John Taladay ‘Measuring the Impact of Injunctive Relief on Innovation’ (2017) Antitrust Chronicle Vol. 1 · SPRING 2017

This paper – which can be found here –  focuses on the impact of injunctions, or more specifically the lack of the availability of an injunction, on an innovator’s investment decision. It argues that; “(1) it is possible to measure the impact that a “no injunction” in patent infringement actions will have on innovation investment, and that (2) such a policy will necessarily reduce investment in innovation. The reduction in investment is caused by the delay in receipt of licensing revenues that will result from eliminating the potential for injunctions, because this delay will negatively affect the inventor’s expected return on investment.” It also holds that “that interest awards [as an alternative to injunctions] are inadequate to eliminate the reduced incentive to invest in innovation.” The paper begins with a disquisition of the relationship between IP and antitrust. “Antitrust and intellectual property law are often said to be compatible in that they are both supposed to encourage innovation. The intellectual…

Orla Lynskey ‘Regulating ‘Platform Power” LSE Law, Society and Economy Working Papers 1/2017

This paper – which can be found here – is not strictly about competition, but has a wider regulatory focus. Its main arguments are that: (i) the term ‘platform power’ fails to reflect the potentially problematic power at the heart of the information society. Focus should therefore shift from this concept to the identification of concerns raised by the practices of Internet intermediaries; (ii) blind spots exist when the issue of ‘platform power’ is viewed solely through an economic lens. As a result, competition law fails to capture and sanction practices that negatively impact upon non-economic parameters, such as freedom of expression and privacy. The argument about platform power is made out in Section 2, and it is broken down into three different elements: The initial focus of the argument is on the EU’s attempts to address developments in the digital sphere, and in particular on the European Commission’s Digital Market strategy. The various meanings given in Europe to “platforms”…

Tim Wu ‘Blind Spot: The Attention Economy and the Law’ (2017) Concurrences

This paper – which can be found here – seeks to address an imbalance: while it “has become commonplace, especially in the media and technology industries, to speak of an “attention economy” and of competition in “attention markets” (…)the study of “attention markets” has only very recently become of interest to legal scholars, and only in connection with specific cases (…)”. This paper is “an effort to close that gap, and show why a better understanding of attentional markets will be critical to addressing pressing legal issues, such as antitrust’s treatment of the high technology industry and emerging public policy questions surrounding the “theft” of attention from captive audiences.” The fulcrum of the analysis is the “attention broker” – someone who “attracts attention by offering something to the public and then reselling that attention to advertisers for cash”, such as Google, Facebook or, more prosaically, TV channels and free subway newspapers. The author contends that the concept of “Attention Brokers”…

Giuseppe Colangelo and Mariateresa Maggiolino ‘Data Protection in Attention Markets: Protecting Privacy through Competition?’ (2017) 8(6) 363

This paper – which you can find here – asks whether it is possible to protect privacy through competition. The paper begins from the observation that we are witnessing the advent of many businesses dedicated to offer zero-price services in exchange for advertising revenues and data. While not completely new – old media companies had similar business models –, these new businesses benefit from “new” digital technologies to collect, store and analyse huge amounts of users’ data. Thus, it is unsurprising that user data are now conceptualized as the currency for the many services and products that users find on the Internet at zero-price. Given this, the question the authors seek to address is “whether and how EU competition law could be enforced as a substitute of EU data protection law.” At this point, I must ask you to moderate your screams of “sacrilege”, appropriate as they may be for the festive season, and give the article a chance. The paper and its…

Wolfgang Kerber ‘Digital markets, data, and privacy: competition law, consumer law and data protection'(2016) Journal of Intellectual Property Law & Practice 11(11) 856

This is a paper on the economics of privacy that focuses more specifically on the role of privacy in competition law assessments. It can be found here. The paper claims that it is not sufficient to design policy solutions focused on a single field of the law, e.g. competition law or data protection law. Rather, an integrated approach that takes into account different regulatory perspectives is necessary. This paper identifies competition policy, consumer policy, and data protection policy as the three main regulatory perspectives that must be taken into account in order to adequately address privacy concerns. Each area of the law is reviewed in turn, from an economic perspective, in an attempt to discern how policies might remedy market failures concerning privacy rights and how a more integrated regulatory approach can be developed. The paper is structured as follows: Section II provides a brief overview of the economics of privacy. It begins by noting (in line with the article…

Alessandro Acquisti, Curtis Taylor, and Liad Wagman ‘The Economics of Privacy’ (2016) Journal of Economic Literature 54(2) 442

