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Big Tech Court Clog Scenario (Con)

Big Tech Court Clog Scenario (Con)

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Break-up requires a lot of litigation (Note: Also a DOJ trade-off link)

Jon Swartz, 6-11, 19, https://www.marketwatch.com/story/breaking-up-big-tech-is-a-big-task-2019-06-10, Four reasons why antitrust actions will likely fail to break up Big Tech

The likelihood of a Microsoft- or AT&T-like Sherman Act proceeding is highly remote,” Andrew Jay Schwartzman, an attorney with Georgetown’s Institute for Public Representation told MarketWatch in a phone interview, alluding to the Sherman Anti-Trust Act (1890), the first federal law that outlawed monopolistic business practices. Any endeavor to slice off pieces of the four tech titans or impose restrictions on how they do business is a Sisyphean task in terms of legal maneuvering, resources, and especially time, according to antitrust experts, former regulators and legal scholars. “Antitrust is a slow, messy remedy,” warns Adam Thierer, a senior research fellow at George Mason University’s Mercatus Center. “It can be a sledgehammer approach when what this situation requires is a scalpel.” How the heck would any of this apply to Facebook, Amazon, or Apple? How do you cleave off their units and divest them?” Thierer says.

Companies will react with a litigation tsunami to try to block antitrust enforcement

Jon Swartz, 6-11, 19, https://www.marketwatch.com/story/breaking-up-big-tech-is-a-big-task-2019-06-10, Four reasons why antitrust actions will likely fail to break up Big Tech

The sheer size and resources of the four companies under scrutiny — collectively, they employ over 900,000 people and rang up nearly $700 billion in sales last year — afford them the luxury of hiring an army of attorneys that dwarf the federal government, setting up a confrontation that could wend its way through court for years, according to Schwartzman. Which leads to the inevitable question: What is likely to happen, if anything? Efforts by Rep. Ro Khanna (D., Calif.), whose district covers Silicon Valley, and other Congressional members to regulate tech could prove to be the most likely outcome over the next few years. “What’s needed is a measured approach through legislation, not a bludgeoning of four companies that are so vital to the U.S. economy and its workforce,” Khanna told MarketWatch in a phone interview. “There needs to be give and take between Silicon Valley and the Beltway, not confrontation.” More: Silicon Valley congressman says, ‘It is embarrassing how technologically illiterate most members of Congress are’ For now, Facebook has faced the most scorn, although Alphabet has been fined billions of dollars in the past year by the European Union.

It will turn into a quagmire

Jon Swartz, 6-11, 19, https://www.marketwatch.com/story/breaking-up-big-tech-is-a-big-task-2019-06-10, Four reasons why antitrust actions will likely fail to break up Big Tech

The Justice Department’s antitrust lawsuit against AT&T, and its unsuccessful bid to break up Microsoft, took years to unfold and bled from one presidential administration to another. Indeed, whoever wins the White House in 2020 may be out of office before a potential case against one of the targeted four companies is decided or settled. A two-year FTC probe of Google for violating antitrust and anti-competition statutes in how it arranges its Web search results resulted in no action in 2013. Before that, uneventful government investigations of IBM Corp. IBM, +0.72%   and Microsoft took 13 and 11 years, respectively. The former was “referred to as the DoJ’s antitrust Vietnam, it was such a quagmire,” Thierer says What complicated those investigations, and is likely to undercut any new probe, is the speed with which the tech market moves. The IBM probe was focused on its dominance in mainframe computers even as the market quickly moved on to personal computers. Indeed, tech market leaders rise and fall, as in the cases of Myspace, Motorola, Nokia, and BlackBerry Ltd. BB, +3.66% .

Increasing the federal circuit court’s workload would hinder current courts ability to guarantee IP (intellectual property) protection

Kirk 06 – Michael K. Kirk, Executive Director of the American Intellectual Property Law Association, Chairman, Senate Judiciary Committee; United States Senate http://www.aipla.org/Advocacy%20Shared%20Documents/TES_2006-03-24_109C_ImmigrationBill-Specter-Kirk.pdf pg.1-2 KKC

