Antitrust

Copyright Infringement? Peloton Punches Back (weakly) With Antitrust

Can a trade association negotiate sales or licenses on behalf of its members? Can it tell members, “don’t negotiate individually with a specific purchaser, and if you are already in negotiations with that purchaser cut them off and let us negotiate on behalf of you and other members”? At what point does this conduct become an antitrust violation? 

These are the issues raised in a lawsuit between Peloton Interactive, Inc. on the one hand, and a group of music publishers and the National Music Publishers Association, Inc. (NMPA) on the other.

Peloton and Music Licensing. Peloton sells high-end, in-home stationary bicycles. An important feature of Peloton’s service is music-backed, instructor-led workout classes streamed to users via a built-in video screen. Some of these classes are broadcast live, and many are recorded and accessed on-demand.

Peloton doesn’t own its music, instead Peloton instructors create their playlists using popular recordings drawn from Peloton’s commercial music library.Read the full article

U.S. v. Apple: Where Were the Lawyers?

by Lee Gesmer on July 12, 2013

U.S. v. Apple: Where Were the Lawyers?

All antitrust cases are tried twice – once before the appeal, and once after the appeal. anon

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The district court decision in U.S. v. Apple presents about as clear a case of price fixing as one can imagine.  Apple participated in a conspiracy with five of the “Big Six” publishers (an incestuous group based entirely in Manhattan) to raise prices for e-books above the $9.99 price charged by Amazon.

This was not subtle stuff—it was conduct worthy of the classic 19th century price fixers that led to enactment of the Sherman Antitrust Act in 1890. Secret meetings among competitors to figure out a way to stop the hated price-cutter (Amazon), a White Knight that facilitates the conspiracy to foil the price-cutter (Apple), and an industry with its feet deeply planted in tradition (book publishing) under assault from a new technology (e-book publishing).

The only thing that makes this price-fixing conspiracy different from those in the 19th century is the massive email trail that the parties left, making the government’s courtroom proof that much easier.… Read the full article

If you want to bring an antitrust suit based on an illegal agreement among competitors (say, a boycott), you face a possible Catch-22: you can’t get the evidence you need to prove an illegal agreement until you file the suit (and conduct discovery), but you can’t file an antitrust suit unless you are able to provide sufficient evidence of the agreement in your complaint.

This is the problem the plaintiff faced in Evergreen Partnering Group v. Forrest, decided by the First Circuit on June 19th. Evergreen alleged that the defendants (a small group of companies that controlled the disposable plastics industry) refused in concert to deal with it—in other words, they boycotted Evergreen.

Massachusetts federal district court judge Richard Stearns dismissed the case on the complaint, holding that Evergreen had failed to plead a viable claim of conspiracy to boycott. In other words, the complaint didn’t contain enough “facts” to establish, directly or through inference, that the defendants had entered into an agreement to boycott.… Read the full article

Surely, Google doesn’t want to go through what so many dominant companies in the U.S. have had to suffer – government antitrust scrutiny, in the form of merger/joint venture challenges and even, God forbid, a Microsoft-like monopolization suit.  For better or worse, intensive antitrust scrutiny is the price of success in the U.S., and while it can’t be avoided altogether, perhaps it can be minimized.  Or so Google hopes.

To that end, Google has made available a webinar entitled “Google, Competition and Openness.” Consumerwatchdog.org is not buying it, and their “anonymous mark-up” of the document (giving it a grade of “F”), is embedded from Scribd.com, below.

Anonymous Analysis of Google Charm Offensive Read the full article