Litigants face tough road with antitrust lawsuits

While large, powerful tech companies and the antitrust cases against them are in the limelight, Harold Furchtgott-Roth, director of the center for the economics of the internet at conservative think tank Hudson Institute, based in Washington, D.C., argued it doesn’t mean current antitrust laws need to change.

Antitrust laws focus on market definition, Furchtgott-Roth said. Litigants involved in antitrust cases present the court with their definitions of the market and, while sometimes litigants agree on market definition, often they disagree. Defining the market is an empirical matter largely based on whether a hypothetical monopolist could raise prices for goods, Furchtgott-Roth said.

It’s easier to define a market for steel or coal than rapidly changing digital technologies, he said.

Furchtgott-Roth pointed to Microsoft as an example, which faced a U.S. antitrust lawsuit in 1998. There were disputes about whether the market for internet browsers constituted a separate market and arguments were made that Microsoft’s Internet Explorer monopolized the market. That has turned out not to be the case, as other internet browsers arrived to compete with Microsoft’s Internet Explorer, he said.

“What might be an antitrust problem at one point in time, a few years later may not be,” he said.

The slow progression of the FTC Facebook litigation and the decision in the Epic case don’t mean there’s anything wrong with antitrust law, Furchtgott-Roth said.

 Additionally, Furchtgott-Roth echoed George Washington University’s Kovacic in that courts have taken a more hands-off approach to antitrust cases, which won’t change quickly.

“Over the past 40 years, the courts have taken a much more economic approach to antitrust, and I think that pendulum is going to be slow to change,” he said. 

Furchtgott-Roth said, while there is appetite in Congress to change the laws, he doesn’t see it happening anytime soon either.

“Past efforts to change antitrust law have not necessarily succeeded,” he said. “I’m a little skeptical it’s going to happen in this Congress.”

Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.