The Essential Facilities Doctrine in Information Economies: Illustrating Why the Antitrust Duty to Deal is Still Necessary in the New Economy

INTRODUCTION The modern economy involves far more commerce centered around the exchange of information than it did twenty years ago. 1 Information is any collection of concepts or details about the operation of the world around us, and can help us to understand what we do, how we can do those things more efficiently, and lead us to discovering new possibilities. The growth in the rate of exchange of information over twenty years, and its utility for commerce, has been spurred by innovations in electronic communications and analysis, and in turn has spurred additional technological innovations. At times, information is the good placed into commerce, 2 while at other times goods and services are offered so as to make use of information. 3 The degree of competitiveness within different information-related markets differs widely--there are many manufacturers of smart phones, but relatively few social networks with large usership such as Facebook, Twitter, LinkedIn, Pinterest, and Google Plus. 4 What distinguishes competition in a market infused with informational elements as opposed to physical goods, or services? Can information be controlled, even monopolized, by a single firm? In that same strain, when is information so unique, complex, or otherwise distinct that a potential competitor in its use cannot feasibly replicate it from another source or by independent effort? Assuming that information is not readily substitutable, and that such information is monopolized by a firm, can the information be called an essential facility or resource for competition in a marketplace ...