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Welcome to The Corner. In this issue, we discuss Open Markets Executive Director Barry Lynn’s congressional testimony concerning competition policy in the 21st century, the filling of our most recent amici curiae brief supporting student athletes against the NCAA, and Australia’s battle against Big Tech.

Open Markets Executive Director Barry Lynn Testifies Before the U.S. Senate About Competition Policy for the 21st Century

On Thursday, Open Markets Executive Director Barry Lynn testified during the Senate Judiciary [[link removed]] Antitrust [[link removed]] Subcommittee hearing [[link removed]] on competition policy. His testimony was mentioned in The [[link removed]] New York Times D [[link removed]] ealBook [[link removed]], BuzzFeed [[link removed]], New York Law Journal [[link removed]], S&P Global [[link removed]], NextTV [[link removed]], Marker [[link removed]], Law360 [[link removed]], Communications Daily [[link removed]], and IP Watchdog [[link removed]]. In his presentation, Lynn said, “four decades ago Americans radically altered how we think about and enforce competition policy. Rather than aim to promote liberty, democracy, and community, policymakers said we should focus on efficiency alone. The result? The result is that today Americans face the gravest set of domestic threats to liberty and democracy since the Plutocrats, perhaps since the Civil War.” Read Lynn’s written testimony here [[link removed]]. View the hearing here [[link removed]].

Open Markets Institute Files Brief Supporting College Athletes in Their Fight Against NCAA Cartel

The Open Markets Institute filed an amici curiae brief [[link removed]] in support of current and former college basketball and football players in their antitrust lawsuit against the National Collegiate Athletic Association (NCAA). The Open Markets’ brief was joined by Strategic Organizing Center, Color of Change, National Employment Law Project, Towards Justice, and economics and law scholars. In the brief, Open Markets asserts that the original intent of the Sherman Act was to “[protect] sellers of goods and services, including workers who sell their labor, from powerful purchasers.” The brief was mentioned by Law 360 [[link removed]], Scotus Blog [[link removed]], The Star Phoenix [[link removed]], Yahoo! Finance [[link removed]],

Australia Battles Big Tech, But the War Against Journalism Is Not Won

After months of political friction, Australia approved the News Media and Digital Platforms Mandatory Bargaining Code [[link removed]] on Feb. 25, which the government says will ensure news publishers “ get [[link removed]] a seat at the table [[link removed]]” for more equitable negotiations with Facebook and Google.

Before the code’s passage, the tech giants threatened to retaliate by pulling their services from the country altogether. Although Australian publishers will now be remunerated for their work, the law offers only a temporary fix to a multipronged issue.

With Sens. John Kennedy (R-La.) and Amy Klobuchar (D-Minn.) cosponsoring a bill [[link removed]] to protect newspapers against Big Tech, the U.S. has come to a crossroads: Follow Australia’s lead or address the systemic failures within antitrust policy and the journalism industry. Before enacting new legislation, U.S. policymakers might want to study some of the criticisms of the bargaining code.

Many pundits, for example, say the Australian code favors a few big established publishers and will make it more difficult for smaller outlets to get their rightful share. The law’s provisions exclude publishers that make less than $150,000 in revenue or those that don’t publish what the government deems as “ core [[link removed]]” news.

From the code’s introduction to its passing, Google and Facebook have sought deals with Big Media players, such as Rupert Murdoch’s News Corp and Nine Entertainment. According to [[link removed]] Politico [[link removed]], News Corp dominates the market with a 53 percent share, while Nine Entertainment ranks second with a market share of 15.7 percent.

As 90 percent of Google’s budget [[link removed]] for Australian publishers is designated to go to established news companies, media advocates stress how the dealings aim to sustain Big Media publishers -- not to protect journalism as a whole.

One such critic is Alan Soon, CEO of Splice Media, a self-funded media advocacy startup in Singapore. In an email to OMI, Soon said, “Start with the problem, not the symptoms. Legacy media companies have struggled with the arrival of the internet because of their higher fixed costs built on a mass model that chases advertising dollars.”

Since Australia’s crackdown on the Silicon Valley titans, Google [[link removed]] and Facebook [[link removed]] have pledged to invest $1 billion in journalism through partnerships with news publishers over the next three years. Media watchers, like Bloomberg’s Alex Webb, say the investments are “ insubstantial [[link removed]]” and neglect how these tech companies have diminished the industry to a perilous state.

