R.A.A. KHAN, affiliation not provided to SSRN
Email: r.a.a.khan@rechten.vu.nl
GARETH T. DAVIES, Free University of Amsterdam - Faculty of Law
Email: g.t.davies@rechten.vu.nl

This article asks whether competition law, in particular the law on mergers, should always be called law. It concentrates on merger control in the European Union but draws on US experience and history to provide ideas and to contribute to the framework for the analysis. The starting point is that competition law is increasingly located not in courts but in agencies: in the EU, the European Commission. These agency regulators take decisions based allegedly on economic theory, but which are non-predictable and nonreplicable; they do not provide a tight enough reasoning process to serve as a guide to action in future cases. Yet they are only marginally reviewable by courts. Finally, even insofar as identifiable and coherent rules exist for agency behaviour, their rule-like character is undermined by a culture of negotiation and compromise, which means that the link between rule and decision becomes even more tenuous and even less apparent to the nonparty. Over-reliance on questionable economics, as well as inadequately constrained agency behaviour, suggests that merger control is now the domain of ad-hoc decision making as much as it is of law.

FREDERIK VAN DOORN, Utrecht University - School of Law
Email: fredvdoorn@gmail.com

The paper addresses the paradox that, although it is generally recognised among economists that minimum and fixed resale price maintenance can have both positive and negative effects on consumer welfare, the current approach under EC competition law can still be characterised as a de facto per se prohibition. It is argued that excluding minimum and fixed resale price maintenance from the category of hardcore restrictions is undesirable, because this would substantially increase regulation costs. The current regime is moreover satisfactory because it leaves sufficient room to argue that a specific agreement entailing RPM should not be considered an infringement of competition law.

WILLIAM H. PAGE, University of Florida - Fredric G. Levin College of Law
Email: page@law.ufl.edu

Frank Easterbrook’s 1984 article, The Limits of Antitrust, did not focus on public antitrust enforcement. Nevertheless, it expressed the kind of antitrust thinking that led the Antitrust Division of the U.S. Department of Justice, around that same time, to shift its resources to cartel prosecutions and away from big monopolization cases. The Microsoft case, filed in 1998, broke this pattern. I argue that the Division made this exception, and ultimately achieved a partial victory in the courts, because the relatively new economic theory of network effects seemed to make the filters Easterbrook proposed in 1984 less applicable in high technology markets like the ones in which Microsoft competed. In this essay, I return to Easterbrook’s filters and consider whether they offer a different perspective on the Division’s decision to sue and the courts’ eventual resolution of the case.

RACHEL ARIDOR-HERSHKOVITZ, University of Haifa, Faculty of Law
Email: raridor@campus.haifa.ac.il

Unlike traditional markets, Information Technology (“IT�) markets are characterized by special and unique features that shall be discussed in this paper. Competition in IT markets is dynamic; nonmarket based information production models (‘peer production’) play a significant role in IT markets; and IT market are usually data market rather than product market. The combination of the legal rule prohibiting circumvention of technological measure under the DMCA and the use of DRMs, created a new regime, the DRM/DMCA regime, which bestows the entertainment industry with a new and strong right to control the access to and use of the copyrighted work. The use of such a strong right under the DRM/DMCA regime may have, in some instances, anti-competitive effects in IT markets. A recent example for such allegedly anti-competitive use of the DRM/DMCA regime can be found in the litigations initiated by movie studios and the DVD CCA against two IT companies, Kaleidescape and RealNetworks. These cases demonstrate the attempts of the entertainment industry to block the marketing of technological device or software products which allow their end users to upload the content of their DVD to the device’s hardware and replay it afterwards from the device itself or their own PC. The key question I would like to address in this paper is the limits of the conceptual framework of antitrust law and of copyright law for regulating possible anti-competitive effects of the DRM/DMCA regime on competition in IT markets in the U.S, given the unique features of IT markets.