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Rambus Wins Appeal of FTC Anti-Trust Ruling
I Don't Believe in Imaginary Property writes "Rambus has won its appeal in the DC Circuit Court of Appeals. The decision said that it wasn't sufficient to prove that Rambus lied or harmed competitors; the FTC had to prove that it harmed consumers in order to fall under anti-trust law. This is, unfortunately, a very dangerous ruling in light of some of Microsoft's activities relating to OOXML because it raises the bar on the proof required to act against such behavior. However, the ruling in the Rambus case was merely vacated and remanded for further proceedings, not overturned. So, if the evidence warrants, the lower court might be able to decide that consumers were actually harmed by Rambus' conduct and rule against them. Alternatively, this ruling could be appealed to the Supreme Court by filing a petition for a writ of certiorari, but the Supreme Court only grants a few of those per year."
Check out the blog at Consortium Info on this
As long as the burden of proof to show harm to consumers isn't too high, this should be relatively simple. Explain to a judge how the PC market grew and evolved into one where all parts are interchangeable and show the benefit that's had to the consumer. Then show how the actions that rambus took fragmented the market artificially, resulted in artificially high prices from rambus and set back the ram industry overall.
The ooxml case is a little harder, especially since it's so early in the game that you can't see all the blowback yet, but considering the fact that even MS Office isn't compliant with the standard, it should be fairly simple to show that it's hurt the standards industry as a whole.
The biggest downside is that this ruling encourages lying and backstabbing between competitors trying to work together to build good standards.
And apparently the intellectual work of others, if RAMBUS ultimately is victorious.
The world's burning. Moped Jesus spotted on I50. Details at 11.
----Judge Williams wrote that there wasn't sufficient evidence to claim that the standards organization would have gone with different technology. He also wrote that "deceit merely enabling a monopolist to charge higher prices than it otherwise could have charged ... would not in itself constitute monopolization."
Huh?
He who knows best knows how little he knows. - Thomas Jefferson
Hurting competition in and of itself hurts consumers. I thought that was the whole idea behind antitrust laws in the first place.
I couldn't have said it better. The other thing that gets me is that the supremes seem to be saying that it's ok to lie. http://www.law.com/jsp/article.jsp?id=1208861020922
What happened to the idea that, if you indulged in dishonest and otherwise scumbag practices, you had 'unclean hands' and deserved to lose on that basis. http://en.wikipedia.org/wiki/Unclean_hands
> As long as the burden of proof to show harm to consumers isn't too high, this should be relatively simple.
:) I'm only sure about the Supreme Court being able to overturn this ruling (if they deign to), and the lower court being able to hold Rambus accountable for other reasons.
Well, that's the rub, isn't it? Proving things like "harm to consumers" is VERY expensive and requires expert witnesses and studies to counter your opposition because it's so vague. Proving someone lied is a lot simpler and less expensive. Not to mention less of a matter of opinion.
As long as they can get away with lying to standards bodies to create or further a monopoly, though, I really don't like it. Suddenly, it changes the economic equation so that people can't challenge them unless it's too expensive not to. In other words, Microsoft may be able to use this as nearly a carte blanche to subvert standards bodies in its war on open standards.
Oh, I should also add an addendum to this story: it seems that this was decided by a three judge panel, so there's one more possibility for appeal, according to some Groklaw comments. They may be able to appeal and have all the judges decide. But this appeal might not be granted, either, so who knows? If any actual lawyer responds and tells us about the appeals route, listen to them, not me
- I Don't Believe in Imaginary Property
if the technology was so widely recognized/easily adopted that it became industry standard during or just after the prosecution of the patents, isn't this a great argument that the patents themselves are invalid for obviousness?
I'm not 100% up on my late-1990s corporate dramas anymore, and maybe it's just a flippant or spurious kind of analogy to ponder, so set me straight where I've got this wrong:
Putting a file in a particular directory, so that other users might possibly request initiation of a download, is a criminal activity that can incur penalties of ~10000000% the cost of obtaining the original file legally. It doesn't matter if the file is actually downloaded. That's the "making available" charge.
But somehow, brazenly sharing ideas in memory technologies with all your competitors in the standards group, while maintaining a submarine patent, and then launching legal attacks on all those who built on the shared ideas, this is somehow okay because they hadn't proved that such a move had moved beyond the standards group and affected the marketplace? That's the "no harm to consumers" defense?
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Perhaps I'm missing something, but what does an FTC ruling have to do with a different ruling from ISO? They are two entirely different organizations entirely.
