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I would welcome a counterpoint in fact (vs personal statements). To me, the argument would be that Github has a dominant market position in public source code

I would welcome a counterpoint in fact (vs personal statements). To me, the argument would be that Github has a dominant market position in public source code hosting, and using their ToS in this way would limit competition by hindering their distribution, and that this is contrary to the public interest (see "Dear Github" etc). I am by no means a lawyer, and would welcome correction and clarification.

mikestew 11y ago
Not a lot of time at the moment, but I'll start with the fact that there's BitBucket, Unfuddle, and others I've forgotten (hell, SourceForge is still around) that may allow a dominant position in that space, but GitHub is a long way from being a trust or monopoly. Additionally, the barrier to switching to competitor is low. GitHub has arguably little control or influence over the hosted source control market. Unlike Microsoft in the 90s, there is little but goodwill and reputation to keep us all from switching to BitBucket tomorrow. Theres a lot of subtlety I'm missing, but that's the best this non-lawyer can do for the time being.
msbarnett 11y ago
> I would welcome a counterpoint in fact (vs personal statements) It would help, to make a counterpoint, if you spelled out exactly what in the 90s this reminds you of. My wild guess is that this reminds you of the legal agreements Microsoft got in trouble for having computermakers sign that kept BeOS off their computers. But that's wildly inapplicable here. Nevermind the important fact that a TOS for Github's own service forbidding using it to create a competing service is materially different from signing an agreement with a 3rd part to not do business with a competitor, the simple fact is Anti-Trust laws only apply to Trusts. At the time Microsoft got in trouble, they had previously signed a legal agreement acknowledging they were a trust, in 1994. Github hasn't done that. Microsoft signed a legally binding document that said "We acknowledge we are a Trust, and we agree to play by the rules governing Trusts" and then broke those rules. That's what they got in trouble for. None of that applies here, however much you "think Github has a dominant position". That's not enough to get you slapped with antitrust violations. If Github were a monopoly in it's market (which it isn't, but let's pretend), that's not illegal! They would first have to be shown to be leveraging that position to enter into other markets, or to in some other way be illegally using that position to prevent 3rd parties from doing business with competitors, which is a violation of the Sherman Act. Simply saying that competitors can't use their free service is not a violation of the Sherman Act.
- justinsb 11y ago
  Thank you for the explanation. Can you provide a citation that antitrust law applies only to Trusts? To answer your question though, I was thinking of the accusation that Microsoft leveraged the Windows market position to promote Internet Explorer. It still seems that (if a monopoly) Github's behavior could be covered by the "essential facilities" section. However both whether Github is a monopoly and whether their behaviour would be covered seem very fuzzy, and I suggest we leave that discussion to the lawyers!

mikestew 11y ago

Not a lot of time at the moment, but I'll start with the fact that there's BitBucket, Unfuddle, and others I've forgotten (hell, SourceForge is still around) that may allow a dominant position in that space, but GitHub is a long way from being a trust or monopoly. Additionally, the barrier to switching to competitor is low. GitHub has arguably little control or influence over the hosted source control market. Unlike Microsoft in the 90s, there is little but goodwill and reputation to keep us all from switching to BitBucket tomorrow. Theres a lot of subtlety I'm missing, but that's the best this non-lawyer can do for the time being.

msbarnett 11y ago

> I would welcome a counterpoint in fact (vs personal statements) It would help, to make a counterpoint, if you spelled out exactly what in the 90s this reminds you of. My wild guess is that this reminds you of the legal agreements Microsoft got in trouble for having computermakers sign that kept BeOS off their computers. But that's wildly inapplicable here. Nevermind the important fact that a TOS for Github's own service forbidding using it to create a competing service is materially different from signing an agreement with a 3rd part to not do business with a competitor, the simple fact is Anti-Trust laws only apply to Trusts. At the time Microsoft got in trouble, they had previously signed a legal agreement acknowledging they were a trust, in 1994. Github hasn't done that. Microsoft signed a legally binding document that said "We acknowledge we are a Trust, and we agree to play by the rules governing Trusts" and then broke those rules. That's what they got in trouble for. None of that applies here, however much you "think Github has a dominant position". That's not enough to get you slapped with antitrust violations. If Github were a monopoly in it's market (which it isn't, but let's pretend), that's not illegal! They would first have to be shown to be leveraging that position to enter into other markets, or to in some other way be illegally using that position to prevent 3rd parties from doing business with competitors, which is a violation of the Sherman Act. Simply saying that competitors can't use their free service is not a violation of the Sherman Act.

justinsb 11y ago
Thank you for the explanation. Can you provide a citation that antitrust law applies only to Trusts? To answer your question though, I was thinking of the accusation that Microsoft leveraged the Windows market position to promote Internet Explorer. It still seems that (if a monopoly) Github's behavior could be covered by the "essential facilities" section. However both whether Github is a monopoly and whether their behaviour would be covered seem very fuzzy, and I suggest we leave that discussion to the lawyers!