[pwinnski]

This is my point exactly. What the judge in each case has to determine is how best to define the market. Whether "smartphone owners" or "devices that play videogames" or "App Store users" or "iOS devices" or "computers" or "phones" or any number of other ways. Do you determine it in the US only, or world-wide? (US courts have jurisdiction only here, but can determine a market based on any parameters) Do you determine the majority player based on units, or gross revenue, or profits? Is your primary concern when it comes to damages companies (like Epic) or end users? And so on.

People are blithely making cases here like all of these things are simple, but they're the key to this and all other similar cases, and it's not as clear as people seem to assume. Different judges might decide different things on different days, and none are necessarily wrong... or right!

[stale2002]

Although the nitty gritty details of the situation may be complicated, I do think that the high level situation is pretty simple.

IE I am not sure how anyone could look at Apple's control over its market, and its policies, and disagree with the idea that Apple has significant control, and that its policies are anti-competitive.

Regardless over the exact definition of a market that you use, it is quite clear that Apple has pretty significant market power over something and that its actions cause app prices to be significantly higher than they would be otherwise, if they allowed competing app stores.

[pwinnski]

Yes, but please note how you described it first: "Apple's control over its market." Inasmuch as its Apple's market, its theirs to do with as they please. The question is, is it Apple's market? Or is the market something bigger or smaller, or belong to someone else (iOS users, for example, or smartphone users), in which case their needs should be prioritized.

Personally, I think Apple's too big, and I don't trust them (though my M1 Mac mini should arrive Tuesday nonetheless), and I think the government should act.

That said, antitrust has generally been focused on acquisitions and mergers, which don't seem to be the issue in Apple's case. Apple has genuinely made a product, mostly on their own, that has attracted enough users that it's become a problem. This seems like a radically different issue from other large tech companies, most of which have very large acquisitions that could be--and should be--undone.

And Epic is being disingenuous and inconsistent, and I don't think they're in the right here, either.

[stale2002]

> Inasmuch as its Apple's market, its theirs to do with as they please.

No it is not.

> that has attracted enough users that it's become a problem.

That doesn't matter. People could make the same claims about microsoft, that it "created" it's own OS market.

But we all know how that went. Microsoft lost its anti trust case.

> antitrust has generally been focused on acquisitions and mergers

Or we could just look at the Microsoft case. The Microsoft case is directly applicable to Apples case.

It doesn't matter if microsoft or apple "created" the market for OSes. They can still have significant market power.

Imagine if Microsoft took the same exact actions that Apple did regarding app stores, on internet explorer.

Imagine that Microsoft prevented all 3rd party web browsers, and then charged a 30% fee to websites accessed through IE.

This would be clearly and obviously anti competitive. Why can't we use the same argument against Apple?

[pwinnski]

As I've said, I think Apple is too big. I hope we can find an argument to use against Apple.

However, I think you are misremembering the MS case. As I recall from the time, a lot of that case hinged on the fact that MS was a software maker, not a hardware maker. So "the market" was defined as "all PCs," and a lot of what got MS in trouble was leveraging their dominant market position with Windows to force PC manufacturer to pay them license fees even for computers that didn't have Windows pre-installed.

Since Apple makes their own hardware, the situation is not really analogous to the big MS case. As far as I can tell, Apple doesn't seem to be leveraging their market position (in any market) to force suppliers to pay Apple even when Apple isn't involved. That is, they aren't demanding any percentage of payment to Epic on non-iOS devices, right? So that's the center of the MS antitrust case with no obvious parallel.

As far as imagining, I think it's really easy to imagine more direct parallels with Epic's case. Sony makes their own gaming hardware and exerts tight control over the PlayStation sales channel, including demanding a large cut of both initial sales and IAP. Microsoft makes their own gaming hardware and exerts tight control over the Xbox sales channel, including demanding a large cut of both initial sales and IAP. One question that has come up in court already is why Epic is fighting against Apple on this, but not Sony or Microsoft. I think it's a good question.

Look, I've said repeatedly: I think Apple is too big. I believe something needs to be done, and maybe the iOS App Store is a good place to start. But I don't think Epic's case is any good at all, and I'm not sure there is a strong case against the iOS App Store other than: "we need to do something, and this annoys me." Which... I guess we just need to make that sound better.

[stale2002]

> that MS was a software maker, not a hardware maker.

