Photo by Bence Boros ()

Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

If you are a fan of Google products, you will likely find that some of its home appliances are becoming slightly more cumbersome to use. You may need to individually adjust each speaker in a multi-room audio system instead of using the group volume controller. Some users may have to use a specific app to set up their smart devices and update them. These changes are the result of a recent by the U.S. International Trade Commission which held that Google infringed on five of Sonos’ patents relating to smart speakers.

Sonos is a developer and manufacturer of audio products based in the U.S., best known for its multi-room audio products. According to Sonos, the company began sharing its technology with Google in 2013, when the two started working together. Google was not a competitor at the time, but it soon moved into Sonos’ space, launching its first music streaming device, Chromecast, in 2015 and the Google Home speaker in 2016.��

The lawsuit began in January 2020, with Sonos alleging that Google violated its patents related to audio technologies and used them in products that undercut Sonos. Since then, the parties have been enmeshed in a global with cases across the U.S., Canada, France, Germany, and the Netherlands.

The by the U.S. International Trade Commission came out in August 2021. It determined that Google violated the , which aims to deter unfair competition through prohibiting actions like importing products that infringe on U.S. patents. As a result, the Commission issued an import ban against Google products that infringed Sonos’ patents, mostly manufactured in China. The decision was upheld in the in January.

A New 91��ɫ Times anticipated that the impact of the ruling on Google’s business is likely to be limited. The newer products developed by Google are using different technologies, and Google’s main cash cow, online advertising, remains intact. ��

Yet the conflict between Google and Sonos is important because it reflects the antitrust problems created by the expanding businesses of today’s tech giants. Starting out as a search engine in 1998, Google is now producing a wide range of hardware products including laptops, smartphones, and home devices. Apple and Facebook (now renamed Meta) are also facing similar issues against smaller companies. According to , its lawsuit against Google is meant to “ensure all companies, regardless of size, receive fair compensation for investing in the development of industry leading technology.”

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Photo by Brett Jordan ()

Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School��

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On October 4, 2021,��it was publicized that Facebook Inc.����the U.S Federal Trade Commission’s (FTC) antitrust case that aims to force Facebook��to��sell Instagram and��WhatsApp. The FTC initially filed a complaint that����and��requested the sale of Instagram and��WhatsApp��to prevent a monopoly over the social media market. Does Facebook��have a monopoly over the market?��Or��simply��a strong foothold?����

What is Antitrust��

The FTC’s Bureau of Competition enforces antitrust laws. These laws��. The market is said to be ‘free’ and active when there is aggressive competition. This competition is productive for society because it gives��such as lower prices, higher quality products and services,��and��greater��innovation.��

Antitrust laws try to����which are those monopolies obtained, preserved,��or attempted by a firm that tried to destroy its competitors on purpose. Under��, attempted monopolization is an antitrust offence if it meets certain criteria. The defendant must have employed����to obtain a monopoly in a defined relevant market. Second, there may be a dangerous probability that a��defendant will succeed in obtaining a monopoly unless��. While the FTC may appear to be blocking Facebook’s ability to maximize wealth by acquiring Instagram and��WhatsApp, this FTC case may be trying to preserve the competition and economic activity in the social media marketplace. In this particular case, the����and that Facebook controls 60% of the relevant market.����

Antitrust and Monopolies in the Tech Sphere��

Social media may be a broad, general marketplace and thus fail��to meet��one of the criteria under Section 2. Most social networks exist��in a niche, trying to����like Facebook once did, connecting people from around the world and writing on each other’s walls. This unique niche can then become a market on its own, but how exactly are these unique markets dominated by one defendant? Current suggestions focus on����in which case����over��WhatsApp��and Instagram. However, antitrust cases are few in high-tech industries, so FTC’s current complaint is difficult to compare in outcome due to limited jurisprudence.����

Facebook’s rebuttal����

Facebook has requested the FTC’s case be��. Facebook argues that the����with Instagram and��WhatsApp��which may demonstrate a limited factual basis that Facebook��since it acted with FTC’s approval. Further, social media is a rapidly changing market and Facebook still has��including��TikTok, Twitter,��and��Google.��

Conclusion����

People experienced the primary issue with Facebook’s mergers firsthand with the����outage on October 4, 2021. When a monopoly emerges, consumers have less choice and lose out on earnings. Consider the lost advertising revenue with influencers and companies unable to post on��Instagram, or��concerned loved ones who rely on��WhatsApp��to communicate. Perhaps if the app trifecta was separated, the outage would not have affected us at all. However, Facebook is a corporation,��and��corporations aim to maximize wealth.��The FTC once agreed with this when����Facebook’s purchases of����in the first place. It may be hard for the FTC to go back on their word and undo these��-dollar deals.

