[Gayathri Sindhu] 0:07
Hey everyone, this is Gayathri, your host for the day from the Berkeley Tech Law Journal. Today we are excited to share with you a conversation between Berkeley Law student Iman Eslami, and Berkeley Law Professor Talha Syed where they discuss the impending antitrust lawsuit against Apple.1 In this discussion, Professor Syed, an expert in political economy, antitrust, and intellectual property, takes us on a journey through the history of antitrust and how we got to the current moment, one where the government is reevaluating antitrust law and its specific application to big tech. Professor Syed reveals his thoughts and assessment of the new Brandeis movement, headed by Lena Khan and Jonathan Kanter of the FTC and DOJ.2 He also shares his perception of the merits of an antitrust challenge to Apple and what the case could mean for the future of big tech. We hope you enjoyed the podcast.
[Iman Eslami] 1:21
My name is Iman Eslami. Joining me today is Professor Talha Syed, who’s here to discuss the impending Department of Justice lawsuit against Apple. In discussing the lawsuit, I hope we can also get a sense from Professor Syed about some of the broader trends and changes we’re seeing in antitrust law, especially as it relates to big tech. Thank you for coming on to this podcast Professor Syed.
[Talha Syed] 1:43
Thanks so much, Iman, for having me.
[Iman Eslami] 1:45
In my first semester of law school, I had the opportunity to take Torts with Professor Syed. I, along with many other students, found the class to be extremely engaging and illuminating due to Professor Syed’s enthusiastic and fun lecture style that was backed by a clear mastery of the subject matter. However, I know your work is not limited to torts, Professor Syed, with special focus on antitrust, intellectual property, and distributive justice. Before getting started on today’s topic, I want to ask you what you’re currently working on? And maybe if you could give us a brief background of your intellectual interests?
[Talha Syed] 2:18
Sure. My background is basically, I’m interested in political economy, political philosophy, and legal theory. And I use those fields or lenses to talk about intellectual property law, as you said, antitrust, torts, distributive justice. And what I’m currently working on that might be of particular interest to listeners is: one, I’m working on a couple of projects that are at the intersection of antitrust and intellectual property, with a special focus on pharmaceuticals. And then more broadly, I’m working on a series of papers on developing the legal, political, and social theory of a distinctive approach to law, which is called law and political economy and emerging movement in the legal academy.
[Iman Eslami] 3:04
Thank you. We’ll get to discussing the Apple case in a bit. But first, I wanted to see if you could help situate us in the current moment in antitrust. Why are we seeing so much antitrust litigation targeting technology companies in recent years?
[Talha Syed] 3:17
So there’s a number of explanations, but I would really single out two things. First is a bipartisan support in Congress for reviving antitrust concerns against big tech for very different reasons, to some extent, but some overlap. So conservatives, Republicans are very much concerned about big tech’s speech-dampening effects, their effect on political speech, and that sort of symbolized by Jim Jordan, Ted Cruz, and so on. And then liberals, progressives are, as or more concerned about big tech with respect to economic inequality and economic power. So we have conservatives worried about their political reach and progressives also concerned about their economic inequality and economic power. And we see the two sort of come together in the 2022 House report on competition in digital markets. It’s a 364-page report that I quote, “looks into the dominance of Amazon, Apple, Facebook, and Google, and their business practices to determine how their power affects our economy and our democracy.”3 So I think that’s one big source of the revival. And then the other one I would single out is the rise of what’s called the Neo-Brandeisian movement in antitrust. And I think we’ll talk about that more. But just to single out one thing, the current chair of the FTC, Lena Khan, is one of the pioneers in the legal academy of the Neo-Brandeisian movement, and in fact, her 2017 article on Amazon’s antitrust paradox is a bit of a touchstone of reigniting that sort of reviving antitrust scrutiny in big tech.4
[Iman Eslami] 5:00
So you mentioned the Neo-Brandeisian movement, and I think we’ll touch on that a little bit later. But I wanted to focus on the first thing you mentioned that there’s bipartisan support for this current antitrust movement. In your class, you talk about how the current moment in the legal world in economics is one you didn’t expect. It’s a fundamental realignment of the American political economy. And you talked about kind of four eras of legal theory, starting with classical liberalism, up to the Great Depression, past the Great Depression, there was an era of the New Deal and welfarism. And then in the 1970s, the emergence of neoliberalism. But today, you say there’s a fundamental realignment and it’s one you didn’t expect. Can you explain if I was correct in the summary of your four moments? And why is there a fundamental realignment occurring right now? Can you explain this evolution and how we understand a fair and decent society in the context of technological innovation?
