The End of An â•œEras?â•š Antitrust Law and Policy Making a Drastic Change in Live Entertainment Ticketing?

The Business, Entrepreneurship & Tax Law Review The Business, Entrepreneurship & Tax Law Review

Volume 7 Issue 2 Article 8

2024

The End of An “Eras?” Antitrust Law and Policy Making a Drastic The End of An “Eras?” Antitrust Law and Policy Making a Drastic

Change in Live Entertainment Ticketing? Change in Live Entertainment Ticketing?

Tyler J. Miller

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The End of An “Eras?” Antitrust Law

and Policy Making a Drastic Change

in Live Entertainment Ticketing?

Tyler J. Miller

ABSTRACT

Disaster struck for many Taylor Swift fans as Ticketmaster’s system crashed,

causing turmoil amongst consumers searching for tickets to Swift’s Eras Tour. This

crash led to an outcry for change to create a better live entertainment industry. Con-

gress, courts, consumers, competitors, and legal scholars have responded by pro-

posing numerous potential solutions. Bipartisan and public perception have pointed

primarily in one direction: antitrust law and policy. In the wake of over 100 years

of antitrust legislation and jurisprudence, Live Nation Entertainment, Inc. has

sparked a call for the use of Title 15 of the United States Code to remedy problems

in the live entertainment industry. This article analyzes the situation under those

same antitrust principles, but posits that, while antitrust law may provide a long-

term solution, a short-term solution may promote the same policies with which an-

titrust law is concerned.

B.S. in Agricultural Education, University of Missouri – Columbia, 2021. J.D. Candidate, University

of Missouri School of Law, 2024. Associate Member, Business Entrepreneurship & Tax Law Review,

2022-2023. I would like to thank Professor Yunsieg Kim, Professor Lauren Shores-Pelikan, and Profes-

sor Thom Lambert for their comments and advice throughout the writing process.

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280 B.E.T.R. [Vol. 7 2023

I. THE “NIGHTMARE DRESSED LIKE A DAYDREAM”

–

INTRODUCTION

If you have purchased a ticket for a concert or major sporting event, you prob-

ably know Ticketmaster “All Too Well.”

In December 2022, Ticketmaster was set

to provide ticketing for one of the biggest tours of the 2023 calendar year, and po-

tentially the decade: Taylor Swift’s Eras Tour. The ticketing process for Eras began

with the Verified Fan platform, which Ticketmaster has used since 2017 to help

accommodate events with an abnormally large demand.

After the largest registra-

tion in “Verified Fan” history, the system was overwhelmed early in the week, but

it seemed as though things had stabilized.

That assumption was wrong. Ticketmas-

ter’s system became unable to handle the sheer demand for Swift’s tickets, leading

to a complete halt on the general sale that was supposed to happen later that same

week.

Ticketmaster points the finger to “bot attacks” and scalpers that contributed

to a peak in system requests that was four times the previous number.

Ticketmaster

additionally commented that, “Based on the volume of traffic to our site, Taylor

would need to perform over 900 stadium shows (almost 20x the number of shows

she is doing) [to meet demand]. That’s a stadium show every single night for the

next 2.5 years.”

Despite this, fans, government officials, and even Swift herself are

up in arms, demanding Ticketmaster make a change.

Following the incident, Swift spoke out, stating, “It’s really difficult for me to

trust an outside entity with these relationships and loyalties, and excruciating for

me to just watch mistakes happen with no recourse.”

Senator Richard Blumenthal

jumped in, tweeting, “Consumers deserve better than this anti-hero behavior.”

These comments have sparked public, bipartisan debate that begs two questions:

What recourse or action is available or necessary to benefit consumers, artists, and

the live entertainment industry following this incident? And what recourse or action

should be taken, if any, against Live Nation?

This article will analyze these questions through the lens by which many are

seeking recourse: antitrust law, litigation over Live Nation’s alleged monopolistic

practices, and restructuring of the live entertainment and ticketing industries.

. TAYLOR SWIFT, Blank Space, on 1989 (Big Machine Records 2014).

. TAYLOR SWIFT, All Too Well (Taylor’s Version), on RED (TAYLOR’S VERSION) (Republic Records

2021); TAYLOR SWIFT, All Too Well, on RED (Big Machine Records 2012).

The terms “Ticketmaster” and “Live Nation” are used interchangeably throughout much of this article

in reference to Live Nation Entertainment, Inc., apart from §III(a), infra. Additionally, the terms “Con-

sent Decree” and “Final Judgment” are used interchangeably throughout the entirety of this article in

reference to the Final Judgment of United States v. Ticketmaster Entm’t, Inc., No. 1:10-cv-00139, 2010

U.S. Dist. LEXIS 88626 (D.D.C. July 30, 2010) and the amended judgment of United States v. Ticket-

master Entm’t. Inc., No. 1:10-cv-00139-RMC, 2020 U.S. Dist. LEXIS 28931 (D.D.C. Jan. 28, 2020).

. Frank Pallota, Taylor Swift: Ticketmaster Fiasco ‘Excruciating for Me,’ CNN,

https://www.cnn.com/2022/11/18/media/taylor-swift-ticketmaster/index.html (last updated Nov. 18,

2022, 8:53 PM).

. Id.

. Sonia Rao & Perry Stein, Taylor Swift Blasts Ticketmaster for ‘Eras Tour’ Rollout, THE WASH.

POST (Nov. 18, 2022, 6:12 PM), https://www.washingtonpost.com/arts-entertainment/2022/11/18/tay-

lor-swift-ticketmaster-doj-investigation.

. Pallota, supra note 3.

. Id.

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No. 2] The End of An "Eras?" 281

Through this lens, however, this article posits further questions: is antitrust law the

proper lens to view this from, and if so, is antitrust law effective in creating a solu-

tion to this particular problem? Part II of this article explores the history of antitrust

law, its progression through the years, and its current state. Part III summarizes the

historical context of how Ticketmaster and Live Nation came to be, and how they

merged to become the largest live entertainment company in the world, Live Nation

Entertainment, Inc. Part IV briefly lays out why consumers and others have “Bad

Blood” towards Ticketmaster and Live Nation and describes why this single inci-

dent sparked such a major controversy. Part V analyzes the actions currently being

taken and the “proposed” solutions by consumers, Congress, the DOJ, and Live

Nation itself. Finally, Part VI concludes by asserting why, under the circumstances,

antitrust law may not provide an efficient short-term solution to the problem, and

why antitrust law may play more of a long-term role in this situation.

II. “LOOK WHAT YOU MADE ME DO”

– ANTITRUST HISTORY

A. The Early Years

In 1890, Congress passed legislation to prevent companies from restraining

trade or monopolizing, hoping to retain competition throughout the marketplace.

This legislation, known by many as the Sherman Antitrust Act (“The Sherman

Act”), contained two primary parts. First, § 1, as of today, provides:

Every contract, combination in the form of trust or otherwise, or conspir-

acy, in restraint of trade or commerce among the several States, or with

foreign nations, is hereby declared to be illegal. Every person who shall

make any contract or engage in any combination or conspiracy hereby de-

clared to be illegal shall be deemed guilty of a felony, and, on conviction

thereof, shall be punished by fine not exceeding $100,000,000 if a corpo-

ration, or, if any other person, $1,000,000, or by imprisonment not exceed-

ing 10 years, or by both said punishments, in the discretion of the court.

