[Plura-list] Antitrust is a labor issue
Cory Doctorow
doctorow at craphound.com
Thu Apr 25 09:13:51 EDT 2024
Read today's issue online at: https://pluralistic.net/2024/04/25/capri-v-tapestry/
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I'm touring my new, nationally bestselling novel *The Bezzle*! Catch me in THIS SATURDAY (Apr 27) in MARIN COUNTY, Winnipeg (May 2), Calgary (May 3), Vancouver (May 4), and beyond!
https://pluralistic.net/2024/02/16/narrative-capitalism/#bezzle-tour
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Today's links
* Antitrust is a labor issue: Banning noncompetes is huge, but it's not all the FTC is doing!
* Hey look at this: Delights to delectate.
* This day in history: 2009, 2014, 2019, 2023
* Upcoming appearances: Where to find me.
* Recent appearances: Where I've been.
* Latest books: You keep readin' em, I'll keep writin' 'em.
* Upcoming books: Like I said, I'll keep writin' 'em.
* Colophon: All the rest.
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🐉 Antitrust is a labor issue
This is huge: yesterday, the @FTC finalized a rule banning noncompete agreements for every American worker. That means that the person working the register at a Wendy's can switch to the fry-trap at McD's for an extra $0.25/hour, without their boss suing them:
https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes
The median worker laboring under a noncompete is a fast-food worker making close to minimum wage. You know who doesn't have to worry about noncompetes? High tech workers in Silicon Valley, because California already banned noncompetes, as did Colorado, Illinois, Maine, Maryland, New Hampshire, North Dakota, Oklahoma, Oregon, Rhode Island, Virginia and Washington.
The fact that the country's largest economies, encompassing the most "knowledge-intensive" industries, could operate without shitty bosses being able to shackle their best workers to their stupid workplaces for years after those workers told them to shove it shows you what a goddamned *lie* noncompetes are based on. The idea that companies can't raise capital or thrive if their know-how can walk out the door, secreted away in the skulls of their ungrateful workers, is bullshit:
https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal
Remember when OpenAI's board briefly fired founder Sam Altman and Microsoft offered to hire him and 700 of his techies? If "noncompetes block investments" was true, you'd think they'd have a hard time raising money, but no, they're still pulling in billions in investor capital (primarily from Microsoft itself!). This is likewise true of Anthropic, the company's major rival, which was founded by (wait for it), two former OpenAI employees.
Indeed, Silicon Valley couldn't have come into existence *without* California's ban on noncompetes - the first silicon company, Shockley Semiconductors, was founded by a malignant, delusional eugenicist who also couldn't manage a lemonade stand. His eight most senior employees (the "Traitorous Eight") quit his shitty company to found Fairchild Semiconductor, a rather successful chip shop - but not nearly so successful as the company that two of Fairchild's top employees founded after *they* quit: Intel:
https://pluralistic.net/2021/10/24/the-traitorous-eight-and-the-battle-of-germanium-valley/
Likewise a lie: the tale that noncompetes lower wages. This theory - beloved of people whose skulls are so filled with Efficient Market Hypothesis Brain-Worms that they've got worms dangling out of their nostrils and eye-sockets - holds that the right to sign a noncompete is an asset that workers can trade to their employers in exchange for better pay. This is absolutely true, provided you ignore reality.
Remember: the median noncompete-bound worker is a fast food employee making near minimum wage. The major application of noncompetes is preventing that worker from getting a raise from a rival fast-food franchisee. Those workers are *losing* wages due to noncompetes. Meanwhile, the highest paid workers in the country are all clustered in a a couple of cities in northern California, pulling down sky-high salaries in a state where noncompetes have been illegal since the gold rush.
If a capitalist wants to retain their workers, they can *compete*. If your workers can get better treatment and better wages. That's how capitalism's alchemy is supposed to work: competition transmogrifies the base metal of a capitalist's greed into the noble gold of public benefit by making success contingent on offering better products to your customers than your rivals - and better jobs to your workers than those rivals are willing to pay. However, capitalists *hate* capitalism:
https://pluralistic.net/2024/04/18/in-extremis-veritas/#the-winnah
Capitalists hate capitalism so much that they're suing the FTC, in MAGA's beloved Fifth Circuit, before a Trump-appointed judge. The case was brought by Trump's financial advisors, Ryan LLC, who are using it to drum up business from corporations that hate Biden's new taxes on the wealthy and stepped up IRS enforcement on rich tax-cheats.
