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[This post is the first in an ongoing symposium on “Should We Break Up Big Tech?” that will feature analysis and opinion from various perspectives.]

[This post is authored by Randal C. Picker, James Parker Hall Distinguished Service Professor of Law at The University of Chicago Law School]

The European Commission just announced that it is investigating Amazon. The Commission’s concern is that Amazon is simultaneously acting as a ref and player: Amazon sells goods directly as a first party but also operates a platform on which it hosts goods sold by third parties (resellers) and those goods sometimes compete. And, next step, Amazon is said to choose which markets to enter as a private-label seller at least in part by utilizing information it gleans from the third-party sales it hosts.

Assuming there is a problem …

Were Amazon’s activities thought to be a problem, the natural remedies, whether through antitrust or more direct sector, industry-specific regulation, might be to bar Amazon from both being a direct seller and a platform. India has already passed a statute that effectuates some of those results, though it seems targeted at non-domestic companies.

A broad regulation that barred Amazon from being simultaneously a seller of first-party inventory and of third-party inventory presumably would lead to a dissolution of the company into separate companies in each of those businesses. A different remedy—a classic that goes back at least as far in the United States as the 1887 Commerce Act—would be to impose some sort of nondiscrimination obligation on Amazon and perhaps to couple that with some sort of business-line restriction—a quarantine—that would bar Amazon from entering markets though private labels.

But is there a problem?

Private labels have been around a long time and large retailers have faced buy-vs.-build decisions along the way. Large, sophisticated retailers like A&P in a different era and Walmart and Costco today, just to choose two examples, are constantly rebalancing their inventory between that which they buy from third parties and that which they produce for themselves. As I discuss below, being a platform matters for the buy-vs.-build decision, but it is far from clear that being both a store and a platform simultaneously matters importantly for how we should look at these issues.

Of course, when Amazon opened for business in July 1995 it didn’t quite face these issues immediately. Amazon sold books—it billed itself as “Earth’s Biggest Bookstore”—but there is no private label possibility for books, no effort to substitute into just selling say “The Wit and Wisdom of Jeff Bezos.” You could of course build an ebooks platform—call that a Kindle—but that would be a decade or so down the road. But as Amazon expanded into more pedestrian goods, it would, like other retailers, naturally make decisions about which inventory to source internally and which to buy from third parties.

In September 1999, Amazon opened up what was being described as an online mall. Amazon called it zShops and the idea was clear: many customers came to Amazon to buy things that Amazon wasn’t offering and Amazon would bring that audience and a variety of transaction services to third parties. Third parties would in turn pay Amazon a monthly fee and a variety of transaction fees. Amazon CEO Jeff Bezos noted (as reported in The Wall Street Journal) that those prices had been set in a way to make Amazon generally “neutral” in choosing whether to enter a market through first-party inventory or through third-party inventory.

Note that a traditional retailer and the original Amazon faced a natural question which was which goods to carry in inventory? When Amazon opened its platform, Amazon changed powerfully the question of which goods to stock. Even a Walmart Supercenter has limited physical shelf space and has to take something off of the shelves to stock a new product. By becoming a platform, Amazon largely outsourced the product selection and shelf space allocation question to third parties. The new Amazon resellers would get access to Amazon’s substantial customer base—its audience—and to a variety of transactional services that Amazon would provide them.

An online retailer has some real informational advantages over physical stores, as the online retailer sees every product that customers search for. It is much harder, though not impossible, for a physical store to capture that information. But as Amazon became a platform it would no longer just observe search queries for goods but it would see actual sales by the resellers. And a physical store isn’t a platform in the way that Amazon is as the physical store is constrained by limited shelf space. But the real target here is the marginal information Amazon gets from third-party sales relative to what it would see from product searches at Amazon, its own first-party sales and from clicks on the growing amount of advertising it sells on its website.

All of that might matter for running product and inventory experiments and the corresponding pace of learning what goods customers want at what price. A physical store has to remove some item from its shelves to experiment with a new item and has to buy the item to stock it, though how much of a risk it is taking there will depend on whether the retailer can return unsold goods to the inventory supplier. A platform retailer like Amazon doesn’t have to make those tradeoffs and an online mall could offer almost an infinite inventory of items. A store or product ready for every possible search.