The current version of § 2 then states:

Every person who shall monopolize, or attempt to monopolize, or combine

or conspire with any other person or persons, to monopolize any part of

the trade or commerce among the several States, or with foreign nations,

shall be deemed guilty of a felony, and, on conviction thereof, shall be

punished by fine not exceeding $100,000,000 if a corporation, or, if any

other person, $1,000,000, or by imprisonment not exceeding 10 years, or

by both said punishments, in the discretion of the court.

. TAYLOR SWIFT, Look What you Made me do, on REPUTATION (Big Machine Records 2017).

. 15 U.S.C. §§ 1-2 (1890).

. 15 U.S.C. § 1.

. 15 U.S.C. § 2.

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There are a few significant changes between the Sherman Act as enacted in

1890 and today.

First, the punishment today is far higher than that of 1890.

Sec-

ond, a corporation can now be found guilty of violating the Sherman Act.

And

finally, being found guilty has now been increased to the level of a felony.

The

legislation, though relatively brief, poses major consequences for those who violate

it.

B. The Rule of Reason

John D. Rockefeller and his company, Standard Oil, began using vertical inte-

gration in the oil industry.

Vertical integration involves the acquisition of a busi-

ness that operates prior or subsequent in the supply chain to the buyer’s business.

Standard Oil also engaged in horizontal integration by buying other oil companies.

After vast expansion, Standard Oil controlled somewhere around 85% of the U.S.

oil industry.

That was, at least, until the Sherman Act put a halt on Rockefeller’s

rapidly growing oil empire.

In 1911, the Supreme Court affirmed a decree that Standard Oil Company had

violated the Sherman Act,

in that Standard Oil had purchased and obtained inter-

ests in various other companies for price fixing and restraining trade in the United

States.

Following the Supreme Court’s decision, Standard Oil was broken up into

smaller companies.

Standard Oil established, and cases would later elaborate, on the Rule of Rea-

son, the standard ruling that antitrust law uses to balance interests and decide the

case.

The Rule of Reason is a burden-shifting test that, put very simply, goes a

little bit like this:

Party asserting antitrust violation (“Plaintiff”): Defendant Company’s ac-

tions are monopolistic or unreasonably restrain trade.

Defendant Company (“Defendant”): Maybe so, but I have a pro-competi-

tive rational.

. 15 U.S.C. §§ 1-2 (1890).

. Id. (the dollar amount as initially enacted was a penalty not exceeding $5,000 or imprisonment of

1 year).

. Id. (only individuals could be found guilty under the statute as initially enacted).

. Id. at §2 (the statute as initially enacted made its violation a misdemeanor rather than a felony).

. Maria Kielmas, Stages of Vertical Integration in the US Oil Industry, CHRON, https://smallbusi-

ness.chron.com/stages-vertical-integration-oil-industry-58830.html (last visited Mar. 14, 2023).

. Barry Moltz, Vertical and Horizontal Integration for Expansion, AM. EXPRESS (Sept. 16, 2022),

https://www.americanexpress.com/en-us/business/trends-and-insights/articles/should-you-expand-

through-horizontal-and-vertical-integration.

. The New Tycoons: Andrew Carnegie, U.S. HIST. ONLINE TEXTBOOK, https://www.ushis-

tory.org/us/36c.asp (last visited Mar. 14, 2023).

. Kielmas, supra note 19.

. 15 U.S.C. §§ 1–122.

. Stand. Oil Co. of New Jersey v. United States, 221 U.S. 1, 32 (1911).

. Kielmas, supra note 19.

. See generally Ohio v. Am. Express Co., 138 S. Ct. 2274, 2284 (2018) (describing the burden-

shifting regime of the Rule of Reason).

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Plaintiff: Okay, but here’s another option that is both: (1) less restrictive

and (2) equally as effective to achieve your procompetitive rational.

In reality, the argument is a bit more elaborate, and the Supreme Court has said

that this way of approaching the Rule of Reason is not a “rote checklist” or an “in-

flexible substitute” for a careful, in-depth analysis. The Rule of Reason, as a general

matter, is still applied to Sherman Act disputes today.

Over the years, however,

Congress would determine that the Sherman Act alone could not stifle companies

from attempted anti-competitive schemes.

C. From Standard Oil to Today

A few short years after Standard Oil, Congress amended and expanded Title

15 of the United States Code beyond the Sherman Act, to what is now commonly

referred to as the Clayton Act.

The Clayton Act expanded antitrust law by charg-

ing the Federal Trade Commission (“FTC”) with preventing and eliminating three

additional unlawful acts: certain tying contracts, certain corporate mergers and ac-

quisitions, and interlocking directories.

Later amendments would also allow the

FTC to monitor discriminatory pricing and product promotion.

Section 7 ulti-

mately boils down to this: no person or entity can acquire a portion of any commer-

cial activity, including stock and assets, when the result or purpose of such acquisi-

tion is to lessen competition or create a monopoly.

In the same year, the FTC Act was passed.

In particular, § 5(a) of the FTC

Act “empowers the [FTC] to investigate and prevent unfair methods of competition,

and unfair or deceptive acts or practices affecting commerce.”

That empowerment

leads to two primary areas of protection: (1) consumers; and (2) competition.

For

antitrust purposes, it allows the FTC to enforce antitrust laws, make rules and guide-

lines, and recommend various legislative goals to Congress.

Early in the New Deal era, antitrust lawsuits were stalled by policies to reor-

ganize an ailing business economy.

The Supreme Court struck one of these major

policies down in 1935,

leading to the “court-packing” plan of the FDR era.

The

stalling of antitrust prosecutions, however, continued until Thurman W. Arnold was

appointed to the Department of Justice (“DOJ”).

Arnold quickly began to reverse

. See generally id. (this final “step” is commonly known as LRAs or Less Restrictive Alternatives).

. NCAA v. Alston, 141 S. Ct. 2141, 2160 (2021).

. 15 U.S.C. §§ 12-27.

. Clayton Act, 15 U.S.C. §§ 14, 18, and 19.

. Robinson-Patman Act, 15 U.S.C. §13.

. Id.

. 15 U.S.C. §§ 40–58.

. What the FTC Does, FTC, https://www.ftc.gov/news-events/media-resources/what-ftc-does (last

visited Mar. 14, 2023); 15 U.S.C. § 45(a).

. What the FTC Does, supra note 34; 15 U.S.C. § 45(a).

. What the FTC Does, supra note 34.

. Laura Phillips Sawyer, US Antitrust Law and Policy in Historical Perspective 13 (Harvard Bus.

Sch., Working Paper 19-110, 2019) (noting one of the primary policies in place was the National Indus-

trial Recovery Act of 1933).

. See A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935).

. Sawyer, supra note 37, at 13 (“FDR era” is in reference to the presidency of Franklin Delano

Roosevelt).

. Id. at 14.

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the early New Deal policies,

and looked to create a policy of administrative gov-

ernance.

This expansion of antitrust prosecution would continue to develop at the

administrative, legislative, and judicial level.

The Supreme Court decided in 1953 that even when the FTC has the authority

to develop policies, it still must answer to the Court’s interpretation of Congress’s

legislative enactments.

The Court in Automatic Canteen stated that, “Although

due consideration is to be accorded to administrative construction where alternative

interpretation is fairly open, it is our duty to reconcile such interpretation, except

where Congress has told us not to, with the broader antitrust policies [of competition

and consumer protection] that have been laid down by Congress.”

