No fault antitrust

[georgemw at speakeasy.net]

On 8 Aug 2001, at 13:34, Steve Schear wrote:

> At 12:39 PM 8/8/2001 -0700, georgemw at speakeasy.net wrote:
> >On 7 Aug 2001, at 14:48, Steve Schear wrote:

> >So under this "no fault antitrust" proposal, we strip away the
> >illusion that the DOJ is punishing predatory behavior and accept
> >that,  in fact,  what is being punished is market share dominance?
> >
> >Interesting notion, here's why I don't think this will work:  the
> >single difficult point in most of these antitrust cases is
> >determining what constitutes the market in question in
> >the first place.  For example,  in the Microsoft case,  Microsoft
> >was held to have a monoploly on operating systems for computers
> >which use intel processors.  Obviously,  there is no such market
> >in the first place.
> 
> I think many or most on this list, not to mention within the computer 
> industry, might disagree with you.
> 

I really don't see how they could.  Any meaningful definition
or markets in this sense has to somehow be based on
the function of the product,  not the fact that it happens to
invorporate a specific brand of third party hardware.

I'm not disputing that Microsoft had a monoply BTW.  I think it's
a perfectly reasonable position that Apple's competition is
sufficiently meager to say that Microsoft has an effective monoply
on personal computer operating systems.  I'm just saying that
refusing to consider it because it gets its cpus from a different 
vendor was completely fucked up reasoning on the part of the judge.


> >The other possible advantage of allegedly punishing companies
> >for actually engaging in unethical actions rather than merely
> >for getting too large a market share is the (admittedly unlikely)
> >psossibility that in some cases the claims might be true.
> >
> >For example,  consider a hypothetical case in which, due to
> >economies of scale or whatever, that there really only ought to
> >be one supplier of a given product.
> 
> No.  Though my readings in antitrust have led me to the conclusion that 
> there are few industries in which greater than 50% of market share are 
> required for sufficient economies of scale.  One that comes to mind is 
> commercial aircraft.
>

Yeah,  I understand that,  that's why I added the "or whatever",
maybe I should have left out the "economies of scale" part.

But the point is,  what exactly is the goal?  I mean,  getting back to
Microsoft,  establishing that they had a monopoly was a necessary
preliminary,  but allegedly what the really did wrong
was to unethically use their OS monopoly to obtain an unfair
advantage in the browser market.  Now,  if we say,  "yeah,  but
that's all bullshit,  it's the monopoly itself that's the problem",
OK fine.  But if we pretend to believe the claim that the behavior we
wish to discourage is msft using its monoply in OS to obtain 
advantages in other markets,  well, obviously,  any sanctions
based on market share alone can't be expected to acheive this.   


> >Would forcing that company to
> >raise its prices until its market share falls to approved levels really
> >be to anyone's benefit?
> 
> It might if I get to have choices which would otherwise be foreclosed once 
> one company reaches a "friction free" point in that industry.
> 
> steve
> 
I'm not quite sure what you mean by this.  Who can say what 
possible choices you might have in the future,  and when those 
possibilities might be foreclosed?  If AMD died off,  Intel might
not have quite as strong an incentive as they do now to keep
coming up with improved chips,  but they'd still have a strong
incentive,  because much of their sales come from people
upgrading their systems from an old Intel CPU to a new one.
(Or buying a whole new Intel CPU system to replace the old one).
This is even truer in the software industry;  square cut or pear 
shaped,  programs never lose their shape,  programs are a girls
best friend I mean forever.

Oh,  one other thing I just thought of.  I'm not comfortable with
the idea that trademarks are priviledges that can be revoked.  It
seems to me that a trademark essentially is a way of attaching
a reputation for quality to a product,  and that "revoking" the
trademark and allowing any random bozo to use it is
essentially defrauding the consumer. 

George