Tying Law for the Digital Age

Authors

Daniel A. Crane, University of Michigan

Abstract

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. In its origins during the industrial age, tying meant the leverage of patent rights over one good to impose requirements contracts forcing the purchase of a second, unpatented good. That paradigm no longer describes the vast majority of tying arrangements challenged under the antitrust laws. Instead, digital-age tying claims tend to involve product design decisions, the integration of technologies, the bundling of components, considerations of product functionality and performance, and the economic terms on which companies can obtain a return on their research and development investments. Correcting the mess in tying law requires not only updating economic learning, but also appreciating the patterns of behavior to which tying standards are applied.

Recommended Citation

Daniel A. Crane, Tying Law for the Digital Age, 99 Notre Dame L. Rev. 821 ().
Available at: https://scholarship.law.nd.edu/ndlr/vol99/iss3/1