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Showing 9 of 226 Results in Intermediary Liability
TOTM The International Center for Law & Economics (ICLE) filed an amicus brief on behalf of itself and 26 distinguished law & economics scholars with the 9th U.S. Circuit . . .
The International Center for Law & Economics (ICLE) filed an amicus brief on behalf of itself and 26 distinguished law & economics scholars with the 9th U.S. Circuit Court of Appeals in the hotly anticipated and intensely important Epic Games v Apple case.
Read the full piece here.
Amicus Brief In this amicus brief for the U.S. Court of Appeals for the D.C. Circuit, ICLE and a dozen scholars of law & economics address the broad consensus disfavoring how New York and other states seek to apply the “unilateral refusal to deal” doctrine in an antitrust case against Facebook.
Amici are leading scholars of economics, telecommunications, and/or antitrust. Their scholarship reflects years of experience and publications in these fields.
Amici’s expertise and academic perspectives will aid the Court in deciding whether to affirm in three respects. First, amici provide an explanation of key economic concepts underpinning how economists understand the welfare effects of a monopolist’s refusal to deal voluntarily with a competitor and why that supports affirmance here. Second, amici offer their perspective on the limited circumstances that might justify penalizing a monopolist’s unilateral refusal to deal—and why this case is not one of them. Third, amici explain why the District Court’s legal framework was correct and why a clear standard is necessary when analyzing alleged refusals to deal.
This brief addresses the broad consensus in the academic literature disfavoring a theory underlying plaintiff’s case—“unilateral refusal to deal” doctrine. The States allege that Facebook restricted access to an input (Facebook’s Platform) in order to prevent third parties from using that access to export Facebook data to competitors or compete directly with Facebook. But a unilateral refusal to deal involves more than an allegation that a monopolist refuses to enter into a business relationship with a rival.
Mainstream economists and competition law scholars are skeptical of imposing liability, even on a monopolist, based solely on its choice of business partners. The freedom of firms to choose their business partners is a fundamental tenet of the free market economy, and the mechanism by which markets produce the greatest welfare gains. Thus, cases compelling business dealings should be confined to particularly delineated circumstances.
In Part I below, amici describe why it is generally inefficient for courts to compel economic actors to deal with one another. Such “solutions” are generally unsound in theory and unworkable in practice, in that they ask judges to operate as regulators over the defendant’s business.
In Part II, amici explain why Aspen Skiing—the Supreme Court’s most prominent precedent permitting liability for a monopolist’s unilateral refusal to deal—went too far and should not be expanded as the States’ and some of their amici propose.
In Part III, amici explain that the District Court correctly held that the conduct at issue here does not constitute a refusal to deal under Aspen Skiing. A unilateral refusal to deal should trigger antitrust liability only where a monopolist turns down more profitable dealings with a competitor in an effort to drive that competitor’s exit or to disable its ability to compete, thereby allowing the monopolist to recoup its losses by increasing prices in the future. But the States’ allegations do not describe that scenario.
In Part IV, amici address that the District Court properly considered and dismissed the States’ “conditional dealing” argument. The States’ allegations are correctly addressed under the rubric of a refusal to deal—not exclusive dealing or otherwise. The States’ desire to mold their allegations into different legal theories highlights why courts should use a strict, clear standard to analyze refusals to deal.
Read the full brief here.
Popular Media Four years after Congress passed an exception to Section 230 of the Communications Decency Act that made it possible to hold websites liable for user-generated . . .
Four years after Congress passed an exception to Section 230 of the Communications Decency Act that made it possible to hold websites liable for user-generated content that facilitates sex trafficking, some lawmakers want to examine what the impact has been. In the process, we may learn more about the tradeoffs required to strike a reasonable balance between holding online platforms accountable and protecting venues for user-generated content.
Presentations & Interviews The Federalist Society – ICLE Director of Competition Policy Kristian Stout took part in a webinar organized by the Federalist Society on Section 230, common law, . . .
The Federalist Society – ICLE Director of Competition Policy Kristian Stout took part in a webinar organized by the Federalist Society on Section 230, common law, and free speech. The full video is embedded below.
Popular Media The EARN IT Act, recently cleared for floor consideration by the Senate Judiciary Committee, remains a contentious bill, primarily over concerns that it might dissuade . . .
The EARN IT Act, recently cleared for floor consideration by the Senate Judiciary Committee, remains a contentious bill, primarily over concerns that it might dissuade tech providers from using encryption. But amid ongoing debate about Section 230 and the role of tech platforms in our public discourse, legislation like EARN IT could, if paired with carefully crafted procedural protections, offer a model for how Congress can address bipartisan concerns about child sexual abuse material (CSAM) and other illegal content online.
