Amazon Critics Renew Push for Federal Antitrust Enforcement Action Against Online Retailer
The federal government should take enforcement action against Amazon for violations of traditional antitrust statutes, leaders of the Author's Guild, New America and other anti-Amazon publishing interests said Wednesday. Many of the groups speaking at a New America event Wednesday previously urged action against Amazon, including a direct appeal in July by the American Booksellers Association, the Author's Guild and two other authors' advocacy groups for a Department of Justice Antitrust Division investigation (see 1507130065). A book pricing deal Amazon reached in 2014 resolved the e-book pricing dispute between the online retailer and Hachette (see 1407100037). The larger antitrust issues highlighted in the dispute have “not gone away,” Authors United President Doug Preston said. Amazon and Justice didn't comment.
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Justice's reluctance to begin investigating Amazon on antitrust issues is undoubtedly an example of politics infiltrating the federal government's application of antitrust law and illustrates that the Obama administration is “more interested” in serving the interests of Amazon and company CEO Jeff Bezos, Harper's Magazine President Rick MacArthur said. The federal government's use of its antitrust authority in merger cases is “alive and well,” but its overall use of its antitrust enforcement authority is “barely alive,” Cadwalader antitrust lawyer Jonathan Kanter said. The federal government will need to have the political will to take enforcement action against Amazon, he said.
Antitrust doctrine is the fastest-evolving area of U.S. law, but why Justice hasn't viewed even the e-books price-fixing issues in the Amazon-Hachette dispute as a problem “is beyond me,” former Authors Guild President Scott Turow said. Aggressive federal application of antitrust law against Amazon would likely have gotten support from the late Supreme Court Justice Louis Brandeis, National Constitution Center CEO Jeffrey Rosen said. Brandeis was a staunch opponent of centralization of industry power and would have been concerned by the ability of Amazon and other major Internet retailers to function without the traditional constraints of antitrust law, Rosen said.
Justice would have grounds to investigate Amazon on a number of antitrust issues, with the main one affecting consumers being Amazon's use of consumer data, said Lina Khan, New America Open Markets Program fellow. Amazon has frequently used consumer data to engage in price discrimination and to determine product popularity for the purpose of undercutting retailers, Khan said. Although Amazon's use of data is a major antitrust issue, Justice should also examine nonprice competition issues like privacy protections, Data Competition Institute co-founder Maurice Stucke said. Justice could also investigate Amazon's overall impact on social welfare, given the company's dominance in selling information to consumers, antitrust lawyer Kanter said: “If we have platforms that have a chokehold on ideas and how they are brought to consumers, there's a problem.”