by Lee Gesmer | Nov 26, 2008 | Antitrust
The FTC’s decision to seek Supreme Court review in this case was widely expected, but nevertheless, it’s interesting to see that the FTC in fact did what many antitrust practitioners hoped it would do. For background on this matter, see this posting from May of this year, which discusses the background of this case in some detail. Additional posts discussing various aspects of Rambus are here, here, here and here. The D.C. Circuit decision that is the subject of the appeal is here.
Not surprisingly, the FTC’s petition for certiorari argues that standard-setting is a ubiquitous and important economic activity, and that the D.C. Circuit’s decision leaves aspects of that process in legal limbo, due to a conflict with another circuit and a misreading of Supreme Court precedent. The FTC also suggests that this case is an opportunity for the Supreme Court to address the thorny issues of causation and competitive harm under Section 2 of the Sherman Act.
The “Questions Presented” section of a cert petition is always important, since it is intended to summarize, in very few words, the key issue that the petitioner thinks will interest the Court in accepting the appeal. To be effective, the Questions Presented must be both concise and persuasive. The Questions Presented in the FTC petition are as follows:
1. Whether deceptive conduct that significantly contributes to a defendant’s acquisition of monopoly power violates Section 2 of the Sherman Act.
2. Whether deceptive conduct that distorts the competitive process in a market, with the effect of avoiding the imposition of pricing constraints that would otherwise exist because of that process, is anti-competitive under Section 2 of the Sherman Act.
This will be a very closely watched and hard fought petition, with many amicus briefs on either side of the issue. Acceptance rates by the Court are always in the single digits, but this case presents important issues of national economic policy, and therefore it’s reasonable to think that the odds in favor of Supreme Court review are much higher than average.
by Lee Gesmer | Nov 21, 2008 | Music
Ian Rogers delivered the keynote speech at the GRAMMY Northwest Music Tech Summit in early November.
As you spend the next two days discussing the future of the music business, I’d like to challenge you to consider a different perspective, IMHO the only perspectives that matter, that of the artist and the fan. I see news about the health of the music industry as defined by the stock price of WMG or quarterly earnings of UMG, Sony, and EMI every day. What I don’t see, apart from a few articles on Radiohead and Nine Inch Nails, is an update on how the world is changing from the artist point of view. But I tell you, when I talk to managers and artists they feel it, they feel an ability to take their careers into their own hands, to redefine what success means for them, and that is the emergence of the new music business. Continue reading ….
by Lee Gesmer | Nov 21, 2008 | Technology
The New Economy – it takes full advantage of the Digital Revolution. It’s open to innovation, not just in IT but in robotics, clean energy, biotechnology, and nanotechnology. It supports a low-cost, low-carbon energy system. It takes advantage of opportunities offered by globalization. It accommodates regional growth in a balanced manner.
And yes, as was true in 1999, 2002 and 2007, in 2008, once again, Massachusetts ranks first, by a significant margin. The full report — The 2008 State New Economy Index, from the non-profit The Information Technology and Innovation Foundation — leaves no question about this. The states at the top of this index are “leading the United States’ transformation into a global, entrepreneurial and knowledge- and innovation-based New Economy.” And yes, let me repeat lest your attention has wandered, we are first, first, first. (n.b.: Washington is second, and Mississippi last).
by Lee Gesmer | Nov 16, 2008 | Technology
Quoting from Cringley’s most recent column –
The U.S. CTO – at least this FIRST U.S. CTO – will be the buyer-of-cool-stuff-in-chief for the entire nation.
I would make a better buyer-in-chief than almost anyone else because of two important
characteristics in my warped personality: 1) I would be immune to special interest groups so this wouldn’t turn into another National Information Infrastructure boondoggle, and; 2) yet as a true enthusiast I would buy with such reckless abandon that I’d easily fulfill the economic stimulus needs while spewing money widely enough to guarantee at least a few good technical investments for the nation. . . .
We need someone with just enough savvy to know good technology, enough independence to make the right decisions, and crazy enough to do it all 24/7 right out in public so that vaunted “transparency” we keep talking about yet never see can be proved to be more than just a modern myth.
I’m the man for that job.
AND I can use the work.
That’s because December 15th will mark my last column for PBS,
After 11 years and more than 600 columns I’ll be moving-on, perhaps into that big CTO job in Washington, but then maybe not. This is my decision, not that of PBS, which has been nothing but good to me these many years. . . .
Full column here. More on Cringley here.
by Lee Gesmer | Nov 15, 2008 | Miscellaneous
Linux.com, one of the leading open source software web sites, recently interviewed my partner, Andy Updegrove, and wrote a very complementary article (part of its Portrait Series). The article focuses on Andy’s involvement with open source software, and also touches on many highlights in Andy’s career, including the role he played in the creation of the MIT License in the early ’90’s (one of the first, and most popular open source software licenses). Andy had drafted that license for our client, the X Consortium, and it was only years later that he realized that the license had been adopted by many open source projects, eventually becoming known as the MIT License. The interview also includes his views on open source and open standards (where he has played a significant role), his work as counsel to the Linux Foundation, and several other highlights of his career.
A link to the article is here.
