Silicon Valley Antitrust v.3
Hanno Kaiser. University of California, Berkeley, School of Law, Fall 2013 Friday 8 - 9:50 am, Room 170
Class 1: Introduction; antitrust and technology
August 23, 2013
Topics for discussion
- A short history of antitrust and technological change (railroads, phones, computers, internet)
- The anticompetitive toolkit: collusion, exclusion, leveraging
- The ingredients of an antitrust case: facts, law, economic theory, and telling a good story
- A roadmap for this course
Required reading
Optional reading
- Christopher Sagers, Antitrust (2011), Ch. 1 (Introduction)
- Christopher Sagers, Antitrust (2011), Ch. 5 (§1 of the Sherman Act)
- Dan Wall, The qualities of the successful antitrust practitioner (2011) (bspace)
Slides
Class 2: Horizontal agreements: Hardcore cartels and efficient collaborations
August 30, 2013
Topics for discussion
- Per se illegal conduct: price fixing and market division
- How cartels work: bigger pieces of a smaller pie, audits, scorecards, and compensation schemes
- Establishing a baseline: What conduct is clearly per se illegal and why
- Rule of reason and ancillary restraints
- The problem of classification: When is the per se rule appropriate?
Required reading
Optional reading
Slides
Class 3: Horizontal agreements: New business models
September 6, 2013
Topics for discussion
- Rapid technological change and per se illegality
- Ecosystems and the limits of the "category approach"
- Platform competition and price effects
Required reading
- United States v. Adobe Systems, Inc., Apple Inc., Google Inc., Intel Corporation, Intuit, Inc., and Pixar (2013)
- United States v. Apple Inc., et al., Nos. 12 Civ. 2826 (DLC), 12 Civ. 3394 (DLC) (July 10, 2013) (This is a long opinion. Give yourself a few days.)
Optional reading
Class 4: The Microsoft Universe, Part 1/2
September 13, 2013
Topics for discussion
Required reading
- U.S. v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001). Read pages 45–80: I. INTRODUCTION; A. Background; B. Overview; II. MONOPOLIZATION; A. Monopoly Power
Optional reading/viewing
Slides
Class 5: The Microsoft Universe, Part 2/2
September 20, 2013
Topics for discussion
- Exclusionary conduct (OEM agreements, commingled code, “embrace, extend, extinguish”)
- Causation
- The “biodiversity” approach to ecosystem industries
- Why did the attempted monopolization claim fail?
- Rule of reason for platform markets
Required reading
- U.S. v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001). Read: II. MONOPOLIZATION […] B. Anticompetitive Conduct C. Causation III. ATTEMPTED MONOPOLIZATION (do not read the tying part; we'll return to that later)
Optional reading
Slides
Class 6: Predatory innovation
September 27, 2013
Topics for discussion
Required reading
Optional Reading
Class 7: Open and Closed Systems: Foundations: Tying and Aftermarkets, Part 1/2
October 4, 2013
Topics for discussion
Required reading
Class 8: Open and Closed Systems: Platform Strategy, Part 2/2
October 11, 2013
Topics for discussion
- The political philosophy of "open v. closed"
- Is resiliency part of economic efficiency (e.g., no single point of failure, deconcentration as a safeguard against government intrusion)
Beyond the "open v. closed" soundbites
The economics of platforms
- The players: system sponsors, users, contributors
- Platforms as “managed economies”
- “More is not always better” How platform rules emerge.
Examples: Gaming platforms (XBOX, PS3, Wii), mobile (Andorid, iOS, FirefoxOS, Windows), online stores (eBay, Amazon)
- "Closing an open system" v. "maintaining a closed system"
Required reading
Optional reading
Class 9: Interconnect obligations and refusals to deal
October 18, 2013
Topics for discussion
- Taxonomy: Platform sponsors with (MSFT) and without monopoly power in the platform market (Kodak)
- Do monopolists have affirmative duties to interconnect with competitors or duties to maintain interoperability
- Denial of (a) de novo access versus (b) continued access
- What if a monopolist's platform is an "essential facility" (US and EU perspectives)
- What happens when antitrust and other regulatory regimes collide - e.g., regulation that mandates interconnection (net neutrality)
Required reading
Optional reading
- Florian Mueller, FOSS Patents Blog
- LiveUniverse, Inc. v. MySpace, Inc., 304 F. App'x 554, 555 (9th Cir. 2008)
- Facebook, Inc. v. Power Ventures, Inc., C 08-05780 JW, 2010 WL 3291750 (N.D. Cal. July 20, 2010) (Dismissal of Power Ventures' §2 counterclaim, p.12-13)
Class 10: The Smartphone Wars: Standard Essential Patent Holdup, Part 1/2
October 25, 2013
Topics for discussion
The origins of the Smartphone wars: telcos v. computer companies
- Who should get how much of a new category of devices that amalgamate telecommunications and computer technologies?
- Who contributes what? Features v. standards.
Identifying the key questions
- Injunctions: Should holders of patents that they (a) declared essential to a standard and (b) promised to license on fair and reasonable terms be permitted to seek injunctions against implementers?
- Royalties: Who should determine a reasonable royalty for standard essential patents and how should this royalty be determined?
The benefits of interoperability standards, the problems that patents cause for standard setting, and the solutions developed to deal with patent-related problems
- Procedural safeguards
- Disclosure obligations
- Licensing obligations
The effects of holdup and hold-out
- With feature patents
- With standard essential patents
Required reading
- FTC, Standard Essential Patent Disputes and Antitrust Law, Prepared Statement before the U.S. Senate Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy and Consumer Rights, July 30, 2013
- Broadcom v. Qualcomm, 501 F.3d 297 (3rd Cir. 2007)
- U.S. Trade Representative, Disapproval of ITC determination, Investigation No. 377-TA-794 (August 3, 2013) (Samsung seeking exclusion order against Apple)
Optional reading
Class 11: Smartphone Wars: The Path Forward, Part 2/2 and Guest Lecture: The Mozilla Story (Harvey Anderson)
November 1, 2013
Topics for discussion
- What is the nature of a FRAND commitment?
- How real is the threat of injunctions?
- Willing licensees and willing licensors
Required reading
Optional reading
Class 12: The Google Search Investigations
November 8, 2013
Topics for discussion
- The economics of web search
- The antitrust case against Google
Required reading
Optional reading
Class 13: High Technology Mergers, Part 1-2
November 22, 2013 (8 am)
Topics for discussion
- Agency practice v. court decisions; the impact of the HSR Act on merger jurisprudence
- Structural presumptions in horizontal merger cases
- Coordinated theories of harm
- Unilateral theories of harm
Required reading
Class 14: High Technology Mergers, Part 2-2
November 22, 2013 (1 pm, Room 170)
Topics for discussion
- Vertical mergers
- Changing incentives and ability to foreclose competition
- Acquisition of large patent estates
Required reading
Optional reading
Class 15: Review Session
December 3, 2013 (Tuesday, Room 170)
Materials
Textbook
Recommended resources (not mandatory)
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