This article – which can be found here – summarises theoretical and empirical research on the economics of privacy. It focuses on the economic value and consequences of protecting and disclosing personal information, and on consumers’ understanding and decisions regarding the trade-offs associated with the privacy and the sharing of personal data. Their starting point is that the economics of privacy is a branch of information economics. Economists’ interest in privacy has primarily focused on its informational dimension: the trade-offs arising from protecting or sharing of personal data. At its core, the economics of privacy concerns the trade-offs associated with the balancing of public and private spheres between individuals, organizations, and governments. In this regard, the authors identify a number of important characteristics of privacy and personal information as economic goods: First, the value of keeping some personal information protected, and the value of it being known, are almost entirely context-dependent and contingent on essentially uncertain combinations of states of…

Darren S. Tucker ‘The Proper Role of Privacy in Merger Review’ CPI Antitrust Chronicle May 2015 (2)

This is  a (short) paper on the proper role of privacy in merger review, which can be found here. While focusing mainly on the US (where there have “been increasing calls for the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) to consider the potential loss of consumer privacy as a factor in their merger reviews and to challenge mergers of firms with large stores of personal data that otherwise pose no apparent competitive issues”), it could be read more generally. The argument in this paper is quite straightforward: the law is clear that non-competition factors – such as standalone consumer concerns – cannot be considered in antitrust analysis. Further, the law seems to be on sound policy grounds. The paper begins by arguing that there are good reasons why privacy should not be applied as a competitive parameter. First, there are a variety of concepts of privacy, and it is unclear which one should be applied. Secondly,…

Jorge L. Contreras ‘FROM PRIVATE ORDERING TO PUBLIC LAW: THE LEGAL FRAMEWORKS GOVERNING STANDARDS-ESSENTIAL PATENTS’

This paper, focusing on the interaction of standards and international law, was published in the Harvard Journal of Law & Technology, and can be found here. It starts from the observation that there is a “basic question [about] whether technical standard setting is best conceptualized as a private activity governed most efficiently by its own internal rules and procedures, or whether it is at root a public activity that should be regulated within the sphere of public law.” The article proceeds as follows: after a general introduction to private ordering structures (i.e. rules systems that private actors conceive, observe, and often enforce through extra-legal means) in Part II, Parts III and IV describe how technical standard setting has evolved as a private sector activity. Part V analyses the incorporation of standards bodies’ rules and norms into private law adjudication. Part VI shifts the focus to the public benefits that standard setting affords, and Part VII describes the recent debate regarding public…

Giorgio Monti and Goncalo Banha Coelho ‘Geo-Blocking Between Competition Law And Regulation’

This paper – available at https://www.competitionpolicyinternational.com/geo-blocking-between-competition-law-and-regulation – looks at the European Commission’s initiative to prevent geo-blocking. As I understand it, this is a short version of a larger report requested by the European institutions. Geo-blocking refers to those practices by sellers which make it costly or impossible for consumers with residence in one Member State to obtain goods and services from other Member States. They also include the rerouting of customers away from websites hosted in other Member States to a website hosted in the Member State from where they are based (e.g. customers in Italy rerouted from a “.pt” version of an online store to its “.it” version), without their consent. The paper begins with a review of the main rules in European Competition law devoted to the prevention of restrictions to cross-border competition – which cover mainly contractual restrictions to this type of trade (Art. 101 TFEU) or abuse of dominant position (Art. 102 TFEU). However, no rules…

Lisa Khan ‘The New Brandeis Movement: America’s Antimonopoly Debate’

This paper is a full-blown defence of the New Brandeis movement by one of its most visible proponents. It is to be published in the Journal of European Competition Law & Practice and can be found here: https://academic.oup.com/jeclap/advance-article/doi/10.1093/jeclap/lpy020/4915966 The paper begins by mapping out the emergence of the New Brandeis (or anti-monopoly) movement as a reaction to growing concentration in the American economy. The movement takes its name from Louis Brandeis, who served on the US Supreme Court between 1916 and 1939 and was a strong proponent of America’s Madisonian traditions—which aim at a democratic distribution of power and opportunity in the political economy. The movement is anchored in the following pillars: There are no such things as market ‘forces’. The Chicago School assumes that market structures emerge in large part through ‘natural forces.’ The New Brandeisians, by contrast, believe the political economy is structured through law and policy. The goal of antimonopoly laws is to ensure that citizens are…