Antitrust official inappropriately lauds Amazon’s “disruptive business model”

DOJ antitrust head William J. Baer, speaking at a London antitrust conference:

By conspiring with Apple, which was seeking a fail-safe way to enter the market, five major publishers and Apple reached an agreement to drive the industry to an agency sales model and seize back control over and raise retail pricing of e-books. The department successfully challenged this conspiracy to quash Amazon’s disruptive business model, forcing the defendants to terminate the contractual agreements they had used to effectuate the conspiracy. Since then, Amazon’s disruptive business model has continued to stoke competition in the e-books marketplace.

That is an inappropriate way for a federal antitrust official to speak about a major market participant. Amazon did not make noise about Apple’s ebooks collusion for the good of its customers. They did it because low prices keep them on top, and because no other company is willing to bear the losses Amazon can endure, there is no end to their dominance in sight.

Apple’s attempt to raise prices in cooperation with five publishers did not end well for the Cupertino company and rightly so, but their motivations were logical. Amazon maintains low prices and therefore the illusion that they are doing customers a favor, and in the long run doing authors and publishers a favor by expanding the pool of would-be customers who can afford ebooks.

However, there is at least some truth to the concerns authors and publishers have expressed about Amazon’s dominance. The company is in a position to decide what books a large majority of book buyers can access. It’s a wise short-term strategy both business-wise and legally because it is as quiet and passive as Apple’s conspiracy was bold and aggressive. But long-term it’s likely to expose the company to regulatory inquiry at a time when Amazon is contemplating things like drone delivery, which will likely face stiffer regulation sooner than later, especially when put to retail use.

Of course based on Assistant Attorney General Baer’s comments at the Chatham House Annual Antitrust Conference, Amazon has at least one friend in a position, and a mindset, to lionize them despite questionable competition strategies.

Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders

Peter Baker of The New York Times:

In his second term, Mr. Obama embarked on an effort to use clemency and has raised his total commutations to 43, a number he may double this month. The initiative was begun last year by James M. Cole, then the deputy attorney general, who set criteria for who might qualify: generally nonviolent inmates who have served more than 10 years in prison, have behaved well while incarcerated and would not have received as lengthy a sentence under today’s revised rules.

Overincarceration is a real problem. Like any decent lawyer, I’ll cite a few reliable sources.

I don’t have an answer. Longtime readers will know I’m a cynical bastard, despite my best efforts to the contrary. It seems to me like this move is more for the “optics” and less for real effect, but I’d love to be wrong.

Primary source: White House press release

Photo by me

The Verge made a FAA drone exemption search engine

Ben Popper reports at The Verge:

We have partnered with the Center for the Study of the Drone at Bard College to collect data on every commercial exemption the FAA grants. It's a fascinating snapshot of a fast-growing industry still in its infancy. [The result] is an interactive database that allows you to drill deeper into details, exploring the companies that have been given permission to fly and what they are planning to do with their drones. You can also search by state and figure out who near you is planning to put a drone in the sky.

Photo by Capricorn4049

When a Company Is Put Up for Sale, in Many Cases, Your Personal Data Is, Too

I have written about this before, but it’s worth reminding you. These days many companies offer an official privacy policy and an easier-to-read but not so official abridged version. Sometimes the two do not agree:

One example is Nest, an Internet-connected thermostat company that enables people to control their home energy use via their mobile devices. Acquired by Google for $3.2 billion last year, Nest has different online privacy pages with seemingly conflicting statements.

One page, in colloquial English, says that the company values trust: “It’s why we work hard to protect your data. And why your info is not for sale. To anyone.”

Another page, containing Nest’s official privacy policy, however, says: “Upon the sale or transfer of the company and/or all or part of its assets, your personal information may be among the items sold or transferred.”

I know privacy policies are long and boring, but it’s worth at least scanning them to get a sense of what will happen to the information the company collects about you if they ever sell or go under. You may not like what you find.

Photograph by KylaBorg, of graffiti by Zabou

Philly diner’s SCOTUS-inspired brunch menu following same-sex marriage ruling

Oh Philadelphia, how I miss you sometimes. Danya Henninger writes at Billy Penn:

Over the weekend, Sam’s Morning Glory Diner ran a pair of specials that sold out faster than any dish in the South Philly restaurant’s 17-year history. It wasn’t the ingredients that made them a hit — although they were reportedly delicious — it was their titles, which referenced the Supreme Court’s historic June 26 ruling that the right to same-sex marriage is guaranteed by the U.S. Constitution.

I’m not going to tell you here, so go read Henninger’s article. The menu items are, appropriately, glorious. And the best part? The owner of the Morning Glory, who approved the names before they went on the menu, is a lawyer.

