“[A]ny firm, even a monopolist, may generally bring its products to market whenever and however it chooses.” This line, from the Second Circuit’s 1979 Berkey Photo v. Kodak opinion, appears in legal briefs filed by technology platforms in the recent spate of antitrust suits against them. To the defendants in these cases, Berkey Photo forbids judicial interference in product-related decisions by dominant firms, regardless of their exclusionary effects. In the context of technology platforms, moreover, virtually every decision relates in some way to their “product.” From search results to advertising policies to limitations on consumers’ options for downloading smartphone apps, firms contend that government intervention would violate a fundamental premise of capitalism: that private market forces, rather than central planners, should determine the existence, features, and price of the goods and services exchanged in the economy. They warn that second-guessing firm decisions will suppress innovation, stifle investment in innovative industries, and distort the allocation of resources across the economy.
Yet innovation effects can occur from under-enforcement as well, and recent history has demonstrated the harms that can result from undue deference to monopolists’ design choices. In the context of online platforms offering complex, multi-layered opportunities for interaction and transaction, moreover, the line between product and terms of distribution or sale becomes blurred. By characterizing its advertising platform as a “product,” for example, Google seeks to avoid scrutiny of the individual decisions that cumulatively define the terms that it offers to advertisers.The smokescreen of product design should not prevent courts from interrogating those decisions and evaluating their competitive effect.
This talk will explore the legacy of Berkey Photo and its implications for antitrust claims against technology platforms.
Professor Stacey Dogan teaches at Boston University School of Law, where her research and coursework focus on intellectual property, competition, and technology law, with an emphasis on the legal status of online intermediaries. She has also been instrumental in building interdisciplinary and inter-institutional collaborations in law and technology, including the establishment of coursework and research collaborations involving BU’s law, computer science, and computing and data sciences programs, as well as the creation of an innovative clinical partnership between BU and MIT. Her scholarship has explored topics including the role of online intermediaries in trademark and copyright law, the right of publicity’s applicability to new media, the rights of trademark parodists, and the application of antitrust law to pharmaceutical “product-hopping.” From 2018 to 2021, she served as the School of Law’s Associate Dean for Academic Affairs.
Please contact heather.branch@yale.edu for the link.
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