Combative French Plaintiff Obtains Extended Jurisdiction Over Cross-Border Online Marketplace Sales

Bryan Cave, here

Narrow MFN clauses in the EU: Both types of measure (i.e. allowing or prohibiting them) go in the right direction

ECN DGs, here.

(Read the press release yourself if you don't believe me).

Stunning 'AI brain scans' reveal what machines see as they learn new skills

Wired, here

Can we machine-learn Google’s machine-learning algorithm?

SearchEngineLand, here

On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 1 of 2)

R. Podszun, here

The GDPR and All That

B. Tretick, here

Towards a Magna Carta for Data

RIA, here

Bundeskartellamt wird doch keine Verbraucherbehörde

Tagesspiegel, hier

Alexa Skills ecosystem analysis

GetRevue, here

How antitrust enforcement can spur innovation: Bell Labs and the 1956 Consent Decree

M. Watzinger, T. Fackler, M. Nagler, M. Schnitzer, here

Eric Schmidt: AI research needs to be done in the open, not in military labs

ZDNet, here

Wettbewerbshüter sieht Opel-Übernahme gelassen

FAZ, hier

Search engines and creative industries sign anti-piracy agreement

UK IPO, here

Erfolgreiche Kartellverfolgung: Nutzen für Wirtschaft und Verbraucher

Bundeskartellamt, hier

Driving competition and innovation in the financial services sector

Competition Bureau, here

EU Merger Control: BEUC’s comments on jurisdictional thresholds

Here

Comment prouver les pratiques anticoncurrentielles à l’heure de leur optimisation algorithmique ?

LeMonde, ici

A Hippocratic Oath For AI Developers? It May Only Be A Matter Of Time

Thersa, here

"Democracy as Data"?

Merkur-zeitschrift.de, hier

Hoteliers Comb the Ranks of Tech Workers to Gain an Edge

NYTimes, here

Australian banks go back to ACCC to further delay customers from getting Apple Pay

TheConversation, here

Democracy - Im Rausch der Daten

Film, hier. Post mit sunset clause: Nur noch für 5 Tage!
(VPN möglicherweise erforderlich).

Why Incentives for 'Patent Holdout' Threaten to Dismantle FRAND, and Why it Matters

R. Epstein, K. Noroozi, here

From Holocaust Denial To Hitler Admiration, Google’s Algorithm Is Dangerous

F. Pasquale, here

Autodaten bald teurer als Fahrzeuge selbst

Science.orf.at, hier

The need for a Digital Geneva Convention

Microsoft, here

The Digital Privacy Paradox: Small Money, Small Costs, Small Talk

S. Athey, C. Catalini, C. Tucker, here

South Korean antitrust investigation looks to determine if Google doomed Samsung’s Tizen platform

VentureBeat, here

Farmers sue big poultry processors

AgriNews, here

Enfin un « upgrade » de l’exception de citation dans la prochaine directive sur le droit d’auteur ?

Scinfolex, ici

Push on to adapt copyright law to provide greater ‘fair use’

TheAustralian, here

Data Ownership

Bird&Bird, here

When Competition Policy Meets Science Fiction (Part 2)

(Part 1 here)

Further discussions in London focused on a second constellation, characterized as “Hub and Spoke”, in which competitors do not predetermine the pricing rules themselves but outsource this function to a third party. The main differences between this and the “Messenger Scenario” (as described above with reference to the UK poster case) are that the parties here a) use the same automated repricing tool and b) the computer programme calculates prices based on its own blueprint and not directly executing the rules set by the human sellers. As noted by some of the conference speakers and thoroughly discussed in the book Virtual Competition, the use by competing sellers of automated repricing capabilities offered by a single provider can lead to some measure of de facto price alignment. This result is potentially worrisome and competition enforcers should be prepared to address it in a suitable way. This shouldn’t be too difficult where the dampening of price competition produced by the automated repricing tool is intentional on the side of the competitors, meaning that it is the original reason why they have chosen the same algorithmic tool, or that they are at least aware that the technology as concretely employed has or could have this effect. In this case, the automated repricing software jointly employed by the sellers could be seen as the hub (or "brain") that facilitates collusion by controlling the wheel's spokes.

