Thread by @CompetitionProf

@randypicker discussion of static monopolization in #Fortnite v Apple displays substantial parallels with the problems faced by antitrust towards tacit collusion 1/n

https://twitter.com/randypicker/status/1295007314727120897

That is: should antitrust law deem unlawful business coordination without an explicit act of collusion? 2/n

Or put differently, should antitrust law affirm liability towards firms that have not sinned by commission, but which occupy a market that has evolved into a monopoly or tight oligopoly? 3/n

And should terms and conditions that were lawful initially - when the App store launched - become unlawful simply as a result of a long term and incremental change in market structure? 4/n

Article 102 TFEU is more open to such a theory, bc it reputes illegal acts that are ordinarily lawful from all firms as soon as they are practiced by a dominant firm 5/n

By contrast, under section 2, liability is triggered if monopoly is the predictable *outcome* of some act, conduct or course of action 6/n

Put differently, the dependent variable for liability in article 102 TFEU is market structure 7/n

While under section 2, the dependent variable for liability is business conduct 8/n

Back to tacit collusion: there are 2 classic objections to liability against tacit collusion. First, it’s unfair to sanction firms for strictly rational behavior. Two it’s unpractical to order them to behave irrationally. 9/n

In both cases structure is the culprit, not conduct. But ... Richard Posner has shown these objections do not withstand close scrutiny. And they seem less compelling in a single firm conduct case. Why couldn’t Apple decrease prices or relax rules agst platform bypass? 10/n

There’s no strong IP, so not really unfair. And pressuring down the price is perhaps unpractical, but not impossible 11/n

One distinction with tacit collusion cases lies in efficiencies, bc returns to scale and network effects are more important in Apple’s case than in a tacit collusion one 12/n

Dunno if any of this makes sense but go read @randypicker great thread - END