Distribution, Competition, and Antitrust / IP Law

Reading Between the Lines vs. Twilight Movies: The Most “Creative” Market Definition I’ve Ever Read

Twilight (series)

Twilight (series) (Photo credit: Wikipedia)

I think the award for most creative market definition (at least for 2013) has to go to the plaintiff in Between the Lines Productions, LLC v. Lions Gate Entertainment Corp., Case No. 13-cv-3584 (S.D.N.Y. May 30, 2013). There, the producers of a parody film called “Twiharder” recently filed suit against Lion Gate, the makers of, among other things, the popular Twilight movie series.

“Defendants’ anticompetitive conduct sets the benchmark example for why James Madison and Thomas Jefferson were apprehensive in the months leading up to the Philadelphia Convention about granting authors even limited copyright monopolies over their works,” Between the Lines writes in its complaint.

According to the (219!) page complaint, the defendants have sought to monopolize the “conversation” in “adjacent” or downstream markets, i.e., in markets downstream of the primary market “of original intention targeted to consumers of teen fantasy romance.” One of the downstream markets is the “Z Market,” defined as the market for the creation of novel works that are repulsed by the Twilight movies. Allegedly, defendants have achieved the monopolization of these “Fair Use Zones” through a highly oppressive intellectual property enforcement policy that uses sham cease and desist notices and a compendium of prohibited trademark / service mark registrations to chill speech and exclude all competition from the “Z Market.”

The complaint actually details five (!) different relevant antitrust markets and contains a full-page chart (at page 112) detailing them all.

The plaintiff seeks $375 million in damages for alleged breaches of federal antitrust laws.

Look, this is fun and creative. It illustrates nicely what happens when Hollywood bumps into antitrust law. But all I can say about these market definitions is: good luck with that.  To the extent the plaintiff was hoping to get some publicity for its creativity, kudos.

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What To Do With a DOJ Antitrust Subpoena

My article on the ten things to do if you ever receive a DOJ antitrust subpoena is now up over at InHouse Blog.

Speaking on the Nine Potential Patent Licensing “No-Nos”

On March 13, 2013 at 1:00 p.m. Eastern Time, I’ll be speaking at a Licensing Executives Society webinar on the nine patent licensing no-nos.  You can find more information about the webinar here.

Readers of this blog will know that I recently wrote a series of posts on this topic.

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Site Update

I’ve been updating the formatting of the site (but not changing any of the content).  It’s a work in progress, but I hope that the site will look both fresher and more streamlined and load faster.  Thanks for reading and for your patience.

Top Posts of 2012

Happy new year

Happy New Year (Photo credit: Amodiovalerio Verde)

 

Here’s a quick summary of the top five blog posts from 2012.

 

1. American Express Can’t Enforce Arbitration Agreement Antitrust Class Action Waiver.  Discussing the Second Circuit case refusing to enforce an American Express arbitration agreement with a class action waiver provision.

 

2. Nine Potential Patent Licensing “No-Nos.” Discussing antitrust issues arising from patent licenses.

 

3. iPad Note-taking Apps for Lawyers Reviewed.  Reviewing several note-taking apps for the iPad.

 

4. Can My Supplier Refuse to Sell Products to Me?  Discussing antitrust issues arising from a supplier’s refusal to supply product.

 

5. You Can’t Try to Monopolize a Market In Which You Don’t Compete.  Discussing the Infostream Group case (which dismissed antitrust claims against PayPal).

 

For those interested, in this blog’s first full year of operation, I’m happy to report that it received just shy of 20,000 visits.  If you enjoy reading it, please share a link to it (or to this post); I’d like to see the traffic continue to grow.

 

Happy Holidays and best wishes for the New Year.

 

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Weekend Miscellany: Will Congress Repeal the Antitrust Laws?

I recently stumbled upon this bill (Senate Bill 2269) introduced by Senator Rand Paul a couple months ago.  It is a bill “[t]o permit voluntary economic activity.”  Who isn’t in favor of voluntary economic activity?

The bill is entitled “the Anti-Trust Freedom Act of 2012.”  But the bill probably should be named “A Bill To Repeal the Sherman, Clayton, and FTC Acts as to Individuals.”  Because here is its full text:

The Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act (15 U.S.C. 12 et seq.), and section 5 of the Federal Trade Commission Act (15 U.S.C. 45) shall not be construed to prohibit, ban, or otherwise extend to any voluntary economic coordination, cooperation, agreement, or  other association, compact, contract, or covenant entered into by or between any individual or group of individuals.

I don’t know what motivated the introduction of this bill, nor do I understand why it’s limited to individuals.  (I’d read the bill as not exempting corporations from the antitrust laws — Congress knows how to specify corporations when it wants to.  But what if corporations and individuals conspire together?  Are the corporations subject to antitrust laws, while the individuals are exempt?  Would that make any sense?  Since corporations can act only through individuals, does the bill by indirect implication exempt corporations, too?)

There are interesting and robust debates about whether there is too much, or too little, antitrust enforcement in the U.S.  But this bill goes much further than anything I’ve recently seen (and I for one think it goes much too far).  I suspect it’s not going anywhere, but in today’s difficult economic times, who knows for certain?

Miscellany: Computer Screens and Your Vision; IP and Ethics; Twitter Culture

Human eye. Español: Iris de un ojo humano. El ...

(Photo credit: Wikipedia)

A short list of miscellany for the weekend.

On the “Lawyerist” blog, Kate Battle suggests that backlit computer monitors really don’t cause eyestrain.  What does cause eyestrain is the fact that you tend to scroll text on the computer, so your eyes don’t move around much (and you often forget to blink).  This is a fundamentally different way to read than reading old-fashioned paper.

