Will Antitrust Enforcers Target “Predatory Technology”?

Everybody’s heard of “predatory pricing.” It’s the mythical process by which a big business can supposedly destroy competitors by selling below cost. Once the field is cleared, the new monopolist can supposedly raise prices through the roof to recoup prior losses.

But wait a minute — what’s to stop rivals from then re-entering the field, so that the would-be monopolist must keep on bleeding cash by serving the entire market at a loss? In a free market, there’s nothing to stop this. Which is just one reason why historical research has failed to find actual instances of successful “predation,” even by John D. Rockefeller’s often-condemned Standard Oil Co. of New Jersey.

None of this fazes the antitrust establishment, whose economists and lawyers continue to formulate, apply, and discard theories faster than industry can keep up. As Edwin Rockefeller points out in his underappreciated book, The Antitrust Religion, “The antitrust community invents sinister-sounding terms for natural phenomena and enjoys a feeling of self-righteousness in protecting the public from those evils.” If a businessman wants to know what he can do today, he must try to be aware of how antitrust laws will change tomorrow.

So it’s very important to scan the skies for trial balloons, tentative suggestions that could lead to new avenues for antitrust enforcement. That’s why I was alarmed by a recent blog post called: “Predatory technology — a viable antitrust concept?”

Preliminarily, let me translate the word “viable.” In this context, it means: “Susceptible to being dressed up in economic jargon, mathematical equations, complex graphs and legal precedent so that it appears sinister enough to be outlawed.”

Now, what would it mean for “predatory technology” to join “predatory pricing” in the antitrust arsenal? The blogger who floated this trial balloon (a European antitrust lawyer named Sophie Lawrance) gives us a clue. She discusses a European antitrust case against an electronics firm that issued an upgrade to its ship navigation system. The EU’s competition authorities held that the upgrade went “beyond normal competitive behaviour” in an attempt to “exclude” competitors. “In effect,” Lawrance writes, “this was a case of sham innovation, where it was held that there was no purpose to the technical change apart from the exclusion of competitors.”

“Sham innovation?” Really? Can you imagine the resulting trail of destruction if that legal Godzilla were let loose to trample Silicon Valley? Like other antitrust concepts, it’s a term without objective meaning. Was Apple’s original iPod a “sham innovation” designed to exclude Sony Walkmans and other tape cassette competitors? How about all the subsequent generations of iPod — were they “shams” designed to exclude Microsoft’s Zune and other weak sisters from the market? How about the iPhone? The iPad? If innovators like Apple will be subject to penalization for “going beyond normal competitive behavior,” what on earth will be the standard of normality?

If ever there was a rationalization for regulators to assert arbitrary control over product innovation in this country, it’s the corrupt concept of “predatory technology.” And Lawrance concedes that the idea would face an uphill battle in America, where “innovation is regarded as the essence of competitive conduct.”

But I say we need to remain vigilant. The particular case that prompted Lawrance’s blog post is an investigation just announced by the U.S. Department of Justice into
high-speed stock trading. According to the
Los Angeles Times, “the Justice Department is investigating the use of computer algorithms and ultra-high-speed data networks to execute trades as a possible violation of antitrust laws.”

Given the growing unpopularity of such trading, spurred by Michael Lewis’s new bestseller Flash Boys, we could soon be engulfed by an episode of political hysteria in which “predatory technology” becomes a “viable antitrust concept.”