Also amidst the gales of technological change, therefore, the notion of awareness is likely to remain central to the assessment of collusive behaviour, as recently stressed by the CJEU in Eturas, where the Court applied Art. 101(1) TFEU to an online travel booking system used by 30 travel agencies in Lithuania. The administrator of the booking system posted a notice in the system mailboxes informing the agencies of a technical (and automatic) restriction on the discount rates they could offer their own clients. The first preliminary question addressed to the CJEU by the referral national court asked whether the simple proof of the system notice allows the presumption that the “economic operators were aware, or ought to have been aware, of the system notice introduced into the computerised information system”. According to the CJEU, it is up to national law to decide if proof that a message has been sent to the booking system’s mailboxes is sufficient to prove that the addressees were aware, or ought to have been aware, of its content. The presumption of innocence however precludes the referring court from deducing the undertaking's awareness of the message content from the mere dispatch of the message in the booking system. Instead, a presumption of awareness may be based on ‘other objective and consistent indicia’ that the undertaking tacitly assented to an anticompetitive action (for instance, in this case there had been prior communication between the system administrator and the travel agencies regarding a possible capping of discount rates). If awareness of the content of the message can be demonstrated, the acquiescence in that initiative may be inferred unless the undertaking opposes to it (e.g., by reporting the initiative to the authorities). In a nutshell, the “unusual method of communication” between the undertakings concerned, namely the system notice, is a sufficient basis for the finding of a concerted practice aiming to a discount restriction provided that the travel agencies were aware of the content of the communication. This also means that, as argued by the Advocate General Szpunar, “the mode of communication in itself is not relevant, especially since the participants in collusion may be expected to avail themselves of the possibilities offered by the advance of technology”.

On a slightly different note, it should also to be highlighted that future cases are likely to be substantially more challenging than the one considered by the CJEU in Eturas, which had some rather rudimentary technology at its core. Thus, the provider of a jointly employed, big data-fueled repricing tool like for instance Feedvisor could work out profit maximization strategies for the benefit of its high-paying clients that are much more sophisticated (and opaque) than a bare price alignment, based on rich and complex sources of market data, the ranking criteria (algorithms) employed by the marketplaces, the flow of information coming from the sellers, in-depth consumer data, etc. Among the many tactics creatively employed by the automated repricing tool, only a few – difficult to spot, and for intermittent periods of time – could possibly be considered price dampening by way of horizontal collusion.

Also discussed as at least tangentially part of the “Hub and Spoke Scenario” was the so called Uber Dilemma. By joining the car service platform, the driver agrees to charge her riding services according to the fares worked out by Uber’s algorithm. This is a simple, middling vertical agreement between the platform and the driver. Once the platform acquires market power, other drivers could become aware that by joining the platform they would feast on supracompetitive prices (higher fares and, subsequently, higher commissions earned by the platform). At this point, that is likely to materialize after the platform has already tipped into dominance, competition enforcers could detect the familiar scent of horizontal collusion in the market, possibly by way of hub-and-spoke conspiracy. But as soberly intimated by one distinguished competition enforcer and keynote speaker at the conference, “intervening after tipping may be futile”.


(Part 3 follows after a well-deserved vacation :-)).

The EU, acting on its own, may conclude the Marrakesh Treaty

Court of Justice of the European Union, Opinion C-3/15, here.

(And shame on those EU States still opposing the conclusion of the Treaty.)

Booking contourne-t-il ses engagements envers les hôteliers ?