[Talha Syed] 5:58
Terrific. So yeah, I think you have it exactly right. My understanding is that you have to understand the American legal political economy [and] the American political economy in terms of different epochs or eras, in which there is a sort of consensus, ideological and institutional settlement. And I think the ones that sort of are the ones you mentioned, the last three are from, yes, as you said, post-Civil War until about the 1930s, which I’m going to call classical liberalism, then the 1930s to about the 1970s, the New Deal era of welfarism. And then the 1980 or so or 1970s, to I would say today, neoliberalism. And I think it’s becoming increasingly clear to everyone that we’re having a tectonic plate shift realignment, and right now we’re in a period of fundamental change, any new ideological institutional settlement hasn’t yet been forged. And we’re in a period of real struggle about that. So it’s kind of an exciting and disorienting period. I want to say a couple of things about each of these settlements to just sort of help ground the analysis of antitrust to follow. So in the classical liberal period, we can understand many areas of law and policy, private law, federal law, constitutional law, to be structured by a guiding idea, which was fundamentally, I would say, usefully summarized in terms of a couplet: one, markets left to themselves produce liberty and prosperity. Therefore, laissez faire, leave them alone, don’t interfere. And I think this was the banner under which many areas of law and political economy developed in the classical liberal period. And then what happened was a sea change that began in fact in the 1890s, with actually the rise of the big trust, and then it kept going until finally it came to a head in the 1920s and the 1930s, with the depression. And here, there were two fundamental motifs as well. One, markets left to themselves may fail to be competitive. Sometimes markets left to themselves may result in collusion, combination, or ruinous competition in which one firm is left standing. So left to themselves, markets are not always competitive. Second, even competitive markets may, left to themselves, fail to produce social welfare. And so the first idea was the foundation of antitrust: left to themselves, markets may fail to be competitive. And the second idea was a foundation of consumer protection laws, labor protections, macroeconomic policy, and so forth, all the things we associate with the New Deal revolution. And then what happened starting in the 60s in Chicago, with Ronald Coase, Friedrich Hayek, Robert Bork, Aaron Director, was a two-pronged attack on this new deal consensus, and the two-pronged attack was: first, markets don’t fail nearly as often as you think. What you call a market failure is often just a transitory form of market dominance, which will soon enough be overtaken in a gale of competitive destruction or creative destruction. And second, even when markets fail, the government solution is often worse than the market failure. Governments can be captured or have informational problems, and therefore it’s better not to intervene so much. So the neoliberal period is, of course, a post-New Deal, resurrection, and that’s why it’s called neoliberal. It’s not classical liberalism, it’s not just saying markets never fail and so on. It’s saying markets do fail and antitrust has a role, but it’s a smaller role, and a more cabined idea of regulation. And that has clearly been challenged ever since the 2008 financial crisis, Occupy Wall Street and so on. And with the election of Trump in 2016, I think it became clear to more people, that we’re in a fundamental period of a sea change realignment, and which way it falls, that’s not going to be clear for a few years yet.
[Iman Eslami] 10:22
So you mentioned this fundamental realignment that’s happening today. And in class, in kind of response to this neoliberal period, you kind of talk about considerations for how the law should consider antitrust. And so you kind of bucket these considerations into three different areas. One is substantive aims: what are we trying to achieve with the law? Two is administrability concerns: how do we achieve our aims efficiently? And three is procedural equity: how do we achieve our aims fairly? So these are the considerations you mentioned in class for how we should approach antitrust law. Can you explain what these considerations mean, and what that means for the current moment in antitrust?
