Polygram

Abstract: In 1979, the Supreme Court began departing from strict rule of reason/per se categorization and by 1999 the Court made clear that the rule of reason was a continuum. With the Court providing little guidance on the details of the conduct for which truncated analysis is warranted, the FTC has attempted to fill this gap, focusing not on questions of market power but on the restraint itself. The Commission provided a basic structure for truncated analysis in 1988 Massachusetts Board, later modified in 2003 in Polygram. More recently, the federal antitrust agencies have sought to expand the class of conduct for which truncated analysis should apply in recent enforcement actions by the FTC involving real estate brokers and by the DOJ involving agreements between Silicon Valley tech companies not to cold-call each other’s employees. We argue that the agencies’ approach in these cases is not grounded on a reasoned analytical framework but instead relies on flawed reasoning through analogy. Truncation remains an important tool, both to promote efficient antitrust enforcement against those few restraints that can be condemned based on prior judicial experience and current economic learning without detailed and expensive consideration of market issues and to prohibit restraints that are shown through unambiguous direct evidence to cause substantial anticompetitive effects. Full consideration of the benefits and costs of challenged conduct remains the antitrust norm, and the government’s recent attempts to expand the scope of truncated analysis through reasoning by analogy should be dismissed as aberrations that do not warrant judicial recognition.

Abstract: In the context of the paper there are represented the theoretical foundations and technological aspects of creation of the Optical Security Devices by Polygram technology. This technology implies the images of different types combining. There are generally discussed the Computer-Generated Rainbow Holograms (CGRHs) of 3D images. This type of holographic images is distinguished by its reliability against counterfeit, caused by the fact it requires matchless in this field precision of printing system, using extreme for the Electron Beam Lithography Equipment, which is applied for the recording, values of the stamp sizes. On the other hand CGRHs certainly distinguish from similar optical and stereographic images, so they can be easy recognized on the visual level of the verification and don’t need application of any tools. The theoretical basis of the CGRHs creation is strictly presented in this paper. The special attention is paid to the right choice of the non-linear quantization parameters. This paper is mainly concentrated on the investigation of the CGRH combining both with another CGRHs and with the other different images implying by the Polygram technology. The methods of the space restriction of the separate CGRH topology with the information loss and without it are compared. There are carried out the investigations of the influence of the additional images on visual perception of the CGRH.

Abstract: I. INTRODUCTION II. BACKGROUND A. The Per Se Analysis B. Development of the Rule of Reason Analysis C. Development of Quick-Look Tests under the Rule of Reason Analysis 1. Supreme Court Discussion of the Quick-Look Analysis 2. Other Examples of the Supreme Court's Treatment of Quick-Look Analyses III. DISCUSSION OF THE RATIONALE AND CONCLUSIONS OF POLYGRAM HOLDING A. Commission's and Circuit Court's Analysis B. The Quick-Look Analysis and Outcome Were Correct 1. Commentary on PolyGram Holding by Academics and Practitioners a. Inherently Suspect Categorization b. Rejection of Free Riding Justification 2. PolyGram's Arguments Were Not Legally Sufficient IV. RECOMMENDATION V. CONCLUSION I. INTRODUCTION Congress enacted the Sherman Act (1) in 1890 to prohibit restraints of trade and to promote competition. (2) A critical element in the enforcement of the Sherman Act is consistency. With over 100 years of case law history, plaintiffs and defendants in antitrust litigation can normally find and skew case law or dicta to support their positions. Consistency is essential because antitrust litigation is typically very time consuming, detail oriented, and expensive. (3) If the parties to the lawsuit do not know what to expect from the court and what test or rule will apply to them, there will be perverse consequences: private plaintiffs, the Department of Justice, and the Federal Trade Commission ("Commission") may not be willing to bring antitrust lawsuits. (4) Similarly, defendant firms may be less likely to form joint ventures because of the risk that they may be held liable under the Sherman Act and face lengthy and costly lawsuits. The need for a consistent application of a designated rule for a given antitrust situation is clear. (5) Traditionally, courts have applied the Sherman Act to situations of allegedly anticompetitive behavior in the form of two analyses: per se and rule of reason. (6) But more recently, the traditional dichotomous approach to allegedly anticompetitive behavior has given way with the creation of the "quick-look" (7) analysis. Courts have recognized that many instances of allegedly anticompetitive behavior should be examined under an approach that is neither as harsh as a per se rule analysis nor as in-depth as a rule of reason analysis. (8) Courts have thus created a continuum of rules that are used to analyze "inherently suspect" and "presumptively unlawful" behavior. (9) But confusion remains over which rule a court should apply to a given situation. In PolyGram Holding Inc. v. Federal Trade Commission, (10) the question of which rule to apply is even murkier. Jose Carreras, Placido Domingo, and Luciano Pavarotti--otherwise known as the Three Tenors--performed concerts together in 1990, 1994, and 1998. (11) PolyGram Holding had notable success distributing the recording of the first concert, and Warner Communications also enjoyed success, though relatively less, distributing the second recording. (12) The companies agreed to distribute jointly the third recording and to consult one another on all marketing and promotional activities. (13) They retained their exclusive rights to the earlier recordings and were not restrained in their ability to promote them. (14) But, the companies were worried that those promotions would weaken sales of the jointly distributed recording because customers might be indifferent between the different recordings, viewing them as substitutes, and buy the recording that is cheapest, which would be one of the earlier recordings and not the jointly distributed recording. (15) To improve the third recording's sales prospects, the companies agreed to suspend temporarily all price discounting and advertising of the earlier recordings for two and a half months after the release of the new recording. …