We believe that such broadening of the Federal Circuit’s jurisdiction would seriously hinder the court’s ability to render high quality, timely decisions on patent appeals from district courts, and patent and trademark appeals from the U.S. Patent and Trademark Office. This runs directly counter to the present efforts of Congress to otherwise reform and improve this nation’s patent system. We take no position on other specific elements of the legislation or on the underlying need for immigration reform. Our concern focuses solely on the proposed shift in appellate jurisdiction, which we believe will do more harm than good. AIPLA is a national bar association whose approximately 16,000 members are primarily lawyers in private and corporate practice, in government service, and in the academic community. AIPLA represents a wide and diverse spectrum of individuals, companies, and institutions involved directly or indirectly in the practice of patent, trademark, copyright, and unfair competition law, as well as other fields of law affecting intellectual property. Our members represent both owners and users of intellectual property, and have a keen interest in an efficient federal judicial system. The Court of Appeals for the Federal Circuit was established in 1982 after more than a decade of deliberate study and Congressional consideration. The Hruska Commission (chaired by Senator Roman Hruska) conducted a study lasting nearly three years before recommending to Congress the establishment of a national appeals court to consider patent cases. It took two Administrations, several Congresses, and a number of hearings in both the House and Senate before legislation establishing the Federal Circuit was finally enacted. Over the past 26 years the Court, through its thoughtful and deliberate opinions, has made great progress in providing stability and consistency in the patent law. Removing immigration appeals from the general jurisdiction of the twelve regional Courts of Appeals and centralizing it in the Federal Circuit is an enormous change. Leaving aside the impact, both pro and con, on the affected litigants, the Federal Circuit is simply not equipped to undertake the more than 12,000 requests for review of deportation orders that twelve courts now share each year. The Federal Circuit currently has no expertise or experience in the field of immigration law. While the legislation envisions adding three judges to the twelve currently on the Court, we have serious concerns whether this increase will be adequate. Judge Posner has calculated that, even with the three additional judges proposed in the legislation, each of the fifteen Federal Circuit judges would be responsible for about 820 immigration cases per year, on the average—an incredibly large number that we believe will have a significant adverse impact on the remainder of the court’s docket. It seems inevitable that the proposed legislation will have a dramatic, negative impact on Federal Circuit decisions in patent cases and appeals from the USPTO. Such an increased caseload will necessarily delay decisions in these appeals, which in turn will cause uncertainty over patent and trademark rights and interfere with business investments in technological innovation. Beyond mere delay, the Federal Circuit’s ability to issue consistent, predictable opinions in patent cases will be complicated by an increase in the number of judges. If conflicts in panel opinions increase, the inefficient and often contentious en banc process will have to be used more often, further adding to the overall burden on the court. Business can effectively deal with decisions, positive or negative, but it cannot deal with protracted uncertainty caused by inconsistent opinions or long delays in judicial review. Demand for reform of the patent system has been the topic of considerable public debate of late. Congress held extensive hearings on this subject last year, and more are scheduled in coming weeks. The House is currently considering legislation that would dramatically change the patent statute, and we understand that patent reform legislation may soon be introduced in the Senate as well. It would be unfortunate for Congress to inadvertently compound the challenges facing the patent system by weakening the ability of the Federal Circuit to give timely and consistent consideration to patent cases. We appreciate your attention to this matter and urge you to reconsider this proposed expansion of Federal Circuit Court jurisdiction.

IP innovation and IPR protection is key to the economy

Bird, American Legislative Exchange Council, 12 – Tom Bird October 8, 2012, an intern for the International Relations Task Force. “Intellectual Property: The Innovation Economy’s Engine for Growth and Job Creation” http://www.americanlegislator.org/intellectual-property-the-innovation-economys-engine-for-growth-and-job-creation/ KKC

