Scooping out Breyer

“I only have 42 years of teaching antitrust.” Those were the words of Supreme Court Justice Stephen Breyer during oral arguments in 2018. Breyer’s widely reported retirement is a win for the Biden administration, which can install a younger justice to the court’s dwindling liberal minority, but it means the court’s losing one of its foremost antitrust wonks just as the tech competition fights heat up.

Breyer has a very important role in tech, even though it might seem a bit odd, considering he’s the court’s oldest member, at age 83. But it all goes back to that antitrust background.

• Breyer, a California native and Stanford alum, worked for the Justice Department’s antitrust section in the 1960s, and much of his teaching, writing and consulting took on the subject.
• The ’60s, by the way, weren’t just a time of groovy music: Antitrust “hipsters” like FTC Chair Lina Khan now look to the era as a golden age of competition enforcement, before conservative jurist Robert Bork’s focus on mergers and monopolies that raise consumer prices without other benefit took over the field.
• Khan and others say that fixation is particularly ill suited when dealing with huge companies like Meta and Google, which cost users nothing but are both being sued by federal enforcers for alleged antitrust violations.

There’s another case that’s just as important as Meta and Google’s, which are years away from the Supreme Court, if they ever get there. Breyer’s quips about his academic pursuits were clearly visible in Ohio v. American Express.

• In the lawsuit, state attorneys general wanted to knock down the credit card company’s agreements, which force merchants to keep mum about the fact that they pay higher fees when customers use AmEx.
• AmEx won the case in a decision from the High Court’s conservative wing that said the credit card company ran a “two-sided transaction platform” uniting cardholders and merchants at the moment of purchase, while the states had improperly looked only at the harm to the retailers.

If that sounds familiar, it should: Mobile app stores may well look a lot like these transaction platforms that Justice Clarence Thomas, writing for the majority, brought over from a corner of economic literature.

• If you squint, Google’s online ads operation does, too (although Thomas insisted his framework somehow didn’t apply to newspaper ad operations in a way that sure sounded like it was designed to keep Google, which Thomas seems to hate, on its toes).
• You don’t have to believe me: Apple cited the case all over its filings in the recent Epic Games v. Apple trial.

Breyer seemed grumpy about, well … all of this. He eventually wrote the dissenting opinion.

• “My problem is that I grew up in antitrust at a time when people didn't use phrases like ‘platforms’ and ‘two-sided markets,’” he said during arguments as he prepared to pivot to the law on regional dealers. “So I have to translate things into a language that I've been using for 40 years.”
• He also reminded his colleagues that there was a time when there were successful antitrust cases in which “you would not see price increases.”

His dissentsuggested something important: that the majority’s decision had just blown a Big Tech-sized hole in antitrust law, by failing to distinguish between credit cards and anyone else who has suppliers and customers at the same time, whether it was a farmers market or Amazon.

• “What about internet retailers, who, in addition to selling their own goods, allow (for a fee) other goods-producers to sell over their networks?” he wrote.

As if all that weren’t enough, Breyer also authored the landmark decision about the applicability of copyright law to APIs in a little case you might have heard of, called Google v. Oracle. In an interview last year, Breyer called the win for software developers and interoperability “one of the most important decisions I wrote” in 2021. A lot of Big Tech would likely agree.

— Ben Brody (email | twitter)

On the calendar

How tech is making sure shopping will never be the same

The future of shopping isn’t happening on Amazon.com, and it isn’t just happening in a Walmart or mom-and-pop shop near you. Join us at 9 a.m. PT on Feb. 1 as we explore how shopping works now, how the customer and seller experiences are changing and where there’s still room to innovate. RSVP here.

A MESSAGE FROM APPIAN

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People are talking

Tesla had a big 2021, but Elon Musk said don't expect splashy new stuff (or the Cybertruck) this year:

• “If we were to introduce new vehicles, our total vehicle output will decrease. We will not be introducing new vehicle models this year. It wouldn’t make sense."

Topics wasn’t the answer to Google’s ad targeting issue, Consumer Reports’ Justin Brookman said:

• “It just seems like rearranging deck chairs on the sinking ship of targeted ads.”

Brad Garlinghouse said Ripple is of course going to be combative with the SEC:

• “We're trying to get this resolved as expediently as we can. The SEC is dragging its feet.”

CISA’s Jen Easterly said the government is buckling down on cybersecurity:

• “As our adversaries continue to pursue innovative ways to breach our infrastructure, we must continue to fundamentally transform our approach to federal cybersecurity.”

Making moves

UBS is buying Wealthfront, a robo-adviser, for $1.4 billion.

Meta found a buyer for Diem. The company is reportedly selling its crypto assets to Silvergate Capital for $200 million.

YouTube banned Dan Bongino. The platform said he tried to dodge a previous suspension by uploading a video to his main channel while his other account was already suspended.

Chris Lehane is joining a crypto VC fund, according to Axios, but no word yet on which fund.

The Gates Foundation added four board members: Strive Masiyiwa, Baroness Nemat Shafik, Thomas J. Tierney and Mark Suzman.

Paul Robson and Elena Donio joined Benchling as field operations head and board member, respectively. Robson’s a former Adobe exec, and Donio was Axiom’s CEO.

Eric Null joined the Center for Democracy and Technology as its Privacy and Data Project director. Null recently led U.S. tech and digital rights policy at Access Now.

In other news

Spotify chose Joe Rogan. After Neil Young handed the platform an ultimatum to either take down his music or Joe Rogan’s content for his role in spreading misinformation, Spotify removed Young’s music.

How do you decorate your cubicle? Some people place flowers on the desk and hang up a picture of their family. But one person transformed his space into what looks like a log cabin.

Elon Musk would pay to get @ElonJet taken down on Twitter. That’s what he told Jack Sweeney, a 19-year-old who’s set up several flight-tracking bots for people like Musk. But Sweeney said he’ll need a little more cash than what Musk offered.

Amazon won’t pay for compliments anymore. The company reportedly stopped an ambassador program that paid warehouse workers to tweet about positive work experiences.

A passenger is suing Uber for $63 million. Will Good is alleging the company hired an employee with a dangerous driving history, who was behind the wheel during an accident last April that left Good paralyzed.

John Arrillaga Sr. died this week at age 84. Arrillaga helped build Silicon Valley into the maze of corporate campuses it’s known for today.

Google and AARP are helping older workers with their digital skills. They introduced a program that will teach people 50 and older skills ranging from videoconferencing to social media marketing.

Discord experienced an outage yesterday. The platform resolved the issue later in the afternoon.

What’s your favorite unusual home-office hack?

It’s too cold to head outside for a walk these days, but it’s also super hard to be cooped up in an office at home. So I’m trying out this new thing that I call “dance break alarms”: I set up three alarms throughout the day, and when they ring, a different song plays. One might be “22” by Taylor Swift, another might be some old Jonas Brothers song. Regardless, it gets me up and moving.

We want to know your favorite unusual home-office gadget or hack. We’re not talking about webcams or ring lights or Aeron chairs — we’re referring to the things no one would think of (or maybe not things, but something you do to get you through the work day). Respond to this email and let us know, and David Pierce will include our favorites in the Sunday edition of Source Code.

— Sarah Roach