Big Data and Monopolization

Abstract

The furious increase over the past several years in firms’ ability to collect, aggregate, and analyze big data has changed the way we think about privacy, as well as the way firms compete with each other. Much has been said about the former. But the literature on the law’s treatment of big data as a competitive asset is only beginning to take shape. This article helps to close that gap by exploring potential monopolization claims based on firms’ use of big data in both the United States and the European Union. It first clarifies the proper scope of antitrust law in addressing issues related to big data, casting doubt on several oft-repeated theories in this area. It goes on to lay out the proper approach to the analysis of market power, anticompetitive conduct, and damages in monopolization claims in data-heavy industries. The article makes an important contribution to the burgeoning literature on how antitrust law should account for big data’s status as a valuable competitive resource.