Document Type

Article

Publication Title

Nebraska Law Review

Abstract

Big platforms dominate the new economy landscape. Colloquially known as GAFA or FAANG, the high tech big data companies are charged with using the power of their platforms to squelch start-ups, appropriate rivals’ ideas, and take and commercialize the personal data of their users. Are the platforms violating the antitrust laws? Should they be broken up? Or are they the agents of progress in the new economy? On these points, the United States antitrust law and the European Union competition law may diverge. The Competition Directorate-General of the European Commission has brought proceedings against or is investigating Google, Amazon, Apple, and Facebook. Germany, under its own competition law, has condemned Facebook’s conduct. Meanwhile, in the United States, authorities are skeptical, but they have commenced investigations. This Article is a comparative analysis of U.S. and EU law regarding monopolization/abuse of dominance as background to understanding why EU law is aggressive and U.S. law may be meek in the treatment of the big tech platforms. First, it examines the factors that underlie the two perspectives. Second, it considers three cases or problems—Google/Comparative Shopping (EU), Facebook-Personal Data (Germany), and dominant platforms’ acquisitions of start-ups that are inchoate competitive threats, such as Facebook’s acquisitions of WhatsApp and Instagram. The Article considers what lessons the latest Supreme Court antitrust decision, Ohio v. American Express (AmEx), holds for the analysis of the big data antitrust issues. Third, it asks what U.S. antitrust law and enforcement should do. It concludes that U.S. antitrust law should reclaim its role as watchdog to stop abuses of economic power, and makes suggestions for U.S. antitrust law to meet the big-platform challenge in a modest but meaningful and practicable way.

First Page

297

Volume

98

Publication Date

2019

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