Will they win? It's hard to say. Despite what you may have heard, the case against the FTC order is *very* weak, as Matt Stoller explains here:
https://www.thebignewsletter.com/p/ftc-enrages-corporate-america-by
The FTC's statutory authority to block noncompetes comes from Section 5 of the FTC Act, which bans "unfair methods of competition" (hard to imagine a less fair method than indenturing your workers). Section 6(g) of the Act lets the FTC make rules to enforce Section 5's ban on unfairness. Both are good law - 6(g) has been used many times (26 times in the five years from 1968-73 alone!).
The DC Circuit court upheld the FTC's right to "promulgate rules defining the meaning of the statutory standards of the illegality the Commission is empowered to prevent" in 1973, and in 1974, Congress changed the FTC Act, but left this rulemaking power intact.
The lawyer suing the FTC - Anton Scalia's larvum, a pismire named Eugene Scalia - has some wild theories as to why none of this matters. He says that because the law hasn't been enforced since the ancient days of the (checks notes) 1970s, it no longer applies. He says that the mountain of precedent supporting the FTC's authority "hasn't aged well." He says that other antitrust statutes don't work the same as the FTC Act. Finally, he says that this rule is a big economic move and that it should be up to Congress to make it.
Stoller makes short work of these arguments. The thing that tells you whether a law is good is its text and precedent, "not whether a lawyer thinks a precedent is old and bad." Likewise, the fact that other antitrust laws is irrelevant "because, well, they are other antitrust laws, not this antitrust law." And as to whether this is Congress's job because it's economically significant, "so what?" Congress *gave the FTC this power*.
Now, none of this matters if the Supreme Court strikes down the rule, and what's more, if they do, they might also neuter the FTC's rulemaking power in the bargain. But again: so what? How is it better for the FTC to do nothing, and preserve a power that it never uses, than it is for the Commission to free the 35-40 *million* American workers whose bosses get to use the US court system to force them to do a job they hate?
The FTC's rule doesn't just ban noncompetes - it also bans TRAPs ("training repayment agreement provisions"), which require employees to pay their bosses *thousands of dollars* if they quit, get laid off, or are fired:
https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose
The FTC's job is to protect Americans from businesses that cheat. This is them, doing their job. If the Supreme Court strikes this down, it further delegitimizes the court, and spells out exactly who the GOP works for.
This is part of the long history of antitrust and labor. From its earliest days, antitrust law was "aimed at dollars, not men" - in other words, antitrust law was always designed to smash corporate power in order to protect workers. But over and over again, the courts refused to believe that Congress truly wanted American workers to get legal protection from the wealthy predators who had fastened their mouth-parts on those workers' throats. So over and over - and over and over - Congress passed new antitrust laws that clarified the purpose of antitrust, using words so small that even federal judges could understand them:
https://pluralistic.net/2023/04/14/aiming-at-dollars/#not-men
After decades of comatose inaction, Biden's FTC has restored its role as a protector of labor, explicitly tackling competition through a worker protection lens. This week, the Commission blocked the merger of Capri Holdings and Tapestry Inc, a pair of giant conglomerates that have, between them, bought up nearly every "affordable luxury" brand (Versace, Jimmy Choo, Michael Kors, Kate Spade, Coach, Stuart Weitzman, etc).