Even a lack of

action by the FTC is not viewed as a “binding [] interpretation” that a certain action

does or does not fall into the purview of the Clayton Act.

The executive, legislative, and judicial bodies would also unite in 1950 and

contribute to a change in the Clayton Act, culminating in Brown Shoe Co. v. United

States.

The FTC published a report with statistics on corporate mergers in 1948,

providing evidence that, if left unchecked, expansion and corporate merger could

leave the United States economy in serious danger.

In response, Congress

amended the Clayton Act in 1950.

Section 7 of the Clayton Act had previously

been analyzed by the Court under a “rule of reason” type standard.

That standard

under the amendment was inadequate, as Congress clearly intended to “plug the

loopholes” that existed in the Act as originally drafted.

The Supreme Court, in

response to the action by Congress, stated that, “the Clayton Act does not render

unlawful all such vertical arrangements, but forbids only those whose effect ‘may

be substantially to lessen competition, or to tend to create a monopoly’ ‘in any line

of commerce in any section of the country.’”

Shortly after the time of Brown Shoe Co., however, tension and criticism began

to mount.

Led by some of the best-known libertarian legal scholars, including

Robert Bork, Frank Easterbrook, and Richard Posner, academic works were pub-

lished about political freedom and economic freedom being inherently interlinked.

Taking a step toward this economic freedom, a pivotal case at this time was Conti-

nental T.V., Inc. v. GTE Sylvania, Inc.

In Continental T.V., the Supreme Court

upheld vertical restrictions under a theory that they could stimulate competition

. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940).

. Sawyer, supra note 37, at 14.

. Automatic Canteen Co. v. FTC, 346 U.S. 61, 74 (1953).

. Id.

. United States v. du Pont, 353 U.S. 586, 590 (1957).

. Brown Shoe Co. v. United States, 370 U.S. 294, 294 (1962).

. Id. at 315.

. Id. at 314–15. The first paragraph of Section 7 of the Clayton Act, today reads, “No person en-

gaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole

or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal

Trade Commission shall acquire the whole or any part of the assets of another person engaged also in

commerce or in any activity affecting commerce, where in any line of commerce or in any activity af-

fecting commerce in any section of the country, the effect of such acquisition may be substantially to

lessen competition, or to tend to create a monopoly.” 15 U.S.C. § 18.

. Brown Shoe Co., 370 U.S. at 317 n.30.

. Id. at 316.

. Id. at 324.

. Sawyer, supra note 37, at 18–19.

. Id. at 19.

. Cont’l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 58–59 (1977).

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between brands and ensure services by retailers.

A trend or “reform” began as the

Court was less strict in its enforcement of antimonopoly rules and conduct.

The trust for free markets under the “reform” era have in some part ceded to a

game theory and modeling analysis, searching mergers and vertical acquisitions for

“anticompetitive market effects.”

Examples of the 1990s and early 2000s, despite

their enforcement of antitrust law against companies acting in an anticompetitive

manner, did not provide a return of “aggressive” enforcement of the Sherman Act,

Clayton Act, and other antitrust policy.

One area has sparked some chatter amongst the antitrust legal field in recent

years: dominant companies in the digital ecosystem.

Large companies operating

primarily in a digital marketspace, such as Amazon, Disney, Microsoft, and, yes,

Ticketmaster, have faced antitrust lawsuits, or threats of DOJ, FTC, or federal court

action over the last 25 years.

One of the Supreme Court’s most recent antitrust decisions came not from the

digital market, but from collegiate athletics. The Court in 2021, decided NCAA v.

Alston.

Though Alston is a decision on college athletics under the Sherman Act, it

does provide a helpful view of how the current court will look at antitrust issues.

Writing for the Court, Justice Gorsuch states, “antitrust courts must give wide berth

to business judgments before finding liability.”

Similar considerations must exist

when determining remedies as well.

In addition, “Judges must be open to recon-

sideration and modification of decrees in light of changing market realities, for

‘what we see may vary over time.’”

Nearing the end of its analysis, Justice Gor-

such writes, “Courts reviewing complex business arrangements should, in other

words, be wary about invitations to ‘set sail on a sea of doubt.’”

Alston provides a small lens of what the Court may do in the face of another

antitrust matter: carefully review and consider business judgments in light of anti-

trust law, determining if the conduct has restricted trade, is monopolistic, or sub-

stantially lessens competition.

With that lens and history in mind, it is now time

to determine why Live Nation and Ticketmaster are sitting on the “hot seat” with

Congress, the DOJ, and consumers.

. Sawyer, supra not 37 at 19.

. Id. at 19–20.

. Id. at 22.

. Id. at 22–23; see Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451 (1992); United

States v. Microsoft Corp., 253 F.3d 34 (2001).

. Sawyer, supra note 37, at 25–26.

. Dana Mattioli and Brent Kendall, FTC Prepares Possible Antitrust Suit Against Amazon, THE

WALL ST. J. (Feb. 3, 2023, 10:30AM) https://www.wsj.com/articles/ftc-prepares-possible-antitrust-suit-

against-amazon-11675438256?mod=latest_headlines; United States v. Walt Disney Co., No. 18 Civ.

5800, 2019 U.S. Dist. LEXIS 178544, at *1 (S.D.N.Y. Sep. 23, 2019); Microsoft Corp., 253 F.3d at 44.

. NCAA v. Alston, 141 S. Ct. 2141, 2141 (2021).

. Id. at 2147.

. Id. at 2163.

. Id.

. Id. at 2166.

. 15 U.S.C. §§ 1–122.

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III. “DELICATE”

– THE MERGER

A. The Ticketmaster & Live Nation Saga

Ticketmaster began in 1976 with two college students out of Phoenix, Ari-

zona.

After ticketing its first concert in 1977, the company rapidly took off, sign-

ing the Superdome in New Orleans and the New Orleans (now Utah) Jazz profes-

sional basketball team in 1978.

Throughout the 1970s and 80s, Ticketmaster ex-

panded internationally, signing deals with other major venues, sports teams, and

musical talent.

In the 1990s, Ticketmaster acquired competitors, launched new

programs, and entered into joint ventures.

Ticketmaster’s popularity continued to

climb and it became a household name in the 2000s as it was ticketing many of the

major events, concerts, and shows throughout the world, including the Olympics.

After a series of acquisitions and a brief stint of ownership by InterActiveCorp,

Ticketmaster became a publicly traded company by the name of Ticketmaster En-

tertainment, Inc. in 2008.

Two short years later, Ticketmaster would merge with

Live Nation, one of the most newsworthy mergers in history.

Live Nation has a much shorter life than Ticketmaster. Started in 1996 as SFX

Entertainment, a series of sales and spin offs led to what we, before 2010, knew as

Live Nation.

Live Nation became extremely well known for its promotion of live

events, concerts, and festivals.

That popularity and notoriety continued, leading

Live Nation and Ticketmaster to create their entertainment empire.

B. The Merger, Consent Decree, and Beyond

On January 25, 2010, a new era of live entertainment began.

Live Nation En-

tertainment, Inc. was formed from the merger of Live Nation, Inc. and Ticketmaster

Entertainment, Inc.

