Antitrust and Trade Regulation Commons^™

Valuing Social Data, Amanda Parsons, Salome Viljoen

Articles

Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …

Tying Law For The Digital Age, Daniel A. Crane

Articles

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with re-spect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A con-ventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

Always A Suspect: Law Enforcement's Violative Use Of Geofence Warrants And Geolocation Data In Criminal Investigations And Proceedings, Aaron A. Bengart

Cardozo International & Comparative Law Review

The note argues that geofence warrants, used by law enforcement to obtain location data from tech companies, pose significant Fourth Amendment concerns. It advocates for U.S. legislation similar to the U.K.'s to balance privacy rights with law enforcement needs, emphasizing the need for checks to prevent abuse and protect citizens from unreasonable searches.

(In)Dependence Day: Why The Modern Streaming Industry Requires Modern Antitrust Enforcement, Samuel Kahn

Cardozo Arts & Entertainment Law Journal

The note argues that the contemporary streaming industry, dominated by a few major platforms, mirrors the pre-Paramount era's anticompetitive practices, necessitating a reexamination of antitrust laws to address oligopolistic structures, protect independent creators, and ensure consumer access to diverse content. It contends that the repeal of the Paramount Decrees and the failure of current antitrust frameworks to adapt to the streaming industry's unique challenges have allowed media giants to grow unchecked, stifling competition and innovation.

Deceptive By Nature: A Model For Regulating Native And Embedded Advertising In The Contexts Of Children's Audiences, Zach Cihlar

Cardozo Arts & Entertainment Law Journal

The note advocates for enhanced regulatory measures to protect children from deceptive native and embedded advertising in digital media. It emphasizes the need for the Federal Trade Commission (FTC) to expand its regulatory framework to classify such advertising as deceptive, leveraging existing laws like the Federal Trade Commission Act (FTCA) and the Children's Online Privacy Protection Act (COPPA). The proposed model suggests a combination of stricter regulations, parental involvement through technology, and strengthened self-regulatory mechanisms to address the challenges posed by modern advertising formats.

Introductory Remarks, Carly Rothstein

Cardozo Arts & Entertainment Law Journal

This introductory remark explores the implications of recent Supreme Court decisions in Bad Spaniels and Andy Warhol on intellectual property law, focusing on the evolving landscape of copyright and trademark protections. It highlights the challenges and opportunities these rulings present for balancing artistic expression, cultural norms, and legal frameworks. The symposium serves as a platform for scholars and practitioners to discuss these developments and their broader impact on IP law and policy.

Panel 2: Trademark Law, Stacey Dogan, Christine Haight Farley, Jessica Silbey, Rebecca Tushnet, Felix Wu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why Courts Should Not Interpret The Meaning Of Art, Amy Adler

Cardozo Arts & Entertainment Law Journal

The article argues that courts are ill-equipped to interpret the meaning of art, particularly in fair use cases, as seen in the Supreme Court's decision in Warhol Foundation v. Goldsmith. The Court's reliance on determining the meaning of art exacerbates confusion and inconsistency in fair use jurisprudence, highlighting the need for alternative approaches that avoid judicial interpretation of artistic meaning.

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Cardozo Arts & Entertainment Law Journal

In Google LLC v. Oracle America, Inc. ("Google v. Oracle"), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith ("Warhol"), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright.

This Essay argues that these arguments were instead grounded in a form of "prospect theory" of copyright scope that …

Decentralized Autonomous Organizations And Regulatory Competition: A Race Without A Cause, Mateusz Blaszczyk

Scholarly Works

Several states have enacted specialized limited liability company legislation in an attempt to attract decentralized autonomous organizations. In this way, the regulatory competition debate surrounding states such as Wyoming, Tennessee, and Vermont, attempting to dethrone Delaware, has found a new battleground. According to Professor Lynn LoPucki, this will entail a regulatory race to the bottom, that is, a race to “laxity.” I disagree. In fact, deregulation has already been achieved in the traditional limited liability company form. The decentralized autonomous organization limited liability company is no laxer or more attractive to investors, who will likely prefer the traditional limited liability …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Free Speech Is Incomplete? Big Tech In A Distant Mirror, Jan Polański

Yearbook of Antitrust and Regulatory Studies

In 1961, Alexander Meiklejohn claimed that the First Amendment, the US provision guaranteeing free speech, is an absolute. Echoing this in the context of the rise of fake news, Tim Wu has recently asked whether the First Amendment might have become obsolete. Yet, with the growing power of Big Tech, concerns are also voiced that their impact on free speech may go too far. However, there is tension here: on the one hand, the unprecedented role of Big Tech provides incentives for regulation; on the other, free speech is such a sensitive subject that there are reasons for limiting government …

