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Antitrust, Innovation, And Product Design In Platform Markets: Microsoft And Intel, William H. Page, Seldon J. Childers
Antitrust, Innovation, And Product Design In Platform Markets: Microsoft And Intel, William H. Page, Seldon J. Childers
William H. Page
The Antitrust Division’s Microsoft case and the Federal Trade Commission’s Intel case both rested on claims that antitrust intervention was necessary to preserve innovation in technological platforms at the heart of the personal computer. Yet, because those very platforms support markets that are among the most innovative in the American economy, injudicious intervention might well have jeopardized the very innovation that antitrust should promote. In this article, we review the role of platforms in technological innovation and consider how antitrust standards should apply to them. We then examine how Microsoft resolved antitrust issues affecting platform design at various stages of …
Josh Wright’S “Chicago School Papers”: An Overview, William H. Page
Josh Wright’S “Chicago School Papers”: An Overview, William H. Page
William H. Page
In what follows, I consider three of FTC Commissioner Josh Wright's “Chicago School Papers.” In these papers, Commissioner Wright considers the past, present, and future role of the Chicago School of antitrust analysis in the shaping of law and policy, offering along the way some interesting insights into what his priorities at the FTC are likely to be. The papers discussed have common themes: the mischaracterization of the “Chicago School,” the scientific advantage of dispensing altogether with “School” labels, and a focus on empirical findings in shaping antitrust analysis.
Devising A Microsoft Remedy That Serves Consumers, John E. Lopatka, William H. Page
Devising A Microsoft Remedy That Serves Consumers, John E. Lopatka, William H. Page
William H. Page
According to Judge Thomas Penfield Jackson, Microsoft was a “predacious” monopolizer that did extensive “violence . . . to the competitive process.” Through a “single, well-coordinated course” of anticompetitive action, it suppressed competition from Netscape's Navigator, an Internet browser, and from Sun's Java programming language and related technologies. Microsoft “mounted a deliberate assault upon entrepreneurial efforts, . . . placed an oppressive thumb on the scale of competitive fortune, . . . and trammeled the competitive process.” Having colorfully concluded that Microsoft's offenses were extreme, Judge Jackson deferred to the government's demand for a drastic remedy. He ordered that Microsoft …
A Neo-Chicago Approach To Concerted Action, William H. Page
A Neo-Chicago Approach To Concerted Action, William H. Page
William H. Page
In this article, I offer an approach to concerted action that builds on traditional Chicago School analyses of the issue, but adds a focus on the role of communication. Chicago scholars uniformly identify cartels as the primary target of antitrust enforcement. They have also established much of the framework within which courts and economists analyze concerted action. George Stigler’s seminal theory of oligopoly, which sought to identify the determinants of effective collusion, has spawned an enormous literature in game theory that models the pricing behavior of oligopolists. Richard Posner’s early analysis of tacit collusion - rivals’ coordination of noncompetitive pricing …
The Ftc's Procedural Advantage In Discovering Concerted Action, William H. Page
The Ftc's Procedural Advantage In Discovering Concerted Action, William H. Page
William H. Page
Scholars have long argued that Section 5 of the Federal Trade Commission Act can or should be interpreted to reach more conduct than Section 1 of Sherman Act - whether, in other words, there are gaps in the coverage of Section 1 that allow certain forms of anticompetitive conduct that Section 5 should condemn. Perhaps the most important issue in the interpretation of Section 1 concerns how courts should distinguish conscious parallelism from unlawful concerted action. In this paper, I argue that there is no substantive gap between the two antitrust statutes on this issue-both statutes prohibit (and permit) the …
Objective And Subjective Theories Of Concerted Action, William H. Page
Objective And Subjective Theories Of Concerted Action, William H. Page
William H. Page
Communication is useful and often necessary for rivals to coordinate price and output decisions. All would agree that evidence of communication on these issues is relevant to the issue of whether firms reached an illegal agreement or engaged in concerted action in violation of Section 1 of the Sherman Act. Most courts and commentators would go further and define agreement and concerted action to require communication of one kind or another. I call this view the objective theory of concerted action. Louis Kaplow has recently challenged this approach in three important articles, all of which argue that the focus on …
Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement, William H. Page, Seldon J. Childers
Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement, William H. Page, Seldon J. Childers
William H. Page
An important provision in each of the final judgments in the government's Microsoft antitrust case requires Microsoft to "make available" to software developers the communications protocols that Windows client operating systems use to interoperate "natively" (that is, without adding software) with Microsoft server operating systems in corporate networks or over the Internet. The short-term goal of the provision is to allow developers, as licensees of the protocols, to write applications for non-Microsoft server operating systems that interoperate with Windows client computers in the same ways that applications written for Microsoft's server operating systems interoperate with Windows clients. The long-term goal …
State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page
State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page
William H. Page
Antitrust observers are familiar with the two-part Midcal test for the immunity of state regulation from federal antitrust laws: the state must clearly articulate its policy to displace competition and must "actively supervise" any private conduct pursuant to the policy. But state action need not meet these requirements if it is "unilateral" and therefore does not conflict with Section 1. Only if a state-authorized restraint is "hybrid," combining state and private action in a way that resembles aprohibited agreement, need the restraint satisfy Midcal. In this article, John Lopatka and Bill Page examine the history andcurrent importance of the distinction …
Who Suffered Antitrust Injury In The Microsoft Case?, John E. Lopatka, William H. Page
Who Suffered Antitrust Injury In The Microsoft Case?, John E. Lopatka, William H. Page
William H. Page
Most of the popular and scholarly discussions of Microsoft have focused on whether the defendant violated the law and, if so, whether the remedial order was appropriate. Never far from the surface in all of these discussions, however, has been the prospect of private antitrust suits that would inevitably follow a government victory. Indeed, numerous consumer class actions were filed against Microsoft in the wake of the District Court's issuance of its findings of fact. Should the District Court's decisions on liability stand, Microsoft can expect to face other suits by a variety of actors, including competitors, original equipment manufacturers …