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Wednesday, January 27, 2010

summary of State of the Net panel: "Antitrust in the Internet Era"
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As always, this year's "State of the Net" conference features a variety of breakout sessions from which to choose and, sadly, until I figure out a way to clone myself, I can't cover them all. So, I decided to sit in on the panel about "Antitrust in the Internet Era," since it's a subject I find of great interest. It featured the following lineup:

  • David Balto, Center for American Progress (moderator)

  • Brian Bieron, Senior Director of Federal Affairs, eBay

  • Joseph Farrell, Director of the Bureau of Economics, Federal Trade Commission

  • Roberta Katz, U.S. Department of Justice

  • Catherine Sandoval, Santa Clara University School of Law

Here's a summary of some of the highlights:

David Balto

  • Internet has empowered consumers with more and better information that they did not have in past

Roberta Katz, U.S. Department of Justice

  • Says many companies exist today only because of Microsoft case

  • public became more educated about Net because of the case

  • Christine Varney & Obama Admin more sensitive to innovation concerns & serious about antitrust intervention

  • Says Ticketmaster-Live Nation deal was anti-competitive but behavioral & structural remedies will address concerns

  • Everything is case-by-case and fact-specific; fact are important

Joseph Farrell, Federal Trade Commission

  • going too far to judge MS case based on state of operating system competition

  • competition policy crucial to innovation, incentives, openness & opportunity

  • incentives for incumbents vs. openness to others is where debate is at

  • Key tension = If you protect property rights on one side, you affect innovation and openness on the other side

  • Do you try to fix problems or prevent them? antitrust law does both but can be slow

  • criticizes Chicago School thinking on vertical restraints and mergers; says it shouldn't "hamstring" antitrust with Chicago School reasoning

  • "consumer information failures" concerning what is going to happen in the aftermarket tend to undermine Chicago School reasoning

  • worries about "science" vs. "art" of disclosures

Brian Bieron, Senior Director of Federal Affairs, eBay

  • antitrust struggling to keep up with speed of Net development

  • Internet is, or should, change some of the analysis

  • new entry is important, but are new players just "free riders" on existing players?

  • Still plenty of retail competition to the Net; players like eBay are not taking over

  • Worried about Ticketmaster-Live Nation leveraging market power, especially with sports teams

Catherine Sandoval, Santa Clara University School of Law

  • Relevant market still at heart of debate; what is compliment vs. substitute?

  • Is there a "duty to deal" by incumbents?

  • Retail price fixing now treated differently in U.S. than in Europe, where it is still regulated

  • Recent Supreme Court decisions view of competition is "Hobbseian" (nasty, brutish, and short)

  • Feels Supreme Court relies too heavily on faith in innovation to take place without; she thinks regulation needed to aid competitors

  • Intel should pay more attention to what happened to Microsoft; learn lessons & change behavior

  • Wants federal regulators to look at disclosure issues (ex: "unlimited data" claims & ETFs); says they keep consumers locked in

posted by Adam Thierer @ 2:03 PM | Antitrust & Competition Policy

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