With Google beginning its recruitment of U.S.-based publishers for its News Showcase product, the future of local journalism must become a priority.

In a statement [[link removed]], Google’s VP of News Richard Gingras revealed the company’s favoritism for Big Media publishers, placing value on audience size instead of public service to smaller communities. “Large publishers with very large audiences will get fees under Showcase that are beyond what, say, a small publisher with a small audience will get.”

In 2018, Rep. David Cicilline (D-R.I.) introduced the Journalism Competition and Preservation Act [[link removed]], which would allow news publishers to collectively negotiate with Big Tech platforms. Klobuchar recently reintroduced the bill [[link removed]] ahead of the House Judiciary Antitrust Subcommittee’s hearing [[link removed]] to review proposals on revitalizing local news.

To solve the journalism crisis, we must dive deeper. Instead of tying the health of our news outlets to the financial whims of Big Tech, we must account for the systemic issues plaguing our fourth estate.

🔊 ANTI-MONOPOLY RISING:

Last Friday, President Joe Biden appointed Columbia University law professor Tim Wu to the National Economic Council. Wu will serve as the special assistant to the president for technology and competition policy. Wu has also served as a special advisor to the FTC and worked on competition policy for the National Economic Council during the Obama administration. Wu also serves on the academic advisory board of the Open Markets Institute. ( The [[link removed]] New York Times [[link removed]])

Sen. Amy Klobuchar and Rep. David Cicilline have introduced legislation that would allow print, broadcast, and digital news organizations to negotiate collectively with Facebook and Google. The negotiations would deal with how content is distributed on the digital platforms. Over the past decade, the news industry has seen declining revenue as most people use digital platforms like Facebook and Google to receive news. The bill has bipartisan support, as Sen. John Kennedy and Rep. Ken Buck have signed on to sponsor the Senate and House versions of the bill. ( Reuters [[link removed]])

In her confirmation hearing before the Senate Judiciary Committee this week, Vanita Gupta, President Biden’s nominee for associate attorney general, vowed to “bring the full force of our country’s antitrust laws to bear to protect competition.” As associate attorney general, Gupta would oversee the Justice Department’s antitrust division. ( Reuters [[link removed]])

An antitrust lawsuit was filed this week against Zillow and the National Association of Realtors by real estate startup Real Estate Exchange Inc. The lawsuit alleges that Zillow and the NAR engaged in anticompetitive behavior by creating an exclusive agreement under which Zillow would illegally favor listings by brokers that belonged to the NAR. Sellers unaffiliated with NAR would be placed in hidden tabs on the websites. ( Politico [[link removed]])

Last week, Connecticut had a public hearing on its bill SB 906 – An Act Concerning Non-Compete Agreements. The bill would ban non-compete clauses for employees earning up to three times the state's minimum wage and establish public and private enforcement of the ban. ( Connecticut [[link removed]])

📝 WHAT WE'VE BEEN UP TO:

Open Markets Institute announced [[link removed]] the hiring of three new staff members: LaRonda Peterson as Managing Editor, Canzada Colden as Finance and Administration Associate, and Brian Callaci in a newly created position, Chief Economist. According to OMI Director of Operations Katherine Dill, “Open Markets is gearing up to bring the full power of our pro-democracy, anti-monopoly lens to the work of dismantling and neutralizing the giant corporations that dominate our political economy. To do this, we rely on a savvy and masterful staff able to coordinate meticulous budgeting, sophisticated journalism, and vanguard legal analysis.”

Open Markets was mentioned for being a leader on anti-monopoly and antitrust in The New York Times [[link removed]] in a piece about the likely nomination of our former legal director, Lina Khan, to a seat on the FTC. Financial Times [[link removed]], Wired [[link removed]], India West [[link removed]], Protocol [[link removed]], Bloomberg [[link removed]], Bloomberg Law [[link removed]], BNN Bloomberg [[link removed]], Law360 [[link removed]], The Global Herald [[link removed]], Financial Post [[link removed]], Biz Journals [[link removed]], The Canadian [[link removed]], The Star [[link removed]], Apple Insider [[link removed]], Free News [[link removed]], MEA WorldWide [[link removed]], Eminetra [[link removed]], My BC News [[link removed]], Inverse Zone [[link removed]], and El Tiempo Latino [[link removed]] also hat-tipped Open Markets in articles about Khan’s potential appointment.

