Marvin Ammori

Today is the one year anniversary of the SOPA Blackout–the day the public got the attention of Congress and defeated the awful proposed copyright bill. It was a victory for freedom of speech and innovation.

The groups that helped organize the public to oppose SOPA have come together to declare January 18 Internet Freedom Day. The central site is InternetFreedomDay.Net. Different organizations are also engaging in a wide range of actions today, apart from the common action. Some of them are listed on that site, if you scroll down.

The holiday celebrates our freedom to use the Internet as we wish, generally without anyone’s permission. It also reminds us that maintaining that freedom requires our involvement. We have to protect it.

You can celebrate the holiday by tweeting (or blogging, or making a video) about something you love about the Internet and sharing it. For example, point out something about the Internet  you’d never want to see censored. Or, as Craig Newmark, Craigslist’s founder, has framed it slightly differently:  answer the question, “How does the Internet give you a voice?”

I wrote a short article explaining one thing I love about the Internet–that it has empowered people to debate the most basic questions about the laws governing our media. Before the Internet, mainstream media didn’t cover such debates as they affected their own industries (and our speech). Laws like copyright, among others, hardly received news coverage on TV, let alone critical coverage. Now, the general public can be informed and involved in helping to answer these fundamental questions concerning our democracy.

There’s something else I love made possible by the Internet: e-books.

As a kid, I loved books. I grew up in the suburbs of Detroit, Michigan, which was could be pretty boring in the 1980s, especially compared to being an adult in a city like San Francisco, New York City, or Washington, DC. In the 1980s, we had very little good media. The original Nintendo was awesome for a kid. But not much else in way of electronic media. It was the Couch Potato Era, and we didn’t even have good TV. I remember three networks, then four, and then the rise of cable TV. I remember MTV running ads encouraging us to call our cable operators to demand our MTV. Many of the best shows were years or decades away.

As for news, I wasn’t a big fan of the Detroit Free Press or the Detroit News, my only options really. Local TV news just showed local crimes and pets being saved (or attacking neighbors). As for music, you couldn’t listen to a record before you bought it. Other than Michael Jackson’s Thriller, most albums only had one or two good songs and a lot a filler. Life before the Internet was a vast wasteland.

There were only two places for good entertainment and information:bookstores and libraries.

There were books about everything. Books had all the interesting or different ideas in society. Other than some magazines (found in the same bookstores and libraries), nothing else had any in-depth analysis on any topic. Knowledge was in books. And books might be hard to find, especially as any one bookstore might carry only a few thousand titles.

You didn’t just order any book you wanted, used or new or digital, from an app or device. You went to bookstores and looked around. You wouldn’t even know if a book existed unless you saw it physically, read about it somewhere (often in another book), heard about it, or got a catalog. I remember snapping up books, often at used bookstores, for fear I’d never find them again. And I remember going to library book sales, buying books for a quarter, or by the bag. The magic of a book has remained, but it was different then. It was the really the only place to learn about history and to grapple with the ideas that kids grapple with as they grow up–like what should I do with my life, what’s the meaning of it all, and what makes a good person.

The publishing industry always struck me as efficient enough as a kid. But there was a lot of friction compared to today. For a customer, learning about and finding books was harder. For an author, there were agents, then editors and publishers, and then bookstores. These are bottlenecks of sorts at every step of the way. They added value, of course, but they necessarily delayed the time-to-market and would add costs, passed on as higher prices to readers.

Still, I was planning on writing a book, in paper, in stores, about the Internet, the First Amendment and public involvement. And will.

But January 18, 2013 seemed like a good day to have a short book freely available for folks who care about the Internet. When I decided to write a book for January 18, there was no way to get a book into bookstores in time–through the process of agents, publishers, and so on. Plus, an old friend who writes for the New York Times had just released an e-book and explained why, with pretty compelling reasons.

So I asked around. I read a book by Guy Kawasaki on publishing an e-book. I decided to go for it. All I had to do was get a copyeditor, proofreader, two researchers, and a cover artist–all of whom were pretty awesome. Plus, friends looked at drafts and provided ideas.

