Tuesday, July 19, 2011
Brad A. Greenberg, UCLA Law School, has published The News Deal: How Price-Fixing and Collusion Can Save the Newspaper Industry, and Why Congress Should Promote it in volume 59 of the UCLA Law Review (2011). Here is the abstract.
Newspaper executives have been struggling for the past decade to slow the decimation of their industry. One promising business model would be to charge for access to online content. But only the rarest industry leaders have felt comfortable making the move to a paid-content model without industrywide agreement, and such an agreement would be a per se violation of U.S. antitrust law. Unlike in other areas of the law, antitrust law does not permit courts to make policy judgments and approve of “good” agreements to restrain trade or fix prices. Antitrust is an inflexible doctrine that makes no judicial exception for reconciling instances in which the application of antitrust provision X comes at the expense of the interest behind antitrust provision Y without even furthering the interest behind provision X. Exemptions can only come from Congress.
Much of what has been written about antitrust exemptions for the newspaper industry has focused on the infamous Newspaper Preservation Act that legalized JOAs; all has been interested in media concentration exemptions to Section 2 of the Sherman Act and Section 7 of the Clayton Act. Instead, this comment addresses the failures of the NPA and then makes a new argument regarding newspaper antitrust exemptions to Section 1 of the Sherman Act.
This comment argues that, because the newspaper industry is vital to generating new information that supports American democratic society, Congress should pass a narrow and temporary exemption from the collusion and price-fixing prohibition in Section 1 of the Sherman Act. Such an exemption would allow newspaper executives to work together on a sustainable online business model for the press, thereby preserving the American corps of professional newsgatherers. That, in turn, would stabilize contributions to the marketplace of information and ideas and would slow the consolidation and concentration of newspaper ownership; both of which would increase options for consumers, something that antitrust law prioritizes.
Download the note from SSRN at the link.