Technology was a key focus of this year’s ABA Antitrust Spring Meeting, one of the largest gatherings of antitrust professionals in the world. Over a dozen panels focused on cutting-edge technology issues as it pertains to antitrust, consumer protection, and privacy. Below are 5 key technology-related takeaways.
DOJ Targets AI Pricing Algorithms: RealPage Case Signals Potential Shift in Antitrust Enforcement
The Department of Justice and eight state attorneys general filed a civil antitrust lawsuit in August against RealPage Inc. – a Texas-based software company that provides property management software – and several landlords using its software. This case adds to the growing number of antitrust cases targeting algorithmic pricing tools, and is another example of federal regulators taking a tough stance on new AI technologies.
Taylor Swift and Congress Have “Bad Blood” with AI Deepfakes
On September 10, minutes after the first presidential debate between Donald Trump and Vice President Kamala Harris, an Instagram post set the political world abuzz: Taylor Swift endorsed Harris in the race. The announcement from one of the world’s biggest stars was newsworthy in itself, but IP lawyers likely took note of why she chose to post. Swift explained that she felt compelled to share her views after a photo featuring an AI-generated image of her appearing to endorse Donald Trump was posted online. The image was shared by Trump himself on his social media platform Truth Social, and was circulated widely by his supporters. Swift wrote that the image “really conjured up my fears around AI, and the dangers of spreading misinformation.”
For All Intents and Purposes the Ninth Circuit Shakes Up Antitrust Law With Sidibe v. Sutter Decision
The June 4, 2024 Ninth Circuit Court of Appeals decision in Sidibe v. Sutter Health marks a potential shift in how rule of reason antitrust cases are approached and adjudicated. The opinion underscores the significance of historical evidence in antitrust trials and places considerable emphasis on analyzing the purpose behind challenged conduct.
The App Store Wars: An “Epic” Loss for Google Takes Shape
Although Google fought tooth and nail against it, a win for an underdog video game developer means the Google Play Store could likely soon look a lot different for Android users. Google met its match in December when Epic Games, the creator of the hit video game Fortnite, won on all counts in its antitrust suit against the tech titan. However, the fight is far from over: the court is currently determining what exactly the Google Play Store will look like in the future and heard arguments last week over Epic’s proposed injunction. As Judge Donato of the Northern District of California put it during the hearing, despite Google’s argument that “there’s a terrifying world of chaos and energy that’s just around the corner if there’s competition in the app store market,” the judge “just [doesn’t] buy it.” On the other hand, he said Epic’s proposed injunction – which would bar Google from enforcing “contractual provisions, guidelines or policies, or otherwise imposing technical restrictions, usage frictions, financial terms or in-kind benefits that … restrict, prohibit, impede, disincentivize or deter the distribution of Android apps through an Android app distribution channel other than the Google Play Store” – was “too open-ended.” Proceedings continue in August, and the parties will have opportunity for closing arguments. In the meantime, we revisit the implications and the stakes of the case, beyond just Google and its Play Store.
Legislating Around AI-Driven Algorithm Concerns
Pricing algorithms are nothing new. They are, generally speaking, computer programs intended to help sellers optimize prices in real time, or close to it. These programs can use data on demand, costs, or even competitors’ prices to “learn” to set the prices of products. What is new is the proliferation of these programs across industries and the emergence of artificial intelligence-driven pricing algorithms.
The “State of the Arts” after Andy Warhol Foundation v. Goldsmith
It has been eight months since the Supreme Court’s landmark copyright fair use decision in Andy Warhol Foundation for the Visual Art, Inc. v. Goldsmith. Much has been written on the subject, including in this forum, but in many ways it was a narrow decision. The Court held that the commercial licensing of Orange Prince, a work in Andy Warhol’s Prince series based on a photograph by Lynn Goldsmith, was not protected under the first factor of the four-factor fair use test under 17 U.S.C. § 107. Its discussion of the transformative use test emphasized the similarity of the uses the works were put to (depicting Prince on magazine covers), rather than the characteristics of the works themselves. This, the Court said, prevents judges from acting as art critics to determine the aesthetic differences between, or meanings behind, artistic works.
Alarm Bells Ringing? The Agencies Begin to Raise Competition Concerns Over Generative AI
With great promise comes great scrutiny. As artificial intelligence (“AI”) has become part of industries’ and individuals’ daily repertoire, it has also come under focus by antitrust regulators. The DOJ, in its so-called “Project Gretzky,” is gearing up with data scientists and others to be a tech-savvy version