A possible strategy

All of this suggests a possible business strategy for a platform: let third parties run inventory experiments where the platform gets to see the results. Products that don’t sell are failed experiments and the platform doesn’t enter those markets. But when a third-party sells a product in real numbers, start selling that product as first-party inventory. Amazon then would face buy vs. build on that and that should make clear that the private brands question is distinct from the question of whether Amazon can leverage third-party reseller information to their detriment. It can certainly do just that by buying competing goods from a wholesaler and stocking that item as first-party Amazon inventory.

If Amazon is playing this strategy, it seems to be playing it slowly and poorly. Amazon CEO Jeff Bezos includes a letter each year to open Amazon’s annual report to shareholders. In the 2018 letter, Bezos opened by noting that “[s]omething strange and remarkable has happened over the last 20 years.” What was that? In 1999, the relevant number was 3%; five years later, in 2004, it was 25%, then 31% in 2009, 49% in 2014 and 58% in 2018. These were the percentage of physical gross merchandise sales by third-party sellers through Amazon. In 1993, 97% of Amazon’s sales were of its own first-party inventory but the percentage of third-party sales had steadily risen over 20 years and over the last four years of that period, third-party inventory sales exceeded Amazon’s own internal sales. As Bezos noted, Amazon’s first-party sales had grown dramatically—a 25% annual compound growth rate over that period—but in 2018, total third-party sales revenues were $160 billion while Amazon’s own first-party sales were at $117 billion. Bezos had a perspective on all of that—“Third-party sellers are kicking our first party butt. Badly.”—but if you believed the original vision behind creating the Amazon platform, Amazon should be indifferent between first-party sales and third-party sales, as long as all of that happens at Amazon.

This isn’t new

Given all of that, it isn’t crystal clear to me why Amazon gets as much attention as it does. The heart of this dynamic isn’t new. Sears started its catalogue business in 1888 and then started using the Craftsman and Kenmore brands as in-house brands in 1927. Sears was acquiring inventory from third parties and obviously knew exactly which ones were selling well and presumably made decisions about which markets to enter and which to stay out of based on that information. Walmart, the nation’s largest retailer, has a number of well-known private brands and firms negotiating with Walmart know full well that Walmart can enter their markets, subject of course to otherwise applicable restraints on entry such as intellectual property laws.

As suggested above, I think that is possible to tease out advantages that a platform has regarding inventory experimentation. It can outsource some of those costs to third parties, though sophisticated third parties should understand where they can and cannot have a sustainable advantage given Amazon’s ability to move to build-or-bought first-party inventory. We have entire bodies of law— copyright, patent, trademark and more—that limit the ability of competitors to appropriate works, inventions and symbols. Those legal systems draw very carefully considered lines regarding permitted and forbidden uses. And antitrust law generally favors entry into markets and doesn’t look to create barriers that block firms, large or small, from entering new markets.

In conclusion

There is a great deal more to say about a company as complex as Amazon, but two thoughts in closing. One story here is that Amazon has built a superior business model in combining first-party and third-party inventory sales and that is exactly the kind of business model innovation that we should applaud. Amazon has enjoyed remarkable growth but Walmart is still vastly larger than Amazon (ballpark numbers for 2018 are roughly $510 billion in net sales for Walmart vs. roughly $233 billion for Amazon – including all 3rd party sales, as well as Amazon Web Services). The second story is the remarkable growth of sales by resellers at Amazon.

If Amazon is creating private-label goods based on information it sees on its platform, nothing suggests that it is doing that particularly rapidly. And even if it is entering those markets, it still might do that were we to break up Amazon and separate the platform piece of Amazon (call it Amazon Platform) from the original first-party version of Amazon (say Amazon Classic) as traditional retailers have for a very, very long time been making buy-vs.-build decisions on their first-party inventory and using their internal information to make those decisions.

Zoom, one of Silicon Valley’s lesser-known unicorns, has just gone public. At the time of writing, its shares are trading at about $65.70, placing the company’s value at $16.84 billion. There are good reasons for this success. According to its Form S-1, Zoom’s revenue rose from about $60 million in 2017 to a projected $330 million in 2019, and the company has already surpassed break-even . This growth was notably fueled by a thriving community of users who collectively spend approximately 5 billion minutes per month in Zoom meetings.

