BlueMail Antitrust Case Against Apple Dismissed

[hmmfe]

Ok. I didn’t say we weren’t.

and I didn’t say that you said... lol. Right on! playing from the same sheet of music.

 

[Carnegie]

That text I typed represents the thinking that folks are forced to adopt in order to think that the iOS App Store is a monopoly. If one has to use the trademarked name of a company in their definition of a “monopoly”, then what they’re ACTUALLY defining is “a product a company makes”. Once they’ve accepted that the product of a company is an illegal monopoly that company holds, then they MUST also accept additional absurdities, like what I typed.

The other poster said “Arguing the macOS App Store is a monopoly is not even close to the same as arguing the iOS App Store is a monopoly.” AND, as you’ll see, they both include trademarked company names, so they are either BOTH monopolies or BOTH not monopolies. One can’t be a monopoly while the other isn’t.

That's not how U.S. antitrust law works though. It's not how relevant market definition is determined under U.S. antitrust law.

The vast majority of markets which might be defined as single brand markets wouldn't be relevant markets for antitrust purposes. But some could be. There are considerations which apply (which we can get into if you'd like) when making such determinations, and those determinations don't hinge on whether a given proposed market definition includes only a single brand of products or services.

Distribution of iOS apps is one single brand market which could plausibly, based on precedents, be considered a relevant antitrust market. That's because of realities relating to that market which don't exist in most situations. I don't think it should be considered a relevant antitrust market, but it could be. And arguing that it should be considered a relevant antitrust market isn't tantamount to arguing that all single brand markets are relevant antitrust markets.

 

[Carnegie]

So, I went back and read the pertinent comments to see where the disconnect is.

I think it might just be semantics. If someone says Standard Oil is a monopoly, it is not suggesting that only products sold by Standard Oil is the relevant market. What it means is that Standard Oil was found to have dominant market share within the relevant market (e.g. petroleum products) thus satisfying the 1st part of monopoly power analysis. If someone says Windows was a monopoly, it should be understood to mean that Windows (a product of Microsoft) had a dominant market share within the Intel-based PC operating system market (i.e. the relevant market). It does not mean that the relevant market is Windows operating systems.

Likewise, saying that iOS App Store is a monopoly (not saying it actually is or not - just an example) suggests that Apple, by way of it's iOS App Store exerts a dominant market force in whatever the relevant market is. It should not suggest that the iOS App Store is necessarily the relevant market. [Note: Apple seems to suggest that the relevant market is smartphones and the House subcommittee thinks it's software distribution to iOS devices. This is why I stated earlier that I think its much more likely the the iOS App Store would be seen as the source of monopoly power as opposed to the macOS Apps Store. It's clear software distribution models are very different between the two platforms. There are many other places to get macOS software thus making the macOS App Store less likely to be seen as having dominant market share. (all of this assumes that software distribution to x devices would be the relevant market).]

Again, the determination of what is the relevant market is not a matter of choice. There is a definitive test that is applied to determine this. Of course, opposing sides in their pleadings, evidence and arguments will try to define the market narrowly or broadly to help their cause. That does not mean that it can be anything - especially the absurdity of having a specific product by a specific company be the relevant market or the equally absurd position that the relevant market is all goods sold anywhere on earth.

I don't recall seeing anyone define the iOS App Store as the relevant market. What I saw was someone expressing the opinion that the iOS App Store might be a monopoly where the macOS App Store might not. I took that to mean that Apple might have antitrust liability over it's iOS App Store, whereas they would not over it's macOS App Store. I agree with that.

It seems you moved between, "If one has to use the trademarked name of a company in their definition of a “monopoly”," and "if you define a market such that it includes any trademarked name of a company," as if they are different ways of saying the same thing? If I were to accept that as true, then all I can say is I have nothing to say since on it's face that would produce an absurdity. From my perspective, defining the market (or relevant market) is part of the analysis of determining if a company has monopoly power. So, they are related but not synonymous.

Different strokes... issue resolved.

I generally agree with what you've said here.

But, to be clear, some are arguing that iOS app distribution IS a relevant antitrust market in itself. The argument isn't that Apple has monopoly power because it has a dominant share of mobile app distribution or mobile apps. It's that Apple has monopoly power because it has a dominant share of iOS app distribution. That's what Epic is arguing. Epic seeks to define the relevant market as just iOS app distribution.

Blix's case is different in part in that it seeks to define the relevant markets as iOS email clients and MacOS email clients (i.e., not the distribution thereof). But, again, it isn't arguing that Apple has monopoly power because it has dominant shares of email client markets. Blix is arguing that the relevant markets are limited to iOS email clients and MacOS email clients.

 

[Carnegie]

I think this thread is confusing several points in regards to the ruling:

1) This is a federal case brought in Federal District Court of which the court has subject matter jurisdiction (patent law and The Sherman Act). There is no question of state law.

