University of Chicago Law Review

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The digital economy has become increasingly consolidated in recent years as a handful of companies (namely Google, Facebook, Microsoft, and Amazon) have come to dominate every corner of the internet. Several of these companies have attained such size and influence that labelling them monopolists seems unavoidable. These companies have reinvigorated the debate regarding how antitrust law should treat monopolists. Many scholars, typically associated with the Chicago School of antitrust, believe that courts should hesitate before taking action against internet monopolists because judicial intervention may discourage investment in the digital economy without benefiting consumers. Critics of the Chicago School meanwhile argue that internet monopolists pose a unique threat to competition by virtue of their control of user-generated data.

This Comment argues that monopolists’ ability to restrict data access poses a grave and novel threat to competition. Two recent cases, hiQ Labs, Inc v LinkedIn Corp and Authenticom, Inc v CDK Global LLC, highlight the risk of dominant internet companies prohibiting public data scraping to quash competitors and cement their monopolies. This Comment argues that courts should apply the Sherman Act “refusal to deal” doctrine to proscribe public data scraping prohibitions under specific circumstances. Applying refusal to deal liability to scraping prohibitions would create a more dynamic and open digital economy. It would also be an incremental expansion of antitrust liability, which would not dissuade digital investment or otherwise cause massive economic disruption. Finding refusal to deal liability for data scraping prohibitions would therefore allow courts to employ their common law process and adapt the Sherman Act to meet new competitive challenges in the digital economy.

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