I appreciate the compliment, but truth be told while my knowledge is not non-existent, it’s certainly limited and pales in comparison with lawyers that got the majority of their schooling in the US and are specialised in antitrust.
My expertise lies primarily in EU laws and that of individual member states
In a common law system like the US, precedent is almost more important than the codified laws, if not outright most important.
This is also why especially in common law systems a lawyer is often necessary, as simply reading the statute often doesn’t suffice.
Case in point is the Sherman Antitrust Act, which essentially prohibits all forms doing business and only by the grace of precedent is it somewhat of a sensible law, albeit it still woefully inadequate and messy.
Moreover, it’s binding precedent meaning that it has to be followed when adjudicating a case, the majority of which is done by lower courts.
That said, even higher courts are bound by this and, theoretically, even SCOTUS is bound by precedent.
In practice SCOTUS generally doesn’t even hear cases for which there’s clear precedent, and if they do they almost always affirm prior precedent, despite SCOTUS being rather politicised in our era.
Only when new situations arise for which no clear precedent exists, do we often see new precedent being set.
This reads as one of the many EU fan fictions I’ve seen ever since the debate on Apple’s App Store got started and it speaks to a lack of historical understanding of the EU, its general behaviour, the limitations of the current legislation in the EU and the general governmental structure within the EU.
Historically the EU has preferred small course corrections over a sledge hammer approach and shown general reluctance to significantly interfere with the market.
Their biggest move thus far was with Microsoft and the browser choice screen, something that by the time that it was imposed had become redundant and arguably contributed, if not outright led, to Chrome’s current dominant market power.
Subsequently, they chose not to extend the browser choice screen.
What was supposed to be the next big thing, and certainly the biggest of our lifetime and Vestager’s career defining move, the Ireland (Apple) matter, was embarrassingly struck down by the EGC. She’s currently prepping the appeal of this case in front of the ECJ.
I’d be genuinely surprised if the EC would try to impose anything close to what you describe. Most likely, if anything, it will try and block the anti-steering provision that’s currently in place.
That said, Vestager might have a chip on her shoulder due to the prior embarrassment, so who knows.
What is clear however, is that under current legislation, the chances of any significant attempts by the EC being upheld in court, are slim.
As for the Berne Convention; for starters it had nothing to do with the EU, since the EU didn’t exist back then.
Also, it took the US over a century to ratify and, contrary to what you claim, it doesn’t replace the US’ own copyright regime, it only handles international copyright.
Lastly, in true American fashion, the Berne Convention Implementation Act of 1988, didn’t even implement the Berne Convention in full, some parts are still missing till this day and some mundane requirements, like requiring that a copy of the work be deposited at the Library of Congress, are still in place.
Not to mention that, unlike in many other countries, in the US, international law isn’t superior to domestic laws or the constitution.
The specific hierarchy of international law within the US depends on the type of international law, but at best it’s at the same level as other federal laws.
The laws, on both sides of the ocean, are relatively agnostic regarding the difference between these two and business models are are relatively insignificant legal factors, if at all.
That said, the notion that console hardware are loss leaders has yet to pass the stage of “generally known”, as Epic failed to provide documentation to support this assertion and no public documents on this exists.
And even in the “generally known” realm, which isn’t sufficient for court, Nintendo’s Switch doesn’t seem to follow that notion, which raises the important question if this is inherently tied to the industry or a business choice that was made.
Similarly, with all the discovery that was part of the Epic case, not a single document was able to establish the clear costs involved with the App Store and the developer program as a whole, so no comparisons could be made even if it was relevant.
What is very relevant however, is that a single-brand market definition rarely survives in court. If only because it would impact almost every industry and every size of enterprise, from sole proprietor to corporation, if it was a generally accepted market definition.
I’ll pass on the poor analogy, of which there’s also no shortage. I will say however that your statement completely ignores the fact that laws are generally made in a relatively agnostic way for the sake of justice.
And it would require surgical precision, in an already flexible common law system, to prevent unintended effects.
In fact, the first piggyback case against Sony is already induced.
Completely different fact pattern and completely different time (1920s) with different legal principles.
Aside from the fact that railroads are currently mostly exempt from antitrust laws, the stuff that happened in the 1920s had mainly to do with mergers and acquisitions for the sole purpose of getting rid of competition.
Not only is that not in play with Apple, the current antitrust doctrine has a specific exemption regarding market power: "the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident."
Which would certainly apply here, given that the terms when the App Store started and Apple was insignificant in the smartphone market, have been the same, or rather have not changed in an adverse way.
Not only that, an important aspect with the railroads was that they were considered to be an essential utility, something Epic had expressly denied to be claiming in court and would be a difficult argument to make.
Not one case from the 1920s tried to make the argument that the railroads in question were part of a “transport” market, so to imply that the argument was made and that it failed, is disingenuous.
All in all the railroads have nothing to do with this matter and, respectfully, it sounds like your understanding of what happened to them, or any of the other matters you’ve touched upon in your comment, is shallow at best.