This week I devote the entire newsletter to the Supreme Court decision declaring bans on same-sex marriage unconstitutional. I try to provide a variety of viewpoints despite the fact that I agree with the general assertion that the Constitution does not permit bans on the marriage of two consenting unrelated adults.

I also thought it prudent to include in this week’s introduction my own in-depth legal analysis of the ruling, which I have worked on for years in anticipation of today’s decision and present now in its voluminous and intellectually unassailable entirety:

Huzzah!

Now, on with the links.

Supreme Court Gay Marriage Ruling: The Highlights

Here are highlights from Friday's 5-4 Supreme Court decision legalizing same-sex marriage across the country.

This is for the folks who don’t relish the idea of sitting down with a 100-page Supreme Court opinion and a third cup of coffee for lunch.

Religious Groups Vow to Fight Gay Marriage Despite Supreme Court

Religious and conservative leaders opposed to same-sex marriage say their fight over the issue won't end with Friday's Supreme Court ruling that effectively legalized the practice nationwide.

My grandmother taught me that when I don’t have anything nice to say, I shouldn’t say anything at all.

So [ THIS SPACE INTENTIONALLY LEFT BLANK ].

Transcript: Obama's remarks on Supreme Court ruling on same-sex marriage

This decision will end the patchwork system we currently have. It will end the uncertainty hundreds of thousands of same-sex couples face from not knowing whether they're marriage, legitimate in the eyes of one state, will remain if they decide to move or even visit another.

I always thought that very uncertainty was far worse than moral opposition to same-sex marriage. Moral opposition can be understood in terms of how someone was raised, how passively or actively they embrace confirmation bias or (more common than the other two among politicians, I suspect) the need to appeal to a particular constituency.

But the uncertainty of interstate differences in marriage law has a profound practical (and detrimental) effect on myriad decisions same-sex couples have to make all the time about issues like travel, employment and estate planning.

John Roberts's full-throated gay marriage dissent: Constitution 'had nothing to do with it'

"If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Chief Justice Roberts' dissent suggests that he may have considered things differently if he were in a legislator’s shoes but thinks it inappropriate for the Court to decide the issue. That’s a distinction worth thinking about, too. It is possible to morally support a right to same-sex marriage but also take the position that the Supreme Court is not the appropriate venue for governmental affirmation of that right.

PDF: OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.

Here’s the entire opinion in PDF form, for the folks who do relish the idea of sitting down with a 100-page Supreme Court opinion and a third cup of coffee for lunch.

Image via Human Rights Campaign

Apple Revokes Monster’s Authority to Make Licensed Accessories

Daisuke Wakabayashi writes at The Wall Street Journal:

Mr. Tognotti said he told Apple that the move would significantly disrupt Monster’s business and that the two companies had worked well for years, with Monster paying Apple more than $12 million in licensing fees since 2008. Monster said roughly 900 of its more than 4,000 products were made through the MFi program.

Lawyers are paid to be good at chess. Monster’s counsel should have seen this coming and advised executives that they should pursue their lawsuit against Apple only if the potential upside would vastly outweigh the likely downside of a licensing termination.

Photo of Monster’s HQ courtesy Wikipedia user Coolcaesar

Petraeus' preferential punishment

Mitch Weiss of the Associated Press reports:

A federal judge in Charlotte unsealed the documents Monday, two months after the retired four-star general was sentenced to two years of probation and fined $100,000 for unauthorized removal and retention of classified information.

Once again, it’s hard to see this as anything but hypocrisy from the letter-writers. After all, he didn’t merely disclose classified information, he did it in the context of moral turpitude (providing it to his then-mistress/biographer), and then he lied about it.

Speaking of context, here’s a bit more about someone who only disclosed classified information, with no moral turpitude or subsequent lying:

Supporters of Jeffrey Sterling, a former CIA officer convicted of giving a New York Times reporter classified details of an operation to derail Iran's nuclear ambitions, had noted the Petraeus case. Sterling was sentenced last month to 42 months in prison, but federal prosecutors in Virginia had been urging a stiffer sentence.

Perhaps some people will agree Petraeus, a retired four-star general, should get more latitude than mere officers and analysts would get. But he was the head of the CIA at the time of his offense, and should have been a shining example of perfect adherence to national security classification regulations. Isn’t it possible that the head of the CIA had information even more sensitive than the anti-nuclear Iran operation disclosed by Sterling?

Of course it is possible, and likely. So it’s hard to see justice in an outcome that results in zero jail time for Petraeus.

Previously: Petraeus reaches plea deal with Justice Department - joeross.me/blog

Public domain CIA-produced image found at Wikipedia

Crisis shelter workers want Google Maps to hide the locations of their shelters

Selena Larson reports at The Daily Dot:

Crisis shelters provide a safe haven for victims and their families; they are a refuge away from abusers. By publicly listing shelter locations online, Google is endangering victims of domestic abuse, says Jeremy Janice, a facilities coordinator at a Louisiana crisis center.