There is proof that it has damaged ISO operations (their voting system has been crippled due to OOXML supporters not voting on other issues) and there is proof that it has damaged ISO credibility (several countries are appealing their own votes, others have blogged on extreme irregularities). At the moment, ISO is a major customer of OOXML, but ISO's operations and credibility are what sell ISO standards. Thus, OOXML has harmed ISO's modus operandi and thus harmed ISO.
Is this enough? IANAL, so I don't know what the legal definition of harm is, in a case like this, but damaging the primary mode of operation through which ISO is funded would seem to be harm by any reasonable standard, even if no monetary (income) harm has (yet) taken place. The harm is in the form of the expense to ISO's reputation and good standing, the expense of any necessary reorganization and reconstruction of its entire mode of operation, and the probable loss of future earnings as a direct result of the first two.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
This is the same court that let Microsoft off the hook on appeal (so Bush could then let them off the hook entirely.) In fact, that same ruling was quoted as a reason to let Rambus off the hook.
Oh, a lesson in history from Mr. I'm my own grandpa.
If they were found guilty of perjury and of illegally harming its competitors, shouldn't they be punished for that?
It is an argument that the patented solution was practical and cheap.
Wikipedia has more details on that at http://en.wikipedia.org/wiki/Certiorari
The great majority of cases brought to the Supreme Court are denied certiorari (approximately 7,500 petitions are presented each year; between 80 and 150 are granted), because the Supreme Court is generally careful to choose only cases in which it has jurisdiction and which it considers sufficiently important to merit the use of its limited resources
I generally consider "a few" to be a much lower number than 80, but I suppose it's perspective.
I work for the Department of Redundancy Department.
...all he needed was a army knife, a bow and explosive arrows.
alias possession='chmod 666 satan && ls
"This is, unfortunately, a very dangerous ruling in light of some of Microsoft's activities relating to OOXML because it raises the bar on the proof required to act against such behavior."
It'd be so much EASIER if we could just change the law so we can prosecute the people we don't like. How hipocritical ARE YOU!?
"This is, unfortunately, a very dangerous ruling in light of some of Microsoft's activities relating to OOXML because it raises the bar on the proof required to act against such behavior."
What? Antitrust law pertains to actions by firms that harms, or is likely to harm, consumers. In the US, that is the alpha and omega. Whether it is collusion, actions by a firm with market power, or a merger which would lead to an overly consolidated market/small nontransitory increase in price. Now, the government can argue that the actions taken are likely to harm consumers, but to say that the court's focus on consumers rather than foul play against competitors is somehow novel or distressing betrays a complete lack of understanding of the operation and purpose of antitrust law.
Requiring a showing of harm to consumers is a lousy way to reign in anti-competitive practices.
IIRC this emphasis on consumer harm started during the Reagan administration; they were no enemies of large corporate interests (and yes, I realize most democrats are similar in this regard).
Why shouldn't the law consider the harm done to competitors? After all, shouldn't my freedoms extend to the ability to compete fairly in a free market?
And why in the hell are consumer coupons for a discount on some stupid product considered just compensation when the real harm was from illegal business practices that shut others out from making money in the first place?
he gets it.
"So, if the evidence warrants, the lower court might be able to decide that consumers were actually harmed by Rambus' conduct and rule against them."
Maybe someone should actually read the decision where the appeals court slams the FTC about their use of evidence. To quote from the decision:
"We also address whether there is substantial evidence that Rambus engaged in deceptive conduct at all, and express our serious concerns about the sufficiency of the evidence on two particular points"
"Because of the chance of further proceedings on remand, we express briefly our serious concerns about strength of the evidence relied on to support some of the Commission's crucial findings regarding the scope of JEDEC's patent disclosure policies and Rambus's alleged violation of those policies."
"We don't see how a few strands of trial testimony would persuade the Commission to read this language more broadly."
"Once again, the Commission has taken an aggressive interpretation of rather weak evidence."
I have a fleet of about 40 desktops at work that can not be upgraded above 512MB of ram due to a back-room deal between Rambus and Intel. In order to move people to Rambus memory, Intel agreed to artificially limit SDRAM based systems to 512MB while allowing Rambus systems to support higher memory totals. When I upgraded these machines to Win XP, I was unable to upgrade the ram to 1GB as I wanted to. That hurt productivity.
At the time, I had the option of going with Rambus based systems (more money) or AMD based systems (company policy and stability issues). If I had gone with Rambus systems to start with, the memory upgrades for XP would have cost more. Instead, I bought the less expensive, lower performance systems, further hurting our productivity. I definitely believe that Rambus harmed me.