Freedom of Speech

As an unabashed Milton Friedman conservative, I strongly agree with Judge Robert H. Bork and Professor J. Gregory Sidak that antitrust law's purpose is to protect competition and the competitive process and not to protect competitors. I also hold my fellow conservatives in highest regard. However, as a highly-experienced and esteemed judge and professor, they know they must prove their case on the merits. In Google's case, they have not.

While it would be difficult to challenge the sophistication of their legal analysis, it is not hard to discredit the sophistication of their economic analysis of the relevant market, economics, and behavior in question. Their defense indicates that they have fully-adopted Google's core economic premises and public-representations, so their skilled legal arguments can do no better than the fatally-flawed material with which Google has given them to work.

Specifically, their legal analyses rest upon a misunderstanding of the relevant market in question. Since antitrust prosecution is fact-driven, not theory dependent, no amount of legal or economic theoretical elegance can overcome a fatally-flawed factual predicate.

Pro-piracy interests have been organizing globally to head off and defeat future anti-piracy legislation (like SOPA/PIPA), IP treaties (ACTA) and property rights enforcement, all while claiming to represent "the Internet" and all its users, when they do not. They collectively represent pro-piracy special interests.

They hijack popular political buzz-words like "Internet Freedom" and "innovation," to distract people from their fringe anti-property views and to simulate broad mainstream political support.

("Astroturf" in a public policy context connotes artificial grassroots, simply proclaiming to be something one is not in order to gain broader political support.)

This analysis spotlights the political interests and strategy of global pro-piracy interests. It also answers several key questions:

• What unites pro-piracy special interests?
• Who are the top ten Internet astroturf 3.0 players?
• If this is Internet astroturf 3.0, what was 1.0 and 2.0?
• What's the main difference with Internet astroturf 3.0?
• What are the main political techniques of Internet astroturf 3.0?
• What are Internet astroturf 3.0's three grand deceptions?

Unfortunately, the FCC Chairman's remarks to a Silicon Valley audience last week -- trumpeting his new concern for "anything that depresses broadband usage" -- are creating abundant uncertainty for broadband businesses and investors.

Specifically, Gigaom reported: "When asked about the impact of data caps on broadband innovation by my colleague Janko Roettgers and how his thinking had evolved on the topic, the chairman said he was concerned about data caps. He added, “Anything that depresses broadband usage is something that we need to be really concerned about.” And he further said, “We should all be concerned with anything that is incompatible with the psychology of abundance.”

This appears to signal a stupefying 180-degree reversal of the FCC Chairman's well-established policy position on broadband usage pricing.

Apple's major $1.05b patent court victory over Google-Android partner Samsung has four under-appreciated implications for Google going forward.

1. The purported Google-Apple settlement talks are going nowhere.
2. Google-Apple patent talks compound antitrust risk.
3. Google's actions, defense strategy, and IP track record drip of guilt and legal vulnerability.
4. Google's acquisition of Motorola has backfired badly.

1.  The purported Google-Apple settlement talks are going nowhere.

Think about it. Whose interest is it to spotlight a phone conversation between Google's CEO Larry Page and Apple CEO Tim Cook and characterize the conversation as an indicator of a coming "truce" or "détente" in the thermonuclear war" between Apple and Google? Google's alone.

Please see my latest Daily Caller op-ed: "FCC's Slippery Slope to Regulating Content, Speech, and the Press" here. It urges the FCC to swiftly overturn their Administrative Judge's ruling in the wrong-headed Comcast-Tennis Channel decision.

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Obsolete Communications Law Op-ed Series:

Part 1: "Obsolete communications law stifles innovation, harms consumers"

In preparation for the EU antitrust authorities likely Statement of Objections against Google, Precursor has assembled a primer that answers the top-ten most likely and important questions many will have about the EU's action. Please see the primer here.

Top 10 EU-Google Antitrust Questions & Answers

Attorney-Client Privileged Communication

Confidential Memorandum For: Larry Page, Google CEO

From: Google's Mensa Legal & PR Brain Trust

Subject: Recommendation to settle EU/FTC antitrust complaints with a labeling remedy

You tasked us to be more innovative in solving our antitrust problem. We have succeeded. We are now one trick away from absolving Google from all of its antitrust liability.

Our plan is to deploy Google responsibility-evasion algorithm #784923, code-named "Lipstick on a rhino," which our calculations indicate has an 91.265918735% chance of success, given expected temperatures in Brussels, the wing speed of a butterfly in Sumatra, news that Google plans to rank highest, and most importantly the data we have collected and analyzed on the antitrust decision-makers' proclivities and intentions via Google's knowledge of their: search history, website-visits, scanned-emails, wiretapped-routers, hard drive files, DNA sequences, and Google X's artificial intelligence intention-discernment-algorithms.

Many of Google's brightest engineers have read and wholeheartedly support our antitrust-liability-evasion design document, but per company practice none will ever admit to having read it. In addition, a scientific poll of Google's 16,337 PR spokespeople resulted in 102% of them voting yes that they could sell our proposed responsibility-evasion plan to the public.

The Supreme Court's 8-0 decision on FCC vs. Fox, vacated the FCC's indecency penalties against Fox and ABC for "fleeting expletives and momentary nudity" because the FCC violated constitutional "due process protection against vague regulations" for failing to provide fair notice of what would be "actionably indecent."

How is this decision relevant to net neutrality?

First, "net neutrality" is like "obscenity" or "indecency", in that it's often in the eye of the beholder, and is devilishly difficult to define definitively. The tweet-length provision of law in question (Section 1464) is: "Whoever utters any obscene, indecent, or profane language by means of radio communications shall be fined…"

The term "net neutrality" -- that proponents have gone so far as to hype as "the first amendment of the Internet" -- can be found nowhere in law. The concept is wholly organic to the FCC, in that it started as a concept in a speech that called for no regulation for it, became an unenforceable FCC policy statement, was then used as the basis for an enforcement action, and then became an FCC order that has been challenged in court for being unconstitutional, arbitrary and capricious, and without statutory authority.

Please see my Forbes Op-ed "The 'ITUnet' Folly: Why the UN Will Never Control the Internet".

A recent poll from JZ Analytics on how Americans view the problem of online piracy and online counterfeit goods – the problem that anti-piracy legislation (SOPA/PIPA) attempted to address -- indicates that Americans’ views overall are different than the several million subset of Americans that signed Google’s and other’s online petitions opposing the anti-piracy legislation as “censorship” that would “break the Internet.” The poll also indicates Americans have concerns with Google’s record and stance on piracy.

The JZ Analytics online survey of 1,001 Americans was conducted December 27-28, 2011 and has a margin of error of +/-3.2%.

I. Summary of Poll Results:

A. General Questions