Innovation

Please read my latest Daily Caller Op-ed: "Developing Fundamental Consensus for the IP Transition" -- here." Importantly, it builds upon Public Knowledge's "Five Fundamentals" framework in its PSTN comments to the FCC.

• It's part 2 of the Modernization Consensus Research Series.

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Modernization Consensus Series

Google not only dominates the web, the Google Lobby also dominates Big Internet's policy agenda in Washington in part via its new proxy, the Internet Association, the self-appointed "unified voice of the Internet economy."

Since market dominance attracts antitrust scrutiny, it necessitates lobbying dominance. The FTC's antitrust investigation prompted Google to hire twelve lobbying firms in a week and to rapidly organize them and legions of law and PR firms into one of the top corporate lobbying operations influencing Washington. Tellingly, a Wall Street Journal op-ed lionized "Google's $25 Million Bargain" lobby and Politico got behind-the-scenes to explain "How Google Beat the Feds."

Please don't miss my Daily Caller Op-ed: "What if Microsoft Exited the Search Business?" -- here.

Please don't miss my new Op-ed for The Hill here, entitled "Courts, Not FTC, Should Decide On Google Practices."

Simply, why shouldn't a court of law, based on the law, due process and the facts be the entity to ultimately decide if Google is guilty or innocent of deceptive search bias, not the FTC?

There are many strong reasons for conservatives to be skeptical of proposed copyright reform and new entreaties for conservatives to actually lead a copyright reform effort.

• Jerry Brito of the Mercatus Center argues the opposite in his introduction to the new book: "Copyright Unbalanced: from Incentive to Excess." In his introduction, "Why Conservatives and Libertarians Should Be Skeptical of Congress' Copyright Regime" Mr. Brito concludes that conservatives may find they "are the best situated to lead a reform" of copyright law.

While Mr. Brito's reasoned intro shows why there is a legitimate debate to be had concerning the Constitutional definition of "limited times" to authors for "their respective writings" and provides some context to justify his position, Mr. Brito does not provide the full context necessary for conservatives to make an informed decision of whether or not they should support copyright reform let alone lead the charge for it.

Let's examine the strong reasons conservatives should be skeptical here.

The number and seriousness of irregularities, deficiencies, and unanswered questions in the FTC's antitrust investigation of Google's alleged search bias warrant oversight by the Senate and House Antitrust Subcommittees and investigative reporting by the media.

Press reports indicate that some at the FTC may be questioning if there is sufficient evidence to prove in court the search bias charges recommended by FTC prosecutors. What the media surprisingly has yet to report is that the FTC still has not yet gained access to the thousands of known and likely most-incriminating Google emails and documents that Google has withheld from antitrust investigators -- per the Texas Attorney General's petition to a Federal Court last June.

Intimations that there is no search bias case to prosecute when Google clearly has stonewalled and not fully cooperated with antitrust investigators impugns the integrity of the FTC law enforcement process. These intimations also suggest that Google thinks that its case will be not be decided on the law, merits and evidence, but on political pressure it can bring to bear on the prosecution decision or settlement process.

Background for this post:

Despite reports questioning the evidence of consumer harm in the FTC antitrust investigation of Google, it's obviously there if the FTC chooses to charge Google under its Section 5 authority which prohibits "unfair or deceptive acts or practices." The legal threshold for proving consumer harm under Section 5 versus the Sherman Act is dramatically easier for the FTC prosecution to meet. Thus press reports about Google consumer harm are implicitly more about the furious debate over which law(s) to use than it is about the provability of consumer harm.

A main argument the FTC made to win the turf battle over which antitrust agency would lead the Google antitrust investigation, the DOJ or FTC, was that the FTC had Section 5 authority, in addition to the Sherman Act anti-monopolization authority that the DOJ and FTC both share. Unlike antitrust precedent from the Sherman Act, which guides that consumer harm should outweigh any offsetting innovation or consumer benefits, Congress in Section 5 declared deceiving consumers is illegal harm of consumers.

Mr. Derek Khanna, a new Republican Study Committee (RSC) staffer, distributed a policy brief on copyright "myths" last Friday that the Committee very quickly disavowed and pulled down because it had not been vetted to ensure that it fairly represented the Republican Study Committee's views. Don't expect this policy brief to ever get the official support of RSC because Mr. Khanna has obviously and grossly mischaracterized Constitutional first principles, property rights, and free markets beyond recognition.

There are at least five fundamental flaws in Mr. Khanna's characterizations.

1. Congresses and Supreme Courts have not totally misread the Constitution for over 200 years.

Mr. Khanna's effective assertion that two centuries of Congressional and Supreme Court interpretation of the U.S. Constitution's treatment of property rights, and copyrights in particular, are really "myths" that misinterpret what he posits the Founding Fathers really meant to do in promoting "progress of science and the useful arts," puts his opinion squarely at odds with America's two centuries of experience with Constitutional rule of law.