CFJ Op-Ed: Europe Cannot Build Tech Champions by Redistributing Their Trophies
- Jeffrey Depp
- Jul 28
- 3 min read
In a new piece published by IPWatchdog, CFJ Senior Counsel Jeffrey Depp examines the European Commission’s latest effort to transform successful American technology platforms into regulated public utilities.
The article, “The Trophy-Sharing Cartel: How Europe’s Digital Markets Act Turns Google’s IP into a Public Utility,” critiques the Commission’s July 16 binding specification measures against Google. One measure requires Google to provide rival search engines—including AI chatbots with search functions—access to valuable ranking, query, click, and view data. Another requires “free and effective” interoperability with 11 categories of Android functionality, including device sensors, app and operating-system controls, on-device AI models, and background execution.
From Competition Enforcement to Compelled Sharing
These mandates go well beyond conventional competition enforcement directed at proven unlawful conduct. As Depp explains, the Commission imposed binding obligations governing access, pricing, documentation, technical assistance, and even future Android functionality without first finding that Google had violated the Digital Markets Act.
The result is a profound change in the legal baseline. Rather than beginning with the principle that owners control the products of their labor and investment, the Commission treats sufficiently valuable private assets as infrastructure that regulators may open to competitors.
Google’s search data and integrated Android architecture did not arise as naturally occurring public resources. They were created through years of investment in software, computing infrastructure, cybersecurity, experimentation, product design, and ongoing maintenance. Compelling access to those assets diminishes an essential element of ownership: the right to exclude others and decide whether, when, and on what terms an asset will be licensed.
As the article puts it:
“A principled defense of IP cannot depend on whether one admires Google. Property rules worthy of the name are neutral.”
Applied Austrian Economics in Practice
The article is part of Depp’s developing body of work in applied Austrian economics—using the principles of property rights, entrepreneurial discovery, dynamic competition, dispersed knowledge, and government decision-making to analyze current disputes involving intellectual property, antitrust, artificial intelligence, and innovation policy.
Viewed through that framework, the Commission’s measures embody the knowledge problem identified by Friedrich Hayek. Regulators can mandate access to Android features, but they cannot fully know how those requirements will affect security, privacy, system performance, product development, or future architectural choices. Those tradeoffs ordinarily emerge through engineering experimentation, competing business models, and consumer choice—not administrative commands.
The same problem appears in the Commission’s pricing rules. Google may generally recover the incremental cost of preparing and transmitting search data, but not the larger investments that created the underlying asset. That approach may compensate Google for delivering the data while denying it compensation for producing the system that made the data valuable.
Such rules focus on the immediate, visible benefits received by competitors while overlooking the less visible, long-term costs: investments not made, datasets not assembled, features not introduced, and new technologies designed defensively to minimize what regulators may later compel their creators to share.
Property Rights Require the Rule of Law
The article also raises an important institutional concern. The U.S. Constitution does not govern the European Commission, and the Commission’s decisions remain subject to review in European courts. Nevertheless, the American constitutional tradition offers an instructive contrast.
Government intervention in private rights should be adjudicated, bounded, and separated from prosecution. Under the DMA, however, the Commission investigates the market, specifies the obligations, determines the acceptable terms of access, and oversees implementation. It acts simultaneously as regulator, product manager, licensing authority, and rate setter—without first proving unlawful conduct before an independent tribunal.
That concentration of power threatens to turn intellectual property from a private right into a regulatory entitlement whose scope depends on administrative discretion.
Europe cannot create technology champions by requiring successful innovators to redistribute their trophies. It can only teach entrepreneurs that extraordinary success may cause their most valuable assets to be reassigned for the benefit of their competitors.
