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BRADY: And Ida thought, piece of cake because there are all these court records. There are all these court records. And she thought she was just going to grind it out. Well, that's not what happened.

SIMON: No. When Ida Tarbell went searching for all these court records and pamphlets, they were gone.

BRADY: The records had disappeared in a lot of cases.

SIMON: Suspiciously disappeared?

BRADY: Suspiciously disappeared - pamphlets, entire runs of pamphlets had been bought up. And she learned that Standard Oil had bought up all the copies of this.

MALONE: And maybe more egregiously, he would also be like, yeah, you know what else? I'm also not so crazy about you carrying my competitors' oil. But I'm going to let you do it. Just every time you do that, you also need to pay me money. These were bombshell details. They meant that Standard Oil had a secret, maybe unfair advantage over its competition. And Rockefeller used that advantage.

MALONE: But at some point, Standard Oil just became a bully. It used its sheer size to gain unfair advantages that had nothing to do with being a better oil company. And so it grew simply because it was already big, simply because it could restrain trade.

MALONE: It was actually 34 companies. And Rockefeller still got stock in those companies. And that was even better business for him. All those new mini Standard Oils, they were still oil companies. And oil was good business. They became some of the biggest companies in the world - Exxon, Mobil, ConocoPhillips, Chevron.

GOLDSTEIN: Bork's big argument in the book was this - the point of antitrust is to encourage competition, everybody agrees. But encouraging competition doesn't mean protecting David against Goliath. You know, if Goliath comes along and makes a more pleasant grocery store or sells a cheaper frozen pie, then Goliath should win and David should lose. That is what competition means.

MALONE: The Supreme Court, in Bork's view, was not encouraging competition. It was protecting companies like the Utah Pie Co. that didn't want to compete. The court was using antitrust law to make competition itself illegal. That is the paradox. Antitrust, the law that is supposed to help competition, was actually harming competition.

MALONE: Fox says that second part - the assumption that the free market is good, government intervention is bad - has pushed the government and the court too far in the other direction now. The government just doesn't bring antitrust cases as often as it used to. And when it does, it's like the banana joke is back. But instead of finding for David every time, now the court almost always rules in favor of Goliath.

MALONE: Our current approach to antitrust law, Bork's approach, is known as consumer welfare. And the basic idea is low prices and lots of choices are good. If consumers are getting these things, then there's no antitrust problem. And clearly, Amazon has delivered low prices and lots of choices, so it hasn't run into much trouble with antitrust law in the United States.

GOLDSTEIN: Amazon does not work that way. Amazon is not going to buy the dog hats from us. We can post our dog hats for sale on Amazon, and if they don't sell, we go out of business, and it did not cost Amazon anything.

If the dog hats do sell, then we pay Amazon a chunk of our revenue. And if our dog hats sell like crazy, if the world suddenly goes bananas for dog hats, then Amazon is free to start selling their own line of dog hats, AmazonBasics dog hats.

What's troubling is that in some instances, when a product does start doing well, Amazon observes it and then takes that idea, produces it itself, knocks out the third party from the top search listings. And so suddenly, you know, it's Amazon that's reaping the reward of the risk that somebody else took.

GOLDSTEIN: Here's one difference between the two of them. Khan thinks the consumer welfare standard just fundamentally can't work anymore. Hemphill thinks it can. Remember; consumer welfare is a lot about prices, but companies like Google and Facebook give their product away to people for free. So it seems like under the consumer welfare standard it would be really hard to know what to do about these companies. But...

HEMPHILL: So we say consumer welfare and antitrust is a shorthand for situations where sometimes we don't mean consumers in the sense of individuals.

GOLDSTEIN: Consumers can also include companies that buy stuff, like, say, companies that buy ads on Google and Facebook. And if Google and Facebook use their market power to jack up ad prices, that can be a violation of antitrust law under the consumer welfare standard.

GOLDSTEIN: Also it might be wrong. The Facebook-Instagram merger might be a bad news, sad story. Here's how that story goes - company's already big and then it starts getting bigger and bigger by buying up other companies. That is a sign that maybe the company is trying to suppress competition, you know, to just buy up its rivals so it doesn't have to compete. That is obviously bad for competition.


KHAN: Well, let's just think about a real example, which is as revelations about Facebook's lax privacy and security protocols have been becoming clear, you've heard more people say I'm quitting Facebook. I'm just closing this down. At least I have my Instagram account.


KHAN: Right? I think privacy is one good example of a dimension on which consumers should be able to choose, and having more competition could provide that.

"Google has used Android as a vehicle to cement the dominance of its search engine" - dot dot dot - "they have denied European consumers the benefits of effective competition in the important mobile sphere." The European Union found this illegal under its antitrust rules and fined Google $5 billion. Google said in a statement afterwards, quote, "Android has created more choice for everyone, not less." The company is appealing the ruling.

GOLDSTEIN: Raff figured this was just the beginning for Foundem. The technology that made the site work could be applied to almost any kind of shopping - you know, shopping for airplane tickets, shopping for a sandwich for lunch. And she imagined Foundem growing into, you know, a giant search engine on its own. Google itself had a comparison shopping site at the time called Froogal.

GOLDSTEIN: Number two, Google eventually turns its shopping results into ads. So today when you see Google shopping results for, say, a Sony digital camera, you're not necessarily seeing links to, you know, the most reliable online camera stores or to the stores with the lowest prices. You are seeing paid ads.

GOLDSTEIN: And there's this really interesting tension, like, right in the middle of antitrust law. You know, the point of antitrust is to encourage competition. You know, we want companies competing to make better products, to provide better services. That is good for us, for consumers. But the way competition works is if a company comes along and is just better than everybody else, it drives them out of business and winds up with the whole market to itself, like take for example search engines. I'm old enough to remember (laughter) that there were a bunch of search engines out there for years before Google came along.

So the first question the court has to decide, what is the market? Is it just iPhone apps - 100% monopoly - or all mobile apps - like, 25% - not a monopoly? This question - what is the definition of the market we're talking about? - it is actually a common question that comes up in antitrust cases.

FOX: American Express says this is a two-sided market and you can't look at one side and say there's harm to consumer welfare. You have to look at both sides and net it out. And if in the end of tallying up both sides of the market consumers win, I have to be allowed to do this.

How this case turns out could affect lots of big tech companies because lots of big tech companies are in the middle of these two-sided markets. Amazon brings together people who want to sell stuff and people who want to buy stuff. Uber brings together drivers and people who want a ride. Airbnb, eBay - all two-sided markets. And the question in all these two-sided markets, when you have this powerful company sitting in the middle of everything, is, is the market working as it should? Is it still competitive? Is it good for consumers, or has the market broken down? Do the courts need to step in to fix it?

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