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A Better Way to Go After Big Tech

You’d expect conservatives to approach reining in Big Tech consistent with free enterprise, property rights and innovation principles.

Yet, what a surprising number on the Right supports is inconsistent with free enterprise, assaults property rights and quashes innovators who could become Big Tech’s competitors. Those conservatives are helping to weaponize antitrust in destructive ways serving the Left’s agenda while weakening intellectual property rights, most notably of patents.

Antitrust is intended to foster fair competition. But it doesn’t displace IP rights of exclusivity.

The foundation of the New Madison Approach, regarding antitrust when it intersects with IP rights and now threatened by the Biden administration, respects the exercise of common, exclusive patent rights. An inventor whose invention is patent-eligible, whose patent is reliable and fully enforceable against infringers, stands a fighting chance with established firms. This is the formula for dynamic (as opposed to static) competition.

Secure, reliable patents give little guys a shot at attracting investment, commercializing their inventions and holding big infringers accountable. Secure private property rights in one’s patents and inventions aligns with free enterprise, property rights and innovation principles.

Rep. Thomas Massie described this better approach for bringing competitors to Big Tech in a statement when the House Judiciary Committee moved a wolf-in-sheep’s-clothing antitrust report. He knows what he’s talking about. Rep. Massie has 30 patents and successfully commercialized his inventions.

Weaponizing Antitrust

As for the Left's antitrust agenda that some conservatives back, consider some examples.

First, S. 2992, the American Innovation and Choice Online Act, makes it illegal to market one’s own products and sales items more prominently on one’s own platform, so-called “preferencing.” The Senate Judiciary Committee voted 16-6 to report out the bill, even though the committee never held any hearings on it. But 14 senators voiced concerns or opposition, including a GOP cosponsor who voted against the problem-plagued antitrust weapon.

Second, GOP-sponsored legislation to lower drug prices wields an antitrust hammer against core intellectual property rights. S. 1435 treats improvements to inventions typical in other technologies as a crime in biopharma.

Going after bad actors who block generic competition by very modestly changing their existing products is one thing. But overbroad definition of “follow-on product” in S. 1435 and H.R. 2873 extends well beyond minuscule modifications. It encompasses significant improvements, such as changes to treat new diseases and changes the FDA classifies as new treatments.

Signs of Hope

There are signs of hope. In June, House Judiciary Committee markup of six antitrust bills showed near-uniform GOP opposition to the four most controversial ones, including H.R. 3816, companion to S. 2992. Sixteen of 19 Republicans voted against H.R. 3816. This included full committee Ranking Member Jim Jordan. This bill squeaked by on a 24-20 vote.

Similar opposition emerged to weaponized antitrust in H.R. 3825, H.R. 3826 and H.R. 3849. H.R. 3825, forcing divestiture of mergers and acquisitions, barely passed 21-20, with 16 GOP “no” votes. H.R. 3826, the Platform Competition and Opportunity Act, passed on a mere 23-18 vote with 15 Republicans opposing. H.R. 3849, dealing with interoperability and data portability, passed 25-19, counting 16 GOP noes. And 16 Republicans opposed H.R. 2873, the antitrust hammer to the biopharma innovation nail, reported out 27-16.

Also, top conservative experts are articulating problems with the direction of antitrust legislation. For example, former FTC official now at the Mercatus Center Alden Abbott regards S. 2992 as regulation rather than antitrust. That’s because antitrust involves promoting competition, while regulation involves government using red tape to hamper targeted businesses.

Former FTC commissioner Joshua Wright, who’s exposed Leftists’ real aim of wrecking the beneficial consumer welfare standard, tweeted, “It would be a particularly odd time for [Republicans] to support a bill (AICOA) that: (1) supercharges an FTC that has made clear it is targeting all commerce (not just tech) while deploying voting shenanigans to strip power from Rs; and (2) circumvents the consumer welfare standard.”

And the House Energy & Commerce Committee recently held a hearing focused on Section 230 reform. This would curb Big Tech’s carte blanche liability shield. Section 230 enables the firms’ escaping accountability when they “cancel” or censor viewpoints that don’t align with their “woke” ideology. Viewpoint discrimination is most people’s main concern.

Maybe we can come out of this with revived commitment to free enterprise, property rights and innovation principles — without destroying the consumer welfare standard in antitrust.

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