ICLE and a number of its European affiliates have recently responded to the European commission’s public consultation on “shaping competition policy in the era of digitisation.” In our submission, we argue that competition policy in the digital economy should be based on sound, theoretical underpinnings and rigorous, evidence-based analysis, best encapsulated in the “law and economics” approach. Despite many expressed fears to the contrary, digital markets are not inherently prone to anticompetitive behavior, and the weight of economic theory and evidence offer little support for the asserted risk of harm. We thus argue that competition intervention should take into account the uncertainty of harm, the presence of countervailing benefits and the problems of devising an effective remedy.

Our submission notably challenges the idea that leveraging, consumer lock-in, network effects, and data collection necessarily lead to winner-take all situations where digital platforms exclude their rivals and exploit their users. Instead, we show that these phenomena are just as likely (if not more likely) to benefit consumers as they are to be anticompetitive. Leveraging may, for instance, increase market output by enabling firms to offer superior products. Far from monopoly being the constant problem plaguing markets characterized by network effects, fragmentation is often more of an issue, and mandating smaller networks can limit users’ ability to coordinate on a preferred platform.

Of crucial importance in evaluating the conduct of online platforms is the awareness that in such two-sided markets one side of the market may subsidize another or operate under contractual restraints aimed at improving the platform for other participants. These characteristics frequently enable the platform to function effectively—even though, viewed in isolation, they might appear to amount to supracompetitive pricing or anticompetitive restrictions. The interdependent nature of online platforms thus makes it difficult to assert that a price increase or other action that allegedly harms users on only one side of the market represents a harmful course of conduct overall. The only way to assess the propriety of such conduct is to look at its effect on output across the entire market, taking account of the full range of costs and benefits.

Our submission also demonstrates that the advent of the “data economy” does not presumptively alter the balance of competition enforcement. Indeed, the mere fact that an incumbent owns large amounts of data may be an indication of successful competition of precisely the sort competition laws are designed to encourage. It certainly does not inherently constitute a barrier to entry, much less an essential facility, that could trigger antitrust enforcement.

Because the digital economy is built upon tremendous investments in innovation, we also argue that competition enforcement should pay particularly close attention to firms’ incentives to innovate. It is well-established that expected profits are generally a precondition for innovation. Accordingly, competition enforcers must walk a very fine line between punishing anticompetitive conduct that might deter innovation by new entrants, and protecting incumbent innovators’ incentives by avoiding enforcement activity that punishes firms experimenting on the frontiers of their industries.

In the final analysis, we argue that European competition authorities should consider carefully how little certainty we have about digital markets and the effects of challenged conduct within them, and operate with the restraint and regulatory humility appropriate to our ignorance.

Abstract

Owners of standard essential patents (SEPs) are cast as villains for engaging in “patent hold-up,” i.e., taking advantage of the fact that they negotiate royalties with implementer-licensees that already have made sunk investments in the standard. In contrast to “patent ambush,” patent hold-up involves no standard-setting misconduct or harm to any competitive process, and thus cannot violate antitrust law. Commentators taking a contrary positions confuse the ends of antitrust law with its means. Antitrust law promotes consumer welfare only by protecting competition. Casting aside this core principle would expose business decisions, including ordinary price setting, to judicial oversight. Commitments made by SEP owners in the standard-setting process, however, should be enforced, and they are enforced. Without an antitrust cause of action, implementers invoke the powers of the courts to resolve royalty disputes over SEPs.

ICLE Academic Affiliate Keith Hylton participated in the FTC’s Hearing #2: Monopsony and the State of U.S. Antitrust Law on the panel, The State of U.S. Antitrust Law (Session 1). Read the full transcript here. Video of the event is embedded below.

ICLE Senior Scholar Joshua Wright participated in the FTC’s Hearing #1: The Current Landscape of Competition and Privacy Law and Policy on the panel, Has the US Economy Become More Concentrated and Less Competitive: A Review of the Data. Read the full transcript here. Video of the event is embedded below.

The denizens of Silicon Valley (and Seattle) have picked up a slew of nicknames: GAFA (for Google, Apple, Facebook, and Amazon); FAANG (add Netflix in there); or, most ominously, the Frightful Five (sub out Netflix, sub in Microsoft). The central charge is these firms are monopolizing their respective markets, and have achieved such dominance that their market positions are now unchallengable. The side effects may include dampened innovation, reduced labor power, and any number of democracy-is-in-peril concerns.

ICLE Academic Affiliate Nicolas Petit joins the Political Economy Podcast to argue against this alarmist case against the tech titans. Drawing from his 2016 paper, “Technology Giants, the Moligopoly Hypothesis and Holistic Competition: A Primer,” as well as new research from a forthcoming book, Petit makes the argument these “Frightful Five” firms engage in cutthroat competition with one another, benefiting the economy as a whole — and government regulation against these companies is premature.

The full episode is embedded below.

On Tuesday, August 28, 2018, Truth on the Market and the International Center for Law and Economics presented a blog symposium — Is Amazon’s Appetite Bottomless? The Whole Foods Merger After One Year — that looked at the concerns surrounding the closing of the Amazon-Whole Foods merger, and how those concerns had played out over the last year.

Read the full piece here.

The submissions in this symposium thus far highlight, in different ways, what must be considered the key lesson of the Amazon/Whole Foods merger: It has brought about immense and largely unforeseen (in its particulars, at least) competition — and that competition has been remarkably successful in driving innovations that will likely bring immense benefits to consumers and the economy as a whole.

Read the full piece here.

It is a useful thing sometimes to be a token liberal at a conservative academic conference. More than once I’ve found myself on a panel at which I wanted to talk about issues that I thought were at the heart of the event-sponsors’ views, but they then wanted to talk about different things entirely, things I wouldn’t expect to be on anyone’s agenda. Maybe that sort of thing reflects our siloed popular debate generally. When we actually talk to each other once in a while, we’re often surprised that we’ve been off in our corners talking about completely different things. Anyway, today again I’m interested in why this website’s editors chose this particular merger as a topic, much more so than I am in the merger itself.

Read the full piece here.