Antitrust CP - Michigan 2024 BDKLS

Antitrust CP---BDKL---7 Week
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Antitrust CP
The United States Federal Government should rule that [XXXX] is anticompetitive.
The counterplan solves and competes---the plan is banned to prevent the monopolization of upstream tech, extending DOJ antitrust enforcement to the plan area to incent innovation.
Kwon ’21 [Kwon, Seokbeom; Professor at the Research Center for Advanced Science and Technology, The University of Tokyo, Japan; Department of Technology Management for Innovation, The University of Tokyo, Japan; Marco, Alan C.; Professor at the School of Public Policy, Georgia Institute of Technology, USA; 11-2021, "Can antitrust law enforcement spur innovation? Antitrust regulation of patent consolidation and its impact on follow-on innovations"; No Publication; https://www.sciencedirect.com/science/article/abs/pii/S0048733321000962; accessed 6-29-2024; ARy bell]
How does antitrust law enforcement against the anticompetitive effect of a firm’s consolidation of patents shape innovation? This inquiry is at the crossroads of the antitrust and patent policy domains; thus, the answer is deemed crucial to a comprehensive understanding of how interactions between the two institutions shape innovation. However, existing studies seem to have provided only clues and limitations. Whether a stronger market competition drives innovation (Aghion et al., 2005; Arrow, 1962; Schumpeter, 1942) remains unclear. Meanwhile, there has been a sharp scholarly disagreement with mixed empirical findings on whether stronger patent protection promotes innovation (Hall and Ziedonis, 2001; Kortum and Lerner, 1997; Sakakibara and Branstetter, 2001). In antitrust law scholarship, questions about antitrust law’s relation to innovation (Khan, 2016), and the conditions under which the enforcement of antitrust laws shape market competition and innovation have drawn scholarly attention but with limited empirical evidence (Katz and Shelanski, 2005; Sidak and Teece, 2009). The present study explores a part of the answers to the foregoing question by examining the effect of antitrust regulation of patent consolidations on the creation of follow-on innovations. Firms can consolidate patents in two ways: (1) preemptive patenting through internal research and development (R&D) and A (2) purchasing existing patents (i.e., patent transfers). Preemptive patenting helps dominant players maintain their monopolistic market power (Gilbert and Newbery, 1982); this does not violate antitrust law (see, Gilbert, 1987). Meanwhile, patent consolidation by patent transfer can restrict access to upstream technology (Figueroa and Serrano, 2019; Hahn, 1984) by downstream innovators and deter their market entry (Gotts and Sher, 2012; Ziedonis, 2004); such consolidations may violate antitrust law. The latter case is the scope of this study. By reconciling the literature on patent pools and the role of patents in cumulative innovation, we hypothesize the negative effect of a firm’s patent consolidation on its competitors’ follow-on innovations and market competition in a sector where innovation is created in a highly cumulative manner. This holds if the patent-consolidating firm amasses patents for upstream technologies that are substitutes for technologies it already owns. In that case, antitrust regulation of patent consolidation is anticipated to positively affect the creation of follow-on innovations by the patent-consolidating firm’s competitors. We empirically test this hypothesis by analyzing the intervention by the US Department of Justice (DOJ) in transfers of Linux-related patents by Novell—an open-source software (OSS) company—to a consortium of four large proprietary software companies in 2011. The consortium, which comprises Microsoft (MS), Oracle, EMC, and Apple, was known as CPTN Holdings (CPTN). Because Novell’s patents were crucial to Linux software development, while the patent-consolidating firms’ products were in fierce market competition with the Linux-based software, the patent transfers could discourage software market competition. The DOJ intervened in response to antitrust concerns about this patent transfer deal. The intervention was intended to regulate the transfer of patents to MS rather than banning the entire patent transfer. Some Novell patents could (or could not) be transferred to the other three software companies (i.e., Oracle, EMC, and Apple) because of this partial regulation. By exploiting the fact that DOJ intervention was triggered by details of the patent transfer deal that were disclosed by the German federal antitrust authority, we identify the causal impact of the regulation of patent transfers. Our analyses using patent citation, copyright, and trademark