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Comment by aresant | Hacker News Reader

Obvious comparison but interesting how close this feels to the DOJ hitting MSFT over the head for bundling:

"The issue central to the case was whether Microsoft was allowed to bundle its flagship Internet Explorer (IE) web browser software with its Microsoft Windows operating system . . . Underlying these disputes were questions over whether Microsoft altered or manipulated its application programming interfaces (APIs) to favor Internet Explorer over third party web browsers." (1)

When does leveraging a platform flip from good business to unfair competition?

(1) http://en.wikipedia.org/wiki/United_States_v._Microsoft

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When does leveraging a platform flip from good business to unfair competition?

The moment you gain monopoly status in one market and attempt to leverage that status in another. Until then, happy bundling! Read the Findings of Fact and Conclusions of Law docs from that case. They make it pretty clear.

http://www.justice.gov/atr/cases/f3800/msjudgex.htm

http://www.justice.gov/atr/cases/f218600/218633.htm

I don't think that's the right thing to be looking at. That's the district court, which wouldn't be binding anyway, and if I remember correctly the appellate court had some pretty harsh things to say about the district court's opinion in that case. (As in, start over and try again, although the trying again never actually happened because at that point Microsoft decided to settle.)

It's my understanding of that it was Judge Thomas Penfield Jackson's interview(s) with the press (an embargoed activity) while he was still hearing the case that were at issue (as well as some issues about liability for remedies). They did not have issues with his application of the Sherman Antitrust Act or relevant precedent, though.

From Wikipedia: "...the appeals court did not overturn the findings of fact. The D.C. Circuit remanded the case for consideration of a proper remedy under a more limited scope of liability."

...and then Bush replaced Clinton in the White House, after which the DoJ dropped the case.

So I think I still have a good answer for aresant's question.

>They did not have issues with his application of the Sherman Antitrust Act or relevant precedent, though.

I think they did. I'll give you a quote from the actual appellate opinion: "To establish a dangerous probability of success, plaintiffs must as a threshold matter show that the browser market can be monopolized, i.e., that a hypothetical monopolist in that market could enjoy market power. This, in turn, requires plaintiffs (1) to define the relevant market and (2) to demonstrate that substantial barriers to entry protect that market. Because plaintiffs have not carried their burden on either prong, we reverse without remand."

Naturally there is a context to that (and they didn't reverse everything the district court did, but some things) and you're invited to read the entire opinion if you're interested.[1] Incidentally, if there is one thing I've found Wikipedia to be regularly wrong or incomplete about, it's the content of court opinions.

Moreover, findings of fact are a distinct thing from conclusions of law. "Findings of fact" are usually decided by juries, but sometimes by trial judges when there is no jury, and it means deciding what actually happened, not deciding what the law is. For example, a finding of fact might be whether Microsoft did actually pressure OEMs not to bundle Netscape, but not whether or not having done that would be a violation of the antitrust laws, which would be a conclusion of law rather than a finding of fact.

(I should point out that we're having a nice theoretical discussion here and that this is not legal advice, and if you need legal advice you should consult an attorney.)

[1] Here is one freely available copy of the appellate opinion I found through Google: http://cyber.law.harvard.edu/msdoj/msft_ruling.html

Thank you for posting that link. It made for good reading over my morning coffee.

While I am not a lawyer either, my reading is that you have quoted from a section of the document pertaining to a claimed violation (in the Conclusions of Law) that are with regard to § 2 of the Sherman act (monopoly maintenace), whereas aresant's question is with respect to product tying, which is a § 1 violation, which was merely remanded – and, eventually, dropped.

>While I am not a lawyer either, my reading is that you have quoted from a section of the document pertaining to a claimed violation (in the Conclusions of Law) that are with regard to § 2 of the Sherman act (monopoly maintenace), whereas aresant's question is with respect to product tying, which is a § 1 violation, which was merely remanded – and, eventually, dropped.

OK sure. And "remand" means the trial judge made mistakes and has to try again, not that they did everything right. When they do substantially everything right it will say "affirmed" and then that part of the case is over (or gets appealed to a higher court instead of going back down). And as you already pointed out, the case being settled/dropped probably had a lot more to do with politics and the incoming Bush administration than anything to do with the court system or the law or whether the original district judge was right or wrong.

This has been discussed in depth in Apple/Android threads.

The point is, you have to get a monopoly first. Google doesn't have one.

Except they have, in search

Who are they selling 'search' to? Didn't think they had a big market in corporate intranet search....?

I believe that statement is being actually tested right now in the US courts.

Also it looks like in EU it is officially a monopoly and in Brazil it isn't.

Also I owe @aresant an apology for rejecting his idea outright. It looked so obvious to me with bing owning about 30% of search market share!

And smartphone / mobile.

I'm not a lawyer, but I don't think it's "bundling" when you add features to your product. The contention in the Microsoft case was that they forced OEMs to "bundle" IE and block Netscape.

There is also the small matter of Google being free, and the lack of any meaningful lock-ins (this being the web and all) and the matter of Facebook being the leading social network, and other such subtleties that make these cases very dissimilar.

There is also the discussion of whether or not the DOJ was wise in pursuing that case which they subsequently lost, seeing as last I checked IE still ships with Windows.

> the matter of Facebook being the leading social network

Netscape was the leading browser when IE started being bundled. I don't disagree with you, but I don't think that argument makes a lot of sense.

Windows was the only viable OS at the time, and when Microsoft forced OEMs to include IE and blocked them from making deals with Netscape it triggered that whole thing.

Here Google is just a website on the internet, granted it's a significant website but so is Facebook, and you don't have to go through Google to reach Facebook. My point is that Facebook is a large entity that exists alongside Google, and so does Twitter and many others so it's not a one vendor market.

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