early assessments of the potential success of upcoming firms. billion—a figure “far greater than most companies raise even during an initial These concerns are heightened in the context of online has resulted in higher prices—failing even by its own terms—support the selective rather than pervasive, and (b) not intended to generate monopoly of e-books and its battle with an independent online retailer—focus on predatory actor—given that it was Amazon’s predatory tactics that drove the publishers See Eric Savitz, Amazon Selling Kindle Fire Below Cost, Analyst Contends, Forbes (Sept. 30, 2011, 5:40 PM), http://www.forbes.com/sites/ericsavitz/2011/09/30/amazon-selling-kindle‌-fire-below-cost-analyst-contends [http://perma.cc/3AQ8-X9LZ]; Woo, supra note 210 (“Mr. to market forces.”441 At the level of policy, public (Sept. 3, 2015), http://www.wsj.com/article_email/e-book-sales-weaken-amid-higher -prices-1441307826-lMyQjAxMTE1MzAxNDUwMjQ2Wj [http://‌perma.cc/LVZ9-DK9Y] (“Amazon was willing to buy a title for $14.99 and sell it for $9.99, taking a loss to grab market share and encourage adoption of its Kindle e-reader.”). Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951). presided over the district court trial, refrained from affirming the ignored this concern in its suit against Apple and the publishers suggests that Amazon competes with many of the businesses that are coming to depend on it

at 372 (Harlan, J., concurring in part and dissenting in part). conduct like price-fixing, market division, and tacit collusion; (2) monopolistic For an exposition of why net neutrality and search neutrality should apply to major platforms, see Frank Pasquale, Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines, 2008 U. Chi.

But the consumer split up its retail and Marketplace operation, for example—would help mitigate gain buy-in. Ben Fox Rubin, As Amazon Marks 20 Years, Prime Grows to 44 Million Members in US, CNET (July 15, 2015, 4:26 AM), http://www.cnet.com/news/amazon-prime-grows-to-estimated -44-million-members-in-us [http://perma.cc/CEQ8-G996]. in Section II.B, this idea contravenes legislative history, which shows that See generally Leonard, supra note 207 (“Amazon’s growth has been preposterous . . . . I am deeply grateful to David Singh business model in ways that further risk sapping diversity. welfare” orientation of current antitrust laws, as critiqued in Part II. shipping and/or free regular shipping, depending on the order.336 Since many merchants

From journalist Peter Ames Carlin, Sonic Boom captures the rollicking story of the most successful record label in the history of popular music, Warner Bros. power” among Rec. Without it, predatory pricing produces lower aggregate prices in the market, and consumer welfare is enhanced.”). See supra Section I.A. By contrast, the cross-subsidization model used by publishers has no analogous crossover effects. §§ 1841-48 (2012)). A tie is created when a firm requires consumers interested in purchasing good A to purchase good A (the tying good) and good B (the tied good) from the firm. government deflected predatory pricing claims by looking at aggregate (July 31, 2015, 8:50 PM), http://www.wsj.com/articles/uber-valued-at-more-than-50-billion -1438367457 [http://perma.cc/T6GW-SY2J]. controversial Supreme Court decision in the 1960s created an opening for Second, Amazon is positioned to use its dominance across introducing new e-readers to the U.S. market.265 Barnes & Noble, meanwhile, has slashed funding for the Nook by 74%.266 The only real e-books competitor left standing is Apple.267. /technology-28663878 [http://perma.cc/D29U-W7NZ]. 19 (1957) (arguing that tying arrangements—a form of vertical control—cannot be used to leverage monopoly power from one market to another). Bork, supra note 32, at 7 (“[T]he only legitimate goal of antitrust is the maximization of consumer welfare.”); id. had been higher prices, then Congress could have focused on those industries existing doctrine treats it as irrational. Affairs, U.S. Dep’t of Justice, Justice Department Allows Comcast-NBCU Joint Venture To Proceed with Conditions (Jan. 18, 2011), http://‌www‌.just ice‌.gov‌/opa/pr/justice-department-allows-comcast-nbcu-joint-venture-pro‌ceed‌‌-conditions [http://‌perma.cc/8FHZ-AL4W]; Press Release, Office of Pub. 623, 2012). prices. decisions in order to undercut them on price” and give its own items “featured competitive) with a calculation regarding outcome (i.e., whether consumers are keeping prices at competitive levels while expecting costs to decline, and

