Move Last and Take Things: Facebook and Predatory Copying Notes

Obear, Josh
Columbia Business Law Review

Facebook’s now decade-long dominance of the social media landscape stands in stark contrast with the industry’s early history of dynamism and disruption. The company played a key role in growing the social media industry from the small, niche communities of the early 2000s into the omnipresent societal force it is today. Capitalizing on this growth, Facebook pioneered a business model that now transforms the attention of billions of users into billions of dollars of advertising revenue. But for all of Facebook’s success, perhaps its greatest triumph has been in defending its golden goose from a swarm of competitors eager to claim a share of the profits. Countless challenges from Snapchat, Twitter, Google, and dozens of social network startups have all failed to break Facebook’s hold of the market.

This Note argues that Facebook has exploited its market dominance to exclude competitors in the social media market. Despite complaints from competitors and business commentators, Facebook has so far avoided serious antitrust inquiry. By examining Facebook’s history, its business model, and the structural incentives of the social media market, one can see how Facebook leverages its position toward anticompetitive ends. In
particular, this Note explores how Facebook copies the popular
apps andfeatures developed by its rivals in order to prevent those rivals from establishing a foothold in the social media market. This copycat strategy causes significant non-monetary consumer harms, such as product degradation and stifled innovation, currently neglected by antitrust doctrine. Facebook’s copying campaign highlights the need for courts to consider new frameworks and theories that help identify new forms of anticompetitive conduct.