> And you clearly don’t understand the Microsoft case, where it had 90% of the operating system market.
Once again, the government does not require a literal monopoly for behavior to be anti-competitive. 50% of a market in the US could absolutely be enough to count as significant market power.
The situations are pretty similar, because your argument about 90% is not what the courts care about. The courts care about market power, not necessarily a literal monopoly.
> Judges do make terrible rulings all the time
I mean, if you don't care about the courts system or the law, then I don't know what to tell you. Your opinion on it doesn't particularly matter, because the courts are the ones in charge of this, and the courts are the ones who make the decision here.
> Like the Apple e-books case
Well, too bad for Apple. The law is the law, and the court system is the court system.
Personally, I only talk about what the courts do. I don't really care about someone's opinion if the courts disagree with them. Because the courts and the judges are the ones that make the decision here. They decide.
And everything that I have said is within this context of what courts and judges have done in the past.
> The situations are pretty similar, because your argument about 90% is not what the courts care about. The courts care about market power, not necessarily a literal monopoly.
To be clear, whether the court cares about monopoly power or not depends on what type of claim you are making.
Section 1 of the Sherman Act deals with conspiracy and unreasonable restraints of trade and may not require establishing any market power at all. Some actions such as price fixing and bid rigging are considered per se illegal regardless of market power. Other actions (such as tying) require an analysis of market power, but not necessarily monopoly power.
Section 2 of the Sherman Act deals with monopolization and claims made under section 2 will require establishing monopoly power (or likelihood of achieving monopoly power, for attempted monopolization claims).
In the context of the Microsoft case, the 90% market share was indeed relevant to the court because several of the claims were brought under section 2, specifically having to do with Microsoft's unlawful attempts to maintain their operating system monopoly.
"Courts do not require a literal monopoly before applying rules for single firm conduct; that term is used as shorthand for a firm with significant and durable market power"
This is what I mean by that.
This applies to Section 2 of the Sherman Act, and the link that I posted mentions this. I do not mean what you are trying to say, which is that one section does not require a literal monopoly, and another does.
Instead, I am saying, that explicitly, for Section 2 of the Sherman Act, "monopoly" does not mean a singular firm, and the colloquial definition of that, is incorrect.
Instead, it only requires significant market power.
> will require establishing monopoly power
"Monopoly power" can absolutely exist in the case of a company having 50% of the market. This is what that government statement means.
> Whether monopoly power will be found in this situation will be up to a court
Yes... But it is very much not true that a court requires a literal monopoly in order for them to find behaviors to be anti-competitive. All that needs to happen is for a company to have significant market power.
So it is not a literal monopoly. Instead, it it having significant market power. And in the US, as of last month, if you are keeping up with the most recent data regarding market share, Apple has about 50% of the US market.
> iPhones currently have around 45%
Your data is about 6 months out of date. it is now around 50%. It is very much a defendable argument, that has a reasonable chance of standing up in court, that Apple, who has about half the market, in what is effectively a 2 player duopoly, could have significant market power.
That is a pretty reasonable argument, that has a real, non-negligible, possibility of standing up in court.
> Yes... But it is very much not true that a court requires a literal monopoly in order for them to find behaviors to be anti-competitive. All that needs to happen is for a company to have significant market power.
If by literal monopoly you mean a single firm that controls 100% of the market, then we don't disagree, as I never suggested that was required. However, proving a section 2 monopolization claim does require proving the existence of monopoly power.
A company is considered to have monopoly power when it has a significant degree of market power. A literal monopoly is not required, however courts have typically not found monopoly power when market share is below 50% either.
> And in the US, as of last month, if you are keeping up with the most recent data regarding market share, Apple has about 50% of the US market.
Can you cite a specific source? I've seen all sorts of different numbers but some seem to be based on web browser usage or device shipments which is not quite the same as active users.
> That is a pretty reasonable argument, that has a real, non-negligible, possibility of standing up in court.
While I certainly think it's possible, the case becomes a lot easier if the company has 90% market share (as Microsoft did) compared to 50% market share.
In other words, I find the comparison to the Microsoft case lacking because with 90% market share it was more or less accepted by both sides that Microsoft held monopoly power in the operating system market, whereas in this situation it's much more debatable. To quote from my previous link:
In determining whether a competitor possesses monopoly power in a relevant market, courts typically begin by looking at the firm's market share.(18) Although the courts "have not yet identified a precise level at which monopoly power will be inferred,"(19) they have demanded a dominant market share. Discussions of the requisite market share for monopoly power commonly begin with Judge Hand's statement in United States v. Aluminum Co. of America that a market share of ninety percent "is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three per cent is not."(20) The Supreme Court quickly endorsed Judge Hand's approach in American Tobacco Co. v. United States.(21)
Following Alcoa and American Tobacco, courts typically have required a dominant market share before inferring the existence of monopoly power. The Fifth Circuit observed that "monopolization is rarely found when the defendant's share of the relevant market is below 70%."(22) Similarly, the Tenth Circuit noted that to establish "monopoly power, lower courts generally require a minimum market share of between 70% and 80%."(23) Likewise, the Third Circuit stated that "a share significantly larger than 55% has been required to establish prima facie market power"(24) and held that a market share between seventy-five percent and eighty percent of sales is "more than adequate to establish a prima facie case of power."(25)
It is also important to consider the share levels that have been held insufficient to allow courts to conclude that a defendant possesses monopoly power. The Eleventh Circuit held that a "market share at or less than 50% is inadequate as a matter of law to constitute monopoly power."(26) The Seventh Circuit observed that "[f]ifty percent is below any accepted benchmark for inferring monopoly power from market share."(27) A treatise agrees, contending that "it would be rare indeed to find that a firm with half of a market could individually control price over any significant period."(28)
In other words, 50% is near the bottom of the range, and is going to be hotly contested.
And it seems like all of the “similar” cases where companies are sued for antitrust that are often cited on HN are when two or more companies collide with each other.
There is a reason why HN lawyers get all hand wavy when asked to come up with similar examples.
Once again, the government does not require a literal monopoly for behavior to be anti-competitive. 50% of a market in the US could absolutely be enough to count as significant market power.
The situations are pretty similar, because your argument about 90% is not what the courts care about. The courts care about market power, not necessarily a literal monopoly.
> Judges do make terrible rulings all the time
I mean, if you don't care about the courts system or the law, then I don't know what to tell you. Your opinion on it doesn't particularly matter, because the courts are the ones in charge of this, and the courts are the ones who make the decision here.
> Like the Apple e-books case
Well, too bad for Apple. The law is the law, and the court system is the court system.
Personally, I only talk about what the courts do. I don't really care about someone's opinion if the courts disagree with them. Because the courts and the judges are the ones that make the decision here. They decide.
And everything that I have said is within this context of what courts and judges have done in the past.