University of Notre Dame

Tying Law for the Digital Age

April 15, 2024

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Tying Law for the Digital Age

David A. Crane*

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies.  Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck.  A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding.  That is only part of the story.  Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement.  In its origins during the industrial age, tying meant the leverage of patent rights over one good to impose requirements contracts forcing the purchase of a second, unpatented good.  That paradigm no longer describes the vast majority of tying arrangements challenged under the antitrust laws.  Instead, digital-age tying claims tend to involve product design decisions, the integration of technologies, the bundling of components, considerations of product functionality and performance, and the economic terms on which companies can obtain a return on their research and development investments.  Correcting the mess in tying law requires not only updating economic learning, but also appreciating the patterns of behavior to which tying standards are applied.

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© 2024 Daniel A. Crane.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Richard W. Pogue Professor of Law, University of Michigan.  The author has represented various companies in tying cases, including some discussed in this Article.  The views expressed in this Article are solely those of the author, and should not be attributed to any other person or entity.