You may not care about "affordable luxury" handbags, but you *should* care about the basis on which the FTC blocked this merger. As David Dayen explains for *The American Prospect*: 33,000 workers employed by these two companies would lose the wage-competition that drives them to pay skilled sales-clerks more to cross the mall floor and switch stores:
https://prospect.org/economy/2024-04-24-challenge-fashion-merger-new-antitrust-philosophy/
In other words, the FTC is blocking a $8.5b merger that would turn an oligopoly into a monopoly explicitly *to protect workers* from the power of bosses to suppress their wages. What's more, the vote was *unanimous*, include the Commission's freshly appointed (and frankly, pretty terrible) Republican commissioners:
https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-moves-block-tapestrys-acquisition-capri
A lot of people are (understandably) worried that if Biden doesn't survive the coming election that the raft of excellent rules enacted by his agencies will die along with his presidency. Here we have evidence that the Biden administration's anti-corporate agenda has become institutionalized, acquiring a bipartisan durability.
And while there hasn't been a lot of press about that anti-corporate agenda, it's pretty goddamned huge. Back in 2020, Tim Wu (then working in the White wrote an executive order on competition that identified 72 actions the agencies could take to blunt the power of corporations to harm everyday Americans:
https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby
Biden's agency heads took that plan and *ran* with it, demonstrating the revolutionary power of technical administrative competence and proving that being good at your job is praxis:
https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff
In just the past *week*, there's been a *storm* of *astoundingly good* new rules finalized by the agencies:
* A minimum staffing ratio for nursing homes;
* The founding of the American Climate Corps;
* A guarantee of overtime benefits;
* A ban on financial advisors cheating retirement savers;
* Medical privacy rules that protect out-of-state abortions;
* A ban on junk fees in mortgage servicing;
* Conservation for 13m Arctic acres in Alaska;
* Classifying "forever chemicals" as hazardous substances;
* A requirement for federal agencies to buy sustainable products;
* Closing the gun-show loophole.
That's just a partial list, and it's only Thursday.
Why the rush? As Gerard Edic writes for *The American Prospect*, finalizing these rules now protects them from the Congressional Review Act, a gimmick created by Newt Gingrich in 1996 that lets the next Senate wipe out administrative rules created in the months before a federal election:
https://prospect.org/politics/2024-04-23-biden-administration-regulations-congressional-review-act/
In other words, this is more dazzling administrative competence from the technically brilliant agencies that have labored quietly and effectively since 2020. Even laggards like Pete Buttigieg have gotten in on the act, despite a *very* poor showing in the early years of the Biden administration:
https://pluralistic.net/2023/02/11/dinah-wont-you-blow/#ecp
Despite those unpromising beginnings, the DOT has gotten onboard the trains it regulates, and passed a great rule that forces airlines to refund your money if they charge you for services they don't deliver:
https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/24/fact-sheet-biden-harris-administration-announces-rules-to-deliver-automatic-refunds-and-protect-consumers-from-surprise-junk-fees-in-air-travel/
The rule also bans junk fees and forces airlines to compensate you for late flights, finally giving American travelers the same rights their European cousins have enjoyed for two decades.
It's the latest in a string of muscular actions taken by the DOT, a period that coincides with the transfer of Jen Howard from her role as chief of staff to FTC chair Lina Khan to a new gig as the DOT's chief of competition enforcement:
https://prospect.org/infrastructure/transportation/2024-04-25-transportation-departments-new-path/
Under Howard's stewardship, the DOT blocked the merger of Spirit and Jetblue, and presided over the lowest flight cancellation rate in more than decade:
https://www.transportation.gov/briefing-room/2023-numbers-more-flights-fewer-cancellations-more-consumer-protections
All that, along with a suite of protections for fliers, mark a huge turning point in the US aviation industry's long and worsening abusive relationship with the American public. There's more in the offing, too including a ban on charging families extra for adjacent seats, rules to make flying with wheelchairs easier, and a ban on airlines selling passenger's private information to data brokers.
There's plenty going on in the world - and in the Biden administration - that you have every right to be furious and/or depressed about. But these expert agencies, staffed by experts, have brought on a *tsunami* of rules that will make every working American better off in a myriad of ways. Those material improvements in our lives will, in turn, free us up to fight the bigger, existential fights for a livable planet, free from genocide.
It may not be a good time to be alive, but it's a much better time than it was just last week.
And it's only Thursday.
