by Lee Gesmer | Jan 26, 2009 | Readings and Novelties
I come across passages that I’ll share from time to time. I post them because they tickle my fancy or because I find they contain some insight, perspective or humor that appeals to me. This quote seemed apropos given the economic meltdown of 2008 and the vast destruction of wealth that accompanied it.
“The poor man’s son, whom heaven in its anger has visited with ambition, admires the condition of the rich. It appears in his fancy like the life of some superior rank of beings, and, in order to arrive at it, he devotes himself forever to the pursuit of wealth and greatness. Through the whole of his life, he pursues the idea of a certain artificial and elegant repose, which he may never arrive at, for which he sacrifices a real tranquility that is at all times in his power, and which, if in the extremity of old age, he should at last attain to it, he will find to be in no respect preferable to that humble security and contentment which he had abandoned for it. Power and riches appear, then, to be what they are, enormous machines contrived to produce a few trifling conveniences to the body. They are immense fabrics, which it requires the labor of a life to raise, which threaten every moment to overwhelm the person that dwells in them, and which, while they stand, can protect him from none of the severer inclemencies of the season. They keep off the summer shower, not the winter storm, but leave him always as much and sometimes more exposed than before to anxiety, to fear and to sorrow, to diseases, to danger and to death.”
The Theory of Moral Sentiments, Adam Smith (1759).
by Lee Gesmer | Jan 22, 2009 | Courts
The Boston Globe reports that U.S. District Judge Nancy Gertner has stayed last week’s decision allowing a motion hearng in the Tenenbaum music downloading case to be “narrowcast” on the Internet, pending an appeal to the First Circuit by the RIAA. Apparently, the RIAA feels strongly enough about this issue to ask for immediate appellate review, and Judge Gertner agreed to keep cameras out of court, at least for the moment.
My take? Cameras in the courtroom should be within the discretion of the judge, who exercises control over that courtroom, and the First Circuit should deny the RIAA’s appeal. The more that the public sees what goes on in our federal courts, the better for our judicial system.
by Lee Gesmer | Jan 19, 2009 | Antitrust
You would think that in a capitalist economy the right of one business to to say to another “I don’t want to deal with you” would be close to sacrosanct. And, you would be right, with qualified exceptions in cases where the party refusing to deal has monopoly power. Even then, the Supreme Court has narrowed the “duty to deal” to fact situations so limited that antitrust liability can be avoided with careful planning.
The two leading Supreme Court cases in this area of the law are Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, 601 (1985) and Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004). Post-Trinko, the consensus of the courts is that “refusal to deal” claims are viable only where there was no voluntary prior course of dealing between the parties, where the monopolist’s conduct increased its short term profits, or where the refusal to deal is used to monopolize an adjacent market.
“Refusal to deal” cases involving Internet companies have been rare, but in a recent decision the 9th Circuit held that exclusionary conduct by MySpace.com, directed at another social networking site, Vidilife.com, did not constitute monopolization under the federal antitrust laws.
Both MySpace.com and Vidilife.com are “social networking” websites. MySpace is very well known, Vidilife site much less so.
Vidilife.com, owned by LiveUniverse, Inc., allows users to post videos on its site. Some of those users embedded their videos in their MySpace web pages (a comon practice on social networking sites). MySpace deleted the videos and references to Vidilife.com. LiveUniverse sued in federal district court in California, charging MySpace with attempted monopolization and monopolization under the federal antitrust laws.
The district court found that MySpace.com’s actions did not constitute an illegal “refusal to deal,” and the 9th Circuit upheld this ruling. At the heart of the 9th Circuit’s ruling is the fact that LiveUniverse did not (and could not) allege a prior course of dealing between the two companies or that MySpace was forsaking short-term profits, as required by Trinko. In addition, the court held that LiveUniverse had failed to adequately allege causal antitrust injury.
There is some back story to this case. LiveUniverse’s CEO, Brad Greenspan, is the the former CEO of eUniverse/Intermix–the company that sold MySpace to News Corp in 2005 for a half-billion dollars. Apparently, there is some bad blood between Greenspan and MySpace.com left over from that transaction, suggesting that MySpace.com may have been acting from personal motives. If so, it was an expensive exercise in ego gratification for both companies.
by Lee Gesmer | Jan 19, 2009 | Technology
The Intellectual Property Colloquium is a very well produced podcast with “A List” judges and academics. The one hour shows are audio (which is the definition of a podcast), and can be subscribed to in iTunes. The current topic is A Conversation with Chief Judge Paul R. Michel. Judge Michel is the Chief Judge of the Court of Appeals for the Federal Circuit.
Other topics include discussions on copyright, privacy and other IP issues.
If you’re a lawyer and you haven’t mastered accessing podcasts, podcasts like this are a message that it’s time you do so. And, it’s much better to listen to this than “Imus in the Morning” while you’re commuting.
by Lee Gesmer | Jan 19, 2009 | Antitrust
I’d been planning to post a short summary of the legal issues in the FTC’s petition to the Supreme Court in the Rambus case, but I’ve noticed that Professor Michael A. Carrier of Rutgers University School of Law has done this, and done it brilliantly in a post published on the Patently-O Blog, so I stand down and defer to him:
In December 2008, the Federal Trade Commission (FTC) filed a petition for certiorari in the Rambus case. There are two central issues in the petition. First, what is the standard of causation needed to connect deceptive conduct with the acquisition of monopoly power? And second, do higher prices in standard-setting organizations (SSOs) present competitive harm? . . . [continue reading]
