Laws in the New Economy

Start here: http://www.theverge.com/2013/9/20/4751516/ballmer-calls-google-a-monopoly

Ok, so, I never took anti-trust in law school. But hey! I'm going to say something anyways for two reasons. First, it relates to a broader theory I have about the law and the effects that internet companies are having across different areas within the law - corporate, IP, etc. Second, a renowned legal scholar once told my class to simply keep talking if we wanted to get anywhere with our opinions.

Here's my theory: laws were created in a time long ago, in a galaxy far away when the things that we're occupying ourselves with today were completely unimaginable. There are no built in re-evaluation protocols, so we're forced to fight things out according to outdated precedent that might not apply philosophically but governs nevertheless. This is proving to be a problem today and will only become more of a problem going forward as things change more rapidly because of technological advances across a broader array of subject areas. There are additional systemic problems (read: indefinite Congressional terms) that allow rich (i.e. war weary) 90+ year old white dudes to sit in the House or Senate without a real clue for how anything works or even a fighting chance to understand - 'old dog, new tricks'.

Here's the definition of a monopoly according to http://legal-dictionary.thefreedictionary.com/ (definitely not the authoritative source on all things law, but good enough to inform my thinking in studying for exams, and good enough for our purposes here): An economic advantage held by one or more persons or companies deriving from the exclusive power to carry on a particular business or trade or to manufacture and sell a particular item, thereby suppressing competition and allowing such persons or companies to raise the price of a product or service substantially above the price that would be established by a free market.

Let's dissect a little:
1) According to this definition of a monopoly, what's Google's business/trade? Search? Advertising? If it's search, which is what it seems like Ballmer is saying, maybe there's a case. Although, they have less than 70% market share. Microsoft wasn't touched until they owned ~90% of the OS business. Moreover, they don't charge anyone to search, so, is it a "business or a trade"? If we're trying to make a case on Advertising, they're selling web real estate for people to put up signs. Doesn't seem like they hold anywhere near exclusive power over all web real estate. There are likely more wrinkles to this, but none that really add up, under current law (as I understand it), to suggest that Google has a monopoly.

According to the same source, a trade is defined as: trade 1) n. a business or occupation for profit, particularly in retail or wholesale sales or requiring special mechanical skill.

What have the courts previously defined retail to be? What kinds of cases qualify under special mechanical skill? I don't know. But, basically, lawyers will make arguments going both ways on these definitions, and they'll use various cases from the past that indicate what the court should take as acceptable definitions of these terms.

2) Anti-trust laws were created in response to the railroads and Standard Oil. Sure, they've been refined over the years and stretched in different directions, but the internet and Google are things that were far beyond the scope of thinking. Google doesn't necessarily make money in what were clearly two distinct ways in which people made money - directly selling the good or service for which the primary demand occurs. They're much more like a publisher in that regard. However, unlike publishers, courts have found that they're not responsible for the content that the search brings up, so they're not publishers. Additionally, unlike a railroad, Google's real estate extends outside of the physical constraints of this country and can be accessed from anywhere on the globe at any time of day, so do we have Google submitting to separate standards in each country? Looks like that's what China's demanded, but that's a whole other ball game.

Anyways, complicated issue. Ballmer's going to have to come with a hell of a lot more game than that though. How does he propose the authorities get involved here? I generally agree that it's a net negative to have one view of the world prevail, not necessarily because I disagree with that view today but because that view or I might change at some point in the future. And, make no mistake, Google has a point of view that is expressed in search. At a fundamental level, that point of view is that our individual search streams should be curated according to the types of information we've previously consumed, the people we engage with and the types of information they consume, thereby rendering search results pretty different for different people, but that takes for granted that new, different information might change the way we behave. There are more arguments here, but I'll leave you with that.