 On the IPKat blog, Neil Wilkof argues that some form of training in evaluating ethical matters may some day become a central part of IP.

Is Twitter’s influence on rhetorical style and culture good or bad?  Maybe both.  “The tweet is a literary form of Oulipian arbitrariness, and the straitjacket of the form has determined the schizophrenia of the content. A tweet is so short that you can get right to the point — but so short, also, that why should it have one? Twitter’s formal properties bend, simultaneously, in opposite directions: toward the essential but also the superfluous, the concise but also the verbose.”

New LinkedIn Group — Competition and Intellectual Property Law

I’ve just created a new group on LinkedIn: Competition and Intellectual Property Law.

The group focuses on intellectual property (IP) law and antitrust and competition law. Although there are some other great LinkedIn groups on various aspects of both IP law and competition law, this group targets the interesting intersection of issues arising from competition in markets involving patents, copyrights, trademarks, and other IP.

I hope you’ll join and contribute.

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Saturday Miscellany: The Business of Law

Maryland US business route template

Maryland US business route template (Photo credit: Wikipedia)

Interesting post at thecontractsguy.net — a roundup of other articles on the changing nature of the business of law.  “There can be no doubt that the legal profession is going through a significant sea change. More than ever before, we’re facing pressures to continuously improve the efficiency and quality of our services, and most firms — maybe all firms — must innovate in order to survive.”

 

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iPad Note-taking Apps for Lawyers Reviewed

Last time I looked at apps, I looked at PDF readers/annotators. In this post, I’ll look at note-taking apps. There really aren’t any note-taking apps for lawyers per se, so I’m going to take a look at some of the more popular note-taking apps from a lawyer’s perspective.

Can you use a note-taking app to replace your paper notes and notebook? Although I haven’t done so completely – at least not yet – I think the answer is “yes.” The advantage of doing so is that you can take all your notes with you wherever you are, because if you own an iPad you almost always have it nearby. And of course you don’t have to buy and store paper. Some apps also allow tagging so that you can index your notes.  The iPad novelty has worn off by now, so no one pays much attention any more if you use one for notes.

For all apps of the handwritten note type, I recommend using some sort of stylus. Doing so allows you to write notes as if you were, well, sort of using a pen. Otherwise, you’re stuck drawing with your finger, which is definitely not equivalent to using a real pen. Note, though, that a capacitive stylus is also not quite as good as a real pen on paper. It’s not as precise (the tip is larger than the average pen), and there is more resistance. The cosmonaut is a good choice, but there are others.

Also, for all apps of the handwritten note type, you’ll probably want one that has what I’ll call a “zoom box” feature – i.e., the ability to write in a separate section of the screen that effectively magnifies the area of the virtual paper on which you are writing. This makes it much easier to write notes given the inherent limitations of a capacitive stylus (or indeed of a finger, if that’s what you use).

When looking at a note-taking app, I think there are three things you want to consider:

  1. Ease of use
  2. Security (are my notes backed up somehow?)
  3. Ease of exportability (can I easily get my notes into other formats and applications? Can I print them out and save them as old-fashioned paper notes?)

With those primary factors in mind, here’s a quick look at five note-taking apps.

  1. Notability (on sale right now for $0.99 – 80% off). This is my favorite of the apps mentioned here. It has a clean and easy-to-use interface, and a decent filing system for notes. Its handwriting “engine” seems particularly smooth, especially when used with a stylus. It has some nice pen and highlighting tools and a choice of background papers. It lets you backup to your Dropbox account (if you have one), iDisk (soon to be discontinued by Apple), or a WebDAV service. (Automatic syncing to Dropbox is a nice, secure feature.) It also lets you e-mail notes and has a left-handed mode for lefties.
  2. Noteshelf ($5.99). My second favorite app. It has a very nice looking user interface and a nice offering of standard types of notebooks and papers from which to choose. (There is also an in-app store where you can buy additional types of “papers” and notebooks.) It also offers the ability to “tag” notes, and has a number of pens and highlighters from which to choose. Noteshelf also lets you type text (as if you were using a typewriter) and offers a number of stamps which you can use to “stamp” your documents. Noteshelf enables export of notes to various applications, including email, Dropbox, Evernote, and iTunes.
  3. Penultimate ($0.99). One of the first note-taking apps, and still a best seller. I like the somewhat minimalist interface – this app does not get in the way of taking notes. There are the usual pen and highlighter tools, as well as a “leftie” mode. The app lets you sync to Dropbox and Evernote, and you can e-mail pages or entire notebooks. Penultimate also has an in-app “Paper Shop” where you can buy additional “paper” formats. No “zoom box” feature, though, which is one reason I rated it #3.
  4. Note Taker HD ($4.99). This is a very powerful note taking app that is chock-full of features, including tags, flags, the ability to reorder and duplicate notes, and a powerful file organizing system. There are so many customizable features (zoom box size, paper type, pen “memory,” ink smoothing, etc.) that I find it a bit overwhelming, which is why I rated it #4. If you were to take the time and truly learn how it works, however, I could see that it would be a powerful application.
  5. Elements ($4.99). Finally, I throw in Elements as the last choice here. Unlike the first four apps, Elements is not a handwriting app. Instead, it is a text note or document app. It lets you type plain text via the on-screen typewriter. It is essentially a minimalist word processor that is easier and quicker to use than, say, Pages. Of course it doesn’t offer all the text formatting features Pages offers. But if you need to type out a quick letter (or indeed a quick blog post), Elements does a very nice job. It syncs with Dropbox.
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