This doesn't matter. If microsoft built all of the computer hardware in the world, as well, then there is absolutely no way that society would let them engage in anti-competitive practices. Instead, that would be even worse, as it would show microsoft having even more market power.

Take a look at the railroads as a similar example. The railroad companies built their own railroads.

But obviously, even though railroad companies built their own railroads, they still got hit with anti-trust. The railroad companies lost. Building the hardware, or railroads, is not a defense.

> Apple doesn't seem to be leveraging their market position (in any market) to force suppliers to pay Apple even when Apple isn't involved.

Sure they are. Once someone owns a phone, it now belongs to them. It no longer belongs to Apple. Apple is no longer involved in any way, with the hardware that the consumer now owns. That is now Apple getting involved in a different market.

> Sony makes their own gaming hardware

From a high level I would not say that Sony has nearly the same amount of market power as Apple does. Thats why the same arguments don't apply. It has nothing to do with them making hardware.

But, on the other hand, if there were only 1 major game platform, then anti-trust law would absolutely apply. If only xBoxes existed, then they would have significant market power.

> but not Sony or Microsoft. I think it's a good question.

The reason is because Apple has way more market power than the playstation and the xbox. Thats it.

> a strong case against the iOS App Store

The very strong case is that it is very clear that Apple has significant market power. That is the only thing that matters. The only thing that matters, at all, is that Apple clearly has significant market power, and that means that it cannot engage in certain actions.

There is nothing at all in the sherman anti-trust act that says "If you build the hardware entirely, then you can engage in anti-competitive actions".

Please show be the paragraph in that law, that says that. It does not exist. The only thing that matters is market power.

> I think Apple is too big

I don't care about them being big. Instead what I want is for them to not engage in anti competitive practices.

> we need to do something, and this annoys me

What we need to do is end the anti competitive practices, and force apple to allow all major 3rd party app stores to be installed on the iphone.

That is not a vague proscription. It is very specific.

The government needs to force Apple to allow 3rd party app stores in the same way that they forced microsoft to allow people to easily choose a different web browser.

[pwinnski]

We agree on about 90% here, so I'm not sure why you keep making false statements about verifiable history. The fact is that the MS anti-trust case in the US absolutely did hinge on the fact that MS was a software maker, forcing hardware makers into illegal contracts.

If you want to talk about European antitrust actions against MS, okay, go ahead, but those are not a precedent for the US DOJ.

If you want to talk about a hypothetical reality in which the case against MS went differently, okay, go ahead, but that isn't what happened in the US in real-life history.

You're acting as if your perception of moral right and wrong are somehow winning arguments in court, and that's just not how it works. It's not how any of this works. The letter of the Sherman Antitrust Act would have resulted in so so so many companies broken up, and yet very few have been broken up at all, and rarely along the strict lines of the Act itself. The DOJ will need to make a legal case against Apple, and they'll need to answer Apple's legal arguments in defense, and precedent matters.

Reading the history of the DOJ's case against MS, and how badly that went for the DOJ, would be helpful.

Again, for the third and final time, I think that Apple has too much power. But saying that Sony isn't an antitrust case because MS exists, but Apple is an antitrust case despite Samsung and Google existing, that's not the sort of thing that seems very convincing. Once you get into the weeds on how to measure the market power of various companies, well, in those weeds is where Apple wants the conversation to go, which is literally what I said on my very first comment on this thread. It's still true.

Apple sells a minority of smartphones worldwide and hovers around 50% in the US. That's what makes this a tough case to win. I think they have too much power, and you think they have too much power, but they have a reasonable defense argument that will need to be overcome. It's not clear that a judge, and the majority of an appeals court, will agree.

P.S. Assuming you get past the hurdles and manage to make a case that Apple requires remedies, "allow third-party app stores" has a ton of legal issues as well. This is very different from what MS was required to do in the EU, which itself was seen as beyond what US law could require them to do.

[pwinnski]

its actions cause app prices to be significantly higher than they would be otherwise, if they allowed competing app stores.

I'm not so sure this is true. Historically it's far from true, but this is 2020, not 2010, so there are definitely a few examples now of companies charging more to balance out Apple's fees. That said, Apple essentially created what was decried at the time as a rush-to-zero that made mobile apps free or close to it, in turn driving down the price of many non-mobile games.

Your statement seems to take only one side into consideration, while Apple will be highlighting both sides. If Fortnite in-game currency becomes less expensive, but the average game becomes more expensive, do we win or lose?