[Spivak]

But the ruling is correct. You can't have it both ways, if you invite competition you're not allowed to be anti-competitive. You can be Nintendo, offer a single store, only allow first party hardware, and exercise total control over your product. Then your anticompetitive behavior can only be evaluated externally. But if you open yourself up to internal competition with other phone vendors, other stores, and then you flex your other business units (gapps) to force those other vendors to favor you then you're in big trouble.

[chii]

> But the ruling is correct. You can't have it both ways, if you invite competition you're not allowed to be anti-competitive

That's just stupid, because being anti-competitive is an emergent outcome, rather than anything specific.

Apple is definitely anti-competitive, but they exploited such a ruling so that they can skirt it. Owning a platform that no other entrants are allowed is anti-competitive - whether you're small or large. It's only when you're large that you should become a target to purge via anti-competitive laws. This allows small players to grow, but always face the threat of purging - this makes them wary of trying to take advantage too much, which results in better consumer outcomes.

[amne]

That's like Karcher opening a megamall to sell all their offering, vacuums, pressure washers, floor washers, you name it .. and then you, Bosch, complaining you can't sell your vacuum in Karcher's megamall where all the people go.

What are you even saying?

Whereas google was letting Bosch sell vacuums in their megamall, but only if it uses Google dust filters and people buy only Google made dust filters and Bosch isn't allowed to sell their own dust filters in the megamall.

[AnthonyMouse]

It's like a company buying all the land within a 100 mile radius and then nominally "selling" plots to people but with terms of service attached that restrict what you can do with the land you bought and that allow the company to change the terms at any time. And then, after people have moved in, most of them having not even read the terms or realized it wasn't an ordinary sale, they start enforcing the terms against competitors. Which most people don't notice because they aren't competitors, and because the terms also prohibited anyone in the city from telling people what's going on[1]. Then people eventually notice and start to ask whether terms locking out competitors like that are an antitrust violation, and someone says that they're not because the people there agreed to them.

[1] https://som.yale.edu/sites/default/files/2022-01/DTH-Apple-n...

But how is an agreement prohibiting people from patronizing competitors not an antitrust violation? It's not a matter of who agreed to it, it's matter of what they're requiring you to agree to.

[astafrig]

> nominally "selling" plots to people but with terms of service attached that restrict what you can do with the land you bought and that allow the company to change the terms at any time.

So, a lease.

[AnthonyMouse]

That's, to begin with, not even how a lease generally works. A lease isn't where you pay once up front to take permanent possession of something.

Moreover, did people buying iPhones on "day 1" think they were buying them or leasing them? Did Apple call it a sale or a rental agreement?

[chii]

> Karcher opening a megamall to sell all their offering

And their mall is monopolistic if it is only for Karcher products. However, because a competitor can easily open a mall next door, it means this Karcher mall is small, and so the enforcers should leave it be. Until the day Karcher buys up all the mall space, in which case, they (regulators) start purging their mall monopoly.

The threat of being purged because you've acquired a large enough monopoly should _always_ be there. It's part of doing business in a fair environment.

[AnthonyMouse]

> You can be Nintendo, offer a single store, only allow first party hardware, and exercise total control over your product.

How is this not even more anti-competitive?

It's fine to be mad at Google for being duplicitous, but treachery is in the nature of false advertising or breach of contract. Antitrust is something else.

"You can monopolize the market as long as you commit to it from the start" seems like the text of the law a supervillain would be trying pass in order to destroy the world.

[Spivak]

You can't monopolize a market where there is no market. Nintendo can be anticompetitive in the wider games industry, but there is no market for software that runs on a Switch.

I didn't say I liked the ruling, just that it's correct. The opposite conclusion would be absurd, that you can invent a market where there isn't one and claim a company has a monopoly over it. You would be asking the court to declare that every computing device is a de facto marketplace for software that could run on it and that you can't privilege any specific software vendor. I would love if that were true but you can hopefully agree that such a thing would be a huge stretch legally.