To get to where it is today, Zoom had to compete against long-established firms with vast client bases and far deeper pockets. These include the likes of Microsoft, Cisco, and Google. Further complicating matters, the video communications market exhibits some prima facie traits that are typically associated with the existence of network effects. For instance, the value of Skype to one user depends – at least to some extent – on the number of other people that might be willing to use the network. In these settings, it is often said that positive feedback loops may cause the market to tip in favor of a single firm that is then left with an unassailable market position. Although Zoom still faces significant competitive challenges, it has nonetheless established a strong position in a market previously dominated by powerful incumbents who could theoretically count on network effects to stymie its growth.

Further complicating matters, Zoom chose to compete head-on with these incumbents. It did not create a new market or a highly differentiated product. Zoom’s Form S-1 is quite revealing. The company cites the quality of its product as its most important competitive strength. Similarly, when listing the main benefits of its platform, Zoom emphasizes that its software is “easy to use”, “easy to deploy and manage”, “reliable”, etc. In its own words, Zoom has thus gained a foothold by offering an existing service that works better than that of its competitors.

And yet, this is precisely the type of story that a literal reading of the network effects literature would suggest is impossible, or at least highly unlikely. For instance, the foundational papers on network effects often cite the example of the DVORAK keyboard (David, 1985; and Farrell & Saloner, 1985). These early scholars argued that, despite it being the superior standard, the DVORAK layout failed to gain traction because of the network effects protecting the QWERTY standard. In other words, consumers failed to adopt the superior DVORAK layout because they were unable to coordinate on their preferred option. It must be noted, however, that the conventional telling of this story was forcefully criticized by Liebowitz & Margolis in their classic 1995 article, The Fable of the Keys.

Despite Liebowitz & Margolis’ critique, the dominance of the underlying network effects story persists in many respects. And in that respect, the emergence of Zoom is something of a cautionary tale. As influential as it may be, the network effects literature has tended to overlook a number of factors that may mitigate, or even eliminate, the likelihood of problematic outcomes. Zoom is yet another illustration that policymakers should be careful when they make normative inferences from positive economics.

A Coasian perspective

It is now widely accepted that multi-homing and the absence of switching costs can significantly curtail the potentially undesirable outcomes that are sometimes associated with network effects. But other possibilities are often overlooked. For instance, almost none of the foundational network effects papers pay any notice to the application of the Coase theorem (though it has been well-recognized in the two-sided markets literature).

Take a purported market failure that is commonly associated with network effects: an installed base of users prevents the market from switching towards a new standard, even if it is superior (this is broadly referred to as “excess inertia,” while the opposite scenario is referred to as “excess momentum”). DVORAK’s failure is often cited as an example.

Astute readers will quickly recognize that this externality problem is not fundamentally different from those discussed in Ronald Coase’s masterpiece, “The Problem of Social Cost,” or Steven Cheung’s “The Fable of the Bees” (to which Liebowitz & Margolis paid homage in their article’s title). In the case at hand, there are at least two sets of externalities at play. First, early adopters of the new technology impose a negative externality on the old network’s installed base (by reducing its network effects), and a positive externality on other early adopters (by growing the new network). Conversely, installed base users impose a negative externality on early adopters and a positive externality on other remaining users.

Describing these situations (with a haughty confidence reminiscent of Paul Samuelson and Arthur Cecil Pigou), Joseph Farrell and Garth Saloner conclude that:

In general, he or she [i.e. the user exerting these externalities] does not appropriately take this into account.

Similarly, Michael Katz and Carl Shapiro assert that:

In terms of the Coase theorem, it is very difficult to design a contract where, say, the (potential) future users of HDTV agree to subsidize today’s buyers of television sets to stop buying NTSC sets and start buying HDTV sets, thereby stimulating the supply of HDTV programming.

