4 ms·

I'm going to break away from my devil's advocate argument. I was rhetorically trying to show: i) The parent's argument is weak. The existence of competitors i

by halo 16y ago

I'm going to break away from my devil's advocate argument. I was rhetorically trying to show: i) The parent's argument is weak. The existence of competitors is not sufficient to show whether Apple is or is not a monopoly. Microsoft had a lot of competitors. Even in 1998, there was a lot of OSes. ii) The argument that Microsoft was a monopoly was, frankly, ridiculous to begin with, based on defining a market in an oblique way. The same argument could be extended into many fields to show that many other products have a monopoly. Even so, I do believe that Microsoft engaged in anticompetitive behaviour in actively trying to destroy Netscape and its desktop OS competitors. The weak "monopoly" argument should be sidestepped completely, since it was terrible to begin with. I do think there is an fine line between limiting creativity and preventing anti-competitive behaviour, and it's not clear where that line is. I think the EC's "browser choice" decision is shocking given that a web browser is an integral part of any OS, especially in 2011, whether that OS is Windows, Mac OS X, a Linux distribution or whatever else. I do think Apple and the iPhone creates genuine questions about where the line should be drawn. Is it reasonable for them to close up the protocols in iTunes to prevent anyone from creating their syncing software? Is it reasonable for them to want a cut from downloadable content on their platform? In my mind, they will always be anti-competitive practices, whatever the letter of the law says.

pohl 16y ago
Again, with respect to your second point, the court had no choice but to pursue what you believe was "ridiculous", because it is required by section 2 of the Sherman Antitrust Act: The threshold element of a § 2 monopolization offense being "the possession of monopoly power in the relevant market,"...the Court must first ascertain the boundaries of the commercial activity that can be termed the "relevant market." ...and it was germane to the standards regarding product tying relevant to section 1 of the same act: Proceeding in line with the Supreme Court cases, which are indisputably controlling, this Court first concludes that Microsoft possessed "appreciable economic power in the tying market," Eastman Kodak, 504 U.S. at 464...Because this Court has already found that Microsoft possesses monopoly power in the worldwide market for Intel-compatible PC operating systems (i.e., the tying product market), Findings ¶¶ 18-67, the threshold element of "appreciable economic power" is a fortiori met. (Both of those excerpts are from the same Conclusions of Law document, of course.) It's very easy for you to say that "the same argument could be extended into many fields to show that many other products have a monopoly." It's quite another thing to frame your argument in terms of section 1 & 2 violations such that the way you have defined your "relevant market" actually pertains to product tying and preservation of monopoly power through anticompetitive acts. In other words, it's not enough that an anticompetitive act happened: it must also have been used to preserve power — and not just any power but monopoly power, and not just any monopoly power but monopoly power in a market relevant to the anticompetitive claims. And even if you manage to frame it this way, it still must pass through the crucible of the court, as it did in MS v DOJ. In my mind, they will always be anti-competitive practices, whatever the letter of the law says. Anticompetitive acts are not illegal in and of themselves. They are illegal for establishment or maintenance of monopoly power, however — and one can't apply that test via hand-waving. The Sherman act is very specific.

by halo 16y ago

pohl 16y ago

Again, with respect to your second point, the court had no choice but to pursue what you believe was "ridiculous", because it is required by section 2 of the Sherman Antitrust Act: The threshold element of a § 2 monopolization offense being "the possession of monopoly power in the relevant market,"...the Court must first ascertain the boundaries of the commercial activity that can be termed the "relevant market." ...and it was germane to the standards regarding product tying relevant to section 1 of the same act: Proceeding in line with the Supreme Court cases, which are indisputably controlling, this Court first concludes that Microsoft possessed "appreciable economic power in the tying market," Eastman Kodak, 504 U.S. at 464...Because this Court has already found that Microsoft possesses monopoly power in the worldwide market for Intel-compatible PC operating systems (i.e., the tying product market), Findings ¶¶ 18-67, the threshold element of "appreciable economic power" is a fortiori met. (Both of those excerpts are from the same Conclusions of Law document, of course.) It's very easy for you to say that "the same argument could be extended into many fields to show that many other products have a monopoly." It's quite another thing to frame your argument in terms of section 1 & 2 violations such that the way you have defined your "relevant market" actually pertains to product tying and preservation of monopoly power through anticompetitive acts. In other words, it's not enough that an anticompetitive act happened: it must also have been used to preserve power — and not just any power but monopoly power, and not just any monopoly power but monopoly power in a market relevant to the anticompetitive claims. And even if you manage to frame it this way, it still must pass through the crucible of the court, as it did in MS v DOJ. In my mind, they will always be anti-competitive practices, whatever the letter of the law says. Anticompetitive acts are not illegal in and of themselves. They are illegal for establishment or maintenance of monopoly power, however — and one can't apply that test via hand-waving. The Sherman act is very specific.