[mercurialshark]

There has been no ruling by the court on the merits of the case. A TRO is simply a request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation.

--

> Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state.

Amazon isn't the state.

- Correct. My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.

[Someone1234]

> My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.

Seems like the core of your argument is that private companies could be subject to constitutional protections if they got too big enough/powerful.

Even ignoring that you've essentially invented a new interpretation of US law/ignored all existing precedent, the fact that AWS (32% market share) isn't a monopoly by either common definition or as defined by federal law completely undercuts even such a novel legal theory.

So you're on the outskirts of both law and basic facts here.

[mercurialshark]

There are separate issues.

i) Antitrust - AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. A party does not need to have majority market share to function in coordination with other dominate players in order to form a cartel that can manipulate the market. There's case law concerning market manipulation, access to industry and consumer protection issues where parties didn't need to directly coordinate to be considered a cartel.

ii) Practical dependence on service providers for access to critical digital infrastructure. To what extent do we depend on particular services for participation in society and the marketplace will influence the analysis. At what point does a data service provider begin to resemble a common carrier (i.e. cable, phone or internet provider) and in what context would common carrier laws apply?

iii) Contract issues - A few of the foreseeable issues include sufficient notice, contract breach, degree of harm (irreparable harm?), performance obligations.

[tptacek]

The judge in this case wrote at some length about the bar Parler's argument needs to clear to make an antitrust claim, and Parler hasn't come close. To make a claim under antitrust, according to the judge who will decide this case, Parler must show (1) the existence of an agreement between Twitter and Amazon somehow regarding Parler, and (2) that the agreement was in unreasonable restraint of trade.

In reality they will be able to do neither thing, because we are all aware that Twitter is not in fact worried about Parler, and that Amazon could give 3/5ths of a flying fuck whether Twitter is worried about Parler regardless. It's a fantasy which has taken on a cloak of plausibility because we have other antitrust concerns about Amazon. But that cloak will not do Parler any good in this trial, nor will our other entirely reasonable concerns about tech consolidation.

Similarly, the judge didn't so much poke holes in Parler's contract claims so much as singlehandedly demolish them, pointing out that Parler's claim about their rights under Amazon's contract were directly contradicted by the very next paragraph after the last one they cited in their complaint.

It would be helpful if you could acknowledge the ruling we're commenting on rather than continuing to argue as if this was entirely abstract. We have some (imperfect) authority to rely on now, in the form of today's ruling.

[mercurialshark]

There has been no ruling by the court on the merits of the case. A TRO is simply a request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation.

Additional briefs following the TRO, replies, nor responses have been filed.

There has been no discovery, no fact finding, no expert witnesses, no oral argument, no jury trial and no opinion. The case has not been adjudicated by the District Court. It has not reached a stage where it can be appealed to the Circuit Court and it certainly has not reached post appellate petition for cert to the Supreme Court.

[tptacek]

That's all true, but it's also all stuff you could say without having read the ruling, or acknowledging anything the judge said about Parler's complaint.

It's a short document! It's well written! I recommend it.

Further: some of what you said upthread is contradicted by facts now acknowledged by the court. There may be some barely-colorable argument about antitrust or contracts of adhesion or something, but there is not in fact a colorable argument that Amazon was required to give notice to Parler before terminating them for violation of their AUP; that's in the plain language of the contract, which is on the record in the case, but is also the easily-downloaded AUP a Google search will provide you. Your arguments would be more credible if they acknowledged those facts, rather than implying that they were somehow still up in the air.

[x86_64Ubuntu]

Up and down this thread people are mixing questionable legal ingredients in hopes of finding a recipe that makes sense.

[yxhuvud]

> (32% market share) isn't a monopoly

Well, neither was Standard Oil by that definition.

Of course, we already know how to solve the problem of companies having too much leverage due to owning too big verticals - namely to break them up. Not to institute everything-goes rules.

[ChrisLomont]

Standard Oil controlled over 90% of production and nearly that percent of final sales.

Courts have never as far as I can find used antitrust on an actor controlling a market at the low level Amazon has here. Can you find such a case?

https://en.wikipedia.org/wiki/Standard_Oil

[joshuamorton]

> There has been no ruling by the court on the merits of the case.

Correct, but as part of the TRO process, the court is asked to view the merits of the case given what it knows, as part of the determination of granting a preliminary injunction is whether the plaintiff is likely to succeed on the merits.

The courts opinion, quite plainly, is that Parler is unlikely to succeed on the merits:

> In short, Parler has proffered only faint and factually inaccurate speculation in support of a Sherman Act violation.

> Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP.

> Parler has failed to allege basic facts that would support several elements of this claim. Most fatally, as discussed above, it has failed to raise more than the scantest speculation that AWS’s actions were taken for an improper purpose or by improper means.

> IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town.

This argument will fail, for reasons I outlined in a previous comment: https://news.ycombinator.com/item?id=25781560. To briefly reiterate: Marsh v. Alabama concerned a privately owned town using state force (e.g. police) to enforce trespassing law.

But nothing about those rulings prevents the town from putting up a fence and a gate, and banning people from re-entering.

Twitter (and AWS) have a fence and a gate, and a guard who checks your ID anytime you try to enter the area.

[tw04]

>- Correct. My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.

How on earth is Amazon kicking them off "monopolistic behavior"? There are literally thousands of hosting providers in just about every country on this planet. Parler was quick to point out none of their infrastructure is in any way tied to Amazon.

[pmoriarty]

"monopolistic behavior" is behavior that leverages a company's dominant position in the market to hurt its competition.

The contrary is the case here. If anything, AWS is helping its competition by giving them Parler's users.