As in previous years (see 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, and 2023), here are the world’s most downloaded antitrust and competition law articles posted on SSRN during 2024.
************
1. Measuring the Openness of AI Foundation Models: Competition and Policy Implications
by Thibault Schrepel & Jason Potts
Sciences Po Digital, Governance and Sovereignty Chair, Working Paper (1,106 downloads)
This paper presents the first comprehensive evaluation of AI foundation model licenses as drivers of innovation commons. It introduces a novel methodology for assessing the openness of AI foundation models and applies this approach across prominent models such as OpenAI’s GPT-4, Meta’s Llama 3, Google’s Gemini, Mistral’s 8x7B, and MidJourney’s V6. The results yield practical policy recommendations and focal points for competition agencies.
*******
2. A Critical Inquiry Into ‘Abuse’ in EU Competition Law
by Pinar Akman
Oxford Journal of Legal Studies (1,068 downloads)
Disagreement abounds on what exactly constitutes an ‘abuse’ within Article 102 TFEU, EU competition law’s prohibition of an abuse of a dominant position. This situation is highly undesirable, given the important role this prohibition is expected to play in alleviating concerns about substantial market power and its use in important sectors, typified by actions against the ‘big tech’. This article responds to this problem by analysing and synthesising the jurisprudence of the Court of Justice of the European Union and its evolution to establish the constituent elements of an exclusionary ‘abuse’. The article corrects crucial legal misconceptions including the putative dichotomy between violations ‘by object’ and ‘by effect’; the assumed disparate legal tests for pricing and non-pricing conduct; and, the lost distinction between the as efficient competitor test and the as efficient competitor standard. This critical inquiry allows one to draw concrete predictions on the future development of this challenging-yet-vital area of law.
*******
3. Towards a Legal Theory of Digital Ecosystems
by Ioannis Lianos, Klaas Hendrik Eller & Tobias Kleinschmitt
Faculty of Laws University College London Law Research Paper No. 16/2024 (994 downloads)
This article undertakes a legal conceptualization of digital ecosystems, analyzing their formation, functioning, and regulatory implications in context, focusing on the EU. Our approach is informed by a comparative analysis of digital ecosystems across sectors and geographies. We reject the dominant narrative in regulatory debates in the digital economy on both sides of the Atlantic – a ‘natural order rhetoric’ that assumes the superiority of private ordering (such as contractual governance designed by keystone firms of the digital economy) over instituted processes (such as regulation). Instead, we add nuance to its nascent but still underdeveloped critique, a ‘power rhetoric.’ At the heart of these competing framings are contrasting visions of the role of law in instituting novel modes of economic organization. The ‘natural order rhetoric’ understands the private governance of ecosystems as ‘given,’ rather than the product of a deliberate corporate strategy of keystone firms to gain rents, and hence argues for regulatory restraint. The intellectual traditions behind this argument are unable to identify the essence of ecosystems as a novel mode of organization. We juxtapose it to an alternative framing: A ‘power rhetoric’ which is attuned to the manifestations of private power and means of control, both formal and informal, legal and technological, and that highlights the influence of central actors within these ecosystems which require regulatory intervention. However, the ‘power rhetoric’ has the right intuitions but remains reductionist and inflexible in its perception of the role of private governance regimes that are necessary for digital ecosystems to function and produce social value. (…)
*******
4. EU Competition Law after the Grand Chamber’s December 2023 Sports Trilogy
by Giorgio Monti
TILEC Discussion Paper (907 downloads)
This paper provides a guided tour of the three judgments of the Court. After a summary of the facts leading to the disputes, the paper examines how the Court applies competition law to the rules of sporting bodies. The claim is that these three judgments contain a number of innovations in the application of general competition law, some of which are not convincing and some do little to resolve some of the fundamental problems that are found in the application of EU competition law. These new twists to EU competition law are much more significant than the rather obvious application of competition law to the rules of sporting associations.
*******
5. On the Antitrust Implications of Embedding Generative AI in Core Platform Services
by Thomas Hoppner & Steffen Uphues
CPI Antitrust Chronicles, July 2024, Volume-I, p. 8 (818 downloads)
Since the rise of ChatGPT, digital gatekeepers have integrated generative AI into their core services, potentially exacerbating harms from anti-competitive behaviors. Generative AI enables these platforms to repurpose content from business users to meet end-user demand directly, reducing the value provided by these business users. Consequently, platforms shift from intermediaries to direct suppliers, centralizing information and diminishing the need for users to leave their ecosystem. This centralization, combined with personalized content creation and opaque advertising practices, could lead to unprecedented levels of user manipulation. Business users, in turn, may face “exploitative platform discrimination,” creating inescapable prisoner’s dilemmas that allow platforms to extract excessive rents. This article outlines the potential harms from embedding generative AI into core platform services and proposes several measures to mitigate them. These measures include rebalancing economic control over creative outputs, severing anti-competitive links between content dissemination and creation, and exposing ‘preferred partnerships’ that undermine legitimate industry responses. By addressing these issues, we can prevent generative AI from consuming the web that enabled its rise and ensure it causes more good than harm.
