Desperate media companies tempt antitrust regulators

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Desperate media companies tempt antitrust regulators

Fri May 29, 2009 @ 04:44PM PST

By Eriq Gardner

Antitrust Ben Sheffner of the Copyrights & Campaigns blog has an interesting column up at Slate that notes a "discreet" meeting by the nation's biggest newspaper publishers over whether and how to start charging readers for online content. Sheffner notes:

"Antitrust law is complicated, but one principle is very simple: Competitors cannot get together and agree on price or the terms on which they will offer their services to their customers. It doesn't matter if the industry is ailing or if collusion would be 'good' for society or necessary to preserve democracy. An agreement regarding pricing is 'per se'—automatically—illegal under Section 1 of the Sherman Act, the main federal antitrust law."

Sheffner talks to other lawyers and examines whether this publisher confab might be considered illegal under antitrust law. 

But we're taken with another aspect of the story. Sheffner draws some dots to a 1994 Hawaii hotel room meeting where agricultural-products companies gathered "under the guise of a trade-association meeting to fix prices" on a certain chemical.

Trade associations. Hmm. In the recent weeks, we've seen quite a bit of antitrust scrutiny on this front. Recently, the Department of Justice announced it was going to be looking into a settlement between Google and the Association of American Publishers to see if a forged licensing agreement that ended litigation passed the antitrust sniff test. A couple weeks later, in its case against Hollywood studios over a technology that allows consumers to back up DVDs on a hard drive, Real Networks filed a complaint alleging antitrust on the part of studios for the way they developed and licensed anti-piracy technology standards on DVDs. 

As media companies struggle with ways to monetize their digital future, it's no surprise they would lean more heavily on their trade associations for help. We wouldn't be surprised if the government's attention follows.

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to [email protected]

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