Monday, May 18, 2009
Posted by D. Daniel Sokol
Today's NY Times has a story on potential antitrust problems that Google faces. The article discusses antitrust issues in the United States. As events of the last few weeks remind us, even with ramped up antitrust enforcement in the United States under an Obama administration, I am rather surprised that the article is silent about the potential for antitrust liability of Google in the EU. After all, that is where we have seen far more aggressive antitrust enforcement against dominant technology firms - just ask Intel and Microsoft. Certainly, corporate America is acutely aware of what enforcement looks like in the EU and has been for quite some time. Between the two major antitrust powers (Europe and the US), global compliance is shaped by the more aggressive of the two. On international antitrust and the search for convergence, see my article here.
7:15am update - Today's Wall Street Journal has run an article on high tech firms and antitrust and does make sure to cover both US and EU angles.
Both of these articles ultimately lead us to ponder what the new US administration really thinks about antitrust and innovation. In my mind, this is the hardest issue confronting antitrust today. To a certain extent, we rely too much on theories and prior beliefs. There is not yet enough of an empirical record to guide us in how to treat innovation and competition issues. We are not yet clear on how static effects translate into dynamic effects. This is an area in which enforcers across both sides of the Atlantic should tread cautiously since there is much damage that they can do to innovation and to one of the key drivers of economic growth in the past two decades. An additional point for enforcers to consider is the question of remedies in this area (and thank you Kathy Fenton and the ABA Antitrust Section for the wonderful Dominant Firms Remedies Conference last summer at UVA to get us thinking about this issue. What I said then at the conference in my comments was "Unless you have a workable remedy, do not bring a case.") This is one of the key lessons of the Microsoft litigation. My colleague Bill Page has provided some excellent scholarship on the shortcomings of Microsoft remedies in both the US and EU.