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Antitrust litigation often involves situations where important relevant information is limited or costly to obtain, behavior is complex and can have multiple explanations, or theory is not particularly well developed. As a result, legal and factual presumptions, evidentiary shortcuts, and assignment of the burden of proof can be critical and often decisive. This situation is common across all types of antitrust actions, including unilateral and collaborative conduct, as well as mergers. In general, the more complex an issue is or the market in which it occurs, the more valuable evidentiary shortcuts become, provided that they point us in the right direction. This paper considers how these constraints should be applied to large digital platform markets. Uniquely harsh treatment threatens an error that antitrust policy has made before, which is excessive management of a part of the economy that is in fact notable for its superior performance. The need for and nature of presumptions or other evidentiary shortcuts should be partly based on our overall assessment of performance. If we believe that the markets dominated by large digital platforms are performing poorly, with a great deal of monopoly and low customer satisfaction, then stronger evidentiary biases against them might be warranted. However, if we think they are performing relatively well, then perhaps such presumptions should be weakened or not employed at all.At the same time, however, the digital economy contains unique features that serve both to differentiate and to complicate antitrust analysis. Further, the opportunities for engaging in harmful exercises of market power are numerous. Large tech firms trade heavily, although not exclusively, in digital content; they have different cost structures than most traditional firms; they often operate on “two-sided” markets; and they are heavily involved in distribution with both direct and indirect network effects.
This is a paper about “big data” and antitrust law. For my purposes, big data refers to digital platforms that enable the discovery and sharing of information by consumers, and the harvesting and analysis of data on those consumers by the platform. The obvious example of such a platform is Google. The big platforms owe their market dominance not to anticompetitive conduct but to economies of scale. I discuss three types of anticompetitive conduct associated with digital platforms: kill zone expropriation, acquisition of nascent rivals, and denial of access to data. There is nothing so unusual about digital platforms that would require a reform of the antitrust laws. Some are described as two-sided markets, but this designation, even after Ohio v. Amex, should not present an obstacle to the application of antitrust law.
Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit technological innovation and the economy, American technological leadership, and the free flow of information.
A common story prevails that suggests dynamic markets long ago displaced the need for regulating large firms by way of tougher antitrust enforcement. Presently, however, an outpouring of academic and popular literature is calling for tougher antitrust enforcement in order to protect smaller competitors from large digital platforms, such as Amazon, Facebook, and Google. Even if the platforms are not pure monopolies, their market power can have harmful economic effects, such as reducing innovation and increasing the likelihood of anticompetitive conducts in the markets that the platforms dominate. In this essay I research the modern evolution of the U.S. antitrust laws and I argue for introducing new policies to strengthen them and mitigate foreseeable risks in the future. This essay includes three parts.In section one I show how the current framework in antitrust law emphasizes a consumer welfare goal, which relies heavily on Neoclassical Price Theory (more commonly referred to as “microeconomics”). I also argue that modern antitrust enforcement is quite narrow, which reflects the ascendancy and persistence of a specific interpretation of the term “consumer welfare.”In section two I argue that the current antitrust framework is too narrow to combat restraints of trade and anticompetitive practices in important digital sectors. More specifically, I argue the following: (1) the initial burden of proof, which plaintiffs must produce, prohibits basic analyses in court and makes the laws unpredictable even for specialists; (2) the removal of structural presumptions in merger law has enabled platforms to undertake anticompetitive growth strategies (i.e. acquiring nascent competitors); and (3) dominant platforms benefit disproportionately from network effects that strengthen their positions--e.g. advertisers, websites, and online retailers are reluctant to migrate to alternative platforms due to high 'switching' and 'homing' costs. In addition, platforms are given special status through a recent Supreme Court ruling--Ohio v. American Express--which only aggravates the concern that Amazon, Facebook and Google are unfairly exempted from regulation.In section three I discuss several proposals aimed at protecting innovation and deterring anticompetitive conducts by dominant platforms for all business operations in the United States.
This article reflects on the way in which the new initiatives to regulate powerful online platforms in the European Union, the United States, the United Kingdom, and Germany challenge well-established fundamentals of modern antitrust and thereby reshape the future of competition law. It shows that the new platform regulations set in motion a profound transformation of modern antitrust law thatoperates along four parameters. First, the new platform regulations unsettle the long-standing baseline assumption that the maximization of consumer welfare constitutes competition law's core mission. Second, the new instruments repudiate the orthodox understanding of error costs that advocates under-enforcement as the optimal standard of intervention in innovation-driven markets. Third, by relying primarily on rule-like presumptions as legal commands to regulate digital competition, the new platform regulations reverse the trend toward an increasingly inductive mode of analysis that characterized modern antitrust under the “more economic” or “effects-based” approach. Fourth, the new platform regulations also fundamentally diverge from a purely probabilistic standard of proof which requires the showing that impugned conduct is more likely than not to cause anticompetitive harm. The reconfiguration of modern antitrust along these four vectors, the article concludes, foreshadows a new, more inclusive model of innovation and growth in digital markets.
