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123 Colum. L. Rev. Forum 1 (2023)

handle is hein.journals/sidbarc123 and id is 1 raw text is: COLUMBIA LAW REVIEW FORUM VOL. 123 JANUARY 27, 2023 PAGES 1-36 ANTITRUST INTEROPERABILITY REMEDIES Herbert Hovenkamp* Compelled interoperability can be a useful judicial or statutory remedy for dominant firms, including digital platforms with significant market power in a product or service. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth. Given the wide variety of structures and business models for big tech, interoperability must be defined flexibly. Approaches to interoperability begin with the premise that anything that can be organized within afirm can also be organized in a market, and vice versa. The key to a good interoperability solution is to permit individual assets to function competitively where that is preferable but collaboratively when colla- boration produces better results. Interoperability can include everything from dynamic interoperability, which requires real-time sharing of data and operations, to static interoperability which requires portability but not necessarily real-time interactions. Interoperability is not the best remedy in all situations, nor even for all of those that involve digital platforms. For example, it is rarely the best remedy for nondominant assets, even those that are sold on two-sided digital markets. Tested by these criteria, the proposed American Innovation and Choice Online Act falls short. Without assessing a market power requirement, it would compel interoperability of ordinary competitive products, and in ways that are likely to produce significant private and enforcement costs and to encourage substantial free riding without offering any competitive benefit. INTRODUCTION Today the antitrust press focuses heavily on the practices of large digital companies. The firms that have evoked so much attention are * James G. Dinan University Professor, University of Pennsylvania Carey Law School and the Wharton School of the University of Pennsylvania. Thanks to Erik Hovenkamp and Fiona M. Scott Morton for comments and Alezeh Rauf and Molly Zhang for research assistance. 1

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