[Talha Syed] 11:05
Yeah, terrific. So fundamentally, I think we have to understand antitrust law, antitrust doctrine, is the result of first, a series of substantive theories of what types of conduct tend to be worrying—they’re called anti-competitive—and what types of conduct tend to be not worrying or beneficial, they’re called pro-competitive. So for every area of antitrust law, vertical restraints, horizontal agreements, unilateral conduct, mergers and acquisitions, there are a series of ideas, or developed theories about what is pro-competitive or anti-competitive; these are substantive concerns. But doctrine isn’t just about your substantive theory, it’s about what’s administrable in a world of uncertainty and constant change. And so that requires having a view on where you come down as a default matter. Are you more concerned in this area of anti-competitive concerns and therefore under-deterrence by antitrust? Or are you more concerned of this area, that there’s going to be a lot of pro-competitive benefits in their IP over-deterrence by antitrust? And that’ll affect your default in terms of who has what burdens and proving difficult, substantive theories. And so antitrust law in the New Deal era, massively shifted into the neoliberal era, because of a competing set of ideas, both as to the substantive concerns, and the administrability defaults. So let me just sort of give the core shift that happened from the New Deal to the neoliberal era. The first fundamental point in antitrust is: why is market consolidation bad, or why is competition good, right? And so the basic idea is competition is good, and consolidation or concentration is bad, because concentration tends to one, raise prices; two, decrease output; three, decrease variety; four, dampen quality or innovation. Now, that’s common to almost everyone in the field. Where people differ is how to go about weighing the ills of these effects on price, output, quality, variety. And so here, I think it’s just useful to be very clear that there are at least three fundamentally different views. So the dominant view in the last half century, the neoliberal Chicago view, going under the banner of consumer welfare, is that price hikes are bad because they decrease output and forego sales. They are inefficient. Some consumers are priced out of the market. And that’s the only concern: inefficiency. Transactions that should have happened have not happened; output has been decreased. That’s one view, the neoliberal view, the Chicago strand of the neoliberal view. We can call that the efficiency theory, or the total social surplus view. Then there’s a second view within the neoliberal period, which you can sort of loosely call the Harvard approach, which is also the approach that the FTC was taking during the neoliberal period, which is no no, we don’t just care about consumers who are priced out. There’s a second effect when you raise prices, some people who are not priced out pay more than they would have otherwise. From a Chicago point of view, that’s not a concern, because that’s just the distributive transfer from one set of people to another. But from another point of view, these consumers are getting not priced out but price gouged. And so you can understand there’s a second concern: price gouge. Now, those are the two dominant theories of what matters in antitrust in the neoliberal period, both march under the banner of consumer welfare. One is like social welfare, the other is consumer surplus. But a lot of scholars point out that of course, at the origins of the antitrust statutes in this country, the Sherman Act in the 1890s, no one had heard of these inefficiency problems of being priced out.5 And yes, people were concerned about consumers being price gouged, but they were also concerned about a third thing, the little guy. They were concerned about farmers, they were concerned about upstream suppliers. They were just concerned about the big shadow cast by the big trust on the landscape of the economy. They were concerned about the little guy, and maybe a fourth concern, the big guy: a concentration of economic power. And so, which of these theories you find concerning will significantly affect your view of what types of monopolization conduct, what types of mergers and acquisitions are concerning? And so that’s one big debate. Your substantive understanding of why consolidation is bad, is it for efficiency for consumer surplus, for protecting the little guy, or guarding against the big guy can change how you apply the law, and the default administrability considerations in areas like unilateral conduct, horizontal conduct, and vertical conduct as you might discuss where we go down further. But sort of, that’s sort of a rough overview of the field.
[Iman Eslami] 16:34
Now, I think that’s a super helpful history of how different schools of thought have understood why consolidation is bad. And I think it’s a good transition into something you mentioned earlier in the podcast, the Neo-Brandeis movement. The Apple case we’re discussing today, it’s not the only big antitrust case that has been brought against large tech companies. The DOJ is also pursuing two separate antitrust suits against Google focused on search and ad tech.6 The FTC has sued both Amazon and Meta for stifling competition.7 Both agencies have seen a change in leadership and have received extra attention under the Biden administration and to an extent under the Trump administration as well.8 The head of the FTC, Lena Khan, who you mentioned, is an academic by trade, whose rise began with their paper, Amazon’s Antitrust Paradox, which is a play on the words of neoliberal Robert Bork’s consumer welfare standard, which you mentioned as well. Jonathan Kanter, the head of the DOJ Antitrust Division, is also a critic of big tech. The two divisions have worked together and are headed by leaders of what has been dubbed the New Brandeis Movement. Can you explain what this movement is and how it fits into your understanding of the schools of thought and approaches to antitrust law?