JournalDuNet, ici

Optimisation fiscale : Piketty favorable à une taxe sur les données personnelles

Numérama, ici

The Federal Trade Commission's Inner Privacy Struggle

C. Hoofnagle, here

Oracle refuses to let Java copyright battle die – another appeal filed in war against Google

TheRegister, here

Debunking the “No Human” Myth in AI

M. Turk, here

Significant Impediment to Industry Innovation: A Novel Theory of Harm in EU Merger Control?

N. Petit, here

Oracle launches apps to surface predictions and insights from IoT sensor data

VentureBeat, here

Robotics, AI, and the Macro-Economy

J. Sachs, Video here.

See also Implications of AI for the Economy and Society, here

How Online Competition Affects Offline Democracy

A. Ezrachi, M. Stucke, here

Judge, Citing Harm to Customers, Blocks $48 Billion Anthem-Cigna Merger

NYTimes, here

The Dawn of the Big Data Monopolists

A. Miller, here

European Parliament opinion slams European Commission for unbalanced copyright proposal

Communia, here

Algorithm impacts by 2026

PewResearchCenter, here

AI and the Legal Renaissance

Artificial Lawyer, here

DG Comp’s E-Commerce Sector Inquiry Leads To First Enforcement Action — Could Online Marketplace Bans Be Next In Line?

Project-disco.org, here

EC gets serious about geo-blocking

EU-competitionlaw.com, here

How tech companies are blurring the lines over who actually owns your devices

VentureBeat, here

ReDigi Renews Battle With Capitol Over 'Used' iTunes Tracks

MediaPost, here

In the age of Uber and Snapchat, antitrust law needs an update

Los Angeles Times, here

Facebook Commits to Audit of Its Ad Metrics by Media Watchdog

Bloomberg, here

Carnegie Mellon researchers want to fix app permissions once and for all

TheVerge, here

Konkurrenz oder Kooperation: DeepMind erforscht KI-Tendenzen

Heise.de, hier

Platforms have benefited greatly from special legal and regulatory treatment

TheEconomist, here and here

European Advocate General says web-blocking is just fine

Completemusicupdate, here

Millions of non-privacy compliant apps could soon be purged from Google Play Store

Thenextweb, here

Premier bilan d'étape concernant les engagements pris par Booking.com

Autorité de la concurrence, ici

When Competition Policy Meets Science Fiction (Part 1)



The algorithmic economy is the new digital economy, in case you hadn’t noticed. Companies use the outcome of sophisticated data analytics in order to enhance internal monitoring, better tailor marketing strategies, cut processing costs, deploy new or refurbished products and services, and determine sale prices. On their side, consumers have been embracing algorithm-based services such as search engines (e.g., Google and Bing), aggregators (Booking.com and Amazon Marketplace), rating services (e.g., Tripadvisor and Yelp), recommender systems (e.g., Deezer and Spotify) and bidding agents (e.g., eBay’s ) to help them navigate the web and make purchase decisions, both online and offline. Moreover, recent advances in the area of artificial intelligence (AI), combined with Gargantuan strides in computing storage and processing power, open new opportunities to employ algorithms along the economic value chain and to further automate market transactions. Parallel developments in the so called Internet of Things (IOT) are likely to intensify these trends. IOT devices and personal digital assistants fed by artificial intelligence and big data troves are deployed to make purchase and other decisions on the consumer’s behalf by directly communicating with other systems through the internet and, possibly, with decreasing amounts of human involvement. Sergey Brin, Google’s co-founder, recently envisaged a possible future in which automation will alleviate “some of the more mundane tasks”, allowing people to “find more and more creative and meaningful ways to spend their time.”

A recent event organized by Concurrences  in London (available slides here) gathered an impressive quantum of human intelligence in order to, among other things, have a good look at the algorithmic economy through the lens of competition policy. By rooting still rather futuristic technologies in the more familiar framework of markets and economic power, the excellent conference speakers painted some vivid scenarios in which potential issues could play out. At the creepier end of the spectrum, discussions even hinted at questions reminiscent of the most intriguing sci-fi books and movies, such as whether AI-enabled, increasingly autonomous market tools could “address” the profit maximizing objective differently from how (even hyperintelligent) human agents would do.

