Strengthening antitrust won’t effect industry consolidation

A natural candidate for reducing industry consolidation, and thereby potentially increasing levels of AI innovation, is antitrust law. In general, antitrust laws are meant to "promote vigorous competition and protect consumers from anticompetitive mergers and business practices." 398To that end, both the Federal Trade Commission and the Department of Justice enforce federal antitrust laws in an effort to protect consumer welfare, including by way of limiting industry consolidation that is deemed to undermine socially beneficial innovation. 399Hence, antitrust is one possible means by [*1251] which to thwart AI industry consolidation if that consolidation's effect is to impede valuable AI innovation.

Yet relying on antitrust law to upend artificial stupidity seems dubious for several reasons. For starters, in general leading scholars often view U.S. antitrust law as rather anemic, 400 particularly when compared to more robust conceptions of antitrust law found in Europe and elsewhere. 401Hence, U.S. antitrust authorities have typically been reluctant to intervene unless a clear harm to consumer welfare is evident. 402

But AI industry consolidation, it can be argued, provides benefits to consumers, not harms, in the form of relatively cheap, full-stack AI solutions. 403 Indeed, at least some evidence suggests that consolidation can lead to improved levels of innovation, thereby benefiting consumers, in at least two ways. First, market power can theoretically provide firms with greater security and capital "in the pursuit of ambitious and long-term-oriented" research and development activities. 404 And those long-term research and development efforts may very well bring consumers some benefits, at least ultimately.

Second, some recent evidence suggests that consolidation can and often does lead to technological "synergies" that contribute to innovation. 405Those synergies, too, can benefit consumers. For these and other reasons, U.S. antitrust authorities seem unlikely to successfully intervene as AI consolidation occurs and, in fact, have [*1252] been reluctant to bring antitrust investigations against the main AI behemoths in the past. 406

Furthermore, while some may envision a more robust future role for U.S. antitrust law, 407vast changes to those laws do not appear imminent. 408Hence, unlike patent law's patentable subject matter requirement, which may very well receive a makeover in the near term, 409 the basic U.S. approach to antitrust enforcement seems unlikely to change anytime soon in a way that would effectively limit AI industry consolidation.