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Apple’s new operating software will require apps to get opt-in permission from users to collect their advertising identifier, a number that allows advertisers to send targeted ads, instead of an opt-out system. It has been argued that under Apple’s new privacy configuration, few users will agree to be tracked, which makes it harder for advertising companies to sell personalized ads. On the other hand, Apple can hold itself to a to iOS users without asking them for prior consent and potentially boost its profits.

Moreover, the United States Department of Justice against Google on October 20, 2020, for antitrust violations. Google is said to be facing the most significant in a generation since the unprecedented case against commenced in 1998. In this particular context, antitrust violations refer to the , which inhibits healthy and fair competition, leaving consumers vulnerable to predatory business practices in various ways.

Currently, Google controls about A recent report from a House Judiciary Subcommittee concluded that Google has . One of the reasons behind the suit was that Google is paying phone manufacturers to ensure Google is the on browsers. Google’s search application is preloaded and cannot be deleted on mobile phones with systems. Responding to exclusionary practices and market dominance, “…People use Google because they choose to ­­— not because they’re forced to or because they can’t find alternatives.”

This pre-election lawsuit against Google is said to be on tech giants for antitrust issues. In Canada, there have not been any major antitrust investigations against tech companies so far. However, that it is only a matter of time before Canada joins the US and the EU in antitrust investigations. For instance, recently, Canadian publishers complained about big tech giants such as Google and Facebook which threatens Canada's publishing market's survival. Publishers urged Ottawa to force the tech companies to urgently. Canadian Heritage Minister signalled his intent to focus on this issue and address the imbalance between the Canadian news organizations and tech giants.

Though Canadian regulators have generally been more moderate than their American or European counterparts, the Canadian Competition Bureau is now tech giants for anti-competitive behaviour. The Canadian approach to competition violations is providing s rather than taking the companies to court. However, this approach has not always worked so well in terms of .

Moreover, some people claim that big tech should not be disturbed for all the good they provide for society. Even in the 90s and 00s, challenging Microsoft for violating antitrust laws was decision. Microsoft was a well-liked company, and Bill Gates was widely held as a “visionary genius,” and it was argued that enforcing the antitrust laws against Microsoft would . However, innovation still surged in the American technology markets even after the action against Microsoft. Accordingly, demanding fairer rules and compliance surrounding competition from tech-giants should be a priority for Canadians.

Written by Elif Babaoglu. Elif is a contributing IPilogue editor and an avid privacy and tech-law enthusiast with a particular focus on artificial intelligence.

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As was discussed in the��IPilogue by Nicholas Arruda, Friday’s ruling stems from a�� ��filed by former UCLA basketball star Ed O’Bannon. O’Bannon and nineteen others sued the NCAA, claiming that the organization violated the ��because of its rules that prohibit student-athletes from receiving a share of the revenue earned by the NCAA and its schools from selling ��licenses to use the names, images, and likenesses of its athletes in footage like live game telecasts, commemorative DVDs, and video games. NCAA regulations only allow its players to receive money for attending school and through scholarships, arguing that their restrictions on compensation for student-athletes are necessary “to uphold its educational mission and to protect the popularity of collegiate sports.”

U.S. District Judge Claudia Wilken did not agree with the NCAA, and at the end of her ninety-nine page ��she issued an injunction prohibiting the NCAA from continuing on in its ways. Taking effect at the start of the next Bowl Subdivision Football and Division I Basketball recruiting cycle, student-athletes will now receive a share of the revenue generated from the use of their likenesses. The funds will be held in a trust until the student leaves school or is no longer able to compete. The injunction allows the NCAA to set a cap on how much they give to its athletes, however it does “prohibit the NCAA from setting a cap of less than five thousand dollars (in 2014 dollars) for every year that the student-athlete remains academically eligible to compete.” Schools also have the option to offer a lower amount, but only if the schools do not illegally conspire with each other when setting the number.

Those on team NCAA are not exactly happy with the loss, and have already reportedly����an intention to appeal the decision. Those on the opposite side of the court to O’Bannon ��that paying players and moving away from amateurism (where “players participate for the love of the game”) would cause a drop in the number of college sport spectators and would create an imbalance among schools and conferences. NCAA witnesses further contended that the education athletes receive is in fact payment for their services.

