\u3ci\u3eAmerican Express\u3c/i\u3e, the Rule of Reason, and the Goals of Antitrust

I. Introduction II. The Debate over the Consumer Welfare Standard III. Applying the Rule of Reason ... A. The General Framework ... B. Step One ... C. Muddying the Waters ... D. The Bottom Line: An Analytical Mess IV. The Rule of Reason and Multi-Sided Platforms V. Missing in Action: The Consumer Welfare Standard VI. Conclusio

Online Music Joint Ventures: Taken for a Song

In 2001 the five major record companies, controlling more than 80 percent of prerecorded music sales in the United States, announced the formation of two joint ventures to distribute music over the Internet. The Department of Justice opened an antitrust investigation into these ventures even before the ventures began their operations. Two and one-half years later the Department announced that it had closed the investigation because its theoretical concerns ultimately were not supported by the evidence. The Department\u27s investigation, however, focused on the ventures\u27 licensing practices rather than on their formation. This paper focuses on the formation of the online music joint ventures. The paper begins with a description of the business and legal environment in which the joint ventures were formed and traces developments in both since the ventures\u27 formation. Included in this description is the effort by the industry to suppress widespread copyright infringement and the entry of a number of new companies into the online music market. The paper\u27s antitrust analysis examines the predicted anticompetitive effects of the formation of the ventures and, drawing on the Supreme Court\u27s decision in Broadcast Music, Inc. v. Columbia Broadcasting System, Inc. and the history of performing rights organizations, argues that the efficiency justifications for the online music joint ventures were quite modest. The paper concludes that the formation of the ventures was anticompetitive, without regard to the ventures\u27 licensing practices, and that the appropriate remedy would have been either to unwind the two ventures or divest the record companies\u27 ownership of them. Although the online music industry did not develop as might have been predicted when the ventures were formed, we owe these positive developments to the inability of the music industry to control the widespread infringement of their copyrights. Had the record industry\u27s campaign been successful, the competitive structure in the online music market would likely have been quite different and the proposed antitrust remedies would have been necessary to bring competition to the market for online music

An Antitrust Remedy for International Price Predation: Lessons from \u3ci\u3eZenith v. Matsushita\u3c/i\u3e

The purpose of this article is to articulate a set of rules for an antitrust cause of action against international predatory pricing. The article develops these rules in the context of the antitrust and trade litigation brought in the United States and Japan against the Japanese televisions manufacturers between 1956 and 1986. The thesis of this article is that the litigation illustrates that antitrust enforcement should concentrate on exclusion from the home market rather than on low prices in the target market. The article also argues that antitrust should encompass a concern with the strategic use of market power to protect rents, to capture spillover benefits in complementary industries, or to capture the current oligopoly profits of the targets of predation. The proposed cause of action requires proof of exclusion from the blocked home market and pricing below cost in the target market. Market opening injunctions and damages for private litigants are suggested as remedies

Antitrust Analysis of NOPEC Legislation

This Article analyzes the proposed No Oil Producing and Exporting Cartels Act of 2019 (NOPEC). This legislation, which was introduced in the United States Senate and House of Representatives, addresses the antitrust issues involved in suing the Organization of the Petroleum Exporting Countries (OPEC), their member states and their state owned oil companies (SOEs), other states and their SOEs, and private companies for their participation in an international cartel that has long been involved in regulating the production and distribution of oil and other petroleum products. It is our view that this proposed legislation provides a relatively moderate approach to applying U.S. antitrust law to the activities of the likely participants in this cartel. The legislation does not completely cure all the legal problems, but it does remove substantial roadblocks that have allowed this cartel to operate in disregard of U.S. antitrust law