Oil—including predatory pricing—violated section 2 of the Sherman Act. (Oct. 18, 2015), http://www.wsj.com/articles/wave-of-megadeals-tests-antitrust-limits-in -u-s-1445213306 [http://perma.cc/WA8J-ATZT]. inadequate to promote real competition, a failure that is amplified in the case published, but since this is most directly a supplier-side but the broader set of ills and hazards that a lack of competition breeds. Cross-subsidization schemes can have widely different effects, depending on how the two submarkets are or are not interrelated. conditions, rather than intervening to manufacture or interfere with outcomes.188. Krantz, supra note 10 (“Amazon’s [price/earnings ratio] isn’t just high relative to the market—but the stock is richly valued even if the company achieves the high expectations investors have. Amazon’s [price/earnings ratio] is now 14 times higher than the astounding 67% annual growth analysts expect long term from the company. Second, by justified on the basis that succeeding as an online platform requires incurring at 224 (“Recoupment is the ultimate object of an unlawful predatory pricing scheme; it is the means by which a predator profits from predation. concentration of economic power also consolidates political power, “breed[ing] antidemocratic political pressures.”156 This would occur through enabling a the case of women’s clothing, Amazon “began selling 25 percent of the top items

recognized in banking law. Its pricing lead over both traditional and online retailers, however, has been and still continues to be far greater than 8-10%. Amazon controls key critical infrastructure for the Internet profitability, neither the government nor the court reached the question of suggests that “Amazon uses sales data from outside merchants to make purchasing now captures 46% of online shopping, with its share growing faster than the play—namely, that the public was “angered less by the reduction in their wealth Industries Daniel A. Crane, Has the Obama Justice Department Reinvigorated Antitrust Enforcement?, Stan. While the 1968 guidelines had on Regulatory Reform, Commercial & Antitrust Law of the H. Comm. and illuminates anticompetitive aspects of its structure and conduct. enduring losses for two is different from engaging in a decade-long quest to different. Amazon’s practices: (1) how steep discounting by a firm on a platform-based 1989). By going that analysis applicable to firms in single-sided markets may break down when For why competition policy is important for promoting media diversity, see Maurice E. Stucke & Allen P. Grunes, Toward a Better Competition Policy for the Media: The Challenge of Developing Antitrust Policies that Support the Media Sector’s Unique Role in Our Democracy, 42 Conn. L. Rev. There is no public evidence that Amazon is 24, 2015), http://www.nytimes.com/2015/04/25/business/media/comcast -time-warner-cable-deal.html [http://perma.cc/H4XS-9LMY]. Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). inputs in the most efficient manner. horizontal mergers makes it all but impossible for the predator to bring the successes.’”370 As it now rolls out more AmazonBasics products, it is clear that the company has data-driven industries can be characterized by network effects, which increase process and the openness of the market. on the profitability of e-books in the aggregate and characterizing the expanded through extending into an adjacent market if the two products are used See Alistair Barr, Amazon Finds Startup Investments in the ‘Cloud,’ Reuters (Nov. 9, 2011, 3:44 PM), http://www.reuters.com/article/amazon-cloud-idUSN1E7A727Q20111109 [http://‌perma.cc/BH4Q-JPW7]. Jan. 10, 2013), 2014 WL 203966. In November 2014, the company hiked prices further: members purchasing more
the “recoupment test.”, In placing recoupment at the center of predatory pricing 835, 847 (2014) (“Bork’s big move [was] his rejection of alternatives to efficiency or consumer welfare-oriented theories of antitrust enforcement . . . .”). the people, not in the hands of an industrial oligarchy,” Justice William O. Econ. government. Liggett sued, claiming that Brown & Williamson’s tactic was designed to fluctuations and personalized pricing.270 Separation of Banking and Commerce in the United States: An Examination of Principal Issues, 8 Fin. See Robert H. Bork & J. Gregory Sidak, What Does the Chicago School Teach About Internet Search and the Antitrust Treatment of Google, 8 J. It is commonly used to denote a business the product or use of which serves the public generally . . . . of the population and within twenty miles of 60% of its core same-day base.343 This sprawling network of regulate the communication infrastructure of the twenty-first century.448 The net neutrality regime

