Consumers on the Internet routinely give away data — information about their habits, preferences, purchasing patterns, contacts and more — in return for “free” access to an abundance of platforms and sites. While this may be an attractive model for some users, most are operating with less than full information. In the digital world, what is “freely” given can actually come with embedded costs. Defining large quantities of user data as a product cognizable under antitrust laws raises questions as to whether such data can confer market power, and what the consumer welfare implications of its use are. In addition to the personal cost to individuals, effective control of the data comes with a community cost: other innovators are barred from using those “free” inputs. This essay assesses the current state of antitrust matters related to the monetization of “free” data and where the landscape might be headed.

By Katherine B. Forrest1

 

Little in this world is actually free. A particularly American salivation response is activated when we are informed, or believe, that something we receive, or could acquire, is “free.” A coupon for “buy 2 get 1 free” often inspires additional purchases; sales of bulk products at mega supermarkets may result in the acquisition of more mayonnaise jars than any family could consume in a decade. In the digital sphere, the Internet presents itself as a smorgasbord of “free”: free information, news, podcasts, so

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