“A fascinating book about how platform internet companies (Amazon, Facebook, and so on) are changing the norms of economic competition.” —Fast Company Shoppers with a bargain-hunting impulse and internet access can find a universe of products at their fingertips. But is there a dark side to internet commerce? This thought-provoking exposé invites us to explore how sophisticated algorithms and data-crunching are changing the nature of market competition, and not always for the better. Introducing into the policy lexicon terms such as algorithmic collusion, behavioral discrimination, and super-platforms, Ariel Ezrachi and Maurice E. Stucke explore the resulting impact on competition, our democratic ideals, our wallets, and our well-being. “We owe the authors our deep gratitude for anticipating and explaining the consequences of living in a world in which black boxes collude and leave no trails behind. They make it clear that in a world of big data and algorithmic pricing, consumers are outgunned and antitrust laws are outdated, especially in the United States.” —Science “A convincing argument that there can be a darker side to the growth of digital commerce. The replacement of the invisible hand of competition by the digitized hand of internet commerce can give rise to anticompetitive behavior that the competition authorities are ill equipped to deal with.” —Burton G. Malkiel, Wall Street Journal “A convincing case for the need to rethink competition law to cope with algorithmic capitalism’s potential for malfeasance.” —John Naughton, The Observer
Across the world, regulators and policy makers are grappling with how to establish a competitive, safe and fair online environment that also safeguards users’ fundamental rights as citizens. Ahead of the European Commission’s Digital Markets Act (DMA), this book “Digital markets and online platforms: new perspectives on regulation and competition law“, presents CERRE’s latest contribution to the debate with concrete policy recommendations. Together, the policy recommendations in this book present a roadmap that should be pursued for EU policy makers to safeguard competition and innovation in digital platform markets. They can be organised into three key areas for action: (i) More effective enforcement, (ii) increased transparency and switching easiness, and (iii) providing access to key innovation capabilities. “The need to safeguard fair and vibrant competition, which is also seen as an important driving factor for innovation, is nothing new for policy makers. However, the characteristics and complexities of digital markets have challenged some of the traditional approaches.” – Jan Krämer, editor of the book and CERRE Academic Co-Director The book’s recommendations highlight that platform transparency and associated data collection by authorities, as well as data sharing by platforms (initiated through consumers or authorities), are the two most important overarching policy measures for platform markets in the near future. They facilitate enforcement, consumer choice, and innovation capabilities in the digital economy. The contents of this book were presented and debated during a CERRE live debate with guest speakers Anne Yvrande-Billon (Arcep’s Director of Economic, Market and Digital Affairs), MEP Stéphanie Yon-Courtin (Vice-President of the European Parliament’s Committee on Economic and Monetary Affairs) and Javier Espinoza (Financial Times’ EU Correspondent covering competition and digital policy).
This book compiles a set of pieces on the implications of the U.S. Supreme Court's ruling in Ohio et. al. v. American Express and the preceding litigation for the treatment of multisided platforms under U.S. antitrust law. The authors consider that the Supreme Court ruling provides valuable guidance for antitrust analysis in such markets.
Are large digital platforms that deal directly with consumers “winner take all,” or natural monopoly, firms? That question is surprisingly complex and does not produce the same answer for every platform. The closer one looks at digital platforms the less they seem to be winner-take-all. As a result, competition can be made to work in most of them. Further, antitrust enforcement, with its accommodation of firm variety, is generally superior to any form of statutory regulation that generalizes over large numbers.Assuming that an antitrust violation is found, what should be the remedy? Breaking up large firms subject to extensive scale economies or positive network effects is sure to be costly. In the past, structural relief of this type has led to lower output and higher prices or business firm failure. One likely exception is acquisitions of small firms that threaten to grow into substantial rivals.If breakup is not the answer, then what are the best antitrust remedies? Sometimes the best way to deal with platform monopoly is to break up ownership and management rather than assets. Leaving the platform intact as a production entity but making ownership more competitive could actually increase output, benefitting consumers, labor, and suppliers. The history of antitrust law is replete with firms that are organized as single entities for many legal purposes but that also function as combinations and can be treated that way by antitrust law. A second possibility is forced interoperability or pooling of important information, which can make markets more competitive while actually increasing the value of positive network externalities. Finally, this paper examines the problem of platform acquisition of nascent firms, where the biggest threat is not from horizontal mergers but rather from acquisitions of complements or differentiated technologies. For these, the tools we currently use in merger law are poorly suited. Here I offer some suggestions.