Intellectual Property (IP) is work or an invention resulting from creativity and innovation and can be used to define anything from a piece of art to the latest technological gadget. Intellectual property rights (IPR) have always been part of the American legal landscape and were so important to the Framers that they enshrined them in Article I, Section 8, Clause 8 of our Constitution. To promote the progress of science and useful Arts, by securing for limited Times to Authors and Inventors the Exclusive Right to their Respective Writings and Discoveries The Framers realized that protecting IPR was vital to encourage invention, creativity, and innovation, and the U.S. has relied on ingenuity to drive our economy ever since! According to the World Intellectual Property Organization over one fifth of all patents issued in 2006 were granted by the U.S. Patent Office, and the U.S. Chamber’s Global Intellectual Property Center (GIPC) found that over one-third of U.S. gross output originated from IP-centered companies and accounted for 74% of U.S. exports. Twenty-first century America is as cognizant as the Framers of the importance of protecting IP and has enacted laws making our nation second to none in protecting IPR. IP also creates high-paying American jobs! A recent GIPC study “IP Creates Jobs for America” has a state by state breakdown of what IP means in your state with state-specific statistics illustrating just how significant IP’s effects are from coast to coast. The study results indicate that wages in IP-intensive industries are 30% higher than similar jobs in non-IP industries. These jobs are found in numerous business sectors, including fashion, automotive, medical, energy, entertainment, electronics, biotech, consumer goods, and green technologies and account for 55 million U.S. jobs and over 45% of total employment. Globalization presents a number of challenges to IPR including the counterfeiting and piracy of American IP. In 2011, Business Software Alliance estimated that over half of the world’s computer users have used pirated software. Additionally, some national governments and large numbers of non-state actors do not enforce IP protections or do not have them at all. While testifying to the Senate Finance Committee last March US Trade Representative, Ambassador Ron Kirk observed that over 90% of Chinese government software is pirated. Inside ALEC underscores the importance of trade frameworks with strong IP provisions. Recognizing this threat to our nation’s economy, ALEC’s International Relations Task Force has a body of policy calling for the protection of IPR. We support the negotiation of high standard trade agreements with strong IP provisions; understand the threat that rogue internet sites pose to consumer health and safety as well as IP; and recognize the roles that all stakeholders including government at all levels, NGOs and the private sector can play in IPR protection. Some of these ideas are explored in Inside ALEC’s “Theft is Not a Free Market Principle” and “America’s Economic Freedom Depends on Protecting Our Intellectual Property.” Innovation drives our economy and the protection of the IP underpinning innovation is the key to spurring economic growth nationally and, of course, in the states. In order to reap IP’s benefits we must protect IPR.

Economic collapse causes nuclear war

Tønnesson 15 — (Stein Tønnesson, Leader of programme on East Asian peace @ Uppsala University, “Deterrence, interdependence and Sino–US peace,” International Area Studies Review, 18:3, p.297-311, http://journals.sagepub.com/doi/full/10.1177/2233865915596660, accessed 7-13-2017, SagePub, JSO)

Several recent works on China and Sino–US relations have made substantial contributions to the∂ current understanding of how and under what circumstances a combination of nuclear deterrence∂ and economic interdependence may reduce the risk of war between major powers. At least four∂ conclusions can be drawn from the review above: first, those who say that interdependence may∂ both inhibit and drive conflict are right. Interdependence raises the cost of conflict for all sides but∂ asymmetrical or unbalanced dependencies and negative trade expectations may generate tensions∂ leading to trade wars among inter-dependent states that in turn increase the risk of military conflict∂ (Copeland, 2015: 1, 14, 437; Roach, 2014). The risk may increase if one of the interdependent∂ countries is governed by an inward-looking socio-economic coalition (Solingen, 2015); second,∂ the risk of war between China and the US should not just be analysed bilaterally but include their∂ allies and partners. Third party countries could drag China or the US into confrontation; third, in∂ this context it is of some comfort that the three main economic powers in Northeast Asia (China,∂ Japan and South Korea) are all deeply integrated economically through production networks within∂ a global system of trade and finance (Ravenhill, 2014; Yoshimatsu, 2014: 576); and fourth, decisions∂ for war and peace are taken by very few people, who act on the basis of their future expectations.∂ International relations theory must be supplemented by foreign policy analysis in order to∂ assess the value attributed by national decision-makers to economic development and their assessments∂ of risks and opportunities. If leaders on either side of the Atlantic begin to seriously fear or∂ anticipate their own nation’s decline then they may blame this on external dependence, appeal to∂ anti-foreign sentiments, contemplate the use of force to gain respect or credibility, adopt protectionist∂ policies, and ultimately refuse to be deterred by either nuclear arms or prospects of socioeconomic∂ calamities. Such a dangerous shift could happen abruptly, i.e. under the instigation of∂ actions by a third party – or against a third party. Yet as long as there is both nuclear deterrence and interdependence, the tensions in East Asia are∂ unlikely to escalate to war. As Chan (2013) says, all states in the region are aware that they cannot∂ count on support from either China or the US if they make provocative moves. The greatest risk is∂ not that a territorial dispute leads to war under present circumstances but that changes in the world∂ economy alter those circumstances in ways that render inter-state peace more precarious. If China∂ and the US fail to rebalance their financial and trading relations (Roach, 2014) then a trade war∂ could result, interrupting transnational production networks, provoking social distress, and exacerbating∂ nationalist emotions. This could have unforeseen consequences in the field of security, with∂ nuclear deterrence remaining the only factor to protect the world from Armageddon, and unreliably∂ so. Deterrence could lose its credibility: one of the two great powers might gamble that the other ∂ =yield in a cyber-war or conventional limited war, or third party countries might engage in conflict∂ with each other, with a view to obliging Washington or Beijing to intervene