US DOJ and 16 States Sue Apple for Violating Antitrust Laws, Establishing Monopoly

I think Apple has four problems.

Nice post.

As to this:

2 - Agreement to split markets

In business, there are always decisions to outsource and focus but sometimes it reaches the level of agreeing to divide up a market. Ford buying transmissions from a company that specializes in transmissions isn't an issue. But Ford calling GM and saying "we make trucks, you make cars" is illegal.

An example comes to mind. I think I heard about this on an episode of "Planet Money." There was a time when there was an investigation into Ben and Jerry's and Haagen Dazs ice cream. Both are in the premium pint ice cream market. However, for years and years Ben and Jerry's made "chunky" ice cream (or ice cream with chunks of flavor in it) whereas Haagen Dazs made "smooth" ice cream, or ice cream that was smooth in texture.

Basically, the two companies stayed in their respective "lanes" for ice cream. But was it collusion?

Eventually Haagen Dazs added some flavors with chunks in them and Ben and Jerry has smooth flavors.
 
I think Apple has four problems.

1 - Communications Network Externality

Any time you have a communications product there is a need to interconnect with other providers in order for the product to provide value. That's why we have mandatory phone interconnection and the world needs a standard for email. If an incumbent, let's say VZ, was able to say "we will add static to any calls that go to T-Mo" they have an unfair advantage because users who choose an alternate network from a new entrant are punished not because the new entrant is inferior but because the incumbent is leveraging the power of their network. It serves to forestall the development of competition.

iMessage is a communications product that is intentionally harming other network operators. I think this is a legitimate claim.

2 - Agreement to split markets

In business, there are always decisions to outsource and focus but sometimes it reaches the level of agreeing to divide up a market. Ford buying transmissions from a company that specializes in transmissions isn't an issue. But Ford calling GM and saying "we make trucks, you make cars" is illegal.

In the Google antitrust case, it came to light that part of Google's arrangement with Apple for the iPhone search deal was that apple had to stand down their efforts to develop a search engine. That is, in my view, an agreement to divide up a market. Google may make a unilateral decision to change its terms if Apple is seen as an emerging competitor but they cannot make an agreement to stay out of each other's markets.

A similar agreement that Apple must stand down AI development as part of a deal with Google would also be very suspect.

3 - App Store Utility

At a certain point, a platform reaches the status of being a utility where it is not practically possible to be in market without paying that utility. I could make widgets without paying the power company if I built my own power plant, but practically speaking that's not a competitive option. So I have to use the power company.

When something reaches utility status society has a need to create rules on how much rent that utility provider can extract and under what terms. The power company can't say "You owe me 30% of the revenue you get from your widget sales." They also can't say "You can't use the power from my nuclear plant to build solar panels."

The Apple app store may have reached utility status. It is not possible to develop virtually any software and many retail services without relying on the App Store. If so, they can't demand 30% of the retail proceeds from others products nor can they say that companies (e.g., Epic or Kindle) can't set up their own stores within their apps.

4 - Retail price fixing

It is illegal for a supplier to dictate to a retailer the retail price of a product. They can set MSRPs, provide co-marketing funds, etc but they cannot say "The price of a Ford is $1000" and require everyone to do that. A big reason that Apple can get $1400 for an iphone is that behind the scenes they unleash enormous pressure on the carriers to do "free" iphone deals. It could be argued that this pressure reaches the point of price fixing and market manipulation.

These topics are intertwined because, collectively, they build on one another in a way that harms competition in multiple arenas.

The nature of anti-trust is almost always a judgement call between not punishing success and recognizing when someone has unreasonable market power. If I were the DOJ, I would go after them in this order. I think this case should be used as the basis to update antitrust law for the digital age.

My $0.02.

Excellent summary. I especially agree with the bolded part. The reality is our world is now vastly different than it used to be and the laws need to be updated accordingly.
 
Nice post.

As to this:



An example comes to mind. I think I heard about this on an episode of "Planet Money." There was a time when there was an investigation into Ben and Jerry's and Haagen Dazs ice cream. Both are in the premium pint ice cream market. However, for years and years Ben and Jerry's made "chunky" ice cream (or ice cream with chunks of flavor in it) whereas Haagen Dazs made "smooth" ice cream, or ice cream that was smooth in texture.

Basically, the two companies stayed in their respective "lanes" for ice cream. But was it collusion?

Eventually Haagen Dazs added some flavors with chunks in them and Ben and Jerry has smooth flavors.

Thanks.

That's an interesting one and a perfect example that you don't have to be a monopoly to engage in behaviors that violate anti-trust laws.

If each company had true business optimizations (eg., Ben and Jerry's invented the chunk-o-matic mixing machine that gave them a cost advantage making chunky things) then it is reasonable to optimize and not make smooth things while its reasonable for Haagen Daz to avoid getting into the chunky things biz where they are at a disadvantage. But if Ben and Jerry ran into Haagen Daz at the ice cream convention and said "We make a lot of money on chunky things and you make a lot of money on smooth things, let's not mess that up," it is illegal even though Breyers wasn't in the conversation and represents a viable alternative.

If the four guys running gas stations on the corners of an intersection get together and say "We will all charge $5.00 per gallon", it is still an anti-trust issue even if you can drive a mile away and buy gasoline from someone else.

All collusion on pricing and market segmentation is illegal.
 
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