It’s yet another example of my white American cis-male privilege that it never even occurred to me that this is problematic. I hope Google comes up with a solution that helps keep people safe. I’m not sure how effective Change.org petitions really are, but you can sign the one relevant to this issue here.

The image is a blurred Google Maps image depicting domestic violence shelters in Pennsylvania, New Jersey and New York.

Appeals court keeps immigration policy on hold

Lyle Denniston writes at SCOTUSBlog:

Under the policy, some 4.3 million individuals who entered the country illegally and remained without permission would be given a status of “lawful presence” in this country — well short of citizenship, and with no guarantee that they could stay even for the three-year delay period specified — and would qualify for both some federal benefits, like work permits, and some state benefits, like drivers’ licenses.

I spoke with immigration attorneys recently about the avalanche of work this policy is expected to generate if it ever goes into effect. There are many people whose future depends largely on the outcome of the ongoing dispute about the legality of the program.

Image by Gulbenk at Wikipedia

Subscribe to my weekly newsletter

I don’t write here as often as I’d like to, and while I’ve tried to alter my habits to incorporate more frequent posting it just hasn’t happened, at least not yet. But a weekly newsletter may be the sweet spot as far as time management and commitment, so I’m going to try it.

I hope you’ll subscribe below and, after the sign-up confirmation, you’ll get no more than one email a week, some time on Fridays, with no more than five links and some brief quotes or commentary.

Enter your email address

powered by TinyLetter

The Amazon Noncompete Clause

Here it is, in all its overbroad glory:

During employment and for 18 months after the Separation Date, Employee will not, directly or indirectly, whether on Employee’s own behalf or on behalf of any other entity (for example, as an employee, agent, partner, or consultant), engage in or support the development, manufacture, marketing, or sale of any product or service that competes or is intended to compete with any product or service sold, offered, or otherwise provided by Amazon (or intended to be sold, offered, or otherwise provided by Amazon in the future) that Employee worked on or supported, or about which Employee obtained or received Confidential Information.

Whew. All that legalese is translatable into American English as:

You can't work in another warehosue that, you know, contains stuff people buy, with money, that is, um, anywhere, pretty much in the world.

The linked report by The Verge resulted in a much-needed revision to the policy, but it’s a powerful reminder that behind all the random stuff we order online are people who are sometimes commoditized and mistreated by their employers.

Image credit: “Amazon.com Customer Service Center (Huntington, West Virginia) 003” by Leonard J. DeFrancisci. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

Apple under federal anti-competition scrutiny, again

Micah Singleton writes for The Verge:

Sources also indicated that Apple offered to pay YouTube’s music licensing fee to Universal Music Group if the label stopped allowing its songs on YouTube. Apple is seemingly trying to clear a path before its streaming service launches, which is expected to debut at WWDC in June. If Apple convinces the labels to stop licensing freemium services from Spotify and YouTube, it could take out a significant portion of business from its two largest music competitors.

I dislike hyperbole, but the fact that Apple would even engage in behavior that is capable of misperception as anti-competitive is shocking.

Image credit: “Apple Headquarters in Cupertino” by Joe Ravi. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

This story about a U.K. court ordering Popcorn Time blocked has been knocking around in my brain for a couple of days now. When stuff knocks around in my head for days, chances are it will end up in written form, right here. So here we go.

It is not an absurd ruling, although I certainly take issue with the claim that, as the MPAA alleged, Popcorn Time “has no legitimate purpose and it only serves to infringe copyright.” There are plenty of places to find legal torrents. I know most people are using Popcorn Time for piracy though, because they ask me if it is illegal, since it “seems a lot like Netflix.”

It is definitely illegal to use Popcorn Time or any other software to download, disseminate, view or otherwise consume any movie, song or other media for which you would otherwise have to pay money.

This is the insightful bit of the article, though:

For media companies, stamping out Popcorn Time has been a virtually impossible task. The free, open-source apps, originally created by an anonymous group of developers in Argentina, are now hosted on multiple sites and allegedly have several hundred volunteer programmers working on various iterations, including mobile versions of the apps.

Here is an interactive version of the graph displayed above, showing worldwide search volume from the preceding twelve months:

//www.google.com/trends/embed.js?hl=en-US&q=netflix,+HBO,+Popcorn+Time&date=today+12-m&cmpt=q&tz&tz&content=1&cid=TIMESERIES_GRAPH_0&export=5&w=700&h=400

Netflix is doing just fine, for now. But HBO, excepting a bump in mid-April coinciding with the increased promotion of their new HBO Now service, is losing ground to Popcorn Time in worldwide search.