Sandeep Vaheesan published a piece in The Atlantic [[link removed]] with Robert H. Lande of the University of Baltimore School of Law urging a ban on all big mergers. “By establishing a bright line, an outright ban on the largest mergers would reduce the role of contending lobbyists, lawyers, and rented economists in merger cases, thereby making the whole process clearer, faster, more predictable, less expensive, and less subjective.” Business Record [[link removed]] noted that the article makes a “compelling case” for such a ban.

Phil Longman published a piece in The Washington Monthly [[link removed]] about the need for stronger antitrust enforcement to reverse America’s media market concentration problem. “Democrats are right to target the talking heads of Trump TV and radio. But to really address the problem, they will have to go bigger and deeper.”

Barry Lynn was praised in The Washingtonian [[link removed]] as one of Washington’s most influential people on antitrust. “The 250 experts and advocates—outside the government—who’ll be shaping the policy debates of the years to come.”

Sally Hubbard spoke on the Los Angeles Review of Books Blog [[link removed]] about her book “Monopolies Suck.” “I actually think anti-monopoly is one of the very few bipartisan issues today. The Democratic and Republican state Attorneys General might have filed separate lawsuits against Google, but we see significant enforcement from both sides of the political spectrum.”

Sandeep Vaheesan was featured in a press release sent out by Sen. Chris Murphy [[link removed]] on his introduction of a bill to limit non-compete agreements. “Banning non-competes across occupations and at all income levels, as Senators Murphy, Young, Cramer, and Kaine propose to do, would be a major step in advancing workers' freedom in the labor market.”

Claire Kelloway’s article about how President Biden can rein in the Big Meat monopoly, originally published in Vox [[link removed]], was republished in Competition Policy International [[link removed]]. “Antitrust policy has reemerged as a progressive priority over the past few years, though much of that focus has generally been on breaking up and regulating big banks or Big Tech. There’s a case to be made that Big Ag — and more specifically, Big Meat — should join that list.” The piece also appeared on Reader Supported News [[link removed]], Ellinghuysen [[link removed]], and Real Clear Markets [[link removed]].

Open Markets’ 2018 report, "America's Concentration Crisis,” was mentioned in Business Insider [[link removed]]. “Three companies hold 85% of social networking site market share - Facebook comprises 70% of that share alone. It's a similar story for the search engine industry, where the two largest firms own 97% of the market share, with Alphabet leading the way at 91%.” This piece was also published on Medium [[link removed]].

Johnny Ryan was quoted in Time Magazine [[link removed]] in a piece about data privacy. “As Dr. Johnny Ryan, Senior Fellow at the Irish Council for Civil Liberties and the Open Markets Institute, argues, targeted advertising has robbed traditional media outlets of their primary asset: Their audience.”

Sandeep Vaheesan submitted written testimony [[link removed]] applauding a Connecticut bill aiming to take action against non-competes but urging the legislature to enact a full ban. “Making non-competes illegal and backing it up with legal sanctions is essential for worker security. Connecticut’s SB 906 is an important step in the right direction and we hope the rest of the country takes note and moves to ban non-competes universally, once and for all.”

Sally Hubbard was featured in a C-Span [[link removed]] discussion about competition in digital technology markets, potential government regulatory actions, and consumer rights. “Antitrust is about preserving competition in the marketplace to ensure that we all get the benefit of the best products and services that can be delivered to us in the most innovative way.”

Barry Lynn was quoted in El Pais [[link removed]] on the need to stop Big Tech. “Con la nueva administración demócrata y la presión de Bruselas, Apple, Alphabet (Google), Amazon, Microsoft y Facebook afrontan un mayor escrutinio legal y social que amenaza con disminuir su poder.”

Open Markets Institute published a blog [[link removed]] about how to fix supply chains in response to the Biden administration’s directive for a 100-day review of the country’s supply chain. “We’re going to make life easier for the Biden administration: Concentration of industrial capacity makes our supply chains vulnerable. And it is concentration of power - by monopolistic corporations and nations - that is largely responsible for concentration of capacity.”

