Antitrust and Information Technologies
The relationship between antitrust policy and information was traditionally concerned with oral or written communications that had anticompetitive potential, mainly because they furthered collusion or market exclusion. Among the most difficult problems was interpreting the significance of communications that could be construed as either threats or offers to collude, or as facilitators of collusion. On the one hand, markets profit greatly from the free flow of information. On the other, particular uses of information threaten competition when they enable firms to coordinate price, output, or innovation.
Of course, explicit price fixing is a use of information but so are various cartel-facilitating practices that depend on publicizing one’s price or output. As a result, the way information is communicated has been a factor in merger analysis, particularly when the fear is that the merger might facilitate collusion. A recent example of this concern is In re LIBOR-Based Financial Instruments Antitrust Litigation, which includes claims that banks used misreporting about interest rates as a device for manipulating them. U.S. courts have also confronted complaints that companies were exchanging wage and salary information to suppress or fix wages at an artificially high level. Individuals from numerous industries have made such claims, ranging from petroleum geologists, to high technology Silicon Valley employees, to law professors.
Prior to the 1980s, “information” in antitrust enforcement meant mainly print media, radio, television, film, and audio recording. All were involved in antitrust disputes at one time or another, and the challenged practices ran the entire gamut of U.S. antitrust law—from vertical integration and exclusion in the 1948 United States v. Paramount Pictures, Inc. case, to unilateral refusal to deal in Lorain Journal Co. v. United States, to a series of newspaper mergers and the passage of the Newspaper Preservation Act in 1970 to protect newspaper production joint ventures. In Times-Picayune Publishing Co. v. United States, the Supreme Court refused to condemn a government-challenged tying arrangement in the newspaper publishing industry, exonerating a New Orleans newspaper publishing company’s practice of requiring that the same classified advertisements be run in its morning and evening editions. Finally, the Broadcast Music, Inc. v. Columbia Broadcasting System, Inc. decision rejected an antitrust challenge and, in the process, acknowledged the value of nonexclusive, blanket copyright licenses for recorded music.
Information also plays an important role in competition policy in the regulated industries, mainly because agencies depend on accurate information typically supplied by the regulated firms. As a result, misreporting one’s own market position can serve to exclude a rival or become a device for collusion. Or, in patent law, exaggerated claims about the validity or strength of one’s own patents can become a potent exclusion device.
All of these issues concerning the relationship between competition policy and information remain today. Many are more important than ever given the ubiquity of information and the speed at which it travels.
This Article considers a related but nevertheless distinct issue: the relationship between competition policy and the technologies of information. Technological change can both facilitate and undermine the use of information for anticompetitive practices. The effects are heavily, although not exclusively, a result of digitization and the many products and processes that it enables. Further, information technologies account for a significant portion of the difficulties that antitrust law encounters when it addresses intellectual property (IP) rights. In addition, changes in the technologies of information affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm. Of particular importance here are the measurement of market power in heavily digital technologies; the changing role of consumer choice in digital markets, focusing here on the Google Search investigation; the impact of digitization on the opportunities for collusion, focusing on the Apple eBooks antitrust case; the role of the antitrust laws in facilitating net neutrality or other conceptions of internet competition; and the role of information in antitrust evaluation of patent practices, particularly those pertaining to FRAND licensing in markets subject to standard setting, and patent pools.