I decided I wanted to donate all the proceeds to organizations that work on these issues. I am on the Boards of Directors of both Fight for the Future and Demand Progress, and am providing all proceeds to them. And I also wanted the book to be available without charge on Internet Freedom Day, in honor of the holiday. With an e-book, both of those options were much easier to implement.

Some people have asked why I have made the book available only on Kindle. The Kindle offers a free app–for desktops, tablets, and smartphones. So the free app plus the free book still equals free everywhere. Kindle also requires 90 dys of exclusivity to make the book available in the Lending Library for Prime users. It also must be exclusive to do a promotion–to offer the book for free for one day. Finally, it was easy *for me* to have simply one platform to upload to and keep track of. I was hoping the added hassle of downloading the Kindle app, for those who didn’t have it, wouldn’t be a big deal. Seems like it’s not been a hassle so far.

Finally, I could update the book at the last minute. I’m still waiting for an edit to the book from last night to post, a discussion at the end of chapter 3 regarding the CFAA. It’s taken longer than 12 hours to post, but that’s still a far shorter turn around time than the publishing days of yore.

I don’t think e-books will dis-intermediate and destroy publishing, at all. But I think it will force the whole process to go faster and give us all–writers and readers–more options.

Oh, and I should include a link to the book, free today.

And here is the cover. For those unfamiliar with the Cat Signal, I explain it early in Chapter 1.

Do your part to support Internet Freedom Day, one year since the SOPA blackout.

Some background on Internet Freedom Day is available here  and here and here and here and here.

Sign up both through Facebook and Twitter here.

Wishing everyone a happy, fun holiday.

According to Bloomberg, Google and the Federal Trade Commission will resolve an antitrust probe today after a 20 month investigation

I have received emails and calls from press. If you are press and wish to discuss these matters, please feel free to reach me by email at contact@ammorigroup.com.

Today’s news reports outline the terms of their proposed settlement agreement. The agency focused on areas where Google can improve voluntarily (such as ad campaign portability and its use of third-party text snippets), while entering a consent decree on patent practices that stem from the company’s acquisition of Motorola Mobility.

It appears that the FTC properly listened to the concerns raised by Google’s competitors, including Microsoft and others. Those competitors flung many allegations, but emphasized particularly weak arguments about how Google displayed its search results. After analyzing the law and the facts, according to reports, the FTC concluded there was no case against Google on these search-issues.

Over the past year, my law firm and I have advised Google on the probe. Both Luke Pelican and I have written extensively about the weaknesses of arguments made against Google — from the undefined notion of search neutrality to some of the copyright and fair-use concerns related to the use of “snippets.” We also explained why the remedies proposed by Google’s competitors–including breaking Google up into multiple companies and having a government technical committee oversee its search algorithm–were conceptually flawed and would harm not only Google but also consumers and innovation. We recently wrote an overview of the patent issues.

Microsoft and FairSearch are already complaining that the FTC went easy on Google.

I reach the opposite conclusion. Competition is a contact sport. Promoting competition is our national economic policy: we encourage competition because it benefits consumers with innovation, low prices, and choice. But even contact sports have legal and illegal hits. The role of antitrust law is to make sure every competitive tackle is fair–that a competitor is hitting hard but not engaged in the equivalent of “roughing the passer” or “unnecessary roughness.” Antitrust law does this by imposing obligations on (legally defined) monopolies when they engage in “exclusionary conduct”–competition that goes beyond legality.

Google’s competitors have been complaining to the refs–not for late or dirty hits but for clean, solid hits during ongoing plays. There’s nothing illegal about hitting hard. The refs shouldn’t call a foul just because Microsoft complains. Meanwhile, the agreements reached today (on issues other than search-neutrality) may do consumers some good.

I should learn, at some point, the basics of how to program.  I did once argue that we should teach it in schools: programming is both the new liberal art and the new shop class.

I should also write another somewhat substantial piece on First Amendment doctrine. 

As noted in our last post, several news reports suggest that the FTC’s wide-ranging 19-month investigation of Google’s business practices is coming to an end.

The FTC and Google are also settling a (somewhat different) matter regarding whether Google can seek injunctions when it asserts “standard essential” patents, also known as SEPs.

