[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.