Several players however testified that they viewed being an athlete and not a student as their main job while at college.�� According to O’Bannon testified: “I was an athlete masquerading as a student...I was there strictly to play basketball. I did basically the minimum to make sure I kept my eligibility academically so I could continue to play.” Co-lead counsel for the plaintiffs Bill Isaacson to the media that he was pleased with the verdict, calling it a “major step towards decency for college athletes.” Furthermore, Rutgers law professor Michael Carrier, who specializes in antitrust and IP law, reportedly the outcome may not actually be that scary since payouts may not be huge and will only come to the athlete after their career is over.�� In a statement to USA Today, Carrier does however ��that the decision��is a huge loss for the NCAA because their prized defences of amateurism and competitive balance ��are no longer persuasive in the face of an argument of fairness. As O’Bannon reportedly :��“It is only fair that your own name, image and likeness belong to you, regardless of your definition of amateurism. Judge Wilken’s ruling ensures that basic principle shall apply to all participants in college athletics.”

So what now? In a very opinionated about the decision��CBS Sports’ senior college football columnist Dennis Dodd said that “a seal has been broken. Players can be paid, and we can’t turn back from here.” And since the ruling is limited to male football and basketball players surely the cause will also be taken up by female athletes and those in other sports. The future implications of the decision, from its impact on the structure of American college sports, the potential influence it will have on athletes in other jurisdictions, and to the financial consequences for major sport colleges, speaks to just how important IP law issues are in all realms, whether it be business, sport, or education. The fact is, you have a right to you - it does not matter if you work in an office tower or run drills in a gym. Your name, image, and likeness are yours and, as confirmed by Justice Wilken, they are not for someone else to benefit from for free.

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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A recent filed by Myriad Genetics involving the alleged infringement of their controversial breast cancer screening tool has included the prestigious Toronto SickKids hospital as a co-plaintiff. This lawsuit has been a source of criticism for the hospital and has reinvigorated the debate on the merits of public-private research collaborations in health care innovation.

Aftermath of SCOTUS Ruling - Myriad Genetics Sues Archrival

This , the US Supreme Court rendered a landmark , ruling out the patentability of some genetic sequences in patents developed by Myriad Genetics for their breast cancer screening tests. (You can view some of the IPilogue’s extensive coverage of the international litigation around this issue , and .) The results of this decision and the invalidation of the Myriad patents were seen by many as a development that of breast cancer screening methods due to the possibility of cheap alternatives being produced without being hindered by patent licensing. A sound prediction, as , companies started releasing breast cancer screening tools at a lower cost than the Myriad products. A few weeks after the ruling, however, Myriad in the Utah District Court against Ambry Genetics, claiming that the company owned or licensed to Myriad that had not been a part of the US Supreme Court case. In response to the lawsuit, Ambry has recently Myriad for antitrust violations.

This case is interesting from a Canadian point of view since some of the patents at issue involve ownership agreements between Myriad and various public health organizations, . In the , it is stated that the public health organizations will lose "significant amounts of revenue" from lost royalties, and that the revenue stream from their ownership to date has brought in around $57 million. Although listing SickKids as a plaintiff in the lawsuit due to their ownership agreement, the story has nevertheless garnered . This lawsuit has been seen by some as an attack on affordable breast cancer screening for patients, with SickKids seemingly in a position that is opposite its role as a health care provider. Patent arrangements like the one between SickKids and Myriad can be seen as paradoxical; preventing patients from being able to access the medical discoveries that have been made possible by .

Public-Private Research Collaboration: A Complex Issue

Discussions arising from situations such as this ultimately stem from the relationship between public institutions and profit-seeking entities in health research collaboration. Analyses of the merits of such collaboration has reached conclusions in different fields and , but a recent seemed to suggest a statistically significant increase in pharmaceutical industry innovation from publically-funded scientific research.

Critics of these joint research ventures frequently cite the through a “tragedy of the anticommons” effect, where other research entities choose not to enter a field of innovation due to the fear of their production ultimately getting blocked by existing patents. Luigi Palombi, an Australian lawyer that has written a book about the Myriad breast cancer screening saga, criticized the SickKids incident and that “[i]t is our outrageous for any publicly funded research institution to be put in this situation” and that “[o]nce you have publicly funded institutions getting into bed with these guys, well then that raises a whole series of other questions and issues”. Other commentators, such as McGill University law professor Richard Gold, that "[t]here's always been a relationship obviously between industry and hospitals and universities. And it's not all bad because, of course, universities do basic research." Professor Gold also went on to state that he hopes public institutions “will be wiser in the way they set up their agreements in order to have a choice to whether to be involved in ligation". Although the majority of commentators seem to agree that SickKids is currently occupying an unfavourable position from its public involvement in the lawsuit, the debate on the merits of these joint health-care research ventures is certainly an unresolved issue.

