Antitrust and the Future of the Connected World Under Obama

Abstract

This paper aims to serve as a preliminary background for computer lawyers considering some of the issues involved when networked communications, information and computer systems and related intellectual property are considered in an antitrust context. The box of antitrust, with its constrained view of the world and inability to understand the world as it has changed in a hundred years apart from time-tested and outdated thinking embedded in decades of US antitrust cases, is constrained by ossified competition law, intellectual property and economic thinking despite the vast changes in our world since the introduction of the Internet. During its thirty year dormancy (according to some), antitrust leaned away from enforcement and toward strong intellectual property rights, withstanding a variety of challenges as the world moved from the written to the digital word, from information limits to unlimited information, from old to new technologies, from delayed to immediate communications. We are now at a crossroads in antitrust and competition law enforcement. Apart from per se offenses like horizontal price fixing and bid rigging, for which damage is certain, industry-wide and economy-wide studies are essential if we are not to upset our currently efficient systems in favor of some new unknown. For many reasons, antitrust change under Obama provides an opportunity for a better and more comprehensive vision of the interfaces involved in the Internet, computer systems and competition. The systems and issues discussed above warrant consideration of new perspectives and renewed understanding of the ways in which antitrust laws affect innovation and markets.