Barry Lynn was quoted in Digitpatrox [[link removed]] pushing back against Facebook’s claim that because the FTC already approved its acquisition of WhatsApp, it can’t break them up now. “[Facebook’s] argument that the FTC had its likelihood to dam the acquisitions on the time shouldn’t be an impediment, stated Barry Lynn, government director of the Open Markets Institute.”

Open Markets’ data on agricultural concentration was used in The Hill [[link removed]] in a piece about food policy and antitrust laws. “According to the Open Markets Institute, the four largest poultry processing firms went from controlling 35 percent of the market in 1986 to 51 percent in 2015.”

Sandeep Vaheesan was quoted in Wired [[link removed]] commenting on competition rules. “’My dream is that it would start writing competition rules that just articulate what practices are prohibited,’ said Sandeep Vaheesan, legal director at the Open Markets Institute, an anti-monopoly think tank, in an interview late last year. ‘So, instead of having to go litigate every monopoly and spend three to five years on a case, it would just establish rules saying the following practices are illegal—either categorically, or just if you’re dominant.’ For example, he says, the FTC could issue a rule prohibiting employers from making workers sign non-compete clauses.”

We appreciate your readership. Please consider making a contribution to support the continued publication of this newsletter.

DONATE [[link removed]] 📈 VITAL STAT: 66%

The percentage [[link removed]] of the U.S. blood plasma supply that is controlled by three dominant companies.

📚 WHAT WE'RE READING: “ No-Hire Provisions in McDonald's Franchise Agreements, an Antitrust Violations or Evidence of Joint Employer? [[link removed]]” (Employee Rights and Employment Policy Journal, Andrele Brutus St. Val): The author analyzes McDonald’s arguments defending its no hire provisions - which prohibits franchisees from hiring one another’s employees. The author concludes that McDonald’s arguments are inconsistent with its position on certain labor issues, specifically joint-employer liability. McDonald’s position effectively allows the corporation to obtain the benefits of exerting control on their franchisees while avoiding the liability that franchisees can incur if they comply with the parameters McDonald’s puts into its agreements.

SALLY HUBBARD’S

NEW BOOK

MONOPOLIES SUCK

7 Ways Big Corporations Rule Your Life and How to Take Back Control

Simon & Schuster published Monopolies Suck [[link removed]] by Sally Hubbard on Oct. 27. The book is the first by Hubbard, who is Open Markets’ director of enforcement strategy. Hubbard examines how modern monopolies rob Americans of a healthy food supply, the ability to care for the sick, and a habitable planet, because monopolies use business practices that deplete rather than generate. Monopolists also threaten fair elections, our free press, our privacy, and, ultimately, the American Dream, Hubbard shows. In Monopolies Suck, Hubbard reminds readers that antitrust enforcers already have the tools to dismantle corporate power and that decisive action must be taken before monopolies undermine our economy and democracy for generations to come. In Monopolies Suck, Sally provides an important new view of America’s monopoly crisis and of the political and economic harms of concentrated private power. Order your copy here [[link removed]].

BARRY LYNN’S

NEW BOOK

Liberty From All Masters

The New American Autocracy vs. The Will of the People

St. Martin’s Press has published Open Markets Executive Director Barry Lynn’s new book, Liberty [[link removed]] f [[link removed]] rom All Masters [[link removed]].

Liberty is Lynn’s first book since 2010’s Cornered. In his new work, Lynn warns of the threat to liberty and democracy posed by Google, Amazon, and Facebook, because of their ability to manipulate the flows of information and business in America. Barry then details how Americans over the course of two centuries built a “System of Liberty,” and shows how we Americans can put this system to work again today. Lynn also offers a hopeful vision for how we can use anti-monopoly law to rebuild our society and our democracy from the ground up.

Liberty from All Masters has already made waves for its empowering call to restore democracy by resurrecting forgotten tools and institutions. “Very few thinkers in recent years have done more to shift debate in Washington than Barry Lynn. In Liberty from All Masters, he proves himself as a lyrical theorist and a bold interpreter of history. This book is an elegant summoning of a forgotten tradition that can help the nation usher in a new freedom,” says Franklin Foer, author of World Without Mind and national correspondent for The Atlantic.

You can order your copy of Lynn’s book here [[link removed]].

🔎 TIPS? COMMENTS? SUGGESTIONS?

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Written and edited by: Barry Lynn, Phil Longman, LaRonda Peterson, Jackie Filson, Daniel A. Hanley, and Garphil Julien

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