This post is more for explanation than advocacy. The competitive issues regarding these patents are complex, and it remains unclear what the ultimate settlement will say.

CNET has a nice description of the reported agreement:

Google is prepared to agree not to use its patent war chest to block the sale of products it believes infringe on its intellectual property. The agreement would cover what are known as standard essential patents, which cover technology used in technical standards. (Reuters uses the example of a patent that ensures one brand of wireless phone can call another brand.)

Google has used those patents in litigation around the world as part of the ongoing patent wars among device manufacturers. But at least one federal judge has ruled that standard essential patents can’t be used to win injunctions, and a majority of FTC commissioners have ruled in recent cases that such a use of essential patents can be considered anticompetitive.

According to Reuters, the settlement would leave room for Google to request an injunction if an infringing company refused to negotiate a license.

According to news reports, Apple and Microsoft lobbied antitrust authorities in the United States and Europe to investigate Google for seeking injunctions based on SEPs.

In this (somewhat long) post, after the flip, I’ll explain what SEPs are, where they fit within the broader mobile patent wars, and the effect of the conditions that appear to be part of the FTC-Google agreement.

(If I am confused or wrong about something, I’d be happy to correct it. Just comment below. )

Continue reading →

Several news reports suggest that, after a wide-ranging 19-month investigation of Google’s business practices, the Federal Trade Commission is near to closing its investigation of Google. Early reports also suggest that the FTC found that Google’s business practices did not harm consumers or violate applicable antitrust laws. Specifically, the FTC seems to have rejected the Google competitors’ core antitrust arguments: that Google uses its search algorithm to preference its own products over that of its rivals. Politico this weekend reported that Google will be making some voluntary commitments regarding use of snippets, and AdWords-exclusivity arrangements. At the same time, the FTC and Google are also settling a (somewhat different) matter regarding whether Google can seek injunctions when it asserts “standard-essential” patents.

The coalition of competitors lobbying for an FTC investigation and seeking a federal antitrust case, called FairSearch, is already expressing disappointment. Last week, the coalition, which includes Microsoft, Foundem, and Hotwire, started asking the Department of Justice to repeat all the FTC’s work and start a new investigation of Google. Today, FairSearch issued a statement to the effect that the FTC was failing on the job unless it takes action “to permanently end Google’s biased display of search results.” It has also argued that “voluntary commitments” aren’t enforceable.

FairSearch’s words and actions reflect a little desperation. There is almost no way the DOJ would repeat the FTC’s lengthy investigation: our nation has two antitrust agencies who split rather than repeat the immense work of antitrust enforcement. It’s not a legal gauntlet, where companies must survive one antitrust agency after another, applying the same law. The FTC heard the complaints of Google’s competitors and it investigated them. Just because FairSearch failed to persuade the FTC does not mean that it should have another opportunity, with the same law and facts, at a different antitrust agency. Plus, to the extent that Google might be adopting some voluntary commitments, the FTC could enforce them under their strongest source of jurisdictional power: the FTC can act against deceptive practices. If Google even “voluntarily” commits to certain actions in the market and doesn’t abide, the FTC would have a stronger case than it would have under “unfairness” or even traditional antitrust principles. If we were talking about a different agency, I’d be more skeptical, but the FTC is not shy about going after such deception.

It is not surprising that the FTC rejected the search-bias arguments. As we, and others, have explained (see here and here), those arguments were evidently flimsy as a matter of fact and as a matter of law. For example, there is no way to define a “neutral, unbiased” search algorithm. The point of a search engine is to discriminate in favor of particular results for particular users, even if every website wishes to be listed first. A technical committee or government agency could not easily enforce search “neutrality.” Google’s competitors, like Bing, engage in the same practices. And consumers appear to benefit from many of the activities about which the competitors complain. FairSearch made its best case on search-bias, in public and private, and it was not a strong one.

I am looking forward to seeing the full details when the settlement is announced. I have written quite a bit about the antitrust investigation; I’ve focused on the issues of search “bias,” snippet-use and fair use, and transparency, each of which will be the topic of much discussion in tech and antitrust circles.

I haven’t written very much about the patent issues yet, but hope to do so soon.