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🐉 Hey look at this
* Ticket to ride https://www.presentandcorrect.com/blogs/blog/ticket-to-ride (h/t Kottke)
* There's More to Copyright Than Financial Incentives, Internet Archive Argues in Court https://torrentfreak.com/there-is-more-to-copyright-than-financial-incentives-internet-archive-argues-in-court-240423/
* Murky Consent: An Approach to the Fictions of Consent in Privacy Law https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4333743 (h/t Schneier)
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🐉 This day in history
#15yrsago The Pirate Google: making the point that Google’s as guilty of linking to torrents as The Pirate Bay https://web.archive.org/web/20090425044739/http://www.thepirategoogle.com/
#10yrsago Radical press demands copyright takedown of Marx-Engels Collected Works https://crookedtimber.org/2014/04/24/karlo-marx-and-fredrich-engels-came-to-the-checkout-at-the-7-11/
#10yrsago Band releases album as Linux kernel module https://github.com/usrbinnc/netcat-cpi-kernel-module
#5yrsago Joe Biden kicks off his presidential bid with a fundraiser hosted by Comcast’s chief lobbyist https://www.cbsnews.com/news/comcast-executive-to-host-joe-biden-fundraiser/
#5yrsago “Black hat” companies sell services to get products featured and upranked on Amazon https://www.buzzfeednews.com/article/leticiamiranda/amazon-marketplace-sellers-black-hat-scams-search-rankings
#5yrsago Vulnerabilities in GPS fleet-tracking tools let attackers track and immobilize cars en masse https://www.vice.com/en/article/zmpx4x/hacker-monitor-cars-kill-engine-gps-tracking-apps
#5yrsago Court case seeks to clarify that photographers don’t need permission to publish pictures that incidentally capture public works of art https://www.techdirt.com/2019/04/24/mercedes-goes-to-court-to-get-background-use-public-murals-promotional-pics-deemed-fair-use/
#5yrsago A 40cm-square patch that renders you invisible to person-detecting AIs https://arxiv.org/abs/1904.08653
#5yrsago Telcoms lobbyists oppose ban on throttling firefighters’ internet during wildfires https://arstechnica.com/tech-policy/2019/04/verizon-backed-lobby-group-opposes-ban-on-throttling-of-firefighters/
#5yrsago Angered by the No-More-AOCs rule, 31 colleges’ Young Democrats boycott the DCCC https://theintercept.com/2019/04/25/dccc-blacklist-college-democrats/
#5yrsago Older Americans are working beyond retirement age at levels not seen since 1962 https://web.archive.org/web/20201107235540/https://www.investmentnews.com/older-americans-are-twice-as-likely-to-work-now-as-in-1985-79176
#1yrago How Amazon makes everything you buy more expensive, no matter where you buy it https://pluralistic.net/2023/04/25/greedflation/#commissar-bezos
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🐉 Upcoming appearances
* The Bezzle at Book Passage Corte Madera (Marin County), April 27
https://www.bookpassage.com/event/cory-doctorow-bezzle-martin-hench-novel-corte-madera-store
* Canadian Centre for Policy Alternatives (Winnipeg), May 2
https://www.eventbrite.ca/e/cory-doctorow-tickets-798820071337
* Wordfest (Calgary), May 3
https://wordfest.com/2024/event/wordfest-presents-cory-doctorow-2/
* Massy Arts (Vancouver), May 4
https://www.eventbrite.ca/e/solo-reading-cory-doctorow-the-bezzle-tickets-876989167207
* Tartu Prima Vista Literary Festival, May 5-11
https://tartu2024.ee/en/kirjandusfestival/
* Tim O’Reilly and Cory Doctorow on “Enshittification” and the Future of AI, May 14
https://www.oreilly.com/live-events/tim-oreilly-and-cory-doctorow-on-enshittification-and-the-future-of-ai/0642572001651/
* "Finding the Money" screening (LA), May 15
https://www.laemmle.com/film/finding-money?date=2024-05-15
* Media Ecology Association keynote, Jun 6-9 (Amherst, NY)
https://media-ecology.org/convention
* American Association of Law Libraries keynote, (Chicago), Jul 21
https://www.aallnet.org/conference/agenda/keynote-speaker/
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🐉 Recent appearances
* Come sfuggire al “Merdocene” e costruire un Internet migliore (Torino Biennale Tecnologia)
https://www.youtube.com/watch?v=Z5NC2EZCYBg
* Show Me The Money Club (The Rideshare Guy)
https://www.youtube.com/watch?v=ZCETi3XqSds
* NUOVO BARETTO UTOPIA
https://videoteca.kenobit.it/w/azRmQBCenVwjSRz9WCp8JS
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🐉 Latest books
* The Bezzle: a sequel to "Red Team Blues," about prison-tech and other grifts, Tor Books (US), Head of Zeus (UK), February 2024 (the-bezzle.org). Signed, personalized copies at Dark Delicacies (https://www.darkdel.com/store/p3062/Available_Feb_20th%3A_The_Bezzle_HB.html#/).