And yet it is far from clear that consumers and firms can never come up with solutions that mitigate these problems. As Daniel Spulber has suggested, referral programs offer a case in point. These programs usually allow early adopters to receive rewards in exchange for bringing new users to a network. One salient feature of these programs is that they do not simply charge a lower price to early adopters; instead, in order to obtain a referral fee, there must be some agreement between the early adopter and the user who is referred to the platform. This leaves ample room for the reallocation of rewards. Users might, for instance, choose to split the referral fee. Alternatively, the early adopter might invest time to familiarize the switching user with the new platform, hoping to earn money when the user jumps ship. Both of these arrangements may reduce switching costs and mitigate externalities.

Danial Spulber also argues that users may coordinate spontaneously. For instance, social groups often decide upon the medium they will use to communicate. Families might choose to stay on the same mobile phone network. And larger groups (such as an incoming class of students) may agree upon a social network to share necessary information, etc. In these contexts, there is at least some room to pressure peers into adopting a new platform.

Finally, firms and other forms of governance may also play a significant role. For instance, employees are routinely required to use a series of networked goods. Common examples include office suites, email clients, social media platforms (such as Slack), or video communications applications (Zoom, Skype, Google Hangouts, etc.). In doing so, firms presumably act as islands of top-down decision-making and impose those products that maximize the collective preferences of employers and employees. Similarly, a single firm choosing to join a network (notably by adopting a standard) may generate enough momentum for a network to gain critical mass. Apple’s decisions to adopt USB-C connectors on its laptops and to ditch headphone jacks on its iPhones both spring to mind. Likewise, it has been suggested that distributed ledger technology and initial coin offerings may facilitate the creation of new networks. The intuition is that so-called “utility tokens” may incentivize early adopters to join a platform, despite initially weak network effects, because they expect these tokens to increase in value as the network expands.

A combination of these arrangements might explain how Zoom managed to grow so rapidly, despite the presence of powerful incumbents. In its own words:

Our rapid adoption is driven by a virtuous cycle of positive user experiences. Individuals typically begin using our platform when a colleague or associate invites them to a Zoom meeting. When attendees experience our platform and realize the benefits, they often become paying customers to unlock additional functionality.

All of this is not to say that network effects will always be internalized through private arrangements, but rather that it is equally wrong to assume that transaction costs systematically prevent efficient coordination among users.

Misguided regulatory responses

Over the past couple of months, several antitrust authorities around the globe have released reports concerning competition in digital markets (UK, EU, Australia), or held hearings on this topic (US). A recurring theme throughout their published reports is that network effects almost inevitably weaken competition in digital markets.

For instance, the report commissioned by the European Commission mentions that:

Because of very strong network externalities (especially in multi-sided platforms), incumbency advantage is important and strict scrutiny is appropriate. We believe that any practice aimed at protecting the investment of a dominant platform should be minimal and well targeted.

The Australian Competition & Consumer Commission concludes that:

There are considerable barriers to entry and expansion for search platforms and social media platforms that reinforce and entrench Google and Facebook’s market power. These include barriers arising from same-side and cross-side network effects, branding, consumer inertia and switching costs, economies of scale and sunk costs.

Finally, a panel of experts in the United Kingdom found that:

Today, network effects and returns to scale of data appear to be even more entrenched and the market seems to have stabilised quickly compared to the much larger degree of churn in the early days of the World Wide Web.

To address these issues, these reports suggest far-reaching policy changes. These include shifting the burden of proof in competition cases from authorities to defendants, establishing specialized units to oversee digital markets, and imposing special obligations upon digital platforms.

The story of Zoom’s emergence and the important insights that can be derived from the Coase theorem both suggest that these fears may be somewhat overblown.

Rivals do indeed find ways to overthrow entrenched incumbents with some regularity, even when these incumbents are shielded by network effects. Of course, critics may retort that this is not enough, that competition may sometimes arrive too late (excess inertia, i.e., “ a socially excessive reluctance to switch to a superior new standard”) or too fast (excess momentum, i.e., “the inefficient adoption of a new technology”), and that the problem is not just one of network effects, but also one of economies of scale, information asymmetry, etc. But this comes dangerously close to the Nirvana fallacy. To begin, it assumes that regulators are able to reliably navigate markets toward these optimal outcomes — which is questionable, at best. Moreover, the regulatory cost of imposing perfect competition in every digital market (even if it were possible) may well outweigh the benefits that this achieves. Mandating far-reaching policy changes in order to address sporadic and heterogeneous problems is thus unlikely to be the best solution.

