Home > Uncategorized > No More Mr. Nice Guy: Welcome to the Jungle, Mr. Almunia

No More Mr. Nice Guy: Welcome to the Jungle, Mr. Almunia

July 22, 2013
The law firm of Wilson, Sonsini, Goodrich & Rosati by its partner, Gary Reback, filed a motion to enter an appearance amicus curiae on behalf of certain clients in the computer industry, who wish to remain anonymous. Both the Government and [Google] argue that amici’s request to appear anonymously is inappropriate. Section 16(f), however, authorizes the Court to accept submissions by “any interested persons or agencies.”  Thus, the Court could accept the submission directly from the law firm or the economists identified in the submission.
The Tunney Act confers broad powers to gather information.  There is nothing in the statute that would preclude the Court from receiving information from those unwilling to identify themselves. It is preferable for persons to identify themselves to permit the Court to ascertain any bias on their part. However, there could be instances where the fear of retaliation by an alleged monopolist could deprive the public of relevant, material information. Indeed, Mr. Reback’s clients have asserted the fear of retaliation as their reason for requesting anonymity. Nothing has been presented that would put into question the sincerity of their position.

Actually, that quotation doesn’t involve Google, it is from a case that Google hasn’t learned a thing about, U.S. v. Microsoft.  A seminal antitrust case in the tech business that looks like milk and cookies compared to what Google is doing.  And anyone in the music business will understand the fear of retaliation, including threats of retaliation, particularly if you had antitrust concerns of your own.  When Big Evil is already stealing your lunch money from you, it doesn’t take much to believe that they would steal your entire book bag.

I think it’s fair to say that if you’ve dealt with Google, you’ll understand why you shouldn’t believe them if they told you the Sun rose in the East–without checking.  This isn’t even trust, but verify–it’s trust only what you can verify.  And as the group of people who have dealt with Google grows larger, it is easier for people to understand the reality of dealing with the company–they stonewall, obfuscate, and lobby their way around the law.  Since the company is obsessed with secrecy there’s very little to verify so even less to trust.  (And after the NSA debacle, it’s easy to understand why Google is obsessed with secrecy.)

Eventually, it will get easier to get people to agree with the logical extension of that reality, an extension that is also true:  Google does not really accept the concept of the nation state.  The Internet is their country and users are their serfs, and if there’s anyone who is the king of the Internet (or the top dog in the cartel-like oligarchy that Eric Schmidt calls the Gang of Four), it is Google.  So when you understand this, all becomes clear.

In the case of Joaquin Almunia, the European commissioner in charge of competition policy who has been dealing with Google’s monopoly position in Europe for a couple years, it might be helpful to understand that when it comes to the Internet, the reason he is having trouble with Google is that–from Google’s point of view–he’s getting in the way because he thinks he has authority over Google.  From their point of view, he doesn’t.  But they have to pretend that he does–for a while.

Mr. Almunia is now experiencing Google’s special combination of the love hug followed by the rope a dope.  First, understand this: Google knows they are monopolists, probably to a higher degree than anyone on the outside would ever expect.  Google comes into Mr. Almunia’s investigation pretending to be cooperative, interested in compromise, having learned from their “corporate predecessors” (which means Microsoft, in case you were wondering).

But Google never intended to present serious proposals, never intended to actually accomplish anything with settlements and is fully prepared to litigate with the EU until the end of time.  In this way, they have learned nothing from anybody, much less Microsoft.

What happened with Mr. Almunia is that the company sends in Eric Schmidt for the love hug.  Schmidt wraps Mr. Almunia in a charm offensive with his offensive charm.  Google starts to create an alternate reality for Mr. Almunia and his staff by a hypnotic dance of smarm and squid ink.  Yes, we are going to put proposals on the table in a spirit of compromise and fairness.  You will see how fair minded we are–because, you know…don’t be evil and all that.

As anyone knows who has dealt with Big Evil such statements are…how you say in your language?  Utter crap.

Google plays on the idea that, well no one would have the brass to think they could dupe the European Commission, that’s crazy talk.  Eric Schmidt wouldn’t…well…lie to Mr. Almunia.  Big Evil would want you to feel that you would have to be nuts to think such bad things.

Actually not so much.  You only think that if you believe that Google accepts the authority of the nation state to control them.

What is actually happening in Europe is this.  Google has managed to run out a lot of the clock on Mr. Almunia by delaying and obfuscating in a dance about wanting to make proposals to satisfy Mr. Almunia’s objections.  What clock you say?  The current commission’s term is up in 2014.  Google is betting that having delayed the day of reckoning on their antitrust investigation to this point in time, they can run out the clock and delay the investigation until Mr. Almunia’s term expires.  They will take their chances with being able to influence Mr Almunia’s successor, which I would bet they are already working on.

And a word to Mr. Almunia:  You probably don’t know half of what Google is up to.  Ask around the music business, particularly around YouTube and Google’s recent shakedown…sorry, investment…in a near majority interest in Vevo a company that may appear to be a YouTube competitor but is actually dependent on YouTube.  Follow closely what happens if the multichannel networks have the temerity to try to withdraw from YouTube and compete with it head to head.  You might be surprised at what you find out.  It’s enough to make a body file an anonymous brief.

So some unsolicited advice for Mr. Almunia is this: The European Commission is going to litigate with Google.  The only question is do you want to do it from a position of strength now–by filing what’s called a Statement of Objections at the EC–or do you want to do it later after Google has dragged it out until your term is about to expire.  Or has expired.

They want to play you for a fool with their rope a dope tactics.  Don’t let them.  File the Statement of Objections now and don’t wait for the inevitable.  Or suffer the perception that you are simply kicking the can down the road for your successor.

No more Mr. Nice Guy.

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