John M. Newman ‘Complex Antitrust Harm in Platform Markets’ Antitrust Chronicle 2017, Spring, Vol. 1(2)

This paper – which can be found here – develops a rather orthodox argument about market leveraging and foreclosure. In short, the argument is that: “Under certain conditions, digital platforms can harness the power of reputation to steer users to favored suppliers. This steering forecloses non-favored suppliers in a related, though distinct, relevant market. Where favored suppliers are able to split the resulting rents with the platform, the strategy s rational. The resulting foreclosure reduces efficiency and consumer welfare.” In short, “Platform markets exhibiting substantial algorithm-driven reputation competition can facilitate a unique type of competitive harm. This article briefly summarizes the marketplace evolutions that have fiercely intensified [algorithm driven] reputation competition. It then describes this novel second-order, out-of-market competitive harm that can arise as a result of certain conduct in such markets.” Given this, it is unsurprising that the paper begins with a discussion of why reputation is relevant to competition. Antitrust doctrine generally treats “consumer choice” as being good. Yet…

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”…

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,…