However, the merger was more complex than a negotiation between Live Na-

tion and Ticketmaster followed up by a contract executed on January 25. Due to the

magnitude and possible antitrust implications in the merger, compliance with the

Antitrust Procedures and Penalties Act (“APPA”) was required.

This process

. TAYLOR SWIFT, Delicate, on REPUTATION (Big Machine Records 2017).

. Our History, TICKETMASTER, https://www.ticketmaster.com/about/our-his-

tory.html?tm_link=abouttm_history (last visited Mar. 14, 2023).

. Id.

. Id. (noting a few of the more significant events included the acquisition of Ticketron in 1991, the

launch of Ticketmaster.com in 1995, and the joint venture with Australia’s Seven Network).

. Id.

. Id.; see § III(b), infra.

. Live Nation, MUSIC BUS. WORLDWIDE, https://www.musicbusinessworldwide.com/compa-

nies/live-nation (last visited Mar. 14, 2023).

. Id.

. See § III(b), infra.

. David Segal, Calling Almost Everyone’s Tune, THE N.Y. TIMES (Apr. 24, 2010), https://www.ny-

times.com/2010/04/25/business/25ticket.html.

. Live Nation and Ticketmaster Entertainment Complete Merger, SEC (Jan. 25, 2010),

https://www.sec.gov/Archives/edgar/data/1335258/000119312510012287/dex991.htm.

. 15 U.S.C. § 16(b)-(h).

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includes filing a complaint, a proposed final judgment, a competition impact state-

ment,

and time for public comment.

Public comments are then reviewed, the

district court makes a public interest determination,

and if the court determines

that the consent judgment is in the public interest, it may enter a Final Judgment

without a hearing.

The United States, along with numerous states, filed an antitrust complaint on

January 25, 2010. The parties also filed a proposed judgment and a competition

impact statement, all in compliance with the APPA.

After the public comment

period ran, the District Court for the District of Columbia entered its Final Judgment

on July 30, 2010.

The Judgment had two primary portions. First, the Judgment

allowed Ticketmaster to merge with Live Nation.

Second, the Judgment prohib-

ited Live Nation from engaging in certain anticompetitive actions, including threat-

ening concert venues and retaliation against venues for the use of other ticketing

services.

The Judgment, commonly referred to as the Consent Decree, was to last

for ten years.

Live Nation allegedly violated the Consent Decree multiple times

over the course of the last ten years.

However, the FTC and DOJ did not act until

2019, when the final judgment was reopened.

The results of the reopening of the Final Judgment did not lead to penalty or

punishment. Instead, the Consent Decree was amended, modified, and extended.

The modifications included additional safeguards for venues wishing to ticket with

other providers, an appointed antitrust compliance officer employed within Live

Nation, and a hefty $1 million fine for any and every violation of the Final Judg-

ment.

This new Final Judgment is now in place through 2025.

IV. “THIS IS WHY WE CAN’T HAVE NICE THINGS”

– THE

TICKETMASTER PROBLEM

Before reaching the lawsuits, DOJ investigations, and Congressional action

there is an important question to be answered: why now? Why, after the consent

decrees, the extension, the alleged violations, and the finger pointing is now the

. 15 U.S.C. § 16(b)(1)-(6).

. 15 U.S.C. § 16(b)-(h).

. 15 U.S.C. § 16(e)-(f).

. Id.

. Complaint at 1, United States v. Ticketmaster Entm’t, Inc., (D.D.C. 2010) (No. 1:10-cv-00139),

2010 U.S. Dist. LEXIS 88626, at *1.

. United States v. Ticketmaster Entm’t, Inc., No. 1:10-cv-00139, 2010 U.S. Dist. LEXIS 88626

(D.D.C. July 30, 2010).

. Justice Department Will Move to Significantly Modify and Extend Consent Decree with Live Na-

tion/Ticketmaster, DOJ (Dec. 19, 2019), https://www.justice.gov/opa/pr/justice-department-will-move-

significantly-modify-and-extend-consent-decree-live.

. Id.

. Id. (the DOJ did not ultimately reopen the case until January 2020, but released a press release on

its intent in December 2019).

. United States v. Ticketmaster Entm’t. Inc., No. 1:10-cv-00139-RMC, 2020 U.S. Dist. LEXIS

28931 (D.D.C. Jan. 28, 2020).

. Id.

. TAYLOR SWIFT, This is Why We Can’t Have Nice Things, on REPUTATION (Big Machine Records

2017).

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time to act on Live Nation and Ticketmaster? Well, what if this was not the first

time Ticketmaster was on the hot seat?

A. The Prelude

In June 1994, Stone Gossard and Jeff Ament were sworn in at the House Gov-

ernment Operations subcommittee hearing.

It was just two months ago that Kurt

Cobain had committed suicide, and Pearl Jam had released their Vs. album a few

months earlier in October 1993.

Pearl Jam was leading the future of the music

industry: breaking the record for most albums sold in the first week and attending a

subcommittee hearing of the United States House of Representatives in shorts, but

not preparing to tour some of the nation’s biggest venues.

Pearl Jam wanted to cap

service fees at less than $2 a ticket, as compared to the usual $4-$8.

100

Guess who

was on the other side of this dispute: Ticketmaster, holding an estimated 90% of the

ticketing market share at the time.

101

So instead of a big stadium tour, Pearl Jam boycotted and was prompted by the

Department of Justice (“DOJ”) to file an antitrust complaint.

102

It appeared as

though the antitrust hammer of the Sherman and Clayton Acts would come down

on the ticketing juggernaut.

103

Instead, absolutely nothing came of it.

104

B. “Back to December”

105

[or November 2022] So, Why

Now?

Well, Taylor Swift just became the most streamed female artist on Spotify, had

the best-selling album of the year in Midnights, extended her record for most weeks

at number one on the Billboard 200 as a female artist, and her song “Anti-Hero” has

over 17.3 million streams on Spotify.

106

Oh, and do not forget Eras, Swift’s tour

that began in March 2023 and spans 52 dates as the “journey through the musical

eras” of Swift.

107

So when 3.5 billion requests were made for tickets when the pre-

sale doors opened and fans were faced with glitches, hours of waiting, and the can-

cellation of the general admission sale, outrage followed.

108

That rage led to law-

suits, a DOJ investigation, and a Senate Judiciary committee hearing as the leading

. Nate Rogers, Is Live Music Broken? It’s Not Just Ticketmaster, It’s Everything., THE RINGER

(Dec. 21, 2022, 5:40 AM), https://www.theringer.com/music/2022/12/21/23519063/taylor-swift-ticket-

master-tours-canceled-live-nation-concert-industry.

. Id.

100

. Id.

101

. Id.

102

. Id.

103

. Id.

104

. Id.

105

. TAYLOR SWIFT, Back to December, on SPEAK NOW (Big Machine Records 2010).

106

. Alex Young, Taylor Swift Broke 73 Records with Release of New Album Midnights,

CONSEQUENCE SOUND (Oct. 30, 2022, 9:01PM) https://consequence.net/2022/10/taylor-swift-mid-

nights-records.

107

. Emily Yahr, 2022: The Year in Review (Taylor’s Version), THE WASH. POST (Dec. 26, 2022, 6:00

AM), https://www.washingtonpost.com/arts-entertainment/2022/12/26/taylor-swift-2022-midnights-

ticketmaster.

108

. Id.

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female artist of this generation had sparked public comment and controversy.

