Google And the Law, The Book

Did Google go too far ... or is Google victim of legal lag?

Yours truly had the honour to write a chapter for a very promising book called Google and the Law edited by Dr. Aurelio Lopez-Tarruella, of which I have so far only read my own chapter. But the colleagues I know are all very knowledgeable in their respective fields and we all share a passion for the law. Hope I will see them soon and meet the colleagues I have not met before.

My chapter 'Paradoxes, Google and China' is about the blessings of intellectual property and the evil of censorship, two subjects about which both Google and China had some issues. I forgot to place a disclaimer at the end of my chapter, which should have said: I used Google when researching the chapter and enjoyed the hospitality in Shenzhen at the same time.

The text of the publisher is:
Google has proved to be one of the most successful business models in today’s knowledge economy. Its services and applications have become part of our day-to-day life. However, Google has repeatedly been accused of acting outside the law in the development of services such as Adwords, Google books or YouTube. One of the main purposes of this book is to assess whether those accusations are well-founded. But more important than that, this book provides a deeper reflection: are current legal systems adapted to business models such as that of Google or are they conceived for an industrial economy? Do the various lawsuits involving Google show an evolution of the existing legal framework that might favour the flourishing of other knowledge-economy businesses? Or do they simply reflect that Google has gone too far? What lessons can other knowledge-based businesses learn from all the disputes in which Google has been or is involved?

This book is valuable reading for legal practitioners and academics in the field of information technologies and intellectual property law, economists interested in knowledge-economy business models and sociologists interested in internet and social networks.

Table of contents

1 Introduction: Google Pushing the Boundaries of Law . . . . . . . . . . 1
Aurelio Lopez-Tarruella
2 The Power of Google: First Mover Advantage or Abuse
of a Dominant Position? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sophie van Loon
3 Google AdWords: Trade Mark Law and Liability
of Internet Service Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Jeremy Phillips
4 Google and Personal Data Protection . . . . . . . . . . . . . . . . . . . . . . 75
Bart van der Sloot and Frederik Zuiderveen Borgesius
5 Google News and Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Raquel Xalabarder
6 Copyright Issues Regarding Google Images and Google Cache . . . 169
Miquel Peguera
7 The ‘‘Viacom v YouTube’’ Litigation and Section 512(c) DMCA:
When the Safe Harbour Becomes a Permanent Mooring . . . . . . . . 203
Annsley Merelle Ward
8 Looking Beyond the Google Books Settlement. . . . . . . . . . . . . . . . 239
Gary Rinkerman
9 Google Chrome and Android: Legal Aspects
of Open Source Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Malcolm Bain
10 Google, APIs and the Law. Use, Reuse and Lock-In . . . . . . . . . . 287
Andrew Katz
11 Paradoxes, Google and China: How Censorship can Harm
and Intellectual Property can Harness Innovation . . . . . . . . . . . . 303
Danny Friedmann
12 The International Dimension of Google Activities: Private
International Law and the Need of Legal Certainty. . . . . . . . . . . 329
Aurelio Lopez-Tarruella
13 In Search of Alterity: On Google, Neutrality and Otherness . . . . 355
Marcelo Thompson

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Is China's Anti-Monopoly Law Used To Get Hold Of Foreign IP?

Anti-Monopoly Law to level the playing field ...
or annexing the players?
Photo: Danny Friedmann

Today, exactly three years ago (2008), China's Anti-monopoly Law went into effect. Since that time the Ministry of Commerce's Anti-Monopoly Bureau has approved seven M&As conditionally of which one is most relevant in regard to IP:

• InBev - Anheuser Busch
• GM - Delphi
• Mitsubishi Rayon - Lucite
• Pfizer - Wyeth
• Novartis AG - Alcon
• Sanyo - Panasonic
• Uralkali - Silvinit

And there was one rejection. When Coca-Cola company wanted to acquire Huiyuan Juice Group in March 2009, for around 2.4 billion US dollar, the Anti-Monopoly Bureau rejected its application, because according to Anti-Monopoly Bureau:
"If the acquisition of Huiyuan went into effect, Coca-Cola was very likely to take a dominating position in the domestic market and the consumers may have to accept the high price fixed by the company as they don't have more choices." Read here.