The underlying script of at least two conference panels was largely provided by the bedside book (in the sense of livre de chevet) “Virtual Competition”, recently written by Ariel Ezrachi and Maurice Stucke, two of the distinguished conference speakers. While keeping abreast of fast-moving technological developments should never be an afterthought, the Authors convincingly argue that there is a responsibility on competition enforcers and other stakeholders to up their game in order to meet the challenges posed by increasingly algorithm-based markets and protect consumers. 

New digital technologies hold innumerable promises, but they can also present some perils, such as when firms selling online employ algorithmic tools that prevent consumers from enjoying truly competitive prices. To start with, competition authorities in the UK and in the US, in two separate investigations, found out that online sellers of posters (or wall décor) implemented anticompetitive arrangements restricting price competition by the use of automated repricing software. Between the two online sellers investigated by the CMA there was clear agreement to facilitate price coordination, with ample evidence that they aimed not to undercut each other’s prices. As to the chosen tools for ensuring price co-ordination, these were software packages offered by different providers. As explained in the Decision, the software employed by one of the sellers could be configured in such a way (“rule 55”) that her prices would match the price of the other seller (identified by the Amazon Merchant ID number) provided that a) there was no cheaper third party seller on Amazon UK and b) the price did not go below the seller’s unilaterally set minimum price. Where the price fixing arrangement did not apply, the software was configured to undercut competing products on Amazon UK Marketplace. The automated repricing software employed by the second seller was programmed in such a way that the usual undercutting rule (“compete rules”) did not apply to the first seller (“ignore list”). What Ariel Ezrachi and Maurice Stucke in their book call the "Messenger Scenario" was unanimously considered a "no-brainer" by the conference speakers. In fact, in the poster cases mentioned above, as well as in previous instances in which the collusion was facilitated and monitored by computers, human market actors are clearly liable for the restriction of competition.

While this is certainly true, and further scenarios such as the "Predictable Agent" and the "Digital Eye" pose a number of unequivocal challenges to competition enforcers (more on them later), how powerful online intermediaries are continuously reshaping competition dynamics in the digital economy is also worth the attention of many a conference panel. As marketplaces offer customers the possibility to easily compare prices of products without incurring significant cost, sellers’ pricing decisions become increasingly crucial. At the click of a mouse, sellers employing algorithmic tools can choose with whom to compete and with whom not to compete in the marketplace. Thus, for instance, a seller may decide that it is not worth competing with sellers shipping from distant regions, as many of her potential customers are likely to prefer a faster shipping time. Prices displayed on the marketplace go up and down, also many times in a single day, fluctuating according to highly inscrutable parameters. In many instances, these fluctuations are the likely result of strategic sellers trying to “game” their competitors pricing tactics (both algorithmic and non-algorithmic), but also trying to acquire higher ranking and product visibility on the platform (e.g., being featured in Amazon’s Buy Box, “the most valuable small button on the Internet today”, as more than 80% of sales on Amazon go through it). Moreover, the poster cases have shown that sellers could employ algorithmic pricing in order to achieve anticompetitive results and that, rather alarmingly, collusion can literally be one click away. For these and other reasons, there is the pressing need to better understand the behaviour of algorithmic sellers in specific competitive scenarios such as marketplaces, where the rules of the game are largely decided by the platform (“Truman Show”).


(Part 2 follows next week).





What is Data Ethics?

L. Floridi, M. Taddeo, here

The inside story of the rise and rise of Uber

TechCrunch, here

Your Browsing History Alone Can Give Away Your Identity

TheAtlantic, here

Reddit’s /r/worldnews community used a series of nudges to push users to fact-check suspicious news

Niemanlab, here

U.S. Department of Justice, Petition of the United States for Rehearing in U.S. v. American Express

Matchmakereconomics, here

La place du numérique dans l'économie moderne

J. Tirole, Vidéo ici

Epsilon and Others Scramble for Alexa Data from Amazon

AdAge, here

Federal Cartel Office draft guidelines on resale price maintenance

Internationallawoffice, here

Booking.com: Rückendeckung durch das Oberlandesgericht Düsseldorf?