2) The case was dismissed with prejudice as it pertains to the patent claim due to a factually deficient complaint.

3) The case was dismissed without prejudice in regards to the Sherman Act claim due to a deficient complaint. But the court concluded that an amendment to the complaint could cure the defects so the Court granted the Plaintiff leave to amend the complaint.

4) The Plaintiff will be amending the complaint, for a second time, so the case will continue.

5) The case was brought in District Court. Generally speaking, District Court rulings are not binding either within or outside the district, or even upon the same judge within the District. In other words, the ruling has no binding effect outside of the specific case. Of course comity may apply and if the rational is strong any court may use the ruling as persuasive. (note: this is not a settled area of law and there is variance from District to District).

In short, any talk of precedence is pointless as it relates to this decision. Once this trial is complete and is appealed, the Circuit Court's decision might have some influence on other ongoing cases against Apple (or at least give us all a clue as to how successful these other cases might be).

I agree with much of what you're saying.

Blix may amend its complaint and take another swing at the antitrust issue. But I don't see how it gets over the fundamental hurdle it faces, and the reason it failed this last time. It didn't plead facts which demonstrate - directly or indirectly - that Apple has monopoly power in the relevant markets (even accepting them as relevant markets) because, I suspect, there aren't such facts.

That's why, I think, Blix instead offered novel theories for circumstances which would in themselves constitute monopoly power even in the absence of direct or indirect evidence of monopoly power.

 

[Unregistered 4U]

It's not how relevant market definition is determined under U.S. antitrust law.

No, the way I’ve defined it is NOT how relevant market definition is determined. However, that doesn’t change the fact that a case defining a “relevant market” using a company’s product name has never been brought forth and won. That’s primarily because the legal structures that exist around the creation of a company and then that company’s products would come into play WELL before you got to the basic argument of “Well I make it, so of course I have control over it.”

and those determinations don't hinge on whether a given proposed market definition includes only a single brand of products or services.

In reality, you’ll never find a case brought forth and won where the market was defined by a single brand. And, that’s because the proposed market definition fails LONG before it gets to the “single brand” part. The considerations in place effectively prevent this from occurring. CAN someone bring a case forward? Yes, Blix did. And, they didn’t win.

I don't think it should be considered a relevant antitrust market, but it could be. And arguing that it should be considered a relevant antitrust market isn't tantamount to arguing that all single brand markets are relevant antitrust markets.

The moment one “single brand market” case is brought forth and won, that sets a precedent for any legal challenges in that area going forward. You may not be effectively arguing that all single brand markets are relevant antitrust markets, but the door will be opened to ever more iterative legal challenges that could erode a company’s protections of their own products. This is the main reason why no “single brand market” case has ever won or ever WILL win.

BUT, to clarify, I’ll say again that reason it won’t win will have NOTHING to do with “single brand market“ definitions, it will fail well before that as the Blix case shows. As an interesting academic thought exercise, it’s a thing that could happen, but the structures in place effectively prevent it from happening. Current law would have to change to bring it into the realm of possibility.

 

[hmmfe]

I generally agree with what you've said here.

But, to be clear, some are arguing that iOS app distribution IS a relevant antitrust market in itself. The argument isn't that Apple has monopoly power because it has a dominant share of mobile app distribution or mobile apps. It's that Apple has monopoly power because it has a dominant share of iOS app distribution. That's what Epic is arguing. Epic seeks to define the relevant market as just iOS app distribution.

Blix's case is different in part in that it seeks to define the relevant markets as iOS email clients and MacOS email clients (i.e., not the distribution thereof). But, again, it isn't arguing that Apple has monopoly power because it has dominant shares of email client markets. Blix is arguing that the relevant markets are limited to iOS email clients and MacOS email clients.

Absolutely. I think I addressed that in a note buried in my overly long post. This is the position of the House Subcommittee and I think it might end up being a reasonable one - though the judge rather pointedly remarked that the subcommittee's opinion was of little use in this case.

 

[hmmfe]

I agree with much of what you're saying.

Blix may amend its complaint and take another swing at the antitrust issue. But I don't see how it gets over the fundamental hurdle it faces, and the reason it failed this last time. It didn't plead facts which demonstrate - directly or indirectly - that Apple has monopoly power in the relevant markets (even accepting them as relevant markets) because, I suspect, there aren't such facts.

That's why, I think, Blix instead offered novel theories for circumstances which would in themselves constitute monopoly power even in the absence of direct or indirect evidence of monopoly power.

Yes, the judge was rather explicit on this point. Being completely silent as to market share is not a good sign for Blix. I can't believe the Plantiff was unaware of the requirements of indirect evidence of monopoly power. Likewise, not having any evidence of restricted output or supra-competitive pricing makes their case for direct evidence pretty hard too.

Somehow, though, I think they'll be back.