DOJ initiated formal review of the ASCAP and BMI consent decrees Wednesday, as expected (see 1903010052), requesting comment through July 10. The review’s purpose “is to determine whether the decrees should be maintained in their current form, modified, or terminated,” Justice said. First issued in 1941, the ASCAP consent decree was last modified in 2001 and BMI in 1941. “It is important for the Division to reassess periodically whether these decrees continue to serve the American consumer and whether they should be changed to achieve greater efficiency and enhance competition in light of innovations in the industry,” Antitrust Division Chief Makan Delrahim said. DOJ included several questions in the solicitation: Do the decrees serve important competitive purposes, or are they no longer necessary? Do they effectively protect competition? What modifications would enhance competition and efficiency? Would termination serve the public interest? Would a delayed termination be more beneficial? Are “existing antitrust statutes and applicable case law sufficient to protect competition in the absence of the Consent Decrees”? ASCAP CEO Elizabeth Matthews welcomed the news: “A more flexible framework with less government regulation will allow us to compete in a free market, which we believe is the best way for our music creators to be rewarded for the value of their music.” BMI looks “forward to working with the DOJ, licensees and our other music partners to help ensure a smooth process that safeguards a vibrant future for music.” NAB appreciates the “tone” of DOJ’s inquiry regarding the ongoing importance of the framework, CEO Gordon Smith said: “Absent broader legislative reforms, their preservation is essential to a fully functional music marketplace.” The “modification, elimination or even the possible sunset of the decrees at the present time would lead to chaos for the entire marketplace,” MIC Coalition said, noting the decrees have helped mitigate anticompetitive behavior.
Karl Herchenroeder
Karl Herchenroeder, Associate Editor, is a technology policy journalist for publications including Communications Daily. Born in Rockville, Maryland, he joined the Warren Communications News staff in 2018. He began his journalism career in 2012 at the Aspen Times in Aspen, Colorado, where he covered city government. After that, he covered the nuclear industry for ExchangeMonitor in Washington. You can follow Herchenroeder on Twitter: @karlherk
Congress needs to amend patent law, which is outdated, overcomplicated and causing the U.S. to fall behind competitors in China and Europe, experts told the Senate Intellectual Property Subcommittee Tuesday.
The FTC should add at least 500 new privacy staffers so agency enforcement can keep pace with the digital economy, Intel Global Privacy Officer David Hoffman blogged Monday. Intel released its latest iteration of a federal comprehensive privacy bill, declaring a “privacy crisis.” The Consumer Protection Bureau’s Division of Privacy and Identity Protection has about 50 full-time employees. About 500 employees are within Consumer Protection overall and about 600 within Competition.
Governments around the world should promote public-private investment in research and development to spur innovative and safe application of artificial intelligence technology, the Organisation for Economic Co-operation and Development said Wednesday. OECD’s 36 members, including the U.S., and six other countries signed a set of AI principles at its annual Ministerial Council Meeting in Paris.
The Senate Commerce Committee’s privacy working group is leaving the most contentious legislative issues for latter stages of negotiation (see 1905010198), Senate Majority Whip John Thune, R-S.D., told us Tuesday. Senate Banking Committee Chairman Mike Crapo, R-Idaho, who insists committee collaboration is necessary to resolve sectoral issues, told us he isn’t ruling out moving forward with his own privacy bill.
Consumers can sue Apple for using its alleged App Store monopoly to drive up app prices (see 1811260039), the Supreme Court ruled 5-4 Monday. Justice Brett Kavanaugh sided with four liberal justices, writing an opinion allowing a class action lawsuit to proceed in Apple v. Robert Pepper, docket 17-204. Protecting consumers from monopoly prices is “the central concern of antitrust,” under the Sherman Act, Kavanaugh wrote. “The consumers here purchased apps directly from Apple, and they allege that Apple used its monopoly power over the retail apps market to charge higher-than-competitive prices.” Apple, with the backing of the Trump administration and various industry groups, argued that pass-through harm can lead to duplicative damages in conflict with Illinois Brick Co. v. Illinois. Apple suggested only app developers should have the right to sue. Illinois Brick “does not bar the consumers from suing Apple for Apple’s allegedly monopolistic conduct,” Kavanaugh wrote. Consumers bought apps from third-party app developers at prices set by developers, Justice Neil Gorsuch dissented. The issue is that the 30 percent commission Apple charges developers falls initially on the developers, Gorsuch wrote. “So if the commission is in fact a monopolistic overcharge, the developers are the parties who are directly injured by it.” This is the pass-on theory Illinois rejected, he continued. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined the dissent. Monday’s decision “puts multi-sided business models at risk of expensive, duplicate claims,” Computer & Communications Industry Association CEO Ed Black said.
House Intellectual Property Subcommittee Chairman Hank Johnson, D-Ga., is crafting legislation designed to combat frivolous trademark applications, a growing issue with Chinese companies. “We’re exploring specific ideas now, and we’ll be drafting the legislation at some point in the near future,” Johnson told us after a subcommittee hearing Thursday. It featured Patent and Trademark Office Director Andrei Iancu.
The voluntary approach to privacy, including IoT devices, has failed, and it’s time for government intervention to address this “crisis,” Sen. Richard Blumenthal, D-Conn., said Tuesday, citing progress on legislation. During a Senate Security Subcommittee hearing, industry officials urged legislators to pass comprehensive privacy legislation. A National Institute of Standards and Technology official noted his agency is developing a federal baseline for core cyber capabilities of IoT devices.
The Office of the U.S. Trade Representative included China for the 15th straight year on its priority watch list for intellectual property violations. USTR also elevated Saudi Arabia from the second-tier watch list and downgraded Canada and Colombia from priority to watch, in the annual special 301 report Thursday (see 1902080063).
Senate Commerce Committee lawmakers are eyeing the first week of May for a privacy hearing, lobbyists told us. This would be the third privacy-related hearing for members (see 1902270048 and 1903260068). One lobbyist said to expect the potential hearing to feature consumer groups, as the first two hearings were mostly industry-driven. The committee didn’t comment Friday.