Since that time the Ministry of Commerce did not reject any M&A. But in some cases they did give some conditions. The title of Simon Rabinovitch' article for the FT is 'China Becomes Hurdle To Global Mergers' is provocative. Mr Rabinovitch quotes Gerry O'Brien of Mayer Brown JSM in Hong Kong: “There is some concern about the potential for such orders to be used as a mechanism to transfer important businesses or assets or intellectual property to Chinese enterprises away from foreign firms.” Read more here.

Let's explore Mr O'Brien's idea. When Pfizer wanted to take-over Wyeth on the Mainland for 64 billion US dollar, it got China's blessings only if it divested its Pfizer swine flue vaccine (mycoplasma hyopneumoniae) RespiSure and RespiSure One in China (not Hong Kong, Macau or Taiwan), so it can still sell it's Wyeth vaccine in China.

Steven Wei Su of Guo Lian PRC Lawyers reports on the Anti-Monopoly Bureau decision: "MOFCOM found that the merged entity would have a combined market share of 49.4% in the market, which is significantly higher than that of the next competitor in the market, Intervet, holding 18.35% of the market and other competitors, of which each holds less than 10%." Mr Su's analysis can be found here.

How to exactly assess market concentration remains less than transparent. Therefore Ministry of Commerce has issued a draft for comment on the 'Tentative Provisions on Assessment of the Effects of Concentrations of Business Operators on Competition', June 13, 2011. John Grobowski, Yiqiang Li and Wendy Yan of Faegre and Benson LLP in Shanghai analysed the procedures here.

Sundeep Tucker reported last May 2011 on the Pfizer-Wyeth deal for the FT, see here. Matthew Murphy of MMLC Group gives all 7 conditions of the Anti-Monopoly Bureau here.

It is hard to give a conclusive answer if the concern for IP abusive use of China's Anti-Monopoly Law is legitimate. Also in the case of Pfizer-Wyeth the intellectual property was only partly transferred away from foreign firms. The company to which Pfizer sold its intellectual property rights for the swine flue vaccine was Harbin. Harbin may well be majority owned by the provincial government, but Warburg Pincus, a US private equity fund, has a 22.5 percent stake in it. China's Anti-Monopoly Law and the Anti-Monopoly Bureau are pretty new and China's efforts to make the assessment of market concentration more transparent is laudable. So far they deserve the benefit of the doubt.  

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Intellectual Property and Indigenous Innovation, Two Opposite Roads For Foreign IPR Holders

Photo Danny Friedmann
IP and indigenous innnovation
roads going in opposite directions?

The US-China Economic and Security Review Commission will hold hearings on China's intellectual property  and indigenous innovation policies on May 4th. Emphasis will be given on the consequences of these policies for the film, broadcast, and software industries.

Programme:
8:30 am – 8:45 am: Hearing Co-Chairs’ Opening (Commissioners Dick D’Amato and Dennis Shea);
8:45 am – 9:15 am: Panel I: Congressional Perspectives by Senator Slade Gorton (R-WA) - retired;
9:15 am – 10:45 am: Panel II: Film and Broadcast Industry by Mr. Richard Masur, former President, Screen Actors Guild;
11:00 am – 12:30 pm: Panel III: Business Software by Mr. Michael Schlesinger, Of Counsel, Greenberg
Traurig, and International Intellectual Property Alliance and Mr. Ken Wasch, President, Software & Information Industry Association;

1:15 pm – 2:30 pm: Panel IV: China’s Indigenous Innovation Policy by Ms. Thea Lee, Deputy Chief of Staff, AFL-CIO and Mr. Alan Wm. Wolff, Of Counsel, Dewey & LeBoeu.

Information about location here.

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Multinationals Strengthen Their Commitment to China; But Are Scared of IPR Challenges

Booz & Company conducted a study (survey under 108 foreign invested manufacturing companies) together with the American Chamber of Commerce in Shanghai to see what the influence is of the economic crisis on their commitment of doing business in China.