Public Value And The Compatibility Of State Aid To Public Service Broadcasters – The Hot Potato For The European Commission, Dionysios Pelekis, Małgorzata Kozak

Yearbook of Antitrust and Regulatory Studies

This article explores the legal regime governing Public Service Broadcasters (PSBs), and the competences of the EU in regulating and overseeing them, from the perspective of State aid law and their compatibility with the internal market. First, the components of the legal framework are identified and analysed. Additionally, a substantive public value test is proposed and introduced, building on the available literature, decisional practice, and incorporating a legal construction of pluralism, derived from the available case law. Subsequently, the compatibility regime for PSBs is examined. The specific regime applicable to PSBs, and its constituent elements, are analysed, followed by an …

Table Of Contents

Yearbook of Antitrust and Regulatory Studies

17(30) 2024

Editorial Foreword, Małgorzata Kozak, Marta Sznajder

Yearbook of Antitrust and Regulatory Studies

Editorial foreword

Media Pluralism And Competition In The Media Sector: The Italian Experience, Valeria Caforio

Yearbook of Antitrust and Regulatory Studies

In economic sectors where constitutional principles come to the fore, legislators must reconcile individual rights and freedoms with market principles, such as the arm’s length principle, and economic freedoms, particularly the freedom to conduct business. This balance is particularly significant in the media sector, where the principle of media pluralism is paramount. Media pluralism, as acknowledged by the Italian Constitutional Court in 1988, encompasses two dimensions: internal pluralism, which secures citizens’ access to diverse, objective, and impartial information (individual freedoms); and external pluralism, which prevents the concentration of resources among a limited group of economic actors (economic freedoms). Against this …

The Dsa’S Crisis Response Mechanism And The Indispensability Of Social Media Networks, Baskaran Balasingham, Sofia Minichová

Yearbook of Antitrust and Regulatory Studies

Social media networks have become predominant sources of free and open access information. However, they generally fall outside the scope of media regulation, leaving information on those platforms largely unregulated. While social media is a catalyst for disinformation and propaganda, it also allows for fast and widespread dissemination of reliable information. A crisis response mechanism (CRM) was added to the Digital Services Act which gives the European Commission the power to require providers of very large online platforms to assess the contribution of their services to a serious threat to public security or public health and apply effective countermeasures. Although …

Digital Markets Act And Competition Law: Is There An Issue Of Ne Bis In Idem?, Michal Petr

Yearbook of Antitrust and Regulatory Studies

In recent years, the importance of digital markets has grown rapidly. Any distortions in these markets had to be remedied by competition law, notwithstanding the fact that competition law was found in numerous studies not to be entirely up to this task. Several countries across the globe have adopted specific national legislation regulating these markets. In 2023, the European Union itself brought into effect the Digital Markets Act. The question is, to what extent is competition law, as well as specific regulations of the digital markets, applicable in parallel with the Digital Markets Act? The Court of Justice has recently …

Speaking Power To The People: Serbian And Brazilian Media Systems In Populist Times, Ricardo Ribeiro Ferreira, Alexander Mesarovich

Yearbook of Antitrust and Regulatory Studies

A decline in journalistic standards and increased media control, are well recognized hallmarks of increased autocratisation and democratic backsliding. This paper investigates the impact of populism on the media landscape in two different countries, Brazil and Serbia. It argues that despite the radical differences in structural factors (wealth, relationship with the EU, history of democracy, political system, etc.), these countries have witnessed a similar decline in media quality, as well as a decline in the quality of democracy. Using the Serbian case as a ‘standard’ case of populist control and drawing on interviews with Brazilian journalists as a ‘surprising’ case, …

Press Publishers’ Right And Competition Law. Case Comment On The French Competition Authority’S Decisions Against Google, Michalina Kowala, Miłosz Malaga

Yearbook of Antitrust and Regulatory Studies

This case comment discusses a set of decisions issued by the Autorité de la concurrence (the French Competition Authority, FCA) regarding Google’s conduct vis-à-vis press publishers. The analysis concerns Google’s refusal to respect its obligations, resulting from the Digital Single Market Directive of in 2019, regarding the press publishers’ exclusive right concerning the online use of their press publications, as well as its further implications. Moreover, it involves also systemic observations and broader market context. The objective of this case comment is to discuss the FCA’s decisions, and more broadly, to identify further systemic consequences these decisions may bring for …