[Talha Syed] 17:39
So yeah, this is I think, the richest sort of development that’s going on in antitrust. And I think to understand the Neo-Brandeisian movement, we have to understand a little bit about the shift from the New Deal to the new liberal that you perfectly are just sort of signaled with Bork, right. So Robert Bork was a major figure and shifting from the New Deal era of antitrust, which we can now say retrospectively, and many people say, and some people object to this characterization, the banner was “big is bad.” We don’t want large conglomerates and behemoths; we would like to break them up. And Bork came along and made an incredibly effective argument under the following slogan: the purpose of antitrust is not to protect the little guy, it’s not to protect competitors, it’s to protect competition. And often when you punish the big guy, what you’re punishing is the winner in a competitive process, you’re punishing competition. By protecting competitors, you have to let winners enjoy the spoils of being more competitively successful because they’re going to be more efficient and they’re going to provide better quality at lower cost and higher output and greater variety. And if you try to stop the big guys who are succeeding through economies of scale and scope, and break up for the little guy, what you’re going to do is have less efficient competitors in the market. And what you think you’re doing is protecting competition, but in fact, you’re just protecting those who can’t compete in the market. So Bork said, not “big as bad,” but “protect competition, not competitors.” And the aim should be consumer welfare, not protecting the little guy. All we care about is, in the end, whether consumers get low cost, high output, variety, and quality, and no other consideration should matter. So that was the neoliberal sort of revolution that Bork fostered and what’s happened is that the neo-Brandeisian shift has come along with a debate happening within the mainstream, and they’ve contributed [to] that debate in a couple of ways. So the mainstream of antitrust, let’s say the Chicago and the Harvard approaches, we can understand their debate to be about whether it’s consumer welfare or efficiency. But the second debate is, has antitrust fallen down on the job? And if so, what explains that antitrust has fallen down on the job? I think more and more the Harvard view agrees that antitrust has fallen down on the job in the last 10-15 years. And the explanation is mainly either an external one, a political economy story about capture, which then has led to a disuse of the tools that antitrust has. So the mainstream program at Harvard view is, yes, antitrust has fallen down on the job. But the tools lay at hand, they’ve just been lying fallow. Let’s pick them up and use them again. Nothing wrong with the tools, they’ve just been rusting. The Chicago approach is not only [there’s] nothing wrong with the tools, they really haven’t been rusting. Big tech is the symbol of American success in the global economy, leave well enough alone. I’m caricaturing these positions a bit. In this debate come the Neo-Brandeisians with two fundamental claims. First, absolutely antitrust has fallen down on the job, and the tools that are available have been lying fallow and must be picked up. But second, the tools themselves need to be refined, sharpened, retooled, deepened. What does that mean? We need to replace the consumer welfare standard with a competition standard. And second, we need to shift our default skepticism from the neoliberal era, which was very pro-defendant, into something more skeptical of lots of conduct that in the neoliberal era was given a green or yellow light. And that often happens by claiming that the standards applicable under different statutes should be revived to be different from each other, so that in certain cases, plaintiffs have an easier time meeting their case. So it’s these two fundamental differences—what should be our governing yardstick: consumer welfare or competition, and second, where should the administrability defaults lie—that I think captures the fundamental contribution that the Neo-Brandeisian movement has made so far.
[Iman Eslami] 22:14
So that’s extremely helpful. I think I want to focus a little bit more on how this applies to Big Tech. So you talked about the Neo-Brandeisians and their kind of new approaches to antitrust law. But how do you think they can use these tools, and maybe redefine what antitrust law’s purpose is? Not necessarily consumer welfare, maybe a competition standard, reviving statutes? How can this be applied to the big technology companies?