Instead, the optimal policy notably depends on whether, in a given case, users and firms can coordinate their decisions without intervention in order to avoid problematic outcomes. A case-by-case approach thus seems by far the best solution.

And competition authorities need look no further than their own decisional practice. The European Commission’s decision in the Facebook/Whatsapp merger offers a good example (this was before Margrethe Vestager’s appointment at DG Competition). In its decision, the Commission concluded that the fast-moving nature of the social network industry, widespread multi-homing, and the fact that neither Facebook nor Whatsapp controlled any essential infrastructure, prevented network effects from acting as a barrier to entry. Regardless of its ultimate position, this seems like a vastly superior approach to competition issues in digital markets. The Commission adopted a similar reasoning in the Microsoft/Skype merger. Unfortunately, the Commission seems to have departed from this measured attitude in more recent decisions. In the Google Search case, for example, the Commission assumes that the mere existence of network effects necessarily increases barriers to entry:

The existence of positive feedback effects on both sides of the two-sided platform formed by general search services and online search advertising creates an additional barrier to entry.

A better way forward

Although the positive economics of network effects are generally correct and most definitely useful, some of the normative implications that have been derived from them are deeply flawed. Too often, policymakers and commentators conclude that these potential externalities inevitably lead to stagnant markets where competition is unable to flourish. But this does not have to be the case. The emergence of Zoom shows that superior products may prosper despite the presence of strong incumbents and network effects.

Basing antitrust policies on sweeping presumptions about digital competition – such as the idea that network effects are rampant or the suggestion that online platforms necessarily imply “extreme returns to scale” – is thus likely to do more harm than good. Instead, Antitrust authorities should take a leaf out of Ronald Coase’s book, and avoid blackboard economics in favor of a more granular approach.

Our TOTM colleague Dan Crane has written a few posts here over the past year or so about attempts by the automobile dealers lobby (and General Motors itself) to restrict the ability of Tesla Motors to sell its vehicles directly to consumers (see here, here and here). Following New Jersey’s adoption of an anti-Tesla direct distribution ban, more than 70 lawyers and economists–including yours truly and several here at TOTM–submitted an open letter to Gov. Chris Christie explaining why the ban is bad policy.

Now it seems my own state of Missouri is getting caught up in the auto dealers’ ploy to thwart pro-consumer innovation and competition. Legislation (HB1124) that was intended to simply update statutes governing the definition, licensing and use of off-road and utility vehicles got co-opted at the last minute in the state Senate. Language was inserted to redefine the term “franchisor” to include any automobile manufacturer, regardless whether they have any franchise agreements–in direct contradiction to the definition used throughout the rest of the surrounding statues. The bill defines a “franchisor” as:

“any manufacturer of new motor vehicles which establishes any business location or facility within the state of Missouri, when such facilities are used by the manufacturer to inform, entice, or otherwise market to potential customers, or where customer orders for the manufacturer’s new motor vehicles are placed, received, or processed, whether or not any sales of such vehicles are finally consummated, and whether or not any such vehicles are actually delivered to the retail customer, at such business location or facility.”

In other words, it defines a franchisor as a company that chooses to open it’s own facility and not franchise. The bill then goes on to define any facility or business location meeting the above criteria as a “new motor vehicle dealership,” even though no sales or even distribution may actually take place there. Since “franchisors” are already forbidden from owning a “new motor vehicle dealership” in Missouri (a dubious restriction in itself), these perverted definitions effectively ban a company like Tesla from selling directly to consumers.

The bill still needs to go back to the Missouri House of Representatives, where it started out as addressing “laws regarding ‘all-terrain vehicles,’ ‘recreational off-highway vehicles,’ and ‘utility vehicles’.”

This is classic rent-seeking regulation at its finest, using contrived and contorted legislation–not to mention last-minute, underhanded legislative tactics–to prevent competition and innovation that, as General Motors itself pointed out, is based on a more economically efficient model of distribution that benefits consumers. Hopefully the State House…or the Governor…won’t be asleep at the wheel as this legislation speeds through the final days of the session.