Author(s)
Brett M. Frischmann and Spencer Weber Waller
Source
http://works.bepress.com/brett_frischmann/1/
Summary
This article looks at older antitrust law to see if it can help resolve problems with new networks like the Internet.
Policy Relevance
Antitrust cases that require monopolists to share property with rivals do not harm investment or cause as many administrative problems as critics say.
Main Points
- Some antitrust law cases develop the “essential facilities doctrine” to decide whether and when firms can be required to share their property with rivals.
- Areas of law that struggle to balance private property rights—especially the right to exclude rivals—with the public’s right of access to resources such as transportation systems, communication networks, scientific research, and other infrastructure.
- Some scholars argue that private control of such resources works well, because the market efficiently distributes costs and benefits. Others take the position that these resources should be opened up to allow many to access them.
- Advocates of open access argue that private control often is overly restrictive and unfairly allocates benefits to a few private parties.
- In essential facilities cases, a monopolist acts illegally in denying a competitor access to a facility under the exclusive control of the monopolist. Many scholars and the Supreme Court itself have heavily criticized this idea.
- The essential facilities doctrine should be revived. The extent to which forced sharing of resources reduces investment is exaggerated, and so has the difficulty of coming up with workable rules for sharing resources.
- Microsoft Windows is an infrastructure that should be regulated under these rules, as did the European Commission in its antitrust suit against Microsoft.
