[AceJohnny2]

> One of the facts established in the verdict was that Google had been slipping Apple more than $20b/year in exchange for which, Apple forbore from making a competing search engine.

Didn't Apple say that 1) they weren't interested in being in the Search Engine business 2) (in testimony) Google was by far the best search engine that they were going to use anyway ?

Certainly, $20B/Y weighs on the scale, but knowing Apple's negotiation tactics they could also have used their weight to do what they wanted anyhow and get paid handsomely for it (<waggle waggle> "if you don't pay us we might start using other defaults and you'll lose that lucrative iOS market")

My point is, while Google is clearly at fault in this whole situation, it's not quite as moustache-twirling evil as Doctorow paints it.

[rayiner]

I can’t think of a single legitimate reason why Google should be allowed to pay Apple to use its search engine. Google is using the proceeds of its monopoly to exclude competition to maintain its monopoly. How is that norm per se antitrust violation? (That said, I’m not an antitrust lawyer and find it quite unintuitive, lol.)

[ameister14]

Basically it should be illegal per se but since the 70's the Court has really limited how they apply that and so courts generally prefer to do a competitive analysis/quick look first. In this case, the argument might be that since the cost to consumer doesn't increase, it isn't a naked price fix so it's not per se illegal.

As I learned it, since BMI & ASCAP v. CBS, in 1979, it's essentially been that the per se rule is applied when the courts have enough experience with an accused restraint to know that it is so plainly anticompetitive, and so often lacks any redeeming virtue, that further inquiry in any given case is almost certainly wasted effort

Bork and his acolytes really screwed us, basically, turning a half-baked understanding of economics into a justification to ignore legislation and 60+ years of jurisprudence, and that's carried the day since.

[actionfromafar]

Is that why call things getting "borked"?

[mcherm]

It is not.

Judge Bork was proposed as a candidate for the US Supreme Court. While the Senate was reviewing his nomination they began discussing his actual views on various topics which were so abhorrent that the Senate voted not to confirm him. The conservative community complained he had been treated unfairly and coined the term.

[rayiner]

The Senate voted not to confirm Bork because Democrats controlled the Senate 55-45 and had the power to insist on a more ideologically liberal nominee. (Which I think is a fair use of the advice and consent power by the way. And a successful gambit, because they got Anthony Kennedy, who swung liberal on many key votes.)

Bork was subject to attacks on his views of constitutional law. Many of the attacks were just not true. The Wikipedia write up on this is quite even-handed: https://en.wikipedia.org/wiki/Robert_Bork.

Apart from that, “abhorrent” is not a word that makes sense in discussing legal interpretation. It’s a category error. For example, Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional. To this day, the law rests on shaky Commerce Clause footings with all sorts of exceptions and caveats to avoid conflict with the first amendment freedom of association and to overcome Congress’s lack of authority to regulate morality directly.[1] The attacks on him over it was midwits having an emotional reaction to a complex legal debate that was beyond their understanding.

Bork’s antitrust theories, and its foundation in armchair economics analysis, is far better target for criticism. Ironically, that wasn’t the subject of Ted Kennedy’s speech against his candidacy.

[1] You can see this tension in the laws themselves. Why doesn’t the Fair Housing Act apply to small, owner-occupied rental properties? Because Congress lacks the constitutional power to force people to not be racist in their choice of who they live with. In more than half a century, liberals haven’t even seriously attacked these carve outs even though they would seem like low hanging fruit.

[dctoedt]

> Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional.

Um: You're massively overstating the case for GOP involvement in the Civil Rights Act. The Act was muscled through by President Lyndon Johnson — a Democrat and protégé of LBJ; liberal congressional Democrats; and a few (and now-extinct) liberal Republicans. The racist, segregation-forever southern Democrats, who as powerful committee chairs had blocked civil-rights legislation for decades — mostly died off or became Republicans in the 1970s and 1980s thanks to the GOP's "Southern Strategy."

[rayiner]

The current state of antitrust law expands far beyond Bork and conservatives. I’d be surprised if any of the top antitrust scholars are conservatives: https://leiterlawschool.typepad.com/leiter/2021/10/10-most-c...

[ameister14]

I'm not saying current political conservatives are the cause, Bork was hugely influential beyond traditional conservative circles, particularly in antitrust law.

If you read Bork's work, especially The Antitrust Paradox, and if you study the caselaw prior to and post 1970's, you'll see a stark difference.

It was really a conservative idea at that point but I'd say it's more neoliberal, which has a strong backing in the democratic party and has for decades, beginning with Carter.

The per se analysis and application, particularly, is just massively different from the pre-Bork era. He's the single largest reason that the three main elements of cost, quality, and quantity as a standard for antitrust analysis has eventually boiled down almost entirely to cost, partially because it's so much easier to measure but also because he advocated for it as a mechanism to measure business efficiency.

One of the big problems of this is the change in fundamentals since Bork was writing in the 70's, particularly with union membership declining so heavily. He was countering a very strong and powerful union system and factored that into his analysis, and we just don't have that in the private sector any longer.

