.

EPO on computer-implemented inventions

Opinion of the Enlarged Board of Appeal of 12 May 2010, European Patent Office (here some background info; see also the amicus curiae brief of the Foundation for a Free Information Infrastructure). See here the list of all amicus curiae briefs.

Mario Monti: défendre le marché unique et la concurrence

Voir Le Monde, 10.05. 10.

India-EU Broad-based Trade and Investment Agreement - IPR Chapter

S. the Preliminary Consultation Draft reflecting interesting divergences.

On the concept of ‘fair compensation’ in the InfoSoc directive

Advocate General’s Opinion in Case C-467/08 Sociedad General de Autores y Editores (SGAE) v PADAWAN S.L., from the press release: "Where a Member State, such as Spain, opts for a system of compensation in the form of a levy on digital reproduction equipment, devices and media, such a charge can be regarded as a compensation scheme for private copying which is compatible with the directive only where it may be presumed that those equipment, devices and media are to be used for making private copies. Remuneration which is granted to rightholders as a result of the indiscriminate application of such a levy to undertakings and professional persons, who from experience purchase digital reproduction devices and media for purposes other than private use, is not ‘fair compensation’ within the meaning of the directive".

Some highlights from the WIPO Symposium on Intellectual Property and Competition Policy

The program has slightly changed because Ricardo Machado Ruiz, Commissioner, Administrative Council for Economic Defense (CADE), Ministry of Justice, Brasilia could not attend (volcanic ash).

Some very subjective, sketchy notes (parts in blue are my forthright adds):

WIPO:
- trying to bring together two communities (ipr experts/competition experts; national competition authorities/national ip offices)
- ipr-competition not antagonistic
- well-balanced ip also very important

- WIPO's mandate to work on the interface ip/competition stemming from the Development Agenda in particular, Recommendations 7 23 and 32 (briefly: technical cooperation on the interface between iprs and competition policies; promote pro-competitive ip licensing practices; exchange of national and regional experiences and info, see also document CDIP4_CDIP/4/4 Rev. - Project on Intellectual Property and Competition Policy).
-- outcome envisaged: no formal conclusions or recommendations
-- new division on ip/competition established
-- technical assistance (already requested by Syria)
- iprs are not monopolies, they are not a "necessary evil" but, and foremostly, a differentiation/identification tool (i.e. not only about creations and inventions)
-- insofar, at the very core of competition and rivarly,

- iprs inherently procompetitive, but only in the right dosage (inter alia, Magill based on a "wrong" copyright)
-- not easy; necessary trials and errors, institutional/legal experiments, picking out the efficient solutions
- difference between an abuse of ip that results into anticompetitive effects and another which does not (reference to a case concerning a patent for irradiating food stuff increasing its vitamin c content and the legal issues thereof involving the important principle of access to health)

- interoperability ip/comp.

WTO:

- very supportive of WIPO's project
- TRIPs allows for a certain freedom in this area, but countries very often are not using it
-- but TRIPs leaves some questions unanswered (e.g., evaluative standards to anticompetitivess)
-- WIPO, WTO, OECD should provide some more help in this respect
-- collective guidelines could be helpful, based on enforcement experience, study and reflection

- ipr/comp interwoven
-- well designed ip systems already address (most) competition concerns internally (i.e., patentability criteria)
- TRIPs, articles 40, 31, 31.k, 8.2
-- art. 40.2 permissive rather than prescriptive (list non-exhaustive)
-- art. 31 (compulsory licences)
--- detailed conditions
--- protecting the legitimate interest of the right holder
-- art. 31.k (competition policy "shortcut"): "...use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive"
--- unanswered question:decision taken by the head of a national competition authority is an "administrative process"?

- but compulsory licences not always the appropriate remedy
- clash of remedies possible
-- e.g. Microsoft
--- compulsory licence in the EU, "leak" across other jurisdictions
---- before deciding on remedies, possible repercussions should be carefully investigated

- Problems
-- clusters of blocking patents
-- standards-reinforced patents
-- gene patents
-- grantbacks, but depending on circumstances

- overtime convergence on some issues not easy but possible (globalized world - risk of spillover effects)
-- conflicts likely to be increasingly significant, also at the remedies level
--- NCAs likely to oppose "hard" convergence

UNCTAD:
- Recommendation 40 ("To request WIPO to intensify its cooperation on IP related issues with United Nations agencies, according to Member States’ orientation, in particular UNCTAD, UNEP, WHO, UNIDO, UNESCO and other relevant international organizations, especially the WTO in order to strengthen the coordination for maximum efficiency in undertaking development programs")
- Development Agenda as a major event at the WIPO
- in the 80's only 20 national competition authorities (from now on: NCAs), now more than 100 (many in developing countries)
- Competition Law and Policy (Programme)
-- background papers to Intergovernmental Expert Meetings
--- COMPETITION POLICY AND THE EXERCISE OF INTELLECTUAL PROPERTY RIGHTS (TD/B/COM.2/CLP/22/Rev.1)
-- technical assistance on demand
-- Peer Review on competition legislation(voluntary)
--- "model" advise on provisions impacting iprs
---- complementarity iprs/competition
---- different tools
---- exclusivities to stimulate innovation,
----- in case of market power, not prohibited per-se, but they could have anticompetitive effects

-- Model Law on Competition (2007)
--- Chapter II, II (a) Scope of application: "goods, services or intellectual property"

- IP field
-- UNCTAD's mandates in this field
--- Accra Accord
--- Rec. 40 Development Agenda (above)
--- WHO's Global Strategy and plan of action on public health, innovation and intellectual property (2008)

