The Secret Life of Platform Intellectual Property Adjudication
Shih-wei Chao An emerging trend in intellectual property law is e-commerce platforms adjudicating infringement disputes. When platforms receive right holder complaints and decide whether to remove product listings, suspend the seller, or destroy the infringing inventory—intentional or not—they are acting as “courts,” applying unique “laws” and granting platform-style “remedies.” To provide a peek into this nascent realm of intellectual property alternative dispute resolution, this article first compiles what is known about platforms’ adjudication mechanisms, from complaint to decision, from enforcement to “appeals,” covering both platforms’ basic complaint systems and Amazon’s UPNEP/APEX program. Normatively, however, there are concerns that platforms are...
A New Understanding of Who Is a Direct Purchaser Based on Apple Inc. v. Pepper
Jacob Mitchell A group of consumers sued Apple in 2011 alleging that Apple had violated antitrust laws through their monopolization of their App Store. In trying to dismiss the suit, Apple asserted that consumers, despite purchasing apps directly from Apple through the App Store, did not have standing to sue them as monopolists because the consumers were actually buying from the app developers. The Supreme Court rejected Apple’s argument in its 2019 ruling in Apple, Inc. v. Pepper. By rejecting Apple’s view, the Supreme Court has expanded consumers’ available remedies by clarifying that consumers that buy directly from a distributor are...
Applying Antitrust in Digital Markets: Foundations and Approaches
Mark Jamison This paper analyzes the conflicts that arise when trying to apply traditional antitrust principles in the context of digital markets. Antitrust has both political and economic foundations. The political approach emphasizes populist themes that ultimately harm economic development, whereas economic approaches focus on characterizations of and remedies for market power. Digitization of markets thwarts current antitrust tools by adding complexity and rapid change. Several authors suggest populist approaches for antitrust in digital markets, but these lack rigor and fail to address central challenges. This Article suggests that antitrust should return to its earliest roots and directly address features...