I've been working on a paper for a while about theoretically adding in wage and labor market analysis into the mix, particularly with monopoly and monopsony situations, but it's kinda stalled since I've been clerking.

Honestly, read the guy's book and read some cases if you're interested. You'll see it fairly quickly.

[rayiner]

I think we basically agree. My point is that his ideas gained so much traction because neoliberalism was ascendant during this period. Law & economics started in the 1960s, and as you note, by Carter it had widely reshaped regulatory law in general.

[theshrike79]

This is like Ford making a deal with Goodyear to only ship their cars with Goodyear tires and Goodyear pays them for it.

Anyone can swap the tires to anything they want, but the default is Goodyear.

[xrd]

Your caveat rubs me the wrong way because this case proves the so-called experts don't have a clue either. Anti-trust lawyers means nothing in the current state of lawlessness.

[xyzzyz]

All the while they keep blocking the most mundane acquisitions.

[graeme]

The idea is that without $20 billion or an incentive to send people to google Apple might have become interested in chipping away at the search business. Sori already handles a lot of search.

Google didn't want Apple thinking about that. They wanted Apple to have an incentive to send traffic to google.

[1vuio0pswjnm7]

"Didn't Apple say that 1) they weren't interested in being in the Search Engine business 2) (in testimony) Google was by far the best search engine that they were going to use anyway ?"

That testimony worked in favor of the government

It raises the question, "Then why pay them?"

Google had no answer

The company always has an alternative explanation for its actions that lacks any relation to advertising services, or profit motive

[fsflover]

> Didn't Apple say that 1) they weren't interested in being in the Search Engine business 2) (in testimony) Google was by far the best search engine that they were going to use anyway ?

Aren't Apple getting 20 bln annually to say that? Google search quality has deteriorated drastically in the last decade, as evidenced by the court and numerous HN threads.

> but knowing Apple's negotiation tactics they could also have used their weigh

These two megacorps are parts of the duopoly and have no incentive to change that.

[isleyaardvark]

His quote is stunningly disingenuous, I'm surprised to hear that coming from Doctorow.

That Google has paid Apple to be the default search engine was a business deal that has been open knowledge for a decade or more. Other search engines could've paid to be the default. Apple didn't have a search engine when they created the iPhone, and why would they start? Ever? MS didn't do so well. And why would Apple want to make their own search engine? Even if Apple did, the reaction would certainly be that Apple was abusing their position to promote their own search engine and would be committing an anti-trust violation then.

Also I think it's safe to say there is no actual testimony about a quid pro quo arrangement to get Apple to agree to not make a search engine.

[rufo]

> One of the facts established in the verdict was that Google had been slipping Apple more than $20b/year...

While the payments were public knowledge and there was speculation about the amount being somewhere between $8B and $12B, the number had never been confirmed until unsealed in the case, was more than the previous speculation, and was something both Google and Apple wanted to keep under wraps: https://www.theverge.com/2024/5/2/24147007/google-paid-apple...

Thus, it's a fact that was established in the verdict. "Slipping" is possibly a stretch, given the deal itself was at least publicly known? - though the fact both parties wanted to avoid discussion of the deal since its inception makes it feel at least somewhat evasive, so I can see what the word choice gestures towards.

> ...in exchange for which, Apple forbore from making a competing search engine.

From https://www.justice.gov/atr/media/1402141/dl?inline=:

> Cutting off all search-related payments from Google to Apple would strongly alter Apple’s incentives. Rem. Tr. 3825:7–3829:2 (Cue (Apple)) (Apple’s SVP of Services “can’t say [he] would disagree” that “it was a disincentive for us to do a search engine based on the payments that we were receiving from Google”)

> forbear: politely or patiently restrain an impulse to do something; refrain

That seems like a reasonable description of what Eddy Cue stated to me. It certainly wasn't part of the wording of the deal, but if I were Eddy, I'd probably refrain from building a search engine in his shoes.

[rtpg]

> Apple didn't have a search engine when they created the iPhone, and why would they start? Ever?

I mean Apple Maps happened. Is it the same scale of problem? No, because Street View is harder than search in some sense! In all seriousness it's not the same problem, but it's something.

$20B/year is real money, and I have a very easy time imagining that squashing the idea at all (even if the intent on Google's side is "simply" to maintain dominance, and not squash out competition from Apple specifically)

[rz2k]

Based on what I can find, Kagi seems to have received less than $1B in funding. Delivering results to a large user base would cost more, but that seems to be pretty cheap for creating and engine that users often consider better results than Google.

[rtpg]

well from Apple's position they're _receiving_ 20 billion dollars a year from Google. It's "free" money, for doing nothing! If they created their own search engine, maybe those 20 billion dollars disappear.

That's the calculus, right?

[onlypassingthru]

Can you explain why Google Android can use Google search but Apple iOS can't use Apple search because that would be an anti-trust violation?

[b_e_n_t_o_n]

Probably the same reason why iOS can have Safari installed as default but MS got in trouble for IE years ago. These laws are applied very inconsistently.