What took governments so long to wake up to the tech giants’ power?

Interesting NYT column by Kara Swisher:

Here’s a little quiz. When was the last time a significant social media network was founded in the United States? And what about a competitive search engine company? An online ad network? And what about a truly wide-ranging e-commerce start-up?

Here are the depressing answers. The social network Snapchat, in 2011. For search, Microsoft’s Bing appeared in 2009, a replacement for its Live Search. I’m drawing a blank on an ad network. With e-commerce, the answer is probably Wayfair, which arrived in 2002, and still has only 1.3 percent of the market (most retail innovation has been in niche areas, like luggage (Away) or special fashion (The RealReal)).

To put this another way: Facebook and its Instagram unit have close to 50 percent of the social media market, dwarfing all the other companies in monthly active users tenfold. Google has about 90 percent of the search market, with Bing and Yahoo dwindling ever further behind by the month. Google and Facebook also suck up 60 percent of the digital ad spend, with only Amazon moving up aggressively in that fast-growing space. And speaking of Amazon, the retail giant has about 50 percent of total e-commerce sales in the United States, with eBay and Walmart at 7 percent and 4 percent, respectively.

Finally, it looks as though the US government is beginning to think that there might be something wrong here. Which prompts three questions:

  1. What took them so long? Was it just that they were still in thrall to Robert Bork’s The Antitrust paradox?
  2. Have they left it too late?
  3. And how do you punish companies that can absorb a $5B fine without missing a beat?

(Interestingly, Amazon.co.uk is currently selling a paperback copy of Bork’s book for £207.02!)

Fines don’t work. To control tech companies we have to hit them where it really hurts

Today’s Observer comment piece

If you want a measure of the problem society will have in controlling the tech giants, then ponder this: as it has become clear that the US Federal Trade Commission is about to impose a fine of $5bn (£4bn) on Facebook for violating a decree governing privacy breaches, the company’s share price went up!

This is a landmark moment. It’s the biggest ever fine imposed by the FTC, the body set up to police American capitalism. And $5bn is a lot of money in anybody’s language. Anybody’s but Facebook’s. It represents just a month of revenues and the stock market knew it. Facebook’s capitalisation went up $6bn with the news. This was a fine that actually increased Mark Zuckerberg’s personal wealth…

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Tim Wu’s top ten antitrust targets

He writes:

If antitrust is due for a revival, just what should the antitrust law be doing? What are its most obvious targets? Compiled here (in alphabetical order) , and based on discussions with other antitrust experts, is a collection of the law’s most wanted — the firms or industries that are ripe for investigation.

Amazon
Investigation questions: Does Amazon have buying power in the employee markets in some areas of the country? Does it have market power? Is it improperly favoring its own products over marketplace competitors?

AT&T/WarnerMedia
Investigation question: In light of this, was the trial court’s approval of the AT&T and Time Warner merger clearly in error?

Big Agriculture
Over the last five years, the agricultural seed, fertilizer, and chemical industry has consolidated into four global giants: BASF, Bayer, DowDuPont, and ChemChina. According to the U.S. Department of Agriculture, seed prices have tripled since the 1990s, and since the mergers, fertilizer prices are up as well.
Investigation question: Were these mergers wrongly approved in the United States and Europe?

Big Pharma
The pharmaceutical industry has a long track record of anticompetitive and extortionary practices, including the abuse of patent rights for anticompetitive purposes and various forms of price gouging.
Investigation and legislative questions: Are there abuses of the patent system that are still ripe for investigation? Can something be done about pharmaceutical price gouging on drugs that are out of patent or, perhaps more broadly, the extortionate increases in the prices of prescription drugs?

Facebook
Having acquired competitors Instagram and WhatsApp in the 2010s in mergers that were arguably illegal, it has repeatedly increased its advertising load, incurred repeat violations of privacy laws, and failed to secure its networks against foreign manipulation while also dealing suspicious blows to competitor Snapchat. No obvious inefficiencies attend its dissolution.
Investigation questions: Should the Instagram and WhatsApp mergers be retroactively dissolved (effectively breaking up the company)? Did Facebook use its market power and control of Instagram and Instagram