the secondary liability of online service providers from a comparative perspective, drawing on national reports on the question submitted to the Annual Congress of the International Academy of Comparative Law. The Chapter highlights two different approaches to establishing the circumstances when an intermediary might be liable: a “positive” or “negative” definition of the scope of liability. The former flows from the standards for establishing liability; the latter grows out of the different safe harbour provisions that immunize intermediaries operating in particular ways, although there can obviously be connections between the standard for liability and the conditions for immunity. The Chapter also considers the mechanism (“Notice and Takedown”) that in practice has come in many countries to mediate the responsibilities of right owners and service providers for a range of unlawful conduct that occurs using the facilities of the service providers. This mechanism typically reflects OSP responses to potential secondary liability, and have developed both in contexts when that liability is defined positively and when it is framed in negative terms. But regardless of the varying impetus for the mechanisms, they are largely implemented through private ordering (with some of the concerns that attends any such activity) that is subject to differing level of public structuring and scrutiny. The Chapter also addresses the concept of (judicially-enforceable) “responsibility without liability”, a growing feature of the landscape in this area, especially but not exclusively in the EU. Service providers in several fields, most notably intellectual property law, are being required actively to assist in preventing wrongdoing by third parties regardless of their own fault (but for example, engaging in so-called “web-blocking” of allegedly infringing sites). These mechanisms, found in several legislative instruments but developed in greater detail by courts through applications in private litigation, operate to create a quasi-regulatory network of obligations without imposition of full monetary liability. The Chapter concludes by considering briefly whether generally applicable principles can be derived from, and extended beyond, the specific context in which they first arose. This analysis leads to two central propositions, which it is argued hold true descriptively and warrant endorsement prescriptively. First, an assessment of secondary liability cannot be divorced from (and indeed must be informed by) the scope of primary liability or other legal devices by which the conduct of service providers or their customers is regulated. And, second, despite the claims that secondary liability is simply the application of general principles of tort law, secondary liability is rarely a subject-neutral allocation of responsibility among different potential defendants according to autonomous principles of fault; rather, it maps in part to the policy objectives of the different bodies of law where the claim of (secondary) liability arises.
'Amazon’s Antitrust Paradox' by Lina M Khan in (2017) 126(3) Yale Law Journal comments
Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other businesses that depend upon it. Elements of the firm’s structure and conduct pose anticompetitive concerns—yet it has escaped antitrust scrutiny.
This Note argues that the current framework in antitrust—specifically its pegging competition to “consumer welfare,” defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output. Specifically, current doctrine underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. These concerns are heightened in the context of online platforms for two reasons. First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible. Second, because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend. This dual role also enables a platform to exploit information collected on companies using its services to undermine them as competitors.
This Note maps out facets of Amazon’s dominance. Doing so enables us to make sense of its business strategy, illuminates anticompetitive aspects of Amazon’s structure and conduct, and underscores deficiencies in current doctrine. The Note closes by considering two potential regimes for addressing Amazon’s power: restoring traditional antitrust and competition policy principles or applying common carrier obligations and duties.
