This Note examines whether public cloud infrastructure-as-a-service (IaaS) has a market structure that incentivizes a small number of cloud providers to engage in anticompetitive conduct to the detriment of competitors, competition, and ultimately consumers. As cloud IaaS becomes the dominant model for configuring and delivering computing resources in our increasingly cloud-based economy, the U.S. IaaS market is consolidating around a small number of players. These dominant players—Amazon, Microsoft and Google—also have a significant presence in downstream markets, which creates strong incentives for these providers to leverage their IaaS market power to distort competition in the diverse markets that depend on access to IaaS. While there is the potential for IaaS providers to act anticompetitively, the larger challenge is a structural one—ineffective competition, which results in a market structure that incentivizes anticompetitive conduct. Given the increasingly vital role cloud IaaS plays in our economy, as well as in our connected lives, important questions emerge as to whether national regulators should take steps to ensure consumers and competition are protected in the emerging cloud-based economy. This Note gives an overview of the IaaS market and examines whether the cost structure of the market has facilitated, and will continue to facilitate, the dominance of a small number of IaaS providers. It goes on to explore how consolidated control over IaaS incentivizes conduct that is potentially harmful to consumers and competitors in varied other markets that depend on access to IaaS. This Note finally explores possible industry and regulatory solutions for ensuring consumers and competition are protected in the emerging cloud-based economy.
Cloud Infrastructure-as-a-Service as an Essential Facility: Market Structure, Competition, and the Need for Industry and Regulatory Solutons,
34 Berkeley Tech. L.J. 119