Biztravel, hier.

(Mein Beitrag zum Thema free-riding und Bestpreis-Klausel, hier.)

EU negotiators agree on new rules allowing Europeans to travel and enjoy online content services across borders

Press Release, here

Apple's submission in response to the ACCC's draft determination

Here. Supporting video here

EC fines three companies €68 million for car battery recycling cartel

Press Release, here.

FTC Charges That Shire ViroPharma Inc. Abused Government Processes Through Serial, Sham Petitioning to Delay Generics and Maintain its Monopoly over Vancocin HCl Capsules

FTC, here

Who Will Lead In The Smart Machine Age?

Forbes, here

Droit des robots : « a-t-on besoin d’une nouvelle personnalité juridique ? »

Numérama, ici

TV maker VIZIO fined $2M for no-consent tracking of consumer viewing habits

MarketingLand, here

CHATONS, ces hébergeurs alternatifs qui ne collectent pas vos données personnelles

Mashable.france24, ici

Inside Amazon’s robot-run supermarket that needs just 3 human workers

New York Post, here

Artificial Intelligence-Driven Robots: More Brains Than Brawn

Forbes, here

Beamte warnten Regierung vor "Blamage" beim Google-Gesetz

Spiegel.de, hier

Amazon's Antitrust Paradox

L. Khan, here

Commission stalling on copyright waiver for visually impaired persons

Euractiv, ici

Table-ronde algoéthique

CNIL, Vidéo ici

This Is the First Major Telco to Support Google in Battle With EU

Fortune, here

EU probing Valve and five publishers for geo-blocking games

Engadget, here

Rapport d'information: "les objets connectés"

Commission des affaires économiques, Assemblée Nationale, ici.

Australia: Apple “Banks use digital wallets as a revenue source”

CompetitionPolicyInternational, here

Study on the Moral Rights of Attribution and Integrity

US Copyright Office, here

Silicon Valley Hedge Fund Takes On Wall Street With AI Trader

Bloomberg, here

The textbook description of cartels can’t explain what real-world cartels do

AEA, here

The Antitrust Points of View of Supreme Court Nominee Neil Gorsuch

Thelegalintelligencer, here.

Animation Workers Reach $100 Million Settlement With Disney in Wage-Fixing Suit

Variety, here

European Commission opens three investigations into suspected anticompetitive practices in e-commerce

Press Release, here

Open Banking revolution moves closer

CMA, here

Apple aims to up its AI smarts with iCloud user data in iOS 10.3

TechCrunch, here.

Drug Makers Accused of Fixing Prices on Insulin

NYTimes, here

Judge Gorsuch on Copyright and Technology

J. Grimmelmann, here

Global antitrust in 2017 - Big Data

Freshfields, here

Recap and Analysis: Responsible Art Market Initiative Launched in Geneva

Sullivan & Worcester, here

Hotels.com, Expedia face anti-trust probe in South Korea

Korea Times, here

We’re over the digital revolution. This is the age of experience

TheGuardian, here

Facebook Sales Top Estimates on Gains in Mobile Advertising

Bloomberg, here.

Google wins ‘right to be forgotten’ case in Japanese high court

SearchEngineLand, here

Big Data an Ongoing Concern for EU Competition Law

Skadden, here

A New Structured Rule of Reason Approach for High-Tech Markets

T. Schrepel, here

Metro-Tochter greift Kundendaten ab

Spiegel.de, hier

Luckily, bots’ conquest of knowledge is not yet complete

D. Coyle, here.

Diritti TV, rigettate linee guida Lega Calcio assegnazioni 2018-2021

Provvedimento qui.

(Already on my next year's syllabus...)

