Technology and I.P.

  • November 10, 2011
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School. Her research focuses on immigration and surveillance policy. She previously served as special policy counsel on immigration-related discrimination in the Civil Rights Division of the U.S. Department of Justice.  


    When it comes to surveillance, size matters. In U.S. v. Jones, the GPS tracking case, the Supreme Court just might agree.On November 8, the Court heard arguments on whether the police violated the Fourth Amendment’s prohibition against unreasonable searches and seizures when it continued to monitor Mr. Jones’ car with a GPS device after the warrant expired. During oral argument, what seemed clear to the Justices is that cyber-surveillance today is not your grandma’s apple pie surveillance. With new technologies, the Justices seem to be wondering whether being watched 24/7 may one day be as common as, well, apple pie.

    Back in the day, surveillance meant being tailed. The government sent someone to follow you around. Today, technology has given the government the capacity to track both your body and biography 24/7. And it’s not just “persons of interest” anymore. With cyber-surveillance, it’s now cost-effective to track everyone.  But, is it ok for the government to check your email, google searches, and Facebook page? Skim your credit card records and purchases on Amazon? Monitor your cell phone records and smartphone locations? During U.S. v. Jones, the Supreme Court wondered aloud during oral argument whether the government could attach GPS devices to the license plates of everyone who owns a car in the entire U.S.

    This last scenario might not be as far-fetched as it sounds.

  • October 20, 2011
    Guest Post

    By Andrew Guthrie Ferguson, a professor at the University of the District of Columbia’s David A. Clarke School of Law


    In an effort to educate law students, the American Bar Association’s Criminal Justice Section has established “The Citizen Amicus Project” which invites current law students to contribute their own insights to a current Supreme Court case now being decided. The goal of this brand new project is to encourage law students to contribute to a national dialogue on constitutional issues that are relevant to their lives.

    The project exists as a web-based constitutional debate about ongoing Supreme Court casesSimilar to formal amicus briefs, the Citizen Amicus Project seeks input from interested parties to help resolve constitutional issues. The goal is to provide a focused opportunity for law students to contribute to a national legal question that affects law students. 

    This first iteration of the Citizen Amicus Project focuses on the Fourth Amendment. Under current Fourth Amendment doctrine many of the Supreme Court’s determinations turn on what society considers objectively “reasonable.” What is objectively reasonable, of course, is a contested issue, and law students can weigh in on this standard as well as any other subset of Americans.

    More specifically, the 2011-2012 Project focuses on the Fourth Amendment questions arising out of warrantless GPS surveillance. Almost all law students own cell phones, computers, and GPS devices that can be tracked and, thus, personally can understand the liberty interests at stake in warrantless tracking. 

    In November, the Supreme Court will hear United States v. Jones a case that raises questions of whether warrantless GPS tracking violates the Fourth Amendment. In Jones, the Supreme Court will review two specific questions:

  • October 6, 2011
    Guest Post

    Editor’s Note: This is the final post in an ACSblog debate on antitrust scrutiny of Google between Harvard Business School Professor Benjamin G. Edelman and George Mason University School of Law Professor Joshua D. Wright. This online debate follows a recent U.S. Senate hearing on whether Google’s business practices “serve consumers” or “threaten competition.” See all the posts here.


    By Joshua D. Wright, Professor of Law, George Mason University School of Law


    Professor Edelman’s opening post does little to support his case.  Instead, it reflects the same retrograde antitrust I criticized in my first post.

    Edelman’s understanding of antitrust law and economics appears firmly rooted in the 1960s approach to antitrust in which enforcement agencies, courts, and economists vigorously attacked novel business arrangements without regard to their impact on consumers.  Judge Learned Hand’s infamous passage in the Alcoa decision comes to mind as an exemplar of antitrust’s bad old days when the antitrust laws demanded that successful firms forego opportunities to satisfy consumer demand.  Hand wrote:

    we can think of no more effective exclusion than progressively to embrace each new opportunity as it opened, and to face every newcomer with new capacity already geared into a great organization, having the advantage of experience, trade connections and the elite of personnel.

    Antitrust has come a long way since then.  By way of contrast, today’s antitrust analysis of alleged exclusionary conduct begins with (ironically enough) the U.S. v. Microsoft decision.  Microsoft emphasizes the difficulty of distinguishing effective competition from exclusionary conduct; but it also firmly places “consumer welfare” as the lodestar of the modern approach to antitrust:

    Whether any particular act of a monopolist is exclusionary, rather than merely a form of vigorous competition, can be difficult to discern: the means of illicit exclusion, like the means of legitimate competition, are myriad.  The challenge for an antitrust court lies in stating a general rule for distinguishing between exclusionary acts, which reduce social welfare, and competitive acts, which increase it.  From a century of case law on monopolization under § 2, however, several principles do emerge.  First, to be condemned as exclusionary, a monopolist's act must have an "anticompetitive effect.”  That is, it must harm the competitive process and thereby harm consumers.  In contrast, harm to one or more competitors will not suffice.