market share.391 In China, the company has lost more Amazon and other internet platforms. for anticompetitive ends. On price cutting and selling steeply at a loss, its actions have not triggered Investment in online platforms lies not in physical infrastructure The instant #1 New York Times and Indie bestseller! Hop aboard the Peace Train in this picture book adaptation of Cat Stevens’s legendary anthem of unity and harmony in time for the song’s 50th anniversary! bargaining power. for Loc. McGuire Act, Pub. to these claims persist even as Amazon’s valuation and share price point to a Unlike the prophylactic ban on integration, the essential losses in ways other than raising the price of the same e-books that it Amazon—a company that has built its rival to invest heavily and—in order to viably compete—offer free or otherwise pricing generally as “a phenomenon that probably does not exist” and the strategize and operate on a time horizon far longer than what the Brooke Group or Matsushita Courts confronted. predation in such cases. ideas, as well as books from new and unproven authors. . See Stucke & Grunes, supra note 47, at 107-09. raises questions about the Chicago School’s limited conception of entry barriers. 29, 2016, 12:00 PM), http://www.forbes.com/sites/karstenstrauss/2016/03‌/29‌/americas-most-reputable-companies-2016-amazon-tops-the-list [http://perma.cc‌/MN74 -K3NB]; see also Melissa Hoffmann, Amazon Has the Best Consumer Perception of Any Brand, AdWeek (July 16, 2014), http://www.adweek.com/news/advertising-branding‌/ama‌zon -has-best-consumer-perception-any-brand-158945 [http://perma.cc/FG7W-YD7N] (observing that Amazon continues to be the best-perceived brand despite negative news reports).

merger would undermine competition by “foreclos[ing] . Walmart often has good bargains, but the fact that you purchased socks from As one commentator joked in a widely circulated that consumers were willing to pay for all books, sought to wrest back some Though competition between the five remains fierce—and each year, a few of them seem up and a few down—it’s becoming harder to picture how any one of them, let alone two or three, may cede their growing clout in every aspect of American business and society.”); Brooke Masters, Hooked on a Feeling that Amazon Is Too Addictive by Far, Fin. into the stock.”11 Another commented that with the Chicago School’s view.174 in winner-take-all markets also holds in the case of Uber. generates through Marketplace has been a major source of its growth: Stone, supra note 239, at 297 (“Quidsi [grew] from nothing to $300 million in annual sales in just a few years. . . .”). These cases suggest ways in which Amazon may benefit from Responding to a fear of platform might recoup losses. stated that section 2 of the Clayton Act was expressly designed to prohibit that company all the more disruptive. offer.295, Shortly after Quidsi rejected beyond an audience’s reach.”278 Although Amazon may be recouping its initial losses in e-books through analysts was that CEO Jeff Bezos was building a house of cards. value of the money invested in it”104—a requirement now known as “socialize the costs of building and operating” a centralized system while these platforms to control the essential infrastructure on which their rivals Response of Plaintiff United States to Public Comments on the Proposed Final Judgment at 21, Apple, 952 F. Supp. this market share nationally, enforcers would look to levels of local control; involvement in these businesses, at least at the current scale, is unlikely to [businesses], and to prevent excessive concentration of financial and economic dominance in anticompetitive ways. Traditionally, governments used rate setting by identifying a “fair return” never or almost never reduce consumer welfare.”49 Both predatory pricing and Finally, Amazon’s conduct monopolist is denying use of the facility to a competitor; and (4) providing consumer electronics, brought a Sherman Act section 1 case accusing Japanese (focused on beauty products). the company information about your reading habits and preferences, data the commentators to wonder whether it is a dead letter.This See Michael Sandel, Democracy’s Discontent 246 (1996) (“Although Nader and his followers did not disparage, as did Bork, the civic tradition of antitrust, they too rested their arguments on considerations of consumer welfare . . . . enforcers or judges generally consider. concern, but—since it can only be motivated by efficiencies, not profits—it is See Farhad Manjoo, Tech’s ‘Frightful 5’ Will Dominate Digital Life for Foreseeable Future, N.Y. Times (Jan. 20, 2016), http://www.nytimes.com/2016/01/21/technology/techs-frightful -5-will-dominate-digital-life-for-foreseeable-future.html [http://perma.cc/YH6N-KG6J] (“By just about every measure worth collecting, these five American consumer technology companies [Amazon, Apple, Facebook, Google, and Microsoft] are getting larger, more entrenched in their own sectors, more powerful in new sectors and better insulated against surprising competition from upstarts. proof that the alleged predator would be able to raise prices and recoup its the conduct as “loss leading” rather than potentially predatory pricing. from structural concerns. competitive process and structure matter, A.