Also–as readers of this blog are aware–Google is a client of my law firm on a range of issues, and  I have advised them during the FTC investigation. These thoughts are mine, and shouldn’t be attributed to anyone else, including Google.

Today, Politico ran an op-ed I wrote about the importance of ensuring fair use while enforcing competition policy. At the moment, the FTC is investigating Google for antitrust issues. The allegations against Google are many, and often changing, but I focus on one particularly problematic allegation: that Google is acting anticompetitively through quoting competitors’ content, even though Google relies on the fair use exemption in copyright law.

Of all the allegations leveled by Google’s competitors, I think this one might be the most dangerous argument for the broader Internet. It could provide copyright-like protections (a new “ancillary” copyright) that would expand the already-inflated copyright protections that can restrain users’ ability to access, find, and share information.

Here is a part of the Politico op-ed. It’s run in “Politico Pro,” meaning it’s available only to some readers (premium users). I believe in a few days, it will be removed from the paywall and available to all readers. Here is an excerpt (thanks to the fair use doctrine).

Opinion: The FTC and Google’s supposedly anti-competitive quoting

By Marvin Ammori

11/29/12 5:24 AM EST

Last month, a lawsuit over 10 words made headlines. The estate of author William Faulkner filed a copyright infringement suit against Sony Pictures because Sony’s 2011 Woody Allen film, “Midnight in Paris,” used a well-known, 10-word quote from a 1950 Faulkner novel. Coming less than a year after Wikipedia and Reddit blacked out their sites to protest controversial copyright legislation known as SOPA, Time magazine called this suit another example of copyright “getting out of control.”

Granting Faulkner’s estate these rights would harm creativity in film, but an antitrust agency in Washington may inflict even more damage to the Internet through another theory providing legal protection for short quotes.

Since June of last year, the Federal Trade Commission has been investigating Google based on allegations that the company’s actions are anticompetitive. The Financial Times reported last week that the FTC is considering one theory that could run straight into the buzzsaw of copyright law, as well as the First Amendment doctrine enabling us to quote authors. At the same time, it would likely ensure that the FTC and Google lock into years of litigation.

The agency is reportedly reviewing how Google crawls and displays short snippets of content from review websites. The crux of the theory is that Google displayed review snippets from Yelp and TripAdvisor and in Google Places, its local search tool.

Politico also ran an opposing op-ed from FairSearch, the coalition of companies, led by Microsoft, seeking the antitrust investigation against Google.

As most readers of this blog know already, my law firm and I do some work for Google, but I don’t speak for Google, only for myself.

Update – 2:55 PM

If you want to learn more about fair use, see this great explanation by Mike Masnick at Techdirt.

In his Judge, Jury & Executioner segment on yesterday’s show, Colbert discussed Supap Kirtsaeng v. Wiley & Sons, a case recently argued before the U.S. Supreme Court addressing whether the first sale doctrine applies to copyrighted goods made and purchased abroad but later imported into the United States. The segment referenced a piece in The Atlantic written by Marvin, discussing the broader implications of the case. The Court will issue its decision sometime before June 2013.

Bloomberg reports today that the FTC is reconsidering some aspects of its ongoing antitrust investigation of Google. According to the story, agency officials are not certain of the legal strength of a claim that Google preferences its own products and services over those of its competitors. In addition to the legal hurdle, the officials are trying to figure out if such preferencing actually provides “benefits to consumers” that “outweigh any harm suffered by rivals.”

If this story is accurate, it’s a good sign. Companies like Microsoft, Yelp, Nextag, Foundem, and others have aggressively made their case, flawed as I think it is, not only to the FTC, but also to Congress and in academic and legal circles. The FTC has taken their claims seriously and investigated them. But these competitors have leveled many allegations that are either factually disputed or likely to benefit consumers and could not even amount to a claim under antitrust law.

If the FTC ultimately decides not to advance some claims, it is not for lack of taking allegations seriously. Google’s competitors have had a lot of time to make their case. Having now put it forward, they have revealed just how weak it really is.

Disclosure: As we always note, Google is a client of the firm. We have been retained by the company to advise on these issues. But here I do not speak for the company, only for myself.