Brad Feld

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Our Very Busy Government Regulators

Oct 08, 2009
Category Government

Two things really tweaked me in the past 24 hours.

  1. The FTC rules to regulate product endorsements in blogs
  2. The US Antitrust Inquiry of IBM

The FTC thing is just fucking stupid.  Jeff Jarvis does a better takedown of it than I could ever do on his post FTC Regulates Our Speech.  I’m not a journalist, nor do I pretend to be.  I’m involved in some way in virtually everything I write about on this blog.  While I don’t directly make money when you buy a product or service from one of the private companies I have an investment in, I have the potential of eventually making money if the company is more valuable.  I do get a share of the ad revenue that appears alongside the articles and I get affiliate fees from some services like Amazon whenever I write about a book or movie, link to Amazon, and remember to include my affiliate link.  These are all well known practices among bloggers that adding “disclosure to” in every post is tedious, pointless, and irrelevant.

Is this what the FTC should be spending it’s time on?  I completely agree with Jarvis – this is about “free speech” – presumably I should be able to write about whatever I want on this blog (it is “my blog” after all) and you can decide to ignore me if you want.  Oh – and no one pays me to write this blog so how does it become an FTC issue?  I’ve seen some comments that this is aimed at payola – only impacting bloggers that get paid to write about products and services.  But the language seems to include direct payments and indirect payments.  Call me perplexed and confused.  I wish there was a product called “perplexed and confused” that I could sell.

The The US Antitrust Inquiry of IBM is even weirder.  As I read the NY Times article, it looks like a bunch of companies whining that IBM won’t license their mainframe software to them.  This stems from a complaint filed by the Computer and Communication Industry Association whose members include Google, Microsoft, Oracle, Yahoo, Fujitsu, and a bunch of others. IBM is conspicuously absent from the membership list – I guess they made a mistake not joining since it looks like the argument being made could easily apply – in my experience – to business practices of Google, Microsoft, and Oracle.   Two important quotes from the NY Times article.

“I.B.M.’s opposition to licensing its technology to outsiders is not enough to build a successful government antitrust case, said Andrew I. Gavil, a law professor at Howard University. More likely,


In the ruling in the private case last week, Judge Lewis A. Kaplan of Federal District Court in Manhattan found that I.B.M. had invested heavily in its modern mainframe technology and its decision not to license it “does not constitute anticompetitive conduct.”

The only logical conclusion to this one is Gavil’s speculation that “the Justice Department is investigating to see if I.B.M. is engaged in other tactics that might be anticompetitive.”  But based on what actual evidence?