Competition Policy and the Technologies of Information

Posted by Social Science Research Network

Competition Policy and the Technologies of Information – Herbert J. Hovenkamp (University of Iowa – College of Law)

ABSTRACT: When we speak about information and competition policy we are usually thinking about oral or written communications that have an anticompetitive potential, and mainly in the context of collusion of exclusionary threats. These are important topics. Indeed, among the most difficult problems that competition policy has had to confront over the years is understanding communications that can be construed as either threats to exclude or as offers to collude or facilitators of collusion.

My topic here, however, is the relationship between information technologies and competition policy. Technological change can both induce and undermine the use of information to facilitate anticompetitive practices. This change is partly a result of digitization and the many products and processes that it enables. The technologies of information account for a significant portion of the difficulties that competition law encounters when its addresses intellectual property rights. In addition, changes in the technologies of information affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm.

This paper focuses briefly on five issues: (1) assessments of market power and the opportunities for its exercise in information technologies; (2) the U.S. and EU antitrust or quasi-antitrust inquiries into Google Search; (3) the eBooks price-fixing and most-favored nation litigation; (4) the appropriate role of competition policy in facilitating internet neutrality; (5) the special problems posed by the patent laws in antitrust analysis of information technologies.