CyberTech Rambler

September 8, 2006

Antitrust is different from other law?

Filed under: Uncategorized — ctrambler @ 7:20 pm

Finally, after a long period of producing articles not worth commenting on, i.e., since he decided to try his hand on being a cameraman, John Carroll is back in producing thought provoking articles again.

In this blog entry, he argues that Anti-trust is different from other law, because what precisely is a violation of antitrust laws is a matter of interpretation. This is why Microsoft needs the European Commission to tell it what to do with Vista. Is it true?

I cannot see antitrust law as being different with other laws. All laws start with something that is defined to be wrong and punishable. While it is crystal clear that someone is dead, we cannot say for certain legally that he is murderred (first degree, second degree) or “manslaughtered”, that is why we need a jury trial. That is the same in antitrust. Past cases establish the case-law for what constitute a “first degree” murder and what does not, just like antitrust where past cases give guidance on what is acceptable practice and what is not. In every antitrust case it is necessary to establish facts and definition, just like a murder case. There are degrees of uncertainties in antitrust which is not unlike the Russian Roulette of most jury trial.

I cannot see how the European Commission is going to say, in black-and-white, that this is definitely against antitrust behaviour and that is not, if this is what Microsoft seeks to clarify. If Microsoft want a certificate of health in such a way that it is a “get out of jail” card for future antitrust action, it is not going to be get it. No competent government agency will give it.

That is why antitrust law is flexible. Microsoft got fined heavily by the EC in the past not because of it being a monopoly, but for its abuse of monopoly power. This distinction is important. EC, being subjected to modern jurisdiction, cannot hope to have its decision for heafty fine uphold by the courts if it cannot demonstrate abuse of monopoly power. Recently, I revised my opinion and now I believe that monopoly in itself is not an automatic wrong, but the ills of monopolistic behaviour are. If Microsoft did try it very best to abide by antitrust law, something that is definitely not demonstrated in existing EC antitrust case it is facing, but still fall foul of it for something that it did not help to perpentrate, I’m sure EC will be lenient on it.

Thus, in my mind, the latest threat from Microsoft about possible Vista delay is just another stick it is trying to hit EC with. If in doubt, see TheRegister’s analysis on this announcement. This move is likely to be viewed as a Microsoft being unrepentent in the eyes of EC and hopefully, the European Court of Justice where it is currently appealing against the EC.

This is not even the first time Microsoft threathen to delay Windows. It did it with South Korea first. Finally, when one jurisdiction hit you with a penalty, may be it is bad luck. Two? then it is time to examine whether you might just in fact, did something wrong. Thus, I see this as the worst behaviour of the abuse of monopoly, i.e., trying to carve up a new rule through force.


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