A five-decade consensus on the objectives of antitrust law is under threat today from the extraordinarily divisive politics of contemporary America. It took a long time and sordid episodes to get the politics out of antitrust—it would be a shame to go backwards and politicize competition policy again.
It’s been a few years since the district court’s judgment in the landmark Microsoft monopolization case. Brian, Bill and I were all just a tad younger in 2000, don’t you think?
Three recent speeches by Obama Administration officials provide key insights into the rather conflicted view of current policymakers on the appropriate role of competition regulation in today’s age of digital-fueled disruption.
The same underlying market power and distribution problems still exist in music licensing, just as they did in 1941.
US competition agencies say they have clarified that antitrust is, not “a roadblock to legitimate cybersecurity information sharing,” but the real story is that the risk of antitrust exposure for exchange of cyber risk information, even among direct competitors, was and remains almost non-existent.
The collective assembly of a patent war chest by the oddly named Rockstar Consortium -— all of the otherwise competing rivals of Google in the wireless OS space — smacks of a horizontal conspiracy to raise rivals’ costs.
By winning the US v. Bazaarvoice trial without showing that post-closing competitive effects in the nascent market it chose to attack had not, in fact, been harmful to consumers, the Justice Department’s success may have done more damage to antitrust law — and the appropriate role for government predictions of market development — than they ever intended.
Making a predictive judgment about future competition in an existing market is quite different from predicting that in the future new markets will emerge.
Pandora’s antitrust lawsuit against ASCAP is a leading-edge dispute, scheduled for trial by year-end, that may help catalyze a new approach to the old question of whether — and if so to what extent — owners of copyrighted digital content are permitted to refuse to deal with competing distribution channels on dramatically different commercial terms.
Whatever one thinks of Roger Clemens’ veracity (let alone possible steroid use), the idea that his criminal trial ends without a verdict because the prosecutors blatantly disregarded the court’s instructions by showing the jury inadmissible evidence is just astounding. Brings to mind former Supreme Court Justice Benjamin Cardozo’s famous question from the 1920s — […]