What Does Antitrust's Revival Mean for Copyright?
Delivered as the 50th Annual Brace Memorial Lecture, this article considers what antitrust law’s nascent and still-uncertain revival might mean for copyright law and the copyright industries.
I suspect many of you have seen news headlines about the recent federal and state antitrust actions against Google and Facebook. In fact, there are three separate government antitrust actions that have been filed against Google in the U.S., one against Facebook, and possibly more to come against both companies. First, on October 20, 2020, the United States Department of Justice and eleven states filed a lawsuit against Google,1 alleging that the company used its monopoly in the market for internet searches to preserve its monopolies in both search and online advertising. Specifically, the DOJ Antitrust Division alleges that Google has entered into a series of exclusionary agreements that have the collective effect of locking up the primary avenues through which users access search engines, both by requiring that Google be the preset default search engine on billions of mobile devices and computers and, in many cases, prohibiting preinstallation of a competitor. On December 9, 2020, the Federal Trade Commission and forty-eight states filed suit against Facebook,2 charging that its acquisitions of Instagram and WhatsApp and its imposition of a series of anticompetitive conditions on software developers in exchange for all-important access to Facebook’s API (including conditions that allegedly barred third-party developers from deploying functionality that competes with Facebook), harmed competition and consumers and had the effect of maintaining Facebook’s monopoly in social networking. On December 16, 2020, ten GOP-controlled states led by Texas Attorney General Ken Paxton filed an antitrust complaint3 alleging that Google engaged in a variety of anti-competitive practices to gain and maintain a monopoly in the markets for digital advertisement technologies. The Texasled lawsuit also alleges that Google and Facebook agreed not to compete with one another in these markets, and cooperated in manipulating online ad auctions. Then on December 17, 2020, a bi-partisan coalition of 35 states led by Colorado’s Attorney General Phil Weiser4 filed a complaint that built on and broadened the DOJ’s allegations. The Colorado-led state lawsuit advances broader claims based on Google’s alleged deals with competitors like Apple to maintain its position as a default search engine. The Colorado complaint focuses also on allegations that Google uses its dominant marketing tool for advertisements linked to consumers’ search terms to thwart competitors in the online advertising markets and also to discriminate against rival search platforms that attempt to specialize in segments like travel or entertainment.