The term “monopoly” gets thrown around in scholarly publishing with relative ease and abandon. Some have created phrases like “monopoly copyright,” ignoring the fact that copyright expires, has limited scope, and is really an ownership right. Ownership is not a monopoly. I may own my computer, but I don’t have a monopoly on all Mac Pros. Not even Apple has a monopoly on those, in the sense that it has trademarks, patents, and copyrights, and from these creates a unique machine others can’t duplicate without running afoul of a trademark, patent, or copyright — that is, an ownership right. HP can make something very similar from a different configuration of trademarks, patents, and copyrights, and compete effectively with Apple. Nobody has a monopoly on laptops.
In fact, copyright disposed of the monopolies realized in the early days of printing, which were put in place by patents and printing press ownership. Transitioning control to authors and away from printers, and time-limiting the ownership rights, eliminated monopoly power over information. In a historical and practical sense, the phrase “monopoly copyright” is nonsensical.
Even the term “monopoly” may be something we should reach for sparingly. It’s a loaded term that is relatively imprecise, and some believe has evolved even from its most recent roots, rendering it especially fluid and therefore slippery and misleading.
Traditionally, a monopoly has been understood to be a market-spanning power over a service or commodity allowing dominant actors to coordinate more easily, more stealthily, or more often, either explicitly or via winks and nods. The fear was that this would invariably lead to artificial pricing power, either to maintain prices while decreasing quality, or to artificially inflate prices by virtue of the leverage created by the monopoly. In short, the concern was about market structure.
In the 1970s and 1980s, a group of economists associated with the University of Chicago asserted that a monopoly could only be defined if market control resulted in, or threatened to result in, higher prices for consumers. It was the “no harm, no foul” equivalent of regulation. The economic thinking was that if market control resulted in lower prices for consumers, it was a good thing, and should be tolerated, even encouraged. Hence, price became the measure of monopoly — if prices held or fell, there was little to concern regulators.
The Chicago School thinking downplayed or ignored the health of producers or the market as a whole, focusing nearly entirely on short-term consumer prices as its litmus test. This sparked the Gordon Gekko age of mergers and acquisitions many associate with the 1980s, and has led over the years to a laissez-faire attitude toward mergers and acquisitions among regulators, such that mergers such as the potential AT&T and Time Warner merger, Disney and Fox, and Amazon and Whole Foods may all be allowed to transpire based on this long-standing reasoning.
But new thinking is emerging about what constitutes a monopoly today, and it’s a fairly interesting and updated perspective. A recent article in the Atlantic gives a nice overview of what some are calling the “hipster antitrust” movement. This movement was sparked by Lina Khan, whose January 2017 article in the Yale Law Journal entitled, “Amazon’s Antitrust Paradox,” lays out the core concerns of the movement — structural dominance.
We’ve seen concerns about the structural dominance of technology companies before, most notably in Microsoft’s antitrust travails in the late 1990s, when the company attempted to bundle Internet Explorer into its operating system on Intel-based computers, an anti-competitive tactic that resulted in a settlement in 2001 (finalized in 2004) in which Microsoft agreed to open its application programming interfaces (APIs) to third parties, while providing an oversight panel access to its code to ensure it complied with other elements of the settlement.
The structural dominance of today comes in the guise of what Khan and others term “predatory pricing” and integration across business lines. For Amazon, that means being willing and able to sustain losses for a long period of time, and cross-subsidize new market entry, resulting in lower prices for consumers and incredible scale for Amazon. The result of this was captured when she visited a Whole Foods, as told in the Atlantic article:
As Khan and I entered the sprawling Whole Foods three stories below Amazon Books, we noticed a tower of avocados. A sign bragged that, thanks to the Amazon merger, a single avocado now cost $1.49, down from $2.49. Khan cracked up. “This is peak myself,” she said. “This is hipster antitrust, right here.”
The Wikipedia page listing Amazon’s mergers and acquisitions give you a flavor of what hit Khan’s radar. Just on the book front, Amazon owns BookSurge, a print-on-demand company; Audible.com for audiobooks; LibraryThing (40% stake); Bookfinder.com; and Goodreads. Integrating across these, it can publish a book in print, e-book, or audio, help it get discovered, and have insights into how it’s reviewed.
