FreePress, which philosophically opposes competition policy, effectively is mocking antitrust law and authorities by cynically feigning to care about antitrust and competition in calling for an antitrust investigation of "TV Everywhere" efforts to enable authenticated paying video customers the additional convenience of accessing their paid-for content on any device at no extra cost. 

• FreePress is misrepresenting its latest report -- "TV Competition Nowhere" -- as antitrust analysis when it is standard FreePress villain-ization of broadband and media businesses.   

In their own words, FreePress is anti-competition, anti-property, and anti-business. 

Connecting the dots of several recent important developments, Google increasingly is acting autocratically like it has unlimited power and is answerable to no one.

• More and more it appears to operate like a centralized, sovereign, virtual-State exercising control over the world's information, info-commerce and Internet users.

Consider these several Google public actions over just the last month or so:  

Search:

I admire clarity of thought, and Richard Epstein's Op-ed in the Financial Times, "Net Neutrality at the Crossroads," represents some of the clearest thinking I have found on net neutrality. Please read it.

Mr. Epstein does a great job of exposing the folly beneath the vacuous sloganeering of net neutrality proponents.

I kid you not. Google's latest antitrust defense, from the mouth of Dana Wagner, Google's lead antitrust lawyer, is: "We want to be Santa Claus. We want to make lots of toys that people like playing with. But if you don't want to play with our toys, you've got us."

• See the quote for yourself at the very end of a Globe and Mail article entitled: "Google: we're not evil and we're not a monopoly either."
  • Google's Mr. Wagner continues: “In a West Coast company run by engineers, I don't think there was much attention paid to being in Ottawa, being in D.C. and telling your story,” Mr. Wagner says. “If you don't tell your story, other people do it for you.”

Let me attempt to unpack the irony of this new story/metaphor of which Google has taken ownership. 

Most companies when they tell their corporate "story" try to "put their best foot forward," but no one but Google would think to try and slip jolly megalomaniacal corpulence down the narrow chimney of public credibility.  

Only Google would have so little real-world self-awareness as to choose to wrap itself in the beloved mythical role of Santa Claus who has the unique power to decide who has been good or "evil" during the last year, and the unique power to reward those who have been "good" in Google's eyes with toys and punish those who have been "evil" with coal in their stocking. 

Only Google would think it was good PR to allude to Google's secret search algorithms and auction "quality scores" as a worldwide "naughty and nice" list.

My NPR Online op-ed: "Net Neutrality Regulations Compromise Freedoms" makes the case why the FCC Chairman's proposed net neutrality regulations are likely unconstitutional in multiple dimensions. 

If you like the op-ed please click on the "Recommend" check button above the title or at the end of the piece, that is in the link below, because that will keep the op-ed posted longer than otherwise.

• http://www.npr.org/templates/story/story.php?storyId=113297709

My proposed title, which was supplanted for space concerns, was: "Taking Freedom From Some Takes Freedom From All."

• Below is the text of my NPR Online op-ed.

"Net Neutrality Regulations Compromise Freedoms

September 29, 2009

DOJ's 28-page Statement of Interest to the Court responsible for deciding the fate of the Google Book Settlement speaks volumes. 

First, it ensures the current proposed settlement is effectively dead.  

• It is hard to conceive a U.S. Federal District Court Judge approving a settlement, which the United States Government indicates may be illegal under three completely different bodies of law (class action, copyright and antitrust), and also may be per se illegal in multiple different ways.

Second, despite the DOJ's encouraging tone in the press release, the DOJ statement itself set a very high bar for the parties to overcome. Substantively, the DOJ is insisting on radical changes in the settlement that practically would gut the unique and self-serving going-forward public benefits of the deal for the parties.   

• In a nutshell, the DOJ's is effectively urging the deal be radically pared back from covering:
  • ~All books -- to just books-in-print (a fraction of the seven million books Google has copied);
  • U.S. and foreign works -- to just U.S. works;  
  • Scanning and all derivative uses -- to just scanning and snippets;
  • Retrospective and prospective impacts -- to retrospective and heavily-scaled-back prospective impacts; and  
  • Just the parties who get special public benefits -- to enabling most outsiders to share equally in the settlement's public benefits. 

Third, it raises the question if there is still a basis for the parties to settle, because the DOJ recommended fixes fundamentally and substantially limit what the parties can extract from the settlement.

An unusual and notable pattern appears to be developing with Google and DOJ antitrust enforcers. 

• Twice in less than a year, the DOJ has formally investigated Google for trying to anti-competitively extend its monopoly market power via a market agreement.
  • It is unusual for the DOJ to seriously investigate a single formal market agreement/settlement for anti-competitive behavior because normally antitrust lawyers can convince a company's leadership to stay away from the anti-competitive line that possibly could prompt a DOJ investigation and/or suit.
  • What is exceptionally unusual is for a company to propose two non-merger-related market agreements in less than a years time that prompt serious antitrust investigations from the DOJ.
• Today, the DOJ Antitrust Division wrote a letter to the Federal Judge overseeing the Google Book Settlement deal "to inform the court that it has opened an antitrust investigation into the proposed agreement between Google and representatives of publishers and authors... we have determined that issues raised by the proposed settlement warrant further inquiry."

This is the second formal agreement in less than a year that Google has negotiated and drafted that has "crossed the line" prompting DOJ antitrust officials to have to formally and publicly investigate. 

Google has begun to admit and make concessions that the Book Settlement it originally negotiated with authors and publishers is anti-competitive.

To try and win the support of the biggest libraries, Google has now cut a potentially exclusive side deal giving the largest libraries the benefit of a price oversight/arbitration mechanism per the New York Times.

The DOJ investigation of the Google Book Settlement suggests that a broader antitrust spotlight may be returning to Google.

• Apparently the DOJ is investigating whether the Book Settlement sets a competitive or anti-competitive trajectory for the search of digitized books, and of "orphan works in particular.
  • Google argues the settlement is pro-competitive and increases access to books.
  • The DOJ's antitrust investigative scrutiny suggests otherwise. 
• Since little involving the Internet happens in a vacuum, this antitrust investigation may have much broader implications than most appreciate for:
  • The new Administration's overall antitrust approach;
  • The FTC's oversight of behavioral advertising, and
  • The FTC/Congress' focus on online privacy.   

To start however, it is important to get an update of important facts since antitrust is so fact-driven. Recent facts only confirm and bolster the DOJ's public assessment 11-05-08 that Google had monopoly market power in search advertising and search advertising syndication.

Cracks are appearing in the foundation of the Google Book Settlement, which suggests some of it may end up crumbling under the current harsh weather of public scrutiny.

The most recent crack to appear was the Court's quick rejection of Google's preemptory proposal to extend the opt-out notice period for authors for another sixty days, and quick approval of the request by a small coalition of rights holders for four more months until September 4th.  

• This suggests that the court was not impressed with Google's effort to date to notify potentially affected authors, a key component of good faith in the proposed settlement.

An ITIF forum on the Google Book Settlement at the Library of Congress last week exposed some other big cracks in the foundation of the settlement.