Here is the same type of search volume comparison, but this time zoomed in to the preceding 90 days and including only HBO and Popcorn Time:

//www.google.com/trends/embed.js?hl=en-US&q=HBO,+Popcorn+Time&date=today+3-m&cmpt=q&tz&tz&content=1&cid=TIMESERIES_GRAPH_0&export=5&w=700&h=400

HBO does not have as wide a lead as Netflix, but the time to react to stiff competition is not after that compeitition has matched or overtaken you. For Netflix and HBO, that time is right now. Netflix has massive infrastructure and an increasingly impressive library of original productions. And HBO has NBO Now, uh, now, which unbundles the premium channel from cable subscriptions. These are both good reactions to the rise of competitors, legitimate and otherwise. But those strategies are not enough.

The takeaway? Popcorn Time has become similar to Anonymous or, albeit a more controversial comparison, Al Qaeda. That is, it is not a single organization answering to a traditional leadership hierarchy. It is a splintered collection of rogue outfits, some more law-respecting than others, none “in charge.” It may represent the next step in business strategy companies like Netflix and HBO will need to take to continue their success.

The person or company that comes up with a way to legally and technically monetize torrent consumption of popular media at scale will be the next Mark Zuckerberg or Google.¹

Now, if you will excuse me I am going to go think about how to legally and technically monetize torrent consumption of popular media at scale.

“Super-cuts” from same-sex marriage arguments

SCOTUSBlog contributor Tejinder Singh posted 36 minutes of audio highlights from yesterday’s oral argument in Obergefell v. Hodges. The case is one of several on the Court’s docket this term focused on two specific constitutional questions:

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

I’ve embedded the super-cut below but if you’re really interested in getting a first-hand sense of how the Justices feel you can find audio of the full oral argument (more than two hours, split into two files) at Oyez. I’ll have more to say about the arguments after I’ve had the chance to listen to them in their entirety.

[embed]sblog.s3.amazonaws.com/wp-conten…[/embed]

Public domain photograph of the Roberts Court via Wikipedia

Re-engaging driver with questions after saying he’s free to leave is a second stop

This is worth knowing if you’re a Pennsylvania resident or you find yourself frequently driving through the state. However, do yourself a favor and don’t throw it in the face of an officer whose behavior implies he or she doesn’t know about this precedent. If you’re innocent, keeping it to yourself will expedite the stop. If you’re guilty, comply with the officer and bring up this case to your public defender or private defense attorney.

NJ lawyers need a social media policy for employees

Jennifer Marino Thibodaux of Gibbons writes:

The subject attorneys were retained to defend a town and its police sergeant in a personal injury action. One attorney directed his paralegal to conduct Internet research about the plaintiff. The paralegal accessed the public portions of the plaintiff’s Facebook page, and sent the plaintiff a “friend” request without disclosing her association with the attorneys. The plaintiff accepted the friend request, and the paralegal obtained information the attorneys could use to impeach the plaintiff’s personal injury claims.

The paralegal’s use of Facebook here, as you can tell from the headline, did not turn out well for the attorney-employer. This story is a simple, quick warning to New Jersey attorneys: implement a social media policy reflective of the Rules of Professional Conduct so your employees know (and you can show later that your employees knew or should have known) that it’s inappropriate to contact the opposing party on social media without identifying yourself and your employment.

Another blow to deceptively marketed “unlimited” data plans

Jon Brodkin at Ars Technica:

The FCC's new rules ban throttling except in cases of "reasonable network management." AT&T could argue that the throttling is necessary to keep its network running smoothly, but FCC Chairman Tom Wheeler has objected to throttling of plans that are supposed to be unlimited and forced Verizon Wireless to back down from a throttling plan last year.

I have no problem with good-faith network management, but if a plan is subject to throttling, it can’t be marketed and sold as “unlimited.” The FTC is sending the right signal here in choosing to pursue this case, and Judge Edward Chen of the US District Court in Northern California has demonstrated that he understands the issue.

The network that can provide real unlimited data at usable speeds with no fine print has an opportunity to significantly increase its user base, but I haven’t found one yet. Let me know if you have.

Employee Manuals Need Spring Cleaning Thanks to the NLRB

Jason Shinn, writing at Michigan Employment Law Advisor:

But this is where employers really need to be concerned: The distinction between what is permissible and what is not is somewhat anemic to begin with, and if your company’s policies are too broad or poorly worded, then whatever distinction existed may be obliterated.

The full report is available in PDF format. The National Labor Relations Act is a federal law, and Section 7 applies whether or not employees are unionized. That means, as Shinn advises in the article, that every company with employees of any kind should perform a revision of their HR policies and procedures.

Snapchat selfie gets teen arrested on murder charge

Gay marriage begins in Alabama

How the DMCA criminalized DIY farm equipment repair

Innocent until convinced otherwise

EFF Wins Battle Over Secret Legal Opinions on Government Spying

Federal judge strikes down gay-marriage ban in Alabama