[Talha Syed] 22:41
So let’s give just a couple of examples. I think that’ll give us a bit of a flavor of the argument. So one is the difference between a consumer welfare and a competition standard. So a prominent neoliberal case of the Supreme Court in 2007, Weyerhaeuser, held that someone who’s a local or regional monopsonist, i.e. not someone who has a monopoly or market power as a seller, but someone who has market power as a buyer.9 If they are engaging in predatory conduct, by paying their suppliers more than their rivals for the sake of getting rid of their rivals down the road, predatory overpaying, that shouldn’t concern us so much if we don’t think, in the end, consumers will be harmed. If all we think what will happen is some rivals will be eliminated, but in the end the consumers might not be harmed. But that view is very different than the view that, in fact, simply eliminating rivals anywhere down the chain without any corresponding pro-competitive justification is itself a harm to competition. It’s a very different view. And that’s a view that very interestingly, in a recent case [in] 2018, NCAA v. Alston, Justice Kavanaugh in a concurrence seemed to be open to, that maybe you shouldn’t be allowed to harm competitors in one market, and justify that by gains to consumers in another market.10 So that view that different markets can’t be integrated into an overall social welfare or consumer welfare standard, but in fact, each market’s competitive harms have to be separately evaluated and can’t be compared is a big debate that’s happening and if that debate turns in the Neo-Brandeisian direction, that would probably have quite significant implications for Amazon, for instance, with respect to whether or not Amazon’s conduct vis-a-vis its upstream suppliers is independently evaluated from any effects on downstream customers. So that would be one big example of the difference between a competition and a consumer welfare standard. Then another example would be about where you place your default. Is the default an uphill case for the plaintiff or a burden on the defendant? And so here, both with respect to mergers and with respect to unilateral conduct, i.e. conduct by a single firm under the Sherman Act, in the neoliberal period, it was understood that most mergers and most unilateral conduct got a green light in the neoliberal period. And one theory is that that can shift simply by reviving the statutes that govern mergers and pricing conduct—the Robinson-Patman Act and the Clayton Act—which have different language than the Sherman Act. And these statutes say conduct that may substantially lessen competition is illegal. And many people argue that “may substantially lessen” is a lower bar than the Sherman Act’s “on balance will likely be anti-competitive.” And if you have a lower bar, that might suggest a lower burden for the plaintiff, or even that the defendant has to show that more likely than not, their conduct will not result in anti-competitive harm. And shifting the burden in antitrust is of immense significance, given so much of antitrust litigation hangs on very complicated theories, very difficult to discern evidence, in ever-changing fluctuating market conditions. So who has the burden can be very determinative. So that’s sort of two examples of how a Neo-Brandeisian approach may have significant ramifications for big tech lawsuits going forward.
[Iman Eslami] 26:56
So you mentioned Justice Kavanaugh being open to the competition theory in one of your examples. I’m curious what you think about judges, and their willingness and openness to this burden-shifting approach that you mentioned. Do you think there is going to be a change in the way that judges approach this?
[Talha Syed] 27:13
Well, that now goes to the larger context that we open our conversation with, which is, I think this is not an era of, I mean, this right now, there might be an era of small cumulative adjustments here and there. But ultimately, I think we’re in an era of what, you know, Thomas Kuhn, called a paradigm shift. And so it’s not clear which way the paradigm is going to shift, though. That’s the thing, it’s up in the air. It’s not clear what the new reigning consensus will be. And that new reigning consensus will provide most people an analytical framework and defaults. And right now we’re duking out what that framework should be. So at the moment, it’s genuinely unclear. I think some judges will be more disposed by showing them that in fact, the Clayton Act, the Robinson-Patman Act has statutory language which justifies this switching of the default. And in fact, the competition standard is as reputable as the consumer welfare standard in the history and legislative intent of antitrust statutes. So maybe, but ultimately, what is going to have to happen is a new framework is going to have to congeal, which provides a new set of operating assumptions. And I think that, we can all agree, is still up in the air.
[Iman Eslami] 28:31
So as we’re duking out this new framework, as you mentioned, I think it might be helpful to transition into the Apple case, what we came here to discuss. So, on January 5, 2024, The New York Times reported that the DOJ is in the final stages of investigating Apple and could file a sweeping antitrust case targeting the company for its anti-competitive strategies as soon as March of this year.11 This is not the first case against a large tech company in recent years, as we’ve talked about, but as the most valuable tech company in the world, having yet to face major antitrust litigation, in this Neo-Brandeisian moments, and in this fundamental realignment, this feels significant. What do you think are the merits of an antitrust challenge to Apple?