109

All

the while, Live Nation Entertainment pointed to bot attacks and scalpers who

claimed tickets for resale on the secondary market which overwhelmed Ticketmas-

ter’s website.

V. “WILDEST DREAMS”

110

– WHERE DO WE GO FROM HERE?

The question then becomes whether Taylor Swift, or, more accurately, the out-

rage that exploded from Swift’s concert ticket sales, can do what Pearl Jam’s con-

cert boycott could not do: create actual change, or make actual progress in improv-

ing the industry? In addition, what progress needs to happen, and is antitrust law

the vessel upon which progress should be made?

A. What is Currently Happening in, “The Story of Us”?

111

i. The DOJ Investigation

In the immediate aftermath of the Eras ticket sale, the DOJ reportedly launched

an investigation into Live Nation.

112

This investigation came less than three years

after the DOJ extended its consent decree with Live Nation in 2020.

113

The DOJ

reportedly has been speaking with music venues and other entities in and around

the ticketing market, discussing the live entertainment industry as a whole, and

more narrowly pinpointing Ticketmaster’s tactics in the industry.

114

But in February, the Senate, following its hearing,

115

sent a letter to the DOJ

urging them to investigate Ticketmaster further.

116

Since then, the DOJ has been

radio-silent on its investigation, neither confirming nor denying that an investiga-

tion is taking place.

117

Despite the public silence, the DOJ still has a looming pres-

ence in the form of the Consent Decree. The penalties that exist for its violation are

effective on Ticketmaster’s current alleged monopolistic conduct. Though the DOJ

has yet to enforce its Consent Decree in any meaningful way over the last 13 years,

the extension alone was a significant sign that the DOJ is still concerned with con-

sumer protection and competition, two of the primary goals of antitrust legislation

and jurisprudence. However, the lack of current action may leave the pursuit of

these goals in the hands of others.

109

. Id.

110

. TAYLOR SWIFT, Wildest Dreams (Taylor’s Version) (Republic Records 2021); TAYLOR SWIFT,

Wildest Dreams, on 1989 (Big Machine Records 2014).

111

. TAYLOR SWIFT, The Story of Us, on SPEAK NOW (Big Machine Records 2010).

112

. David McCabe & Ben Sisario, Justice Dept. Is Said to Investigate Ticketmaster’s Parent Com-

pany, THE N.Y. TIMES, https://www.nytimes.com/2022/11/18/technology/live-nation-ticketmaster-in-

vestigation-taylor-swift.html (Jan. 24, 2023).

113

. See §III(b), supra.

114

. McCabe, supra note 112.

115

. See §V(a)(iii), infra.

116

. Rachel Treisman, Senators are Calling on the Justice Department to Look into Ticketmaster’s

Practices, NPR, https://www.npr.org/2023/02/23/1158998797/ticketmaster-letter-senators-justice-de-

partment (last updated Feb. 23, 2023).

117

. Id.

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ii. The Lawsuits

Ticket purchasers have taken the FTC Act’s goals, consumer protection and

competition, into their own hands. In fact, years before the Eras tour was an-

nounced, fans united in filing Oberstein v. Live Nation Ent. Inc.

118

The nationwide

putative class action asserted violation of antitrust laws, in that Ticketmaster

charged prices above market value for tickets because of their market power.

119

Judge Wu, for the Central District of California, however, had to balance more than

the public interest in consumers and competition.

120

Ticketmaster asserted that an

arbitration clause and a waiver of class action that was present on Ticketmaster’s

website shielded the company from suit.

121

The decision never, in fact, mentions

antitrust law. Judge Wu, to even reach that question, first had to answer the question

of whether to grant Ticketmaster’s motion to dismiss based on Federal Arbitration

Act, as well as contract law, jurisprudence and legislation.

122

Judge Wu dismissed

the class action, leading to an immediate appeal by the class of ticket purchasers.

123

The Ninth Circuit heard argument in September, and released its decision on Feb-

ruary 13, 2023.

124

The Ninth Circuit unanimously upheld Judge Wu’s decision.

125

The Ninth Circuit ultimately held that the Federal Arbitration Act required ar-

bitration to be compelled, because the parties (Ticketmaster and ticket purchasers)

had a valid contractual agreement, and the ticket purchasers had constructive notice

based on the repetition of the arbitration clause and waiver of class action clause.

126

The antitrust policy goals of consumer protection and competition ceded to the Fed-

eral Arbitration Act.

127

Antitrust policy did not just fall due to other federal legisla-

tion, but contract law and the validity of the “agreement” between Ticketmaster and

ticket purchasers.

This, however, is not the end. Aggrieved ticket purchasers may take similar

action to Amazon customers, filing massive amounts of individual arbitration

claims, racking up costs, and forcing a change.

128

Ticketmaster may change its

129

or Ticketmaster may view the surging

action as a market indicator to change their policies.

In addition, fans have filed a lawsuit in California following recent events. In

light of Oberstein, it seemed likely that the complaint would move to individual

118

. Oberstein v. Live Nation Ent. Inc., 2021 U.S. Dist. LEXIS 200094, at *1 (Cal. C.D. 2021).

119

. Michael Lundholm & Anna McLean, Ninth Circuit Decision in Live Nation and Ticketmaster’s

Favor Highlights Subtleties of Drafting Enforceable Arbitration Provisions, JDSUPRA (Mar. 2, 2023),

https://www.jdsupra.com/legalnews/ninth-circuit-decision-in-live-nation-9355013.

120

. Id.

121

. Id.

122

. Id.

123

. Id.

124

. Oberstein v. Live Nation Ent. Inc., 60 F.4th 505, 505 (9th Cir. 2023).

125

. Id.

126

. Id.

127

. See 9 U.S.C. §§ 1-et seq.

128

. Winston Cho, Live Nation Gets Win in Antitrust Fight Against Ticket Purchasers, THE

HOLLYWOOD REPORTER (Feb. 13, 2023, 4:01PM), https://www.hollywoodreporter.com/business/busi-

ness-news/ticketmaster-antitrust-fight-belongs-in-arbitration-1235325905.

129

. Id.

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arbitration. However, the case was dismissed, but it is unknown whether it was due

to a settlement agreement or some other causes.

130

iii. The Senate Hearing

In the wake of public frustration, the United States Senate Judiciary Committee

called for a public hearing to assess, and publicly address, the future of Live Nation,

antitrust legislation, and the ticketing/live entertainment industry.

131

The Hearing

involved Senators from the Judiciary Committee, and a number of witnesses, in-

cluding Ticketmaster President Joe Berchtold.

132

The Senators questioned and heard statements from the witnesses for approxi-

mately three hours on January 24, 2023.

133

The Hearing heard Senators and wit-

nesses alike calling for legislation, DOJ action, Ticketmaster blame, and ticket pur-

chaser sympathy. Swift fans, colloquially called “Swifties,” even attended as pro-

testors just outside the Hearing.

134

Many Senators posed their “solutions” to the

problem, and directed questions to witnesses in attendance to consider whether their

ideas are workable.

135

Amongst the calls for action, two familiar themes rang true. Senator Amy

Klobuchar resounded, “To have a strong capitalist system, you have to have com-

petition.”

136

Consumer protection and competition sat squarely at the forefront of

the minds of all in attendance at the Hearing named “That’s the Ticket: Promoting

Competition and Protecting Consumers in Live Entertainment.”