data show the positive effect of the antitrust regulation of Novell’s patent transfers on the development of follow-on innovations by the patent-consolidating firms’ competitors. By empirically examining how antitrust regulation of patent-enabled monopolies affects follow-on innovations, this study advances the broad policy discussion on interactions between antitrust and patent laws become relevant to innovation. As intensively discussed by scholars (Katz and Shelanski, 2005; Sidak and Teece, 2009), the necessity of incorporating “technological innovation” into modern antitrust law by accounting for the Schumpeterian perspective has received increasing recognition from the antitrust law community. The Schumpeterian view posits that market competition and technological innovation are mutually and dynamically influenced in the so-called “innovation cycle.” Firms that are not dominant market players may enjoy monopolistic market profits through future innovation. In contrast, a dominant market player may lose its monopolistic market position due to a competitor’s innovation. The dynamics create therein incentives for firms to innovate. This scholarship leads to the important question of how antitrust law jointly shapes market competition and innovation. Our study contributes to this discussion by empirically showing that “patent consolidation” by firms is a venue where enforcement of antitrust law promotes market competition and technological innovation. The remainder of this paper is structured as follows. Section 2 reviews the literature on patent pools and cumulative innovation to derive our main hypothesis. Section 3 describes the data and methods for empirical analysis. Section 4 presents the findings, and Section 5 discusses the implications.
Adaptive antitrust prevents runaway corporatism---extinction from environmental collapse.
Meagher ’21 [Michelle; April 1; competition lawyer and Senior Policy Fellow at the University College London Centre for Law, Economics and Society; ABA Spring Meeting 2021 Course Materials, Adaptive Antitrust,” https://ssrn.com/abstract=3816662]
"The unprecedented is necessarily unrecognisable. When we encounter something unprecedented, we automatically interpret it through the lenses of familiar categories, thereby rendering invisible precisely that which is unprecedented."
Shoshana Zuboff, The Age of Surveillance Capitalism2
Antitrust for the present moment
In the 1992 movie Toys, starring Robin Williams and Joan Cusack, a megalomaniacal toymaker creates an arcade game for little kids, a violent shoot-em-up where scores soar as enemies fall. What the kids don’t know is that their joysticks control real drones, in the real world, fighting real battles.
As we rightly debate the core, underlying concept of modern antitrust – the nature of the consumer welfare standard – it is important to remind ourselves that this is not a purely theoretical, academic debate. Historic changes to the scope of antitrust, and the tests by which it is enforced, have had profound impacts on the industrial landscape in the past few decades. The implications of any movement in this concept are sure to be swiftly communicated by antitrust and corporate lawyers to companies, in ways that affect business strategy.
Real world impacts are critical to bear in mind because we find ourselves at a particular moment in history. This is an age of environmental breakdown, of deep inequalities and inequities, of populism and autocracy, of globalism, of monopoly and of surveillance.
It is, even if we are numbed from the repetition, an unprecedented moment. Unfortunately, as Shoshana Zuboff reminds us above, we do not have a good track record of dealing with unprecedented moments. As one example, the last Global Financial Crisis confronted the world with a fundamental truth as to the instability of complex financial networks, and we could have reordered ourselves accordingly. But we didn’t. We instead reverted to familiar patterns of regulation (and deregulation).
As with the arcade game in Toys, those who wield the tools to remake the economy to this design or that rarely suffer the negative effects of it personally. We face massive threats – and they are not hypothetical, for they have been felt by many people for decades, as economic opportunity has disappeared from hollowed out towns, democracies have become unstable, violent discrimination has proliferated, nation states have become cowed by corporations, biodiversity has disappeared and the weather has become more extreme. The concept of consumer welfare in antitrust must be situated and rooted in this context. It cannot be otherwise
There will be limits to how far antitrust can help with all these problems, but it can certainly harm or hinder progress towards solutions.