Amazon has done similar things in the entertainment space, the apparel space, and the gaming space. While Amazon claims it is a minority player in nearly every market it inhabits, it has incredible power (46%+ of all e-commerce flows through Amazon currently). In the books space, for example, Amazon has essentially made bookselling far more difficult by taking the price premium of the hardcover blockbuster away from publishers, gutting the mid-market, and dominating the low-end market via self-publishing. And they play hardball, even having at one point something called “The Gazelle Project,” to denote approaching small publishers “the way a cheetah would a sickly gazelle.”
Through structural dominance and predatory pricing, Amazon has irrevocably changed the book industry, and not for the better.
Through structural dominance and predatory pricing, Amazon has irrevocably changed the book industry, and not for the better. It is a less diverse and less robust market than it was before. But books are cheaper for consumers as a result, so the Chicago School mindset would indicate nothing is wrong from an antitrust standpoint. Khan’s Yale Law Journal paper states in its abstract that:
. . . the current framework in antitrust — specifically its pegging competition to “consumer welfare,” defined as short-term price effects — is unequipped to capture the architecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output.
The structural dominance Khan and others point to is the dominance of platforms like Amazon, Facebook, Google, Twitter, Alibaba, and others. As Khan writes:
. . . because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend.
Recently, the EU has begun to pursue cases, notably one against Google and its Android OS, which harken back to the 2001 Microsoft situation. Google is accused of forcing hardware manufacturers adopting Android to bundle in Google search and Chrome. The regulators are pursuing billions in fines based on what they see as abusive market power, and Google may have to change its practices.
The Microsoft case still reverberates, particularly on the PR front. Google, Facebook, and Amazon have been far more savvy than Microsoft was at the time. As Microsoft’s President Brad Smith said recently in an interview at the Code 2018 Conference with Kara Swisher, a reputation can change in an instant. Smith was deeply involved in the Microsoft antitrust case, and saw Microsoft’s reputation change quickly, and how the world changed:
. . . we went from being the New York Mets to the New York Yankees. You know, we were the little team, and then all of a sudden we were this behemoth that lost everybody’s support. And we ended up with the U.S. government, states, all coming after us, and a case that we lost on an appeal in 2001. And I think as much as anything, there were a couple of things we learned. One is, I think if you create technology that changes the world, the world is going to want to govern you. It’s going to want, in some measure, to regulate you. And you have to come to terms with that and figure out how you’re going to navigate that and step up to the responsibilities that the world wants you to assume. And the second thing was actually very personal, in a way. You have to develop the ability to look in the mirror and see yourself, not the way you see yourself, but the way other people see you. And guess what? They don’t think you’re quite as good-looking as you thought you were.
Microsoft went from tech darling to tech whipping post quickly. The same fate may await Google, Facebook, Twitter, and Amazon, if they haven’t absorbed the lessons the Microsoft case has taught. These new firms have potentially more powerful structural dominance, given their positioning as intermediaries in the information ecosystem. That’s what Microsoft was aiming to do in the age of desktop and dial-up and URLs. Now, we have LTE (soon, 5G), mobile, and social media, with scads of personal data being shared almost constantly.
The intermediary role is something I’ve written about elsewhere, using the analogy of the postman — what if your postman was picking and choosing from your mail, periodicals, and catalogs every day, putting in things, taking out others, and making money from third-parties all the time? This intermediary would be arrested for tampering with the mail. Intermediaries are supposed to be neutral. However, intermediaries like Google, Amazon, Facebook, and Twitter are designed to deal with information transfer in a way that makes them structurally powerful and, as a result, hugely successful from a revenue standpoint.
One difficulty with current regulations and thinking about antitrust is that these intermediaries represent not one-sided markets (you buy directly from a store’s cashier), but two-sided markets. Two-sided markets are quite common — conferences that bring together speakers and audiences; academic journals that bring together readers and authors; and flea markets that bring together buyers and sellers. Being at the center, a conference can charge exhibitors and attendees, for example. There is even a tradition of predatory pricing in two-sided markets — for example, a nightclub waiving cover charges for female patrons to attract more paying male patrons.