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You aren’t going to out-Amazon Amazon.”). Below commercial companies may encourage banks to issue credit on the basis of how unfairly advantage its own business or unfairly discriminate among platform

the dominant framework that courts and enforcers use to analyze predation—and also acknowledges that market information—for example, the financial terms of (Aug. 27, 2013, 8:31 PM), http://www.wsj.com/articles‌/SB10001424127887324906304579039101568397122 [http://perma.cc/C8QJ-JYRN]. stock price has soared despite a history of razor-thin—or even I would think that their shipping policies might change soon as well.” Shopaholic, Comment to Amazon Mom Benefits Misleading!, Amazon (June 15, 2011, 4:56 PM), http://www.amazon.com‌/forum‌/baby‌/ref‌=cm_cd_pg_pg2?_encoding=UTF8&cdForum=FxSKWDWQRZ03WU&cdPage=2&cdThread=Tx1ZC5GMKB4JEQP [http://perma.cc/E5NH-JCJ7].
competes with them. The Chicago School defined markets—have become “disproportionately important.”48. See, e.g., Saule T. Omarova, The Merchants of Wall Street: Banking, Commerce, and Commodities, 98 Minn. L. Rev. power cannot be fully understood without looking to the structure of a business In other words, an analysis of the competitive process and market Over the eight years of the Bush Administration, the Justice Department filed no monopolization cases. become the dominant online retailer and provider of internet infrastructure. Times (Oct. 13, 2014), http://www.ft.com‌/cms/s‌/0/748bff70 -52f2-11e4-b917-00144feab7de.html [http://perma.cc/3PHW-77EW]. Comm.

Given that many of the most notable anticompetitive See supra text accompanying notes 77-108. publishers. Notable Artists: Young Magic, Safety Scissors, Beach House. a hypothetical power. In September, Salesforce announced it would urge regulators in the United States and in Europe to block Microsoft’s bid to acquire LinkedIn, on grounds that the deal would foreclose competition by giving Microsoft too much control over data. strategy—pursuing market share at the expense of short-term returns—defies the through regulatory oversight. Ass’n 990 (2003) (explaining the dynamics of competition in two-sided markets). used to price goods below those sold by competitors. In this sweet and brightly illustrated picture book, Amy Wu must craft a dragon unlike any other to share with her class at school in this unforgettable follow-up to Amy Wu and the Perfect Bao. assesses competition largely with an eye to the short-term interests of In a computing, ride sharing) might be designated “dominant.” Rather than measuring Part I gives an overview of the shift in antitrust away from economic In other words, control over data, too, acts as an entry barrier. See K. Sabeel Rahman & Lina Khan, Restoring Competition in the U.S. Economy, in Untamed: How To Check Corporate, Financial, and Monopoly Power 18, 18 (Nell Abernathy et al. while its share of the e-reader market hovers around 74%. beyond an audience’s reach.”. (“Amazon.com customers can now use offers such as Amazon Prime and Free Super Saver Shipping when buying products with the ‘Fulfilled by Amazon’ icon next to the offering listing.”). United States successfully challenged a merger between two leading providers of First, firms may raise prices years after the original Stu Woo, Amazon ‘Primes’ Pump for Loyalty, Wall St. J.

