The syllabus this week advises us to focus on the current Court’s attitude towards tech and innovation. According to a recent article by New York Times, a case currently before the Court could have large implications on how the Court regulates tech, or signals to Congress how to do so.
There have been recent calls for anti-trust regulation of large tech companies, according to NYT, “[o]n Monday the Court heard Ohio v. American Express, a case centering on a technical but critical question about how to analyze harmful conduct by firms that serve multiple groups of users.” And, although “the case concerns the credit card industry, it could have sweeping ramifications for the way in which antitrust law gets applied generally, especially with regards to the tech giants.”
This case and the issue it’s turning on reminds me of what we talked about in class today about the broadcasters getting paid by both the end receiver customer and the cable stations, and how that’s why we can’t just order specific channels a-la-carte and instead have to subscribe to groups of channels. It’s interesting to get a glimpse into the more hidden world of business (and law)–deals that cause conditions and prices that end up getting passed on to the end user without them really knowing it.
Anti-trust law is another example of tech moving to fast for law to regulate. Peter Thiel makes a joke of antitrust law in Zero to One. He argues that monopoly is the condition of every successful business. He says Monopolies drive progress because of the promise of years or even decades of monopoly profits provides a powerful incentive to innovate. He refers to Google directly as a monopoly, then explains how to they escape a ยง2 Sherman Act (anti-monopoly provision) violation despite the fact that they own roughly 70% of the search market. Because 95% of Google’s revenues come from ads, Google argues they are primarily an advertising company, collecting less than $17 billion of the $495 billion dollar advertising market. He says, “Framing itself as just another tech company allows Google to escape all sorts of unwanted attention.”