While we anxiously await the finale of HBO’s Game of Thrones — and for George R.R. Martin to finally finish the last couple of books — we have our own American Game of Thrones playing out in antitrust enforcement. We’re seeing Western kingdoms and businesses fight for tech supremacy.
Simultaneously, European kingdoms are wielding their antitrust authority as a sword to cut down American tech leaders. And old-world media companies are feeding the antitrust fervor, hoping that once America’s tech businesses are in the dungeon, these legacy companies will regain their former glory. Even some tech businesses are encouraging government antitrust actions that will harm their competitors.
With all this fighting, what we need is thoughtful American leadership about the proper use of antitrust authority. The US Congress is best positioned to stop the selfish in-fighting among the various “kingdoms” and recognize the real message from Game of Thrones — winter is coming and with it a threat from beyond the wall. In this case, that threat is the ingenuity and determination simmering in the kingdom of China.
China population is four times larger than the U.S. and its leaders are devoted to dominating global tech markets. Some may dismiss China’s prospects, but we’ve already seen how Chinese companies can emulate and leap-frog over America’s innovators. Already 9 of the top 20 tech companies are Chinese, and the kingdom has more plans in the works.
We’ve seen how China can instantly shut-off its entire market to American businesses, as it recently did against Apple. Moreover, many of our devices and components are built in China. If we ignore the Chinese threat, this Game of Thrones won’t be much of a contest.
Unfortunately, resentment and division in our own kingdom are leading to a weaponization of antitrust authority to dismantle America’s world leading businesses. Europe is leading the charge to knee-cap America’s business, hoping to revive the sclerotic tech sector there. Worse, some in America are heeding Europe’s antitrust battle calls.
For nearly half a century, America has followed a facts-based approach to antitrust — centered around the notion of consumer harm. Our existing antitrust law calls for action when a business becomes so powerful that it can raise prices, restrict supply, or block new market entrants — to the detriment of consumers.
But our law does not unleash its antitrust enforcement dragons just because the government doesn’t like the politics of a business.
This check on populist attacks on success has enabled American technology businesses to become the world’s leaders. Now, populists and special interests want to emulate Europe and use antitrust laws to attack the engines of America’s success.
But let’s assume for a moment that America abandons its existing approach for antitrust enforcement and instead adopts an antitrust model of “I don’t like this business so it should be broken apart.” Moving to this fact-free standard would weaponize antitrust: just like the anti-American antitrust actions of Europe.
Moving to a populist antitrust standard would undermine market-certainty and make the success of businesses contingent on whichever political party controls the White House. Antitrust would no longer be a tool for innovation but instead become a weapon for politicians to cut-down opponents. Moreover, it would serve to only increase the intra-fighting among Western business.
America must avoid such a devolution and Congress must step-up to stop in-fighting, which helps only the lawyers, some old-world competitors, and rival kingdoms seeking to displace America’s innovation leadership.
There’s no question that “Winter is coming.” The question is, are America’s leaders prepared to defend our kingdom?
Carl Szabo is Vice President and General Counsel of NetChoice, a trade association of eCommerce businesses and online consumers promoting convenience, choice and commerce on the net.
