Here is the short version:

[B]e brief, be clear, be simple, be vivid, be commonsensical, avoid legalisms, and do not be afraid to spoon-feed us—we will not bite your hand.

The longer version is here.

Google just moved to offering NASDAQ and Dow Jones Indices quotes in real time for free, thus effectively ending the subscription model for this category of content. Real time information is, of course, a great way of making a website sticky and thus of aggregating incremental eyeballs on Google Finance, access to which, in turn, can be sold to advertisers via AdWords. As long as the value to advertisers is greater than the cost of subsidizing the user-side of the platform, more and more stuff will be “free.” The gradual move to free on the user’s side may also help solve the mystery of how much users do in fact value privacy. Many websites offer ad free access for a fee, e.g., the DailyKos. Others offer otherwise free services for a fee, e.g., Pobox for email. Given the minimal intrusiveness of text ads and the availability of tools to block ads altogether, customers who (i) have the wherewithal to use ad blocking software and (ii) pay for ad-free sites might be revealing something about the value they place on privacy. For a primer on the economics of the online ad industry, check out David Evans latest article.

Not directly (or at all) antitrust related, but this tool was written with me in mind. Now if one could pipe the output into grep, that would be cool. (HT: /.)

In his latest article on the subject, Herbert Hovenkamp expands his argument about the role of antitrust in the context of technology markets. Innovation requires:

1. a public domain of ideas and expressions; and
2. some protection for new ideas.

The former is a necessary condition for innovation, the latter is not. Note that the second requirement, as Hovenkamp frames it, is not “some incentive to produce new ideas.” That would be a necessary condition. But since the IP laws have chosen the way of propertization for creating the necessary incentives, Hovenkamp’s focus is appropriate.

The problem that this raises of course is that the size of the public domain and the scope of IP protection are inversely related. Every grant of an IP right reduces the size of the public domain, and the broader the IP right the greater the reduction. An optimal IP policy tries to find the spot that maximizes the net gains from the incremental social value of increased exclusivity less the loss of social value from the reduced public domain as well as the administrative and litigation costs of running the IP system. By contrast, the giving of IP rights which do nothing to enlarge the ex ante incentive to innovate reduces the size of the public domain without giving anything in return.

In Hovenkamps view, which I share, the IP laws have gone too far in terms of protecting “new” ideas at the expense of the commons.

I believe that antitrust should not be too defensive about asserting a broader role in IP/competition disputes. This is so for two reasons. First, the extent of special interest capture is significantly greater in IP law than in antitrust, although today patent is experiencing some important reforms. Second, antitrust has profited greatly from its period in the wilderness, something that the IP laws have yet to experience.

Specifically, Hovenkamp proposes greater antitrust scrutiny for:

• IP settlements with reverse payments;
• Acquisition of patents by firms with pre-existing market power; and
• Certain tying arrangements that do, in fact, foreclose in the tied product market (under a rule of reason).

Did I mention before that I love most everything Dutch? This 10 minute short film from the Netherlands Competition Authority (NMa) is no exception. It’s a morality tale of price fixing, self doubt, concern for the families of the co-conspirators, and ultimately the triumph of justice and the cathartic effect of a confession. Trust me, this little gem has it all. And, most importantly, it’s got style. Instead of smoke filled rooms, a grand villa. No crummy Marriott hotel rooms with wobbly white boards and never-changing desk lamps. Instead, great office space with 20″ ceilings, well dressed professionals, and highly civilized arrests. If you only watch one cartel enforcement video today, make it “Clementie in kartelzaken.” Oh, of course the film is in Dutch and I may have completely missed the plot, so proceed with caution. All I can really vouch for is that the video is completely safe for the workplace. (HT to Daniel Sokol.)

One of the gnomes finally came up with #2.

1. Create long lines at “security” checkpoints
2. Sell CLEAR passes for $128/year to let people cut in line
3. Profit!

Mike Luckovich has an even better proposal.

You can’t be serious, fellas. First, you’re nine days late to the “story.” Second, how do you even answer this question in the affirmative? “Yes! Any transfer of corporate assets will be enjoined if antitrust enforcement were to return to pre-2000 levels.” Right. I suppose that’s why Obama is the GC’s choice.