* "The Lost Cause:" a solarpunk novel of hope in the climate emergency, Tor Books (US), Head of Zeus (UK), November 2023 (http://lost-cause.org). Signed, personalized copies at Dark Delicacies (https://www.darkdel.com/store/p3007/Pre-Order_Signed_Copies%3A_The_Lost_Cause_HB.html#/)
* "The Internet Con": A nonfiction book about interoperability and Big Tech (Verso) September 2023 (http://seizethemeansofcomputation.org). Signed copies at Book Soup (https://www.booksoup.com/book/9781804291245).
* "Red Team Blues": "A grabby, compulsive thriller that will leave you knowing more about how the world works than you did before." Tor Books http://redteamblues.com. Signed copies at Dark Delicacies (US): and Forbidden Planet (UK): https://forbiddenplanet.com/385004-red-team-blues-signed-edition-hardcover/.
* "Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid, with Rebecca Giblin", on how to unrig the markets for creative labor, Beacon Press/Scribe 2022 https://chokepointcapitalism.com
* "Attack Surface": The third Little Brother novel, a standalone technothriller for adults. The *Washington Post* called it "a political cyberthriller, vigorous, bold and savvy about the limits of revolution and resistance." Order signed, personalized copies from Dark Delicacies https://www.darkdel.com/store/p1840/Available_Now%3A_Attack_Surface.html
* "How to Destroy Surveillance Capitalism": an anti-monopoly pamphlet analyzing the true harms of surveillance capitalism and proposing a solution. https://onezero.medium.com/how-to-destroy-surveillance-capitalism-8135e6744d59?sk=f6cd10e54e20a07d4c6d0f3ac011af6b) (signed copies: https://www.darkdel.com/store/p2024/Available_Now%3A__How_to_Destroy_Surveillance_Capitalism.html)
* "Little Brother/Homeland": A reissue omnibus edition with a new introduction by Edward Snowden: https://us.macmillan.com/books/9781250774583; personalized/signed copies here: https://www.darkdel.com/store/p1750/July%3A__Little_Brother_%26_Homeland.html
* "Poesy the Monster Slayer" a picture book about monsters, bedtime, gender, and kicking ass. Order here: https://us.macmillan.com/books/9781626723627. Get a personalized, signed copy here: https://www.darkdel.com/store/p2682/Corey_Doctorow%3A_Poesy_the_Monster_Slayer_HB.html#/.
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🐉 Upcoming books
* Picks and Shovels: a sequel to "Red Team Blues," about the heroic era of the PC, Tor Books, February 2025
* Unauthorized Bread: a graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, 2025
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🐉 Colophon
Today's top sources:
Currently writing:
* A Little Brother short story about DIY insulin PLANNING
* Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. FORTHCOMING TOR BOOKS JAN 2025
* Vigilant, Little Brother short story about remote invigilation. FORTHCOMING ON TOR.COM
* Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM
Latest podcast:
Capitalists Hate Capitalism https://craphound.com/news/2024/04/14/capitalists-hate-capitalism/
This work - excluding any serialized fiction - is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.
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Quotations and images are not included in this license; they are included either under a limitation or exception to copyright, or on the basis of a separate license. Please exercise caution.
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"*When life gives you SARS, you make sarsaparilla*" -Joey "Accordion Guy" DeVilla
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