137

There was bi-

partisan agreement that consumer protection and competition were the goal. How-

ever, Berchtold resounded that this was the most competitive ticketing market and

pledged to “do better” in the future.

138

Meanwhile, four witnesses solemnly stated

that Live Nation was a monopoly.

139

Senator Josh Hawley suggested that Live Na-

tion may even monopolize multiple industries.

140

Though many conversations at the Hearing surrounded competition, a signifi-

cant portion of the discussion covered protecting consumers by limiting bot attacks.

130

. Madison Bloom, Taylor Swift Fans Sue Ticketmaster Over Eras Tour Ticketing Fiasco,

PITCHFORK (Dec. 4, 2022), https://pitchfork.com/news/taylor-swift-fans-sue-ticketmaster-over-eras-

tour-ticketing-fiasco; Bill Donahue, Taylor Swift Fan Drops Class Action Against Live Nation Over Eras

Tour Ticket Debacle, BILLBOARD (Dec. 13, 2023), https://www.billboard.com/business/legal/taylor-

swift-fan-class-action-live-nation-eras-tour-dropped-1235554526.

131

. Ben Sisario & Matt Stevens, Ticketmaster Cast as a Powerful ‘Monopoly’ at Senate Hearing, THE

NEW YORK TIMES (Jan. 24, 2023), https://www.nytimes.com/2023/01/24/arts/music/ticketmaster-tay-

lor-swift-senate-hearing.html.

132

. Katie Collins, What Happened at the Ticketmaster Senate Hearing: Taylor Swift, Bots and More,

CNET (Jan. 24, 2023, 2:44PM), https://www.cnet.com/news/politics/what-happened-at-the-ticketmas-

ter-senate-hearing-taylor-swift-bots-and-more.

133

. Rachel Treisman, The Senate’s Ticketmaster Hearing Featured Plenty of Taylor Swift Puns and

Protesters, NPR (Jan. 24, 2023, 5:09AM), https://www.npr.org/2023/01/24/1150942804/taylor-swift-

ticketmaster-senate-hearing-live-nation.

134

. Id.

135

. See §V(b), infra.

136

. That’s the Ticket: Promoting Competition and Protecting Consumers in Live Entertainment:

Hearing Before the S. Comm on the Judiciary, 118th Cong. (2023) (statement of Sen. Amy Klobuchar)

(hereinafter “That’s the Ticket”).

137

. Sisario, supra note 131.

138

. Collins, supra note 132.

139

. Id.

140

. Sisario, supra note 131.

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Berchtold attributed much of the issue with the Eras ticket sale to bots purchasing

numerous tickets to resale on the secondary market.

141

In response, Senator Marsha

Blackburn ridiculed Berchtold’s “finger-pointing,” criticizing Ticketmaster’s lack-

luster attempts to withstand bot attacks.

142

Senator Klobuchar assured fans that the Hearing was just the first step in solv-

ing the issues present in the live entertainment industry.

143

The Hearing attendees,

a rare bipartisan, united front, were convinced that something must be done to

achieve the goals of antitrust legislation that the FTC has, at times, been unable to

resolve: consumer protection and competition. What remains unresolved with the

unknown status of the DOJ investigation, the Ninth Circuit’s holding in Oberstein,

and the conclusion of the Hearing is this: what action should be taken?

B. How to get “Out of the Woods”

144

Whatever action is taken, the goal will be to maximize and balance the protec-

tion of consumers and promote competitiveness in the live entertainment industry.

Several solutions have been posed, and each should be scrutinized through these

primary goals of antitrust law and those participating in the live entertainment in-

dustry, from consumers to business entities.

Many of the solutions posed involve the enforcement of antitrust law. Jerry

Mickelson, CEO of Jam Productions and a witness at the Hearing,

145

suggested per-

haps the most extreme course of action. Mickelson’s solution would be to break up

the live entertainment industry, much like what was done in the past with Holly-

wood and the film industry.

146

This solution directly targets the competitive aspect

of antitrust law. Mickelson’s approach would additionally call for a ticketing indus-

try like Europe’s, with no exclusive contracts between venues and ticketing entities

and government intervention to spur the break-up.

147

This approach is a direct anti-

trust assault on the live entertainment industry and could lead to a competitive mar-

ketplace, but does it benefit the consumer? Scalpers, whom Berchtold heavily

blamed for the problems in the ticketing market, are selling tickets to the Eras tour

well above the rates set by Ticketmaster.

148

If a truly competitive live entertainment

industry does emerge, it could easily lead to a markup in prices as venues, promo-

tors, ticketing entities, and artists set prices to match what the market will purchase

them at. On the other hand, competition tends to drive prices down. A “clean slate”

could create a vibrant, competitive, and inexpensive marketplace.

An additional antitrust action is currently underway by the DOJ.

149

The DOJ’s

investigation may lead to a discovery of violations and the enforcement of the Con-

sent Decree. The Consent Decree includes hefty punishments for violations, but the

DOJ would have to find and prove a specific violation to act on the Consent Decree.

141

. Id.

142

. Collins, supra note 132.

143

. Id.

144

. TAYLOR SWIFT, Out of the Woods, on 1989 (Big Machine Records).

145

. JAM PRODUCTIONS, https://www.jamusa.com/about (last visited Apr. 7, 2023) (Jam Productions

is a concert promotor).

146

. Collins, supra note 132.

147

. Id.

148

. That’s the Ticket, supra note 136 (statement by Joe Berchtold, President and Chief Financial Of-

ficer of Live Nation Ent., Inc.).

149

. See supra §V(a)(i).

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Additionally, enforcement of the Consent Decree is a step toward a more competi-

tive marketplace but provides little in the way of consumer protection at its outset.

A viable, but uncertain, route is through the court system. Currently, any law-

suit against Live Nation has effectively been thrust into arbitration in the wake of

Oberstein.

150

Each arbitration suit would be binding only as to the two parties, an

individual ticket purchaser and Live Nation. However, as it happened to Amazon,

a mass of arbitration suits would create a financial burden that may lead to a “change

of heart” and allow for lawsuits to commence. There is no certainty that Live Nation

will budge, and even less certainty that a court, or even the Supreme Court, would

hold against Live Nation. Justice Kavanaugh has expressed a willingness to use

antitrust law to its full extent,

151

but the other Justices have not been as clear. Justice

Jackson appears willing to read antitrust laws expansively,

152

but many Justices

have been pro-business, including Chief Justice Roberts, Justice Thomas, and Jus-

tice Alito.

153

It would be difficult to call the case, particularly with the factual dis-

pute about Ticketmaster’s true market share.

154

In addition to the uncertainty of the

result, there is uncertainty of how the Court, or any court, would solve this alleged,

anticompetitive problem or how long it would take to solve the problem.

For consumer protection, solutions outside of antitrust law provide signifi-

cantly more direct ways to impact and benefit ticket purchasers. Senators Blackburn

and Blumenthal pushed for legislation, including increased enforcement of the Bet-

ter Online Ticket Sales Act (“BOTS Act”).

155

The BOTS Act was passed in 2016

and gave the FTC the power to take action against bots.

156

Ultimately, the BOTS

Act prohibits scalpers from purchasing a high volume of tickets using software.

157

The FTC, however, did not invoke its power to take action until 2021.

