Tuesday, May 29, 2018
Patrick F Todd analyzes Intra-platform exclusion in software markets.
ABSTRACT: A large proportion of our online activity takes place through a handful of platforms. With increased hostility towards the prevalence of vertical integration in tech markets and calls for the breaking up of profitable technology companies such as Amazon, Apple, Google, and Microsoft, the time is ripe to devise antitrust rules that sensibly approach the relationship between platform operators and firms that compete within their ecosystems. This article analyses situations where platform operators design their platforms in such a way that is liable to exclude intra-platform competitors. There are certain intricacies of exclusion in intra-platform markets that existing theories of harm in antitrust law do not anticipate; thus, applying those theories unyieldingly is liable to cause confusion and result in judicial error. Existing cases reveal that some authorities and courts have been taking a sensible approach to intra-platform exclusion since the early 2000s whereas others, especially in the EU, have shown a tendency to protect excluded intra-platform firms at the expense of consumer welfare.