[Talha Syed] 29:13
So we can’t be, I can’t know for sure. I can’t say for sure. We don’t know because the details are scant yet of what the theory is. But for as best as we can surmise from media reports, and from prior cases against Apple, in particular Epic v. Apple that went to the Ninth Circuit, and then, but was not given cert at the Supreme Court.12 What we can surmise is that fundamentally, the case is going to revolve around the extent to which Apple is tying various secondary products, like its Apple Watch, its iMessage app, and the App Store itself to the iPhone. Right, so that’s the fundamental idea. Apple has the iPhone, this juggernaut. And then it has a series of other products, which it seems to interlink in very technologically or contractually sticky ways, so that they are privileged by iPhone users against competitor products. So I think that’s the fundamental central theory, a set of tying theories, if you will. And now the Epic v. Apple case, the Ninth Circuit decision didn’t directly, at least in the opinions, attack the tie between the iPhone and the App Store as a platform.13 But it seems to me this is the most promising theory. The most promising theory, it seems to me, is very much like the old Microsoft case in the 90s when Microsoft was alleged to be tying its Internet Explorer to its Windows operating system. So I think here the most plausible argument is: Apple is tying the Apple Watch, the iMessage app, but most importantly, the Apple App Store to the phone. And that this is being done for the sake of leveraging its monopoly or market power in the smartphone to get market power in smartwatches, or in app stores, or in pricing the commissions of app suppliers to iPhone users. That to me is the most promising theory.
[Iman Eslami] 31:31
But what do you think if Apple comes back and says people are buying all the products in our ecosystem because our products are just better? I think back to myself, before starting law school, I bought a new MacBook, I bought an Apple watch because I’ve been using the iPhone for almost 15 years now. And it just makes sense, the integration between all the products is helpful for me. And I think this is something that consumers might, you could argue, that consumers might want. So how do you think the government will argue against Apple saying that our products are just better?
[Talha Syed] 32:05
So that’s really great. And that sort of, we have to separate three different arguments lurking in what you just said, which is, I think, exactly what Apple’s gonna say. And I think two of the arguments are plausible, but one is less so. Right, so one argument that we already know, and we have Tim Cook being cited, is to say Apple does not have market power or dominant market power anywhere. But I don’t think that’s really the claim. The claim isn’t that Apple doesn’t have market power. The point is possessing market power isn’t in itself illegal under the Sherman Act, Section 2. What’s illegal is not having a monopoly but monopolization, and monopolization means the pursuit or acquisition of monopoly power through illegitimate or exclusionary or anti-competitive or willful means. And so fundamentally, Apple’s argument has to be that it legitimately got market power in the smartphone market through a better product. And it’s now legitimately recouping its investments in that product through higher commissions than others might charge for app suppliers on the App Store. And it’s legitimately integrating the App Store with its phone, with the Apple Watch, to provide what it calls the “walled garden of security and privacy and interoperability” for customers, a better consumer experience. So that’s Apple’s best argument. Not that they don’t have market power, but that they have market power legitimately acquired in one market, and that they’re not illegitimately, now, leveraging that market power for market power in other markets. That’s their best argument. But I’m not sure it holds up because you can provide consumers integration in a more optional way. It doesn’t have to be technologically sticky or contractually fixed to the App Store as your default or only way of getting apps. Of course, it’s not your only way, but for most consumers it is. And so, if consumers truly wanted the benefits of the walled garden, there are arguably less restrictive ways that Apple can provide those benefits without using its market power in the smartphone market to extend or increase market advantages in smartwatch or application platform markets. And so I think that’s fundamentally where the argument has to come down. Is Apple’s walled garden integrated market argument going to hold up? Or do we say well, no, there’s a lesser restrictive way that’s substantially less restrictive on competition to provide consumers the option of this integration while still opening up access to iPhone consumers, other smartwatch makers, other app developers, [and] other app stores.
[Iman Eslami] 35:07
That makes a lot of sense. And I think that’s very helpful framing for what we’re going to see in this apple case. I think anybody with an interest in technology, antitrust, or just generally the economy is going to be very interested to see when the complaint comes out and what the arguments exactly will be. But thanks, Professor Syed, for laying out those arguments as you see them. So the last topic I wanted to touch on with you is the broader implications. You’ve talked about how we’ve gotten to this point with antitrust and big tech, we’ve discussed what feels like a defining moment in the Apple case. And now I want to ask, where do we go from here? In other words, what are the implications of this Apple case? And more broadly, this moment in increased antitrust enforcement against big tech?
