Regulation of the Market for Standard Software: Waving Goodbye to 'Efficiency'?

The market for standard software shows an inexorable tendency towards concentration. Whereas such a development might be considered efficient due to the market's nature as a natural monopoly, it could also require stronger regulation, similar to other concentrated industries. This paper analyzes to what extent the existing legal frameworks under U.S. and European intellectual property and antitrust law mitigate pro-concentration effects. It characterizes the standard software market as an industry in need of regulation and reconsiders the current efficiency-focused approach in favor of measures that strengthen competition as a source of rivalry. Rather than considering efficiency arguments as "all-or-nothing" justification for otherwise anti-competitive conduct, as under the Chicago School concept, the concept proposed in this paper considers the "efficiency" criterion to merely limit the remedies imposed by adjudicators.