Brooklyn Law Review


Concert goers and sports fans are no longer the only people forced to pay absurdly marked up prices. From baby formula to video game consoles, scalping dominates the sale of goods online. Yet existing frameworks for antiscalping—specifically their relentless focus on tickets, bots, and hidden fees—fundamentally fail to address the parasitic profiteering that underpins scalping in the modern economy. We cannot understand the scope of harms posed by pernicious online resale if we focus purely on the minutiae of ticket markets and technological exploitation—the sheer number of industries affected by scalping and size of the market failure it causes demand action. The wheel, however, does not need to be reinvented. This note, after illustrating the scale of the scalping problem and shortcomings of both public and private antiscalping regimes, argues that scalping constitutes an unfair and deceptive act and practice under the FTC Act and (state level) Little FTC acts. It then outlines how a public sales record and resale restrictions—two solutions that have existed and been successfully used for decades—can enhance unfair and deceptive practice enforcement and ultimately kneecap the practice of scalping.