The Future of Public-Private Health Research Collaboration in Canada

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Background: “Google France checked in at Bermuda”

The ��is the latest volley in an between France and internet behemoths such as and . Essentially, it has become common practice for these companies to operate with expenses (such as labour) concentrated in high-tax countries in the European Union, such as France and the UK, while routing most of their revenues through “tax havens” such as , the , and Bermuda, thereby avoiding an estimated average of 500 million euros per year in corporate tax, in France alone. The data-mining tax is one of several proposed solutions, following an attempted and controversial .

The Rationale: “User added a new job at Facebook, Google, Amazon, and Apple”

The rationale behind the tax recommendation, elaborated upon in Forbes by one of the , is as follows: Data plays such an that it may now be considered the “raw material” of the digital economy. Users provide what may soon be literally lifetimes of data in various forms online, whether collected through behaviour-tracking cookies, submitted through tweets and searches, or inferred through analytics. This allows online companies and applications to laser-target users through features and ads, monetizing the collated data. Thus, users themselves provide data that feeds back into the supply-production-distribution-consumption chain, and according to the report's authors, this turns users into employees whose unpaid labour of providing data produces value for these companies. This user-created value is unaccounted for, and should be taxed.

Implementation: “Facebook added 1 billion friends. Auditor poked Facebook.”

Since international tax law currently fails to account for the geography-heedless nature of user data-based business models, the data-mining tax (which the French government has yet to endorse), is meant as a step towards the report's proposed . The tax would apply to both international and domestic businesses that regularly and systematically monitor online user behaviours of those in France. Tax rates would depend on various factors: how many users are tracked, the type of data collected, ethical issues, and level of respect for user privacy and control, among others.

Analysis: “@User tweets about #Privacy #ConflictofInterest #Competition and #PublicUtilities”

The idea of taxing data-mining immediately brings a number of issues to mind, the first of which is suggestively indicated by other names for the proposal: some call it a or a “” policy. It may be problematic to create monetary incentives for corporations to respect user privacy, as it essentially commoditizes privacy (or the lack thereof) and may erode higher ideals of respecting privacy for its own sake; perhaps those who warrant the term “predator” should not be made to pay, but should restrain from undue preying altogether. From a practical perspective, the act itself of auditing companies' practices may involve questionably invasive technological practices, such as .

Second, tying government revenue to companies' privacy practices the way this tax would (where less user control means the government levies higher taxes) creates a potential conflict of interest, if the government is supposed to have citizens' best privacy interests at heart. Moreover, since the data belongs to the user, the labour model underlying the report's recommendation raises the thought that perhaps users themselves should be paid for it.

Third, the data-mining proposal prompts interesting connections between . As demonstrated by cases against , (), and , such companies walk a fine line between maintaining a healthy monopoly and engaging in anti-competitive practices. Incentivizing better privacy policies through taxes may put a damper on the endless reach for data to sell to advertisers, while creating room for smaller competitors who more effectively prioritize user privacy and control.

Fourth, turning data-mining into a source of taxation evokes questions about the role of privately owned technological platforms in the public sphere. Whether with or , such websites at times seem to approach the of . The problem is that regardless of sociological status, economically and structurally these companies are wholly private. This unique yet rising combination means that attempts to regulate the driving business model warrant particularly careful scrutiny, and perhaps a conversation about what such sites' status ought to be.

Finally, it bears remembering, first, that the companies in question are offering free services whose on a voluntary basis (though see the public utility debate linked above). Second, whether or not data-mining becomes taxable, Google, Facebook, et al. already and will continue to monitor and benefit from users' data regardless. One could then argue that the public may as well take advantage of that fact, in this case via taxation. As the old adage goes, after all, you are what you tweet.

Cynthia Khoo is a JD Candidate at the University of Victoria.

*Term coined for this post, based on the notion that the collected “property” is intangible (unlike real or personal property), yet not necessarily created or thought up (unlike intellectual property), but simply gleaned from users' data trails as they go about their daily lives on the internet.

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