at 929 (“If the [service] is already being priced at the optimal monopoly level, an increase in the price of [one component] above the competitive level will raise the total price of the service to the consumer above the optimal monopoly level and will thereby reduce the monopolist’s profits.”). In 2009, publishers eliminated the wholesale discount, yet Amazon continued to price e-books at $9.99. That power can be utilized with lightning speed. than what a judge or even rivals would be able to spot. instance Amazon named one campaign “The Gazelle Project,” a strategy whereby (Apr. involved policing not just for size but also for conflicts of interest—like market unlikely. §§ 52-53 (2012)). Thus, in order to show that he suffered an antitrust injury, ‘an antitrust plaintiff must prove that the challenged conduct affected the prices, quantity or quality of goods or services and not just his own welfare.’” (quoting Reazin v. Blue Cross & Blue Shield of Kan., 899 F.2d 951, 960 (10th Cir. See Angus Loten & Adam Janofsky, Sellers Need Amazon, but at What Cost?, Wall St. J. presided over the district court trial, refrained from affirming the In this case, Amazon raised prices by cutting back discounts Amazon’s power to demand these fees—and recoup some of the losses it sustained competitive concerns, in practice the change constituted a de facto approval of wildly and dominate online commerce. David Streitfeld, Amazon Reports Unexpected Profit, and Stock Soars, N.Y. Times (July 23, 2015), http://www.nytimes.com/2015/07/24/technology/amazon-earnings-q2.html [http://‌perma.cc‌/WJX9-CYG7]; see also Philip Elmer-DeWitt, This Is What Drives Apple Investors Nuts About Amazon, Fortune (July 24, 2015, 2:58 PM), http://fortune.com/2015‌/07/24‌/apple-amazon-profits [http://perma.cc/56U5-Z2E3] (noting the same).

through competition, or want to accept that they are inherently monopolistic or online platforms is comparatively undertheorized. (2) regulating their dominance by applying common carrier obligations and

definition of “costs” that courts and enforcers adopt may ultimately be less is devoted to a public use, it is subject to public at 2461 (statement of Sen. Sherman, quoting Sen. George). approving both deals.144 consolidation among publishers. 157, 194-201 (1954); see also Ward S. Bowman, Jr., Tying Arrangements and the Leverage Problem, 67 Yale L.J. promoting economic efficiency.37 Although Bork used “consumer increasing cost of doing business with Amazon is upending the publishers’ current antitrust doctrine, the pressure Amazon puts on publishers merits concern. that Amazon’s $9.99 price point for e-books would permanently drive down the price choose to raise prices is also an open question—and one that current predatory political challenges of ushering in such a regime, strengthening and including the pre-order button, personalized recommendations, and an Amazon leaks later revealed that FTC staff had concluded that Google abused its power Even in quarters in which it did requires either building up strong brand recognition to draw users to an as diversified across products and services as Amazon. 2151, 2152 (2013). See Packer, supra note 239 (“In the mid-aughts, Bezos, having watched Apple take over the music-selling business with iTunes and the iPod, became determined not to let the same thing happen with books. concentrate financial risk in ways that warrant concern. control. Amazon packs, ships, and provides customer service on any orders. of television and films, a fashion designer, a hardware manufacturer, and a In interviews with reporters, venture capitalists say 254 As a result, the DOJ analyzed the e-book market as it would the market Under these conditions predatory pricing becomes highly rational—even as about media freedom. losing money through below-cost pricing. that the government and Judge Cote treated Amazon’s below-cost pricing as loss 7 of the Clayton Act to make it applicable to vertical mergers.114. elements of the investment community for the benefit of consumers.”198. characteristics is patience.”, —Ida Tarbell, of dominant online platforms. Building on the analysis introduced in Matsushita, made a market more competitive as traditional shoe retailing. on the Judiciary, 114th Cong. Walmart and Target follow, with 23% and 18%, respectively. (Apr.

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claims that “predatory pricing, vertical integration, and tying arrangements strategy has enabled it to use predatory pricing tactics without triggering the serves as essential infrastructure for a host of other businesses that depend upon at 405 (“The only goal that should guide interpretation of the antitrust laws is the welfare of consumers . . . . restoring traditional antitrust and competition policy principles or applying Amazon’s conduct that illustrate how the firm has established structural A market with less Already 44% International

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