This is a completely unsolicited plug for Jeff Adachi’s excellent Bar Breaker and Bar Exam Survival Kit series of books. The two Bar Breaker volumes contain about 80 sample essays with answers and grading keys, and the Survival Kit booklet has condensed outlines of “bar exam law.” Supplement that with BarBri’s Conviser Mini Review, and you’re good to go. I’d recommend the Adachi/Conviser combo over BarBri anytime, in particular for attorney applicants, who only have to take the essay portion of the California Bar Exam and can’t reasonably spend 8 hours/day for six weeks preparing.

Here are the slides from a recent presentation on antitrust issues in mergers and acquisition in Scottsdale, AZ.

Following up on this earlier post, here is a more detailed analysis of the Rambus case that I co-authored.

Here is the complete set of slides from my Fall 2007 course on Antitrust and Innovation at the Benjamin N. Cardozo School of Law. I posted the slides as the course progressed, but these ones contain some updates and bugfixes. As always, the slides are licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License, so feel free to use whatever you like.

Note that using these and other materials at conferences or for presentations is non-commercial use in my book, even though the conferences may be for profit and the presentations may be paid for (e.g., a PowerPoint for a client). What I have in mind with “commercial use” is, for example, printing and selling the slides. I don’t know if this interpretation is consistent with the current thinking at the Creative Commons, but I find that a broad reading of “non-commercial” would negate the benefits of the CC license — at least for me.

Deception in the standard setting process is anticompetitive if the deception leads to increased market power. In other words, the conceptual sequence of events is as follows:

1. Deception:
2. Reliance by the SSO on the deception in the standards-adoption decision
3. Market power gain through inclusion in the standard.

Critically, the post-adoption market power is greater than the pre-adoption market power. The D.C. Circuit, relying on NYNEX v. Discon, invokes a different narrative. Namely:

1. Market power
2. Deception
3. Higher prices as a result of the deception

Here, post-deception market power is no greater than pre-deception market power. As a result, the deception may be actionable as a tort, breach of contract, etc., but it lacks the distinctive feature of exclusionary conduct under the antitrust laws, namely increased market power.

The question is whether the Rambus facts better fit the FTC’s “first deception, then market power” or the D.C. Circuit’s “first market power, then deception” narrative. Strictly speaking, the D.C. Circuit’s opinion requires that the deception netted Rambus no additional market power from deceiving the SSO at all. All of the market power that could be gained came from the patent grant itself. The FTC’s position is softer in comparison. It does not require that the patent grand conferred no market power onto Rambus. All it requires is that some incremental market power was gained from the adoption of the standard.

It will be interesting to see how the FTC responds to this challenge, in particular because the D.C. Circuit did not only rely on the somewhat technical point in NYNEX, but also questioned the FTC’s findings of fact. One statement in dicta seems particularly apropos: “[T]he more vague and muddled a particular expectation of disclosure, the more difficult it should be for the Commission to ascribe competitive harm to its breach.”

Here is a chart that summarizes Microsoft’s conduct and its evaluation by the D.C. Cir. in the Microsoft III case. A similar chart is included in my 2007 Antitrust and Innovation lecture slides, but this one corrects an error: The commingling of OS and IE code was found to be exclusionary. Thanks to Evan Hill-Ries from NYU School of Law for pointing this out.

Bloomberg reports that China

will become a full member of the International Competition Network within a year, said Philip Collins, head of the Office of Fair Trading, in an April 10 interview in London. The move comes as China is taking steps to bring its competition laws in line with other nations, he said.

Following up on a previous post, here’s a brief article on China that I co-authored. The current edition of the Antitrust Magazine also has very useful, in depth discussions of China’s Anti-Monopoly Law by Lester Ross, Fei Deng, and Gregory Leonard. Amazingly, the ABA still does not offer a useful online version. If anyone could explain to me the logic of restricting access to these articles, please educate me. For authors, the restrictive ABA publication polices are a bad deal.