*******
6. Artificial Intelligence and Antitrust Law: A Primer
by Satya Marar
Mercatus Special Study (802 downloads)
Artificial intelligence (AI) embodies rapidly evolving technologies with great potential for improving human life and economic outcomes. However, these technologies pose a challenge for antitrust enforcers and policymakers. Shrewd antitrust policies and enforcement based on a cost-benefit analysis support a thriving pro-innovation economy that facilitates AI development while mitigating its potential harms. Misguided policies or enforcement can stymie innovation, undermine vigorous economic competition, and deter research investment. This primer is a guide for policymakers and legal scholars that begins by explaining key concepts in AI technology, including foundation models, semiconductor chips, cloud computing, data strategies and others. The next section provides an overview of US antitrust laws, the agencies that enforce them, and their powers. Following that is a brief history of US antitrust law and enforcement with a focus on the consumer welfare standard, its basis and benefits, and the flaws underlying recent calls by the Neo-Brandeisian movement to abandon it. Finally, the primer outlines the law and a procompetitive, pro-innovation policy framework for approaching the intersection between AI technologies and evaluating horizontal and vertical mergers, policing anticompetitive monopolization practices, price fixing and algorithmic collusion, and consumer protection issues.
*******
7. Situating The Dynamic Competition Approach
by Nicolas Petit, Thibault Schrepel & Bowman Heiden
Dynamic Competition Initiative (DCI) Working Paper 1-2024 (768 downloads)
The dynamic competition approach defines an improvement path for antitrust law. Interested in competitive realities more than political activities, the growing body of scholarship studying dynamic competition (i.e., competition through technology) wants to make antitrust diagnosis and analysis more accurate without sacrificing administrability. At a high level, the dynamic competition approach appears to some as a twenty-first-century equivalent of the Chicago school of antitrust. This article shows that the analogy is only partially correct. Unlike the Chicago school of antitrust law, the dynamic competition approach is innovation oriented, empirical, enforcement friendly, and interdisciplinary. To illustrate this distinction more concretely, the article reviews past cases through the lens of the dynamic competition approach. It concludes that the dynamic competition approach is the natural evolution for all systems of antitrust law that reassess doctrine in light of the progression of economic and technical understanding of competition.
*******
8. Feminist Competition Law
by Kati Cseres
Amsterdam Centre for European Law and Governance Research Paper No. 2023-04 (722 downloads)
This paper takes up the challenge to show what a feminist approach to competition law and policy is, and what its contribution can be to the scholarship of competition law. Despite increasing attention from academics and policy makers concerning the intersection of gender equality and competition law, most debates and discussions add gender to the analytical framework, economic calculation or survey, but fail to investigate the gender divisions that deeply bifurcate the structure of modern society, including legal rules, formal and informal institutions and enforcement practices. The implications of gendered lives, experiences and social realities on people’s preferences, choices and decisions in markets remain outside of such discussions. Therefore, feminist methodology and feminist social science research on gendered social realities remains a blind spot in current debates and discussions. Remarkably, a similar blind spot exists in the diverse strands of feminist social science research, notably feminist legal and economic scholarship that has already been applied to various legal fields, but have engaged less thoroughly with the legal frameworks of market processes. Therefore, competition law has been a blind spot in these investigations so far. (…)
*******
9. Competitive Effects of T-Mobile/Sprint: Analysis of a ‘4-to-3’ Merger
by Thomas W. Hazlett & Robert Crandall
Proceedings of the TPRC2024 The Research Conference on Communications, Information and Internet Policy (554 downloads)
Mergers in mobile markets are of keen interest to policy makers and scholars. Because carrier networks are subject to pronounced economies of scale and scope and given that communications regulators create substantial barriers to entry by limiting spectrum allocations for mobile services, wireless services generally exhibit relatively high levels of industrial concentration. Hence, antitrust authorities often struggle with the tradeoff between enhanced scale economies and enhanced market power. Between 2012 to 2016, for instance, four E.U. nations (Austria, Ireland, Germany, and Italy) consummated “4-to-3” mobile mergers while two such combinations were blocked (in Denmark and the U.K.). In the U.S., 4-to-3 transactions were blocked by regulators in 2011 and again in 2014, but a recent merger — between the No. 3 (T-Mobile) and No. 4 (Sprint) carriers was approved in February 2020. This combination remains a subject of intense debate. We examine post-merger evidence of retail mobile subscription prices, network investment, service quality, market shares, and industry profits in the U.S. mobile communications industry. We conclude that the data are consistent with the thesis that the T-Mobile/Sprint merger produced consumer gains. This outcome is particularly interesting given that the government remedy imposed to mitigate potential anti-competitive merger effects, the creation of a new fourth network (DISH), has produced no plausible pro-competitive impact.
*******
10. The End of Average: Introducing Agent-Based Modeling to Antitrust
by Thibault Schrepel & John Schuler
Amsterdam Law & Technology Institute Working Paper Series 2024 (539 downloads)
Antitrust law and policy rely on a hypothetical average consumer. But no one is average. With this basic observation in mind, we show how agent-based modeling (“ABM”) allows enforcers and policymakers to bypass imaginary averages by observing interactions between unique agents. We argue that agent-based regulatory and enforcement policies have a greater potential than average-based public policies because they are more realistic. As we show, the realism brought by ABM enables antitrust agencies and policymakers to better anticipate the effects of their actions and, perhaps more importantly, to time their interventions better.
*******