TL;DR While Congress is considering legislation that would dictate the terms that major app stores can offer to app developers, several states have similarly pursued legislation to regulate app stores.
While Congress is considering legislation that would dictate the terms that major app stores can offer to app developers, several states have similarly pursued legislation to regulate app stores. In particular, bills requiring app-store providers to permit the practice of “sideloading,” or prohibiting them from requiring that specific payment mechanisms be used, have gained traction in several states. Some state bills also would create a private right of action against app stores.
A proliferation of state regulations threatens to create a patchwork of rules for mobile app stores, which operate globally. In this landscape, it is likely that one or two large states could set the regulatory baseline for the entire country. Smaller states that set burdensome rules could force app stores to cease distributing apps from developers domiciled in their jurisdictions.
These bills are ill-advised on their own terms. Mandating that closed app-store platforms permit the use of alternative payment options could see large developers and rival payment processors free ride on an app store’s own investments. Denying closed platforms the ability to prohibit “sideloading” could compromise cybersecurity. These state bills would substitute regulatory fiat for consumer choice, sacrificing the benefits currently enjoyed by many consumers.
Read the full explainer here.
TOTM In Fleites v. MindGeek—currently before the U.S. District Court for the District of Central California, Southern Division—plaintiffs seek to hold MindGeek subsidiary PornHub liable for alleged . . .
In Fleites v. MindGeek—currently before the U.S. District Court for the District of Central California, Southern Division—plaintiffs seek to hold MindGeek subsidiary PornHub liable for alleged instances of human trafficking under the Racketeer Influenced and Corrupt Organizations (RICO) and the Trafficking Victims Protection Reauthorization Act (TVPRA). Writing for the International Center for Law & Economics (ICLE), we have filed a motion for leave to submit an amicus brief regarding whether it is valid to treat co-defendant Visa Inc. as a proper party under principles of collateral liability.
Amicus Brief An ICLE amicus brief filed in U.S. District Court in California supporting a motion to dismiss a suit in which holding Visa collaterally liable would generate massive social cost.
The attached was submitted Jan. 17, 2022, by the International Center for Law & Economics (ICLE) to the U.S. District Court for the Central District of California, Southern Division, as a proposed amicus brief in case of Fleites v. MindGeek in support of co-defendant Visa Inc.’s motion to dismiss.
Visa sits outside the boundaries of liability contemplated by statutes like RICO and TVPRA. At the very outer boundaries, liability for indirect actors under these statutes is analogous to the sorts of collateral liability sometimes found in other statutes and in common law tort.[1] But the nature of the relationship between Visa and the alleged direct actors in this case, dictated by the mechanics of payment networks, does not support the traditional economic and policy rationales for assigning collateral liability. This amicus brief elucidates the law and economics of collateral liability and applies it to the circumstances of Visa’s alleged participation in the alleged enterprises at issue. As discussed further below, the general principles of collateral liability counsel strongly against holding Visa liable for the harms suffered by Plaintiffs. To hold otherwise would be sure to generate a massive amount of social cost that would outweigh the potential deterrent or compensatory gains sought.
[1] This amicus brief uses the term “collateral liability” to encompass a range of theories of civil liability aimed at secondary actors not directly responsible for causing harm. Thus, the term contemplates causes of action like premises liability for third-party injury, distributor liability for defamation, civil aiding and abetting liability for fraud, contributory and inducement liability for copyright infringement, and various theories of vicarious liability under the doctrine of respondeat superior. See generally Reiner Kraakman, Third-Party Liability, in 3 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 583 (Peter Newman ed., 1998).
TL;DR The U.S. Senate is considering legislation—S. 2710, the Open App Markets Act—that would, among other restrictions, bar app stores from requiring app developers to use the store’s own in-app payment system.
The U.S. Senate is considering legislation—S. 2710, the Open App Markets Act—that would, among other restrictions, bar app stores from requiring app developers to use the store’s own in-app payment system. The bill was introduced by Sen. Richard Blumenthal (D-Conn.), who has argued that it would “open the app economy to new competitors and give mobile users more control over their own devices.”
The app store market is competitive and mobile users already have a choice of relatively open and relatively closed platforms. More open platforms, like the Google Play store, offer users the benefits of greater customization and a broader range of apps and payment options. More closed platforms, such as Apple’s App Store, foreclose some of these options, but instead promise users greater privacy and security and a more curated experience that can ensure better device operation.
Requiring closed platforms to allow the use of alternative payment options would see large developers and rival payment processors get the benefit of the app store’s investments without paying for them. The Open App Markets Act would substitute regulatory fiat for consumer choice, sacrificing the benefits currently enjoyed by many consumers.