[Talha Syed] 35:50
That’s a great question and a very hard question because of two things. One, as we’ve said, over and over, we’re in an uncertain era of foment, so it’s not quite clear how things are going to fall out. But there’s also a second thing which I think is worth flagging. So first, I want to be clear, I think these antitrust challenges to big tech are very important. I think the Apple one is very important. I think it’s very important to be able to de-link the superior product and consumer experience from the use of that to foreclose competition in sub-secondary markets. And that’s an important aim. Having said that, in general, how we think about this moment of antitrust in big tech depends upon what our main concern is with big tech. Is our concern political speech? Is our concern economic inequality? Is our concern economic concentration? Or is our concern that a lot of these companies are basically what are called attention merchants? They are, their business model is to get us to be glued to their products, which are often free for us—YouTube, Facebook, social media generally—for the sake of getting our eyeballs and ears for advertising, and for feeding their algorithm to refine their algorithms with better data, which data will be then used by themselves and their advertisers in better tailoring the internet landscape for us. Now, that’s a very different concern. And if you have that concern, I’m not sure antitrust is the right tool, because the antitrust law, we call it an antitrust law in this country, but it’s better to just call it competition law, right? It’s idiosyncratic that we call it an antitrust law because of the history of the trust in the 1890s. The rest of the world calls it competition law. And that’s a clearer name because the purpose of the law is what? To promote effective competition and weigh that against the benefits of integration. But not everything that concerns us about tech can be pursued by breaking up integration and promoting competition. Some of the problems are with competition itself on a business model based on attention and data, and some of the solutions require coordination or regulation rather than competition. So I think we have to be very careful about what we think we’re trying to achieve with this moment of antitrust in big tech. There are different concerns that different people have. Some of them I think will be effectively addressed by competition being promoted, and some of them less clear.
[Iman Eslami] 38:45
So finally, I want to know how you feel about antitrust as it relates to big tech. I know, you expressed a little bit of, I guess, hope, or think that it can be effective in certain ways. But there are other, I guess, fields of the law that should be applied to big tech, maybe privacy and those types of concerns that require some sort of, I guess, statutory support or legislative support. So what do you feel is antitrust law’s role? And how do you personally see this moving forward?
[Talha Syed] 39:17
So I think you have it exactly right. I think to some extent, it’s very heartening this Apple case and other cases like this, not just against big tech, but generally the American economy to revamp and switch the default from a neoliberal period, where conduct by a firm acting on its own—unilateral conduct—was basically given a green light and all sorts of tying and other arrangements were very difficult to show. I think those defaults should be flipped. But even with all that done, I agree. I think a lot more needs to be thought about, not just in the space of competition law, but in the space of regulated industries and public utility. I think, and it’s not just privacy, which you nicely mentioned, [but also] for data. For data, I think beyond privacy, we need to start thinking of data as a public utility. And we need to start thinking about ways in which the harms of data aren’t just to individuals with respect to privacy. But even anonymized, aggregated social data can be a concern when it’s used in a for-profit, commodified way. And so we need to be more creative, not only in retooling competition law, which is a must, but also [in] revamping areas of law such as regulated industries and public utility.
[Iman Eslami] 40:40
Thank you. Professor Syed, thank you so much for your time [and] for engaging with me in this fascinating conversation. I always come away from these types of conversations hopeful and excited about my role in the legal world and the broader role the law has in the American economy and the everyday lives of Americans. It’s always a pleasure to hear your perspective. Thank you.
[Talha Syed] 41:00
Thanks very much, Iman. And this is as good a time I think as any to be hopeful and excited because I can’t think of a time in my lifetime that we’ve had bigger stakes in being in the legal profession than today.
[Eric Ahern] Outro
You have been listening to the Berkeley Technology Law Journal Podcast. This episode was created by Iman Eslami, Terry Zhao, Gayathri Sindhu, and Meg O’Neill
The BTLJ Podcast is brought to you by editors Eric Ahern, Meg O’Neill, and Juliette Draper.
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This interview was recorded on February 22nd 2024. The information presented here does not constitute legal advice. This podcast is intended for academic entertainment purposes only.