In its essence, antitrust is industrial policy. It determines which organisations can legally build scale, and what they are allowed to do with the resulting power within the rules of fair market conduct. 3 This makes antitrust central to debates around the future of work, economic development, healthcare, food systems, and the future of technology. The context also urges us to be circumspect and intentional when it comes to comes to innovation. Within antitrust, innovation is efficiency on steroids. According to Tad Lipsky, there is a common understanding “shared across the entire spectrum of expert economic opinion” that “the predominant determinant of overall increases in our economic well-being is innovation”. 4 That is quite a statement. When it comes to climate change, green tech innovations could certainly help us live in a zero-carbon world, but we already have the technologies we need to decarbonise. It is the structure of the economy, and politics, that must catch up. When it comes to inequality, the theory is that innovations increase productivity, raising earnings and increasing the size of the economic pie. That will only solve inequality if the gains are distributed (and redistributed) fairly, not just through the tax and benefits systems, but also at the point of production. Otherwise rising capital productivity can be accompanied by unemployment or, as we also see today, underemployment and the degradation of employment terms.
Opioids were an innovation. Fracking is an innovation. Naked Credit Default Swaps were innovations. 5 Not all innovations are good. The direction of innovation matters, and while this may be influenced along paths that are profitable, paths of innovation should not be captured, unprofitable but world-saving innovations should not be side-lined, and democratic institutions should have a say in what is acceptable. At this moment, we cannot afford anything else.
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Competition
Competition---Do Both---Copyright---2NC
Antitrust and copyright law are incompatible
Noti-Victor ‘24 [Jacob and Xiyin Tang; 2024; Jacob Noti-Victor is an Associate Professor of Law, former intellectual property litigator at Kirkland & Ellis LLP and a law clerk for Second Circuit Judge Pierre N. Level, graduate from Yale Law School, A.B. in Social Studies magna cum laude from Harvard College; Xiyin Tang is a Professor of Law at UCLA School of Law, previously served as a lead counsel for Facebook and an associate at Mayer Brown LLP and Skadden Arps Slate Meagher & Flom LLP, where she worked on a variety of transactional and litigation matters in the technology, media, and entertainment sectors; Cardozo Law; “Antitrust Regulation of Copyright Markets”; 101 Wash. U. L. Rev. 851] zy
On October 31, 2022, a federal court stunned the legal and publishing worlds when it sided with the U.S. Department of Justice and blocked the planned acquisition of publishing house Simon & Schuster by the book behemoth Penguin Random House.1 Just a little under a month later, the deal officially collapsed, “paus[ing] consolidation in an industry that has been profoundly reshaped by mergers and acquisitions, with little regulatory intervention.”2 For the publishing world, the court’s order—and the decision by Simon & Schuster’s parent company to terminate the deal rather than seek an appeal of the court order—broke a pattern of rapid consolidation in a deeply concentrated landscape that had dwindled to just five publishers.3 For the legal world, the DOJ’s win marked a rare victory for the new antitrust movement: regulators actively seeking to reform antitrust law away from what they argued was a narrow focus on consumer pricing, toward an expansive, mostly untested interpretation of the law that protected labor markets and curbed corporate power.4
More broadly, the decision was that rare collision between antitrust law and the deeply consolidated copyright-content industries, which many have long acknowledged but about which little has been done.5 Yet, to date, scholars have generally viewed copyright and antitrust as working independently of each other, theorizing that copyright law itself might regulate competition amongst firms through specific mechanisms like safe harbors and compulsory licenses, and in cases of extreme anticompetitive conduct, that antitrust law can step in and regulate discrete antitrust harms like price-fixing.6 But, as this Article argues, neither copyright nor antitrust law alone has been sufficient for addressing the immense concentration of the copyright industries or the anticompetitive practices of new, large technology companies.