[AnthonyMouse]

> You can't monopolize a market where there is no market. The opposite conclusion would be absurd, that you can invent a market where there isn't one and claim a company has a monopoly over it.

There is no such thing as "there is no market". There is always a market. The question is, what's in the market? The typical strategy is to do the opposite -- have Nintendo claim that they're competing with Sony and Microsoft in the same market to try to claim that it isn't a monopoly.

But then the question is, are they the same market? So to take some traditional examples, third party software that could run on MS-DOS could also run on non-Microsoft flavors of DOS. OS/2 could run software for Windows. The various POSIX-compliant versions of Unix and Linux could run the same software as one another. Samsung phones can run the same apps as Pixel phones. Which puts these things in the same market as each other, because they're actually substitutes, even though they're made by different companies.

Conversely, you can't run iOS apps on Android or get iOS apps from Google Play or vice versa. It's not because they're different companies -- both of them could support both if they wanted to -- it's that they choose not to and choices have consequences.

If you intentionally avoid competing in the same market as another company then you're not competing in the same market as that company and the absurdity is trying to have it both ways by doing that and then still wanting to claim them as a competitor.

[Spivak]

You avoided the important part, there is no market for hardware that can play Nintendo Switch games and there is no market for software providers on Nintendo Switch. And they are legally allowed to do that. You can sell appliances that are bound to a single vendor and you are allowed to not license your hardware or software to 3rd parties.

Since that is a legally permissible action it would be an odd thing for a court to declare that doing such a thing is anticompetitive. If they did they would be declaring all locked down hardware effectively illegal. And while that might be nice it's a bit of a pipedream. Where Google fucked up is that they did license their software to 3rd parties—good for them. But then Google had some regrets and didn't like the fact that they didn't have control over those 3rd parties. But they did have some leverage in the form of Google Play and GSM because users expect it to be there on every Android phone. And then they used that leverage. That's the fuckup. They used Google Play and GSM access to make 3rd parties preinstall Chrome and kill 3rd party Android forks. They used anticompetitive practices on their competitors—other Android device manufacturers.

This situation can't occur for Apple or Nintendo because there aren't other iOS/Switch device manufacturers and they don't have to allow them to exist. They can be anticompetitive for other reasons but not this.

[AnthonyMouse]

> You avoided the important part, there is no market for hardware that can play Nintendo Switch games and there is no market for software providers on Nintendo Switch.

There is a market for these things. Nintendo sells hardware that can play Nintendo Switch games and people buy it. That's a market.

It seems like you're trying to claim that a monopoly isn't a market, but how can that possibly be how antitrust laws work? Your argument is that they don't apply to something if it is a monopoly?

> And they are legally allowed to do that.

That's just assuming the conclusion. Why should it be legal for them to exclude competitors from selling software to their customers? The obviously anti-competitive thing should obviously be a violation of any sane laws prohibiting anti-competitive practices. The insanity is the number of people trying to defend the practice.

Consider what it implies. 20th century GE could have gone around buying houses, installing a GE electrical panel and then selling the houses with a covenant that no one could use a non-GE appliance in that house ever again, or plug in any device that runs on electricity without their permission. They could buy and sell half of all the housing stock in the country and Westinghouse the other half and each add that covenant and you're claiming it wouldn't be an antitrust violation.

Apple wouldn't have been able to get their start because they'd have needed permission from GE or Westinghouse for customers to plug in an Apple II or charge an iPhone and they wouldn't get it because those companies were selling mainframes or flip phones and wouldn't want the competition. If that's not an antitrust violation then we don't have antitrust laws.

> If they did they would be declaring all locked down hardware effectively illegal.

It's fine for hardware to be locked down by and with the specific permission of the person who owns it. But how is it even controversial for the manufacturer locking down hardware for the purpose of excluding competitors to be a violation of the laws against inhibiting competition? It's exactly the thing those laws are supposed to be prohibiting.