Alex Casey (Harvard U Harvard Law) has posted “Generative AI’s Duty to Deal Dilemma” on SSRN. Here is the abstract:
Competition in markets surrounding the development of Generative AI products is currently high across various vertically interconnected markets. However, some scholars project that these markets might be trending towards worrisome concentration and bottlenecks which harm valuable innovation investment incentives. This paper contends that the Supreme Court’s unilateral duty to deal doctrine is perhaps the best answer to any anticompetitive concerns that may arise, provided it is properly construed and readily enforced.The paper addresses common criticisms of duty to deal doctrine, both in general and in generative AI markets specifically. It is argued that investment incentives and ex post efficiencies can be preserved, all without compromising on the goal of disruptive, dynamic innovation at the frontier of AI technological research. Moreover, administrability concerns with the doctrine are perhaps overestimated and tolerable, particularly given the lack of promising alternatives. Finally, the paper moves to demonstrate how the antitrust refusal to deal doctrine can and should be used to resolve hypothetical, but realistic, market strategies which could be adopted by current AI market frontrunners in the near future. The paper then proposes specific applications of the doctrine in the projected long-term scenario where a large portion of these vertically related AI markets become encapsulated within ecosystems controlled by one or two firms. In that grave scenario, the proposals highlights how application of duty to deal doctrine can offer a means to work towards an open access, open competition, and open-source landscape which better promotes consumer welfare through continued innovation.