Despite the claim that copyright creates a “limited monopoly,” a copyright in a single work is alone insufficient to generate meaningful market power.7 However, the mass aggregation of copyrights can allow a single or small group of rightsholders to charge high licensing prices or even block entry to new creators or disseminators.8 Indeed, just like in the book publishing industry, over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake.9
Furthermore, a different set of competition problems are emerging thanks to the growing role of new technology companies in copyright content industries. In industries with large, entrenched incumbents, disruption has often been considered favorable; copyright and innovation scholars have largely taken the view that competition from companies such as Apple, Amazon, and Google in copyright-dominated industries results in more innovation and better consumer outcomes.10 But this Article discusses ways in which large technology firms may use their economies of scale to engage in loss leading, competing not just in the market but for the market.11 While such strategies present no legally cognizable harm to rightsholders or to competitor distributors in the short term, such strategies are intended to cement the dominance of the technology company in the long term, ultimately reducing the variety, quantity, and quality of goods available to consumers.12
The rise of the large-scale copyright aggregator and the Big Tech loss leader threatens to concentrate market power in the hands of a small number of firms. The prevailing wisdom is that such competition problems should be addressed through antitrust—what we call an antitrust-only approach.13 However, as we argue, both the classic Chicago School approach to antitrust as well as the growing “neo-Brandeisian” approach struggle to deal with the particular policy challenges (and peculiarities) of market power in copyright markets, where what seems to be a “supracompetitive” price may or may not actually be necessary to fulfill copyright’s goal of incentivizing the production of new creative works.14 Indeed, the limits of an antitrust-only approach have become apparent in the aftermath of the DOJ’s victory in Simon & Schuster, with the sale of the storied publishing house to private equity, “a move that would likely lead to absolute devastation [of Simon & Schuster] and wholesale job loss.”15 As one industry outlet put it in the wake of the court’s decision: “While the anti-monopoly movement has a huge victory to celebrate, the publishing industry is left with a sense of impending doom.”16
Existing copyright law, however, is also ill-equipped to address market power in the creative industries. Some scholars have noted that the copyright system contains an internal set of mechanisms designed to police market entry, including compulsory licenses housed within the regulatory state,17 various safe harbors,18 and even the basic mechanics of copyright infringement lawsuits.19 Most of these regimes, however, were crafted in a pre-digital world and thus struggle to effectively handle anticompetitive behavior in the content industries. A copyright-internal approach to market power struggles in particular to make sense of the Big Tech loss leader, who, in the short term, may allow for greater production of easily accessible creative works—an ostensible boon to copyright’s policy agenda—but, in the long term, threatens to erect barriers to entry for new content producers and distributors.
The Article argues, instead, that to address concentration in copyright markets, antitrust and copyright law cannot work in silos. To find a way forward, we consider what may be the only existing legal regime that combines antitrust enforcement with sensitivity to copyright’s policy goals: the consent decrees that manage the music performance rights organizations (PROs) ASCAP and BMI. Thanks to these consent decrees, which were entered into in the 1940s but are still in force today, certain segments of music licensing are regulated,20 including via judicial oversight of royalty rates. Our analysis of rate court adjudications brought under the decrees shows that, far from an outdated relic that parties no longer rely upon, parties continue to call upon rate court judges to adjudicate disputes— especially as new technologies and new modes of disseminating content arise.
Competition---Do Both---Patents---2NC
Antitrust and patent law are incompatible
Kurz 24 [Mordecai; January 25; Emeritus Professor of Economics at Stanford University and the author; Business and Financial Times (Ghana); “Reform antitrust and patent laws now”; https://advance-lexis-com.proxy.lib.umich.edu/api/document?collection=news&id=urn:contentItem:6B60-B821-JDJN-64P6-00000-00&context=1516831.] zy
The real aim of antitrust law, then, is to curb excessive economic and political power of business. Yet the original legislation made only the restraint of trade illegal. Finding this too vague, the courts compelled Congress - in 1914, 1936 and 1950 - to spell out unlawful market practices, but always without reference to the exercise of power. Thus, in practice, antitrust policy has been used to ensure the free entry of competitors into all markets.
While Milton Friedman opposed antitrust because it creates bureaucracy, most of the opposition to it has rested on the claim that it penalises the best for being the best. University of Chicago economists and legal scholars, such as Robert Bork, convinced the courts that the real intent of the Sherman Antitrust Act was to enhance consumer welfare. The only relevant problem is the short-term market price - not market power. Monopoly power

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