158

Senators

Blackburn and Blumenthal criticized Ticketmaster’s inability to handle bots inde-

pendently, but also criticized Ticketmaster’s lack of cooperation and reporting to

the FTC.

159

Senators also pointed out how little the FTC has used its power but did

not cut slack to Berchtold or Ticketmaster for its lack of collaboration with the

FTC.

160

Decreasing bots and scalpers directly and significantly would protect

150

. See Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 517 (9th Cir. 2023).

151

. See NCAA v. Alston, 141 S. Ct. 2141, 2166 (2021) (Kavanaugh, J., concurring) (Justice Ka-

vanaugh expressed concern that the NCAA was acting in a monopolistic fashion and that he would be

willing in a future case to further enforce antitrust law against the NCAA).

152

. Mariana Múnera-Keating, William F. Cavanaugh, Jr., and Amy N. Vegari, Justice Breyer’s Anti-

trust Legacy, PATTERSON BELKNAP: ANTITRUST UPDATE BLOG (Apr. 26, 2022),

https://www.pbwt.com/antitrust-update-blog/justice-breyers-antitrust-legacy.

153

. Pamela Jones Harbour, The Supreme Court’s Antitrust Future: New Directions or Revisiting Old

Cases?, FTC (Dec. 2007), https://www.ftc.gov/sites/default/files/documents/public_statements/su-

preme-courts-antitrust-future-new-directions-or-revisiting-old-cases/dec07-harbour12-17.pdf.

154

. That’s the Ticket, supra note 136 (statement by Joe Berchtold, President and Chief Financial Of-

ficer of Live Nation Ent., Inc.) (Berchtold asserted that Ticketmaster’s market control is significantly

less than the 80% it possessed in 2009, while other witnesses and Senators approximated Ticketmaster’s

market control between 70–80%).

155

. Blackburn, Blumenthal Press FTC On Bot Operations Amid Ticketmaster Debacle, SENATOR

MARSHA BLACKBURN (Nov. 29, 2022), https://www.blackburn.senate.gov/2022/11/blackburn-blumen-

thal-press-ftc-on-bot-operations-amid-ticketmaster-debacle.

156

. Id.

157

. Id.

158

. Id.

159

. That’s the Ticket, supra note 136 (statements by Sen. Marsha Blackburn and Sen. Richard Blu-

menthal).

160

. Id. (statements by Sen. Amy Klobuchar, Sen. Marsha Blackburn, and Sen. Richard Blumenthal).

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294 B.E.T.R. [Vol. 7 2023

consumers by ensuring that tickets are purchased by bona fide, good-faith consum-

ers rather than individuals looking to resell the ticket and generate profit. However,

it is questionable how this impacts competition. It would allow for a much more

competitive ticket-purchasing environment, where ticket demand is only from ac-

tual customers. However, the supply remains with the ticketing entity (i.e., Ticket-

master), and their set “market” price is not impacted. It does not give any additional

market power to other ticketing services and does not spread the market share that

a ticketing entity like Ticketmaster has.

Perhaps one of the most intriguing suggestions came from Senator Kennedy,

who went beyond current legislation and antitrust. Senator Kennedy suggested a

limitation on ticket transfers: making tickets either non-transferable or transferable

only at their original purchase price.

161

Sal Nuzzo, a witness at the Hearing on behalf

of the James Madison Institute “think tank,” strongly argued that this posed a great

risk of being, if not directly causing, a restriction on the alienation of an individual’s

property right.

162

Many other witnesses felt that this did not get to the root of the

problem.

163

Although this solution, on its face, appears to be directly uncompetitive and

does not protect consumers or their “property right,” consider this: a hotel room has

nearly the same qualities as a seat at a venue, albeit you get a room, rather than a

seat. Barring minor differences, both are a license, granting the holder of a ticket

(or reservation) the right to use the seat (or room) at a given time, date, and place.

Transferring and selling hotel room reservations is a viable option, but it requires

permission from the hotel.

164

Your “property right” in the hotel room is limited be-

cause, as a “licensee,” you do not own any property. Your interest is not in the

nature of property because you cannot recover possession as you could if you held

some true property interest. Rather, your legal right is that of a contractual nature,

the contractually created right to “use” the room. The same is true of a venue seat.

So, should a venue seat be treated under the same scheme as a hotel room, a venue

would likely have to approve the transfer. Live entertainment tickets do not work

like that. Instead, the ticketing entity (Ticketmaster) controls the exchange on the

secondary market, but the process requires little to no restriction on your rights to

sell to whomever you please.

165

So, although Nuzzo’s argument regarding property

rights is valid, it arguably does not hold significant weight because similar “license”

property rights involve stricter constraints, or at the very least, require approval of

the actual property owner in allowing transfers and sales.

It seems clear that there is no consensus on what the best course of action is.

With numerous courses of action that lead to varying results, it becomes a challenge

to determine the goal and where to strike a balance between a competitive live en-

tertainment industry and the protection of the ticket purchaser.

161

. Id. (statement by Sen. John Kennedy).

162

. Id. (statement by Sal Nuzzo, witness on behalf of the James Madison Institute).

163

. Id. (statements by Sen. Josh Hawley and Kathleen Bradish, vice president for legal advocacy,

American Antitrust Institute).

164

. EJ Ray, Can You Transfer Your Hotel Booking to Someone Else?, WANDER WITH WONDER (Nov.

16, 2022), https://www.wanderwithwonder.com/can-you-transfer-your-hotel-booking.

165

. How do I Transfer Tickets?, TICKETMASTER, https://help.ticketmaster.com/s/article/How-do-I-

transfer-tickets?language=en_US (last visited Apr. 7, 2023).

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VI. “YOU NEED TO CALM DOWN”

166

– CONCLUSION

With alleged antitrust violations, problems with bots and scalpers, and several

solutions that may or may not solve the “problem,” the task is to balance and weigh

the two principal goals of antitrust policy that have guided antitrust legislation, ju-

risprudence, and this article: consumer protection and competition.

Since the Ticketmaster crash, the public has quickly pointed to antitrust as the

legal vessel to address Ticketmaster’s market power.

167

Antitrust law has served as

a viable option to resolve issues regarding highly monopolistic companies. How-

ever, there are shortcomings to the system that can be shown even by the Supreme

Court’s earliest antitrust ruling: Standard Oil.

168

Standard Oil had attained 90-95%

market power by 1880.

169

In 1890, the Sherman Antitrust Act was passed.

170

It took

until 1906 for a complaint to be brought, and until 1911 for the Supreme Court to

release its opinion.

171

Consumers are not looking for a 30, 15, or even five-year

solution. Consumers want things to be better now, as they should.

In light of this, it is extremely unlikely, if not outright impossible, that a single

solution is going to be capable of perfectly balancing and perfectly sustaining these

two goals.

172

So a solution is going to have to likely: (a) comprise of a complex

combination of steps that culminate into “one” solution in the long-run; and (b)

prioritize one goal in creating a solution in the short-term.

This multi-step solution is described in more detail below. With the current

uncertainty of action at the Congressional, judicial, and administrative level, this

multi-step solution is not a “rote checklist.” Rather, in consideration of the con-

sumer protective and pro-competitive rationale of antitrust law, as well as the nature

of the live entertainment industry, this solution provides consumers the opportunity

to regain the protection they deserve, while producing an industry-wide policy that

can easily be adopted by Congress to create and enforce laws and regulations that

reflect the industry as it continues to evolve.

