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Antitrust and the Information Age: Section 2 Monopolization Analyses in the New Economy
114 Harvard Law Review 1623-1646 (2001)
  • A. Benjamin Spencer

On April 3, 2000, U.S. District Judge Thomas Penfield Jackson declared that the Microsoft Corporation ("Microsoft") had maintained monopoly power in the personal computer operating system market by anticompetitive means, in violation of Section 2 of the Sherman Antitrust Act. A case of enormous significance, Microsoft raises difficult questions regarding how antitrust laws should be applied to information technology ("IT') companies. Specifically, many characteristics of what has come to be called the "New Economy" - and of the IT companies within it - suggest that traditional monopolization analysis may need modification. As the U.S. has moved toward an information- based network economy, the need for a specialized set of rules for participants in IT markets has become increasingly clear.

This Note discusses the characteristics of the IT economy relevant to competition and market dominance and considers how these characteristics should inform a Section 2 analysis. Part I reviews Section 2 jurisprudence, describing the standards that courts generally employ to evaluate a Section 2 monopolization claim. Part II discusses aspects of the New Economy that bear on competition among IT companies, highlighting those forces that foster single-firm market dominance and those that influence competitive strategies. Part III argues that certain attributes of the New Economy warrant a revision of the present approach to Section 2 analysis in an IT context and concludes by applying the revised approach to the facts of the Microsoft case.

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A. Benjamin Spencer. "Antitrust and the Information Age: Section 2 Monopolization Analyses in the New Economy" 114 Harvard Law Review 1623-1646 (2001) (2001)
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