Irish competition watchdog to investigate sale of tickets for live events

IrishTimes, here

How the Internet Got Donald Trump Elected

IICom, here

AAI urges the Supreme Court to reverse decision sharply restricting the patent exhaustion doctrine.

Press Release, here.
Amicus Brief here

Compliance Programs – The Italian Competition Authority Highlights the Importance of an Effective Implementation and Update

McDermott Will & Emery, here

Korean Ruling Places Qualcomm’s Business Model at Risk

Mintz Levin, here

It’s Official: TRIPS Health Amendment In Effect, First Ever To A WTO Agreement

IP-Watch, here

Experten im Bundestag: "Soziale Netzwerke verdienen sehr gut an Fake News"

Heise.de, hier

Hollywood Anti-Trust Probe in Europe Might Be Softened, Commissioner Vestager Hints

Variety, here

Google Privacy-Policy Change Faces New Scrutiny in EU

WSJ, here and here.

President Trump Told That Strong Copyright Laws Are in His Interest

TorrentFreak, here

Hinweise zum Preisbindungsverbot im Bereich des stationären Lebensmitteleinzelhandels

Bundeskartellamt, hier

Guidelines on the protection of individuals with regard to the processing of personal data in a world of Big Data

Council of Europe, here

Rise of the Digital Regulator

R. Van Loo, here

Competition Law Risk

CMA and IRM, here

Antitrust Policy for a New Administration

M. Ohlhausen, here

General Opinion on the EU Copyright Reform Package

European Copyright Society, here

Avoiding disqualification: advice for company directors

CMA, here

Kartellgesetz-Novelle stößt bei Experten auf ein geteiltes Echo

Deutscher Bundestag, hier

TransAlgo : une plate-forme scientifique pour juger de la transparence des algorithmes

Sciencesetavenir, ici

Portugal Asks European Court To Determine What Criteria Are Required For Discriminatory Pricing To Be An Abuse Under Article 102 TFEU

EU-competitionlaw.com, here

Google, Mobile And Competition: The Current State Of Play

B. Edelman, here

Competition Law and Big Data: Do Competition Authorities Know How To Do It?

A. Lamadrid, S. Villiers, here

EC seeks feedback on commitments offered by Amazon in e-book investigation

Press release, here

BMW changes policy on car comparison sites following CMA action

CMA, here

AI Software Learns to Make AI Software

MIT Technology Review, here

Microsoft/LinkedIn: EC's Decision published

Case M.8124, here.
(Long read, 58:00).

How e-payments can prevent cartelization

LiveMint, here

CAT rejects Flynn Pharma's request for interim relief to suspend CMA's order to lower prices for epilepsy treatment

Judgment here

Google’s Sergey Brin ‘Surprised’ by Speed of AI Advancements

Bloomberg, here

Machine Learning with Personal Data

D. Kamarinou, C. Millard, J. Singh, here,

Google Uses Its Search Engine to Hawk Its Products

WSJ, here

The Silver Lining Of Anti-Globalism Might Be The Creation Of A True Digital Economy

D. Rushkoff, here

GDPR and accountability (for accountants)

E. Denham, here.

AI: Aufstieg der Computer-Gehirne

FAZ, hier

EC welcomes steps taken by Amazon/Audible and Apple to improve competition in audiobook distribution

Press Release, here.

(Investigation opened in Germany the 16 November 2015: that was quick!)

Economics in Antitrust Enforcement and the Private Benefit of Scholarly Commentators

J. Broulik, here.

This almost 6-year old post is still rather apropos, if I may.

MIT Media Lab to participate in $27 million initiative on AI ethics and governance

MIT News, here

Access to data and competition

Interview with A. Mundt, here

Artificial Intelligence at WEF17

Video here.


"the market is not the right way to make certain decisions"
"most engineers don't even know why governments exist"
"a corporation is a kind of AI, already "

Transparency and Trust in the Cognitive Era

IBM, here

The distributed future is personal

D. Searls, here