A. “The 1”

173

–

Proposed Solution

Consumer protection should be the short-term goal. Consumer protection was

at the forefront of the Senate Hearing. Senator Klobuchar nostalgically began the

Senate Hearing by talking of attending concerts of the likes of Led Zeppelin and

Aerosmith, piling in a friend’s car to attend the shows.

174

Consumer protection is

much more necessary in this instance. Unlike oil, a necessity of not only the public

166

. TAYLOR SWIFT, You Need to Calm Down, on LOVER (Republic Records 2019).

167

. Marc Jarsulic, 3 Antitrust Lessons From the Taylor Swift Ticketmaster Debacle, CTR. FOR AM.

PROGRESS (Nov. 22, 2022), https://www.americanprogress.org/article/3-antitrust-lessons-from-the-tay-

lor-swift-ticketmaster-debacle.

168

. Standard Oil, ENCYCLOPEDIA BRITANNICA, https://www.britannica.com/topic/Standard-Oil (last

updated May 25, 2023).

169

. Id. (understandably, the Sherman Antitrust Act was not yet even passed, and could not be enforced

by the Courts).

170

. Id.

171

. Id.

172

. See generally FTC Act, 15 U.S.C. §§ 41–58 (the policy goals are consumer protection and com-

petition, as has been noted throughout the article).

173

. TAYLOR SWIFT, the 1, on FOLKLORE (Republic Records 2020).

174

. That’s the Ticket, supra note 136 (statement by Sen. Amy Klobuchar).

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296 B.E.T.R. [Vol. 7 2023

but of governmental function and the topic of the Supreme Court’s Standard Oil

decision, live entertainment is an industry for the people, to entertain the people.

Hence the “entertainment” industry label. It simply follows that rather than focusing

on competition out of the gate, a solution should first seek to protect the consumer

and their ability to attend concerts, sporting events, plays, and shows. The solution

first addresses consumer protection, and then provides antitrust enforcement to pro-

mote competition in furtherance of that consumer protection.

This step begins first by doing a large stadium tour, something that Pearl Jam

refused and boycotted. Country music artist Zach Bryan is taking that step. He has

refused to use Ticketmaster, decided to go on a large tour, and made tickets non-

transferable for profit.

175

This ticketing process, however, could easily raise con-

cerns about infringing on a person’s property right. However, even if Nuzzo’s ar-

gument that legislation restricting ticket transfer is infringing on a property right, it

certainly seems valid that an artist and/or a venue may contractually restrict the

rights that they are selling. Bryan, the venues, and his ticketer, are doing just that.

However, his method of ridding the live entertainment industry of scalpers has

shown flaws in the smaller ticketer of Bryan’s tour. All the while it did not fully

dissuade scalpers and bots from trying.

176

Bryan’s ticketing has bots attempting re-

sale, and it is not entirely clear how the non-transferability is being policed.

177

The

process certainly needs some reworking and improvement, and only time will tell

if Bryan’s bold undertaking will be adopted by other artists.

Though not polished or perfect at the moment, this is still arguably the most

practical way to approach the situation. The complexity of the law regarding anti-

trust violations and monopoly easily, and somewhat reasonably, caused the public

to rely upon the law, whether it be courts or the legislature, to “fix” the alleged

problem in the live entertainment and ticketing industry. However, the public is the

driving force behind the market. This is a market that, in its entirety, is used by, and

created for, consumers. The “luxury” of live entertainment is a creature of the con-

sumer market’s desire to see concerts, sporting events, plays, shows and other live

acts. The non-transferability, or transferability at the original set price creates a con-

tractual agreement between consumers, artists, and venues; this is not only in a legal

sense, but in a social sense. The social contract of the public to restrict transferabil-

ity is the public taking a step in protecting consumers from the bad faith “scalping”

and resale of tickets at a price that is not advantageous to the public.

Next, if there is genuine concern about Ticketmaster as a monopoly, antitrust

law is capable of stepping in. The DOJ has until 2025 to either extend or enforce

the Consent Decree and consumers may attempt to navigate the court system. On

the other hand, Congress may step in, enacting legislation to facilitate the live en-

tertainment industry in their authority under the Commerce Clause.

178

Ultimately,

whether by courts, legislation, or regulation, antitrust law can reactively and reflec-

tively adapt, evolve, or create a regime that protects consumers in a way that

175

. Matthew Leimkuehler, How Zach Bryan Plans to Stand up to Ticket Scalpers on His Next Tour,

THE TENNESSEAN, https://www.tennessean.com/story/entertainment/music/2023/01/19/zach-bryan-

burn-burn-burn-tour-how-to-get-tickets-scalpers-homies-hate-ticketmaster/69823448007 (last updated

Jan. 19, 2023, 3:17PM) (tickets are only transferrable through AXS, the ticketer of Bryan’s tour).

176

. Zach Bryan’s Ticketing Was an Overwhelming Success, & Still a Failure, SAVING COUNTRY

MUSIC.COM (Feb. 17, 2023), https://www.savingcountrymusic.com/zach-bryans-ticketing-was-an-over-

whelming-success-still-a-failure.

177

. Id.

178

. U.S. Const. art I, § 8, cl. 3.

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No. 2] The End of An "Eras?" 297

consumers desire to be protected while promoting and maintaining a competitive

marketplace.

In furtherance of this two-part venture, Bryan has already taken the first step

by touring the country while selling non-transferable tickets. This step begins the

process of furthering what the public wants: putting tickets in the hands of consum-

ers rather than retailers. Once, hopefully, other venues and artists have taken steps

in continuing and creating this policy of non-transferability, the public can approve

of and socially “contract” to this process being the norm. Following the public’s

adoption of a consumer-focused policy, the legislature, courts, or regulatory bodies

can reflect this societal construct by enforcing non-transferability by judicial deci-

sion or the creation of new laws and regulations.

This scheme would likely be unique to luxury or optional industries as com-

pared to necessities. Looking at Standard Oil, the government’s proactive estab-

lishment of legal consequences is not only beneficial to the public and consumer,

but, at times, necessary to allow the public to maintain access to certain necessities

in a competitive fashion. In luxury, societal constructs can find their place in shap-

ing the field while the law becomes what the public reflects. This societal, rather

than governmental, construction of policies creates a live entertainment industry

that enhances the consumer experience and shapes it to the design and desire of the

participants in it, all the while reflecting the same goals of consumer protection and

competition that antitrust law was created to pursue.

Ultimately, the policy concerns of antitrust law are a valid pursuit which anti-

trust law has the ability to enforce. That enforcement, however, is a slow, uncertain

process, and in the pursuit of competition, it is entirely valid and reasonable to be

cautious in disrupting and interfering in the market. In the vein of consumer protec-

tion, however, the same cautions create turmoil amongst consumers. As such, anti-

trust law should be incorporated into a long-term plan to make a live entertainment

industry that is competitive and market-enhancing. At the immediate outset, how-

ever, artists, venues, and ticketers, can take action in a social and contractual mar-

ketplace to provide protection for consumers who truly desire to purchase and uti-

lize tickets to see their favorite artist, sports team, or show at venues across the

United States.

Miller: The End of An “Eras?” Antitrust Law and Policy Making a Drastic C

Published by University of Missouri School of Law Scholarship Repository, 2024