-- "wider" lense, not only violations of competition provisions
--- foster generic competition immediately after patent's expiry
--- create a competitive environment for generics

OECD:
- iprs and competition not conflicting
- good competition policy, well run and designed provides for incentives to innovate
-- short-term not always central
- patent system to be procompetitive
-- room for disruptive innovation
-- role of venture capitalists
- both ip system and effective competition ideally provide for innovations
-- but iprs used in defensive (patent portfolio and patent deals) and strategic way

--- competition policy should not "destroy" the value of iprs, but the relationship can at times be complicated
- IF too easy to obtain and enforce, high penalties
-- from a societal point of view, the same level of innovation could be obtained giving less away
-- very expensive for other firms
-- entry barriers high
-- R&D deterred
- IF ipr too difficult to obtain, penalties toothless
-- incentives inefficiently low
--- not worth to invest
-- complex design of secrecy
--- disclosure and diffusion insufficient from a societal perspective (forcep's example: invention non patented and kept secret)

- IF competition policy too strong
-- iprs targeted because of their success
-- too low incentives, no licensing agreements

- IF competition policy too weak
-- licensing as masquerade for cartels
-- standard organizations ambushed

- balanced approach: a tough policy question, to be answered in a real world setting
-- patent surge, not only because of increased innovation
--- harm to competition?
--- innovation stifled?
-- courts, NCAs to "rebalance" this?
--- expertise needed to do this very high in the face of limited resources available
---- delays, risk of slowing down innovation (overkill)
-- Ip law needs fixing
--- some improvements, grant rates are coming down
- Actions
-- dialogue with patent agencies
-- OECD's role
--- reports
--- seminars, hearings, fora (see 2010 Global Forum on Competition)

- Some selected topics
-- licensing arrangements
--- most of them at least neutral from a comp policy perspective - technology transfer
--- grantbacks
---- positive: risk sharing, financing
---- negative: possibly in case of exclusive, severable improvements (follow-on innovations deterred)
-- patent pools
--- usually at least neutral
--- positive: complementary, essential iprs
--- negative: possibly when substitute iprs
---- market sharing; cover up for price agreements
---- foreclosure of third parties' technologies

- areas of controversy
-- "naked" unilateral refusal to license ip (not refusal + like in mergers)
--- OECD members: diverging answers
---- EU, compulsory licence as remedy
---- US, different philosophy
---- most members
----- compulsory licences generally not suitable
----- ip system not always effective
------- but importance of "working around" granted iprs
-- NCA stating licensing terms (e.g. fees) possibly acting as regulator and not as arbiter.

- "Convergence" very difficult at the global level, more likely are regional patches

US Dep. of Justice, Antitrust Division
- complex issue
- technological innovations as primary driver of economic growth
- distinction between invention and innovation (inno a longer process)
- complementarity
- ip questions everywhere (enforcement, advocacy, business review letters)
-- within merger proceedings particularly difficult
- tools available
-- prior cases
-- guidelines
-- 2007 Report, Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition, etc.
- coming next: joint public workshop (DoJ, FTC, US PTO) to Explore the Intersection of Patent Policy and Competition Policy and its Implications for Promoting Innovation
Evolution in the way of thinking about the interface ip/comp
- 70's patents often considered monopolies, licensing stifled
- 80's rule of reason, licensing seen positively as long as different factors of production are combined (other issue: transaction costs, prod costs, free riding)
- 1995 Guidelines
-- no special rules for iprs
-- patents not presumption of market power (Supreme Court agrees in 1996)
-- market power not enough
-- benefits of licensing
--- combination of productive assets
-- focus on certain restraints
-- counterfactual licensing analysis
--- potential comp
--- likely to decrease comp
--- reduction of incentives to innovate
---- but: much less practice sofar with socalled dynamic efficiencies (theoretical challenge)
-- per se area

- 2007 Guidelines
- international convergence on the basis of an increasingly common economic approach

EU Commission, DGCom
- ipr/comp: no real conflict, both promoting innovation
-- open markets a very good incentive for innovation
-- competition policy as an element of a broader legal framework for innovation
--- a market that rewards present innovation without stifling future innovation

- innovation can be very risky,

-- but differences according to the markets under consideration

--- patent, less important in software business (seen often by market participants as obstacles to

- strategic use of patents increased

--pharma sector

--- strategic, possibly anticompetitive

- "probabilistic patents", Shapiro (and Lemley)

-- patents as lottery tickets

- patent reform could take care of it ?

- standards setting

-- benefits, interoperability, etc

-- but risks of abuse of market power

--- de facto, formal

- Microsoft Europe

-- withholding the interoperability info (not an ip case as such: patents covering interoperability info "found" by MS very late in the proceeding)

-- innovation incentives much discussed in court proceedings
--- issue possibly exceptional because it has to do with interoperability
-- in substance not so different from the US Microsoft decision on remedies (also compulsory licence of interoperability info)

- Rambus

-- patent ambush, standard setting: locked-in (unreasonable royalties) (for a recent comparative approach see Fischmann: Die Pflicht zur Lizenzerteilung in Patent-Ambush-Fällen nach deutschem und europäischem Kartellrecht, GRUR Int 2010, 185)
-- decision on commitments appealed by Rambus' competitors

- Draft Horizontal Guidelines deal extensively with Standardisation Agreements (in part. pp. 66-81)

- Merger analysis

-- dynamic analysis,

innovative efforts

-- to be decided on the facts on each case

- in any case, competition policy should not be less effective in difficult economic times