"Nearly three-fourths (73 percent) of respondents said that enforcing intellectual property protection was “important” or “very important.” Other manufacturing sector issues ranked similarly include improving education and productivity of Chinese labor (67 percent), increasing quality and safety standards for Chinese-made products (66 percent), and welcoming foreign investment (62 percent). Respondents reported that the Chinese government has made noticeable progress on improving manufacturing infrastructure and incremental progress on protecting intellectual property rights."

Read the summary of the AmCham Shanghai/Booz & Company 'China Manufacturing Competitiveness report 2008-2009' here.

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Does China Export In Violation of License EU Train Technology Back To Europe?

Mr Philippe Mellier, CEO of Alstom Transport, the second manufacturer (after Bombardier Transportation) of high-speed trains, locomotives and metro cars, is calling on countries for a boycot of Chinese trains according to the Financial Times, here. In an interview Mr Mellier said that

• China was closing its domestic market;
• Chinese companies export trains that use foreign technologies.

The Associated Press said that the Financial Times suggested that these exports could be in violation of licensing agreements. Read here.

The spokesman of China's railway ministry Mr Wang Yongping has denied the allegations.

Mr Wang said that that Chinese companies paid foreign firms money for learning how to develop trains with average speeds of 300 kilometers per hour, but that China's new generation of high-speed trains which travel at 350 kilometers per hour were completely homegrown.

"This is the innovative results of our wholly owned intellectual property and there's no stealing of Western technology, " Mr Wang said according to Associated Press, read here.

France24's Owen Fairclough talks about it here in English: Don't buy Chinese trains, says Alstom Transport boss and his colleague Sébastien le Belzic in French, Alstom prône le boycott des trains "made in China".

Siemens, the number three high-spreed train manufacturer, has also problems with China,

Intellectual Property of German Train Gone With the Wind.

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Word On Wednesday: The Influence of the Financial Crisis On The Enforcement of Intellectual Property In China

Getting ready for stormy weather

Painting/picture Copyright Dinky 2008

What could be the impact of the financial crisis on the enforcement of intellectual property in China?

Here are some hypotheses on top of my mind:

• Because of the financial crisis most people are afraid to spend money; the demand for counterfeit and pirated products in China and outside of China grows. This means that the importance of enforcement of intellectual property rights increases.
• Because the economic growth in China is expected to fall back to 7.5 percent in 2009 (according to the World Bank) the ability to absorb new arrivers from the countryside into the cities and employ them will be more difficult. Result: unemployment will grow, which increases the chances of social unrest. The Economist of 13-19th December quoted a researcher of the Chinese Communist Party that described it as: "a reactive situation of mass-scale social turmoil." In China there are still villages dependent on the production of counterfeit and pirated goods. The incentive for the Chinese government to enforce intellectual property and make these people de facto unemployed and thus prone to protest is not very likely. The Chinese government might temporarily look the other way when it comes to intellectual property infringement.
  
  What do you think?

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What Does The New Chinese Patent Law Have In Store?

Mr Charles C. Liu, Partner and Director of US Practice, Unitalen Attorneys at Law and Ms Jeanne J. Liu wrote a series of four installments (originally published in China Intellectual Property, 20:44-51, 2007) about the amendment of the Chinese patent law that will probably be ready in 2008.

Read here Mr Liu and Ms Liu's 'Waves of Changes in Chinese Patent Law and Regulations',
Part I here;
Part II here;
Part III here;
Part IV here.

Head tip to Philip Brook of Philip Brooks' Patent Infringement Updates whose blog has been chosen by the new Patent Law Center of LexisNexis as a Top Blog. IP Dragon, Patent Docs, Patent Troll Tracker, Patently-O, Peter Zura's 217 Patent Blog, Generic Pharmaceuticals and IP and IPKat were also selected as Top Blogs, as can be seen at the bottom on the right of the page of the Patent Law Center, see here.

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