A limited academic circle recognizes the honor of having a “school of thought” named after it, yet it remains an enviable distinction. The substantial body of academic work on innovation in antitrust law, authored by professors from the University of Berkeley and published in its various journals, lends legitimacy to the label of a “Berkeley School”—with which I have no connection, I should clarify. In short, a new way of thinking about antitrust law is emerging from these scholars and their writings. Below is a brief demonstration.
I. Articles by the Professors from the University of Berkeley
- Aaron Edlin (see The Role of Switching Costs in Antitrust Analysis: A Comparison of Microsoft and Google, YALE J.L. & TECH. 15 (2013)): this article analyzes the “switching costs” caused by the change of technology. It thus examines the degree of consumer lock-in.
- Hanno Kaiser (see Are “Closed Systems” an Antitrust Problem?, 7 COMP. POL’Y INT’L91 (2011)): this article defends the closed systems in which the owner do not accept external content. Please note that Hanno Kaiser also teaches a class called “Silicon Valley Antitrust”.
- Stephen M. Maurer (see Rethinking Antitrust and Innovation Policy for the Age of Commercial Open Source, 2012 UTAH L. REV. 269 (2012)): this article analyzes the pro-competitive aspects of open source IT systems while stressing the risk of creating cartels.
- Pamela Samuelson (see her article entitled Are Patents on Interfaces Impeding Interoperability?, 93 MINN. L.REV. 1943 (2009)): this article proposes to study the tension between patent and products interoperability, as well as the different opportunities to reconcile the two.
- Daniel L. Rubinfeld (see The Hidden Costs Of Free Goods: Implications For Antitrust Enforcement, 80 ANTITRUST L.J. 521 (2016)): this article analyzes the cost of free goods offered to the consumer as well as the various anti-competitive strategies that it implies.
II. The “keys” articles of the University of Berkeley journals
- Nathan Cortez, Regulating Disruptive Innovation, 29 BERKELEY TECH. L.J. 175 (2014): this article profiles the different sanctions that should imposed by competition authorities in the matter of disruptive innovations.
- Alan Devlin & Michael Jacobs, Anticompetitive Innovation and the Quality of Invention, 27 BERKELEY TECH. L.J. 1 (2012): this article addresses the issue of predatory innovation. It argues for the creation of per se legality rules in numerous situations.
- Wendy Seltzer, The Imperfect Is the Enemy of the Good: Anticircumvention Versus Open User Innovation, 25 BERKELEY TECH. L.J. 909 (2010): this article analyzes the pro and anti-competitive aspects of open and closed IT systems.
- Fred Von Lohmann, Fair Use as Innovation Policy, 23 BERKELEY TECH. L.J. 1 (2008): this article – whose dominant is intellectual property – studies the various implications of private copies creation.
- David McGowan, Between Logic and Experience: Error Costs and United States v. Microsoft Corp., 20 BERKELEY TECH. L.J. 1185 (2005): this article analyzes the Microsoft case by which it evokes the crucial question of judicial errors.
These various articles all present analyses on the dynamic and evolving nature of antitrust law. The traditional focus on price-based predation is being replaced by discussions on non-price predation strategies, which are expanding at an exponential rate. It is encouraging to see part of the academic community engaging with these issues.
Perhaps, in a decade or two, the Berkeley faculty will be recognized as one of the first to have truly emphasized the importance of integrating innovation into antitrust law. Perhaps its contribution will be acknowledged in helping to move beyond the static view of competition, which still constrains the analyses of too many courts and competition authorities
By Thibault Schrepel