    Nearly all antitrust commentators agree that the shift to consumer-welfare focused analysis has been a boon for consumers.  Unfortunately, Edelman’s analysis consists largely of complaints that would have satisfied courts and agencies in the 1960s but would not do so now that the focus has turned to consumer welfare rather than indirect complaints about market structure or the fortunes of individual rivals. 

  • October 6, 2011
    Guest Post

    Editor’s Note: This is the third post in an ACSblog debate on antitrust scrutiny of Google between Harvard Business School Professor Benjamin G. Edelman and George Mason University School of Law Professor Joshua D. Wright. This online debate follows a recent U.S. Senate hearing on whether Google’s business practices “serve consumers” or “threaten competition.”


    By Benjamin G. Edelman, Assistant Professor, Harvard Business School


    Professor Wright questions whether Google biases results towards its own services, and asks whether consumers are harmed even if Google does bias its results.  I don’t find these questions so difficult, and while Professor Wright suggests we’d struggle to identify appropriate remedies, I see some straightforward solutions.

    Let’s start with the question of whether Google biases its results towards its own services.  On a whim, I ran a search for pop superstar Justin Bieber.  Google’s top-most link promoted Google News (in oversized bold type).  Down a few inches came a “Videos” section where three thumbnails and three video titles all linked to YouTube clips.  (Less prominent links identified other services showing these same videos – links added only after critics flagged the problem of Google always directing this traffic to its own video site.)  Lower, Google presented a block of Google Images results.  In the analogous context of extra-prominent links to Google Finance, Google’s Marissa Mayer argued that the company should be permitted to put its own links first.  “It seems only fair right, we do all the work for the search page and all these other things, so we do put it first.”  Marissa doesn’t dispute that Google favors its own links – and she couldn’t, when Google’s links widely appear in prominent ways no other service enjoys.

    And what of the consequences of Google’s bias?  Professor Wright posits an “efficient bias” wherein Google usefully offers consumers its full suite of services.  Certainly it’s handy to have a single Google password providing access to personalized search, finance, videos, and more.  But this misses the serious harms of Google’s ever-broadening panoply of services.

  • October 3, 2011
    Guest Post

    Editor’s Note: This is the second post in an ACSblog debate on antitrust scrutiny of Google between Harvard Business School Professor Benjamin G. Edelman and George Mason University School of Law Professor Joshua D. Wright. This online debate follows a recent U.S. Senate hearing on whether Google’s business practices “serve consumers” or “threaten competition.”


    By Joshua D. Wright, Professor of Law, George Mason University School of Law


    The theoretical antitrust case against Google reflects a troubling disconnect between the state of our technology and the state of our antitrust economics.  Google’s is a 2011 high tech market being condemned by 1960s economics.  Of primary concern (although there are a lot of things to be concerned about, and my paper with Geoffrey Manne, “If Search Neutrality Is the Answer, What’s the Question?,” canvasses the problems in much more detail) is the treatment of so-called search bias (whereby Google’s ownership and alleged preference for its own content relative to rivals’ is claimed to be anticompetitive) and the outsized importance given to complaints by competitors and individual web pages rather than consumer welfare in condemning this bias.

    The recent political theater in the Senate’s hearings on Google displayed these problems prominently, with the first half of the hearing dedicated to Senators questioning Google’s Eric Schmidt about search bias and the second half dedicated to testimony from and about competitors and individual websites allegedly harmed by Google.  Very little, if any, attention was paid to the underlying economics of search technology, consumer preferences, and the ultimate impact of differentiation in search rankings upon consumers.

    So what is the alleged problem?  Well, in the first place, the claim is that there is bias.  Proving that bias exists -- that Google favors its own maps over MapQuest’s, for example -- would be a necessary precondition for proving that the conduct causes anticompetitive harm, but let us be clear that the existence of bias alone is not sufficient to show competitive harm, nor is it even particularly interesting, at least viewed through the lens of modern antitrust economics.

    In fact, economists have known for a very long time that favoring one’s own content -- a form of “vertical” arrangement whereby the firm produces (and favors) both a product and one of its inputs -- is generally procompetitive.  Vertically integrated firms may “bias” their own content in ways that increase output, just as other firms may do so by arrangement with others.  Economists since Nobel Laureate Ronald Coase have known -- and have been reminded by Klein, Crawford & Alchian, as well as Nobel Laureate Oliver Williamson and many others -- that firms may achieve by contract anything they could do within the boundaries of the firm.  The point is that, in the economics literature, it is well known that self-promotion in a vertical relationship can be either efficient or anticompetitive depending on the circumstances of the situation.  It is never presumptively problematic.  In fact, the empirical literature suggests that such relationships are almost always procompetitive and that restrictions imposed upon the abilities of firms to enter them generally reduce consumer welfare.  Procompetitive vertical integration is the rule; the rare exception (and the exception relevant to antitrust analysis) is the use of vertical arrangements to harm not just individual competitors, but competition, thus reducing consumer welfare.