Are “hipster monopolies” emerging in scholarly and scientific publishing? Not yet, but there are initiatives aimed at structural dominance using data, content, and services. Currently, competition is robust in these areas. For example, years ago, Mendeley was feared to be creating structural dominance by utilizing the PDF to create community. Its acquisition by Elsevier reined in this potential, only to see ResearchGate emerge as another contender. Now, Mendeley, ResearchGate, and Kopernio compete with the truly anti-competitive pirate site Sci-Hub in a roughly similar space providing content storage or access solutions. Our competition remains robust because there are still boundaries on scale, either because of domain limitation, adoption ceilings, or competitive market fragmentation. However, ideas around a “supercontinent of scholarly publishing,” as outlined well by Roger Schonfeld, hint that potential issues involving hipster monopolies may lie ahead.
The two-sided markets being plumbed by the likes of Amazon and Facebook and Google are being dominated because these companies have scaled well beyond traditional boundaries, and are now working the two sides of multiple international markets all the time. Facebook and Google compete for advertising dollars, it’s true, but together dominate online advertising, sopping up more than 80% of available spend. Google’s search power also has allowed it to use its position to integrate its e-commerce business. This has not gone unnoticed, with the US Federal Trade Commission (FTC) probing Google for antitrust violations, and concluding some abuses, which foreshadowed the EU’s $2.7 billion fine in 2017, finding that Google promoted its shopping service in search results over those of potential competitors.
With network effects and economies of scale in technology making platforms drift toward singularity if left alone, clearly more thinking needs to be done. One option is to place these platforms under common carrier obligations, meaning they would be liable for any losses sustained by those utilizing them. Railroads, telephone providers, and even amusement parks that operate rollercoasters (in some states) are subject to such obligations. This would require a major revision of current laws exempting platforms from such regulations, and in the US currently, the body politic is not in a regulatory mood.
Right now, intermediaries have gone to scale and are running a new racket utilizing both the producers and consumers. It’s a two-sided market on a scale and pace unlike anything we’ve seen before. The antitrust campaigns of the late 19th and early 20th centuries were a result of abuses on an industrial scale not formerly seen. Now, information and infrastructure scale is creating new points of structural dominance, with novel effects we need to manage. Whether we need to invoke the somewhat charged and potentially unhelpful word “monopoly” may be beside the point. What we need is to regulate the intermediaries so that predatory pricing, information imbalances, and structural dominance become less of an issue. Perhaps focusing on “anti-competitive” and “structural dominance” would be more specific. Relying a term like “monopoly,” which has become a child’s game, may belie the seriousness of the situation.
2 Thoughts on "Hipster Antitrust and Structural Dominance — What Is a Monopoly Now?"
Copyrights do not expire in any meaningful timeframe. For most papers, they will mainly be useful for a few years after their publication. Even if they are useful for a couple of decades, that is still nowhere near author lifetime + 70 years as is the case of US and UK copyrights. Imagine this, a PhD student who publishes their first paper today at the age of say, 25, and lives to the age of 85 will have the copyright that they assigned for that first paper expire in the year 2148.
One of the issues with academic works is low substitutability. If you decide you don’t like your Mac computer, you can substitute your Mac for an alternative quite easily – there are many types of computers and you only really need one. But an academic cannot so easily substitute journals. Once a research study is published, it cannot be published again elsewhere without difficulty.
So I don’t agree that ‘monopoly copyright’ is completely nonsensical. It might not be technically correct in some respects (e.g. if you consider that scholarly publishing is not a monopoly), but I can see how owning the copyrights for a particular title gives you a lot of market power.
But maybe we are just in furious agreement! As an academic, I am not too worried about whether we call it ‘monopoly copyright’ or ‘anti-competitive structural dominance’. That we need to deal with the current anti-competitive situation I completely agree with.
Copyright’s duration can be changed through legislation and negotiation. It was extended because many authors wanted it extended. They have a huge interest in copyright and its benefits. Many academic publishers allow authors to retain copyright, and only have them transfer publication rights and some secondary rights. Ownership can be managed in this way, which is another reason why copyright is not a monopoly.
Substitutability is an entirely different issue having to do with uniqueness and novelty. It has nothing to do with monopoly.
If a phrase is not technically correct, it is not correct, I’d assert. Plus, the word “monopoly” is so charged that it can blind us to the real issues, which you nicely point out we agree on — there are too many anti-competitive situations on the landscape today, no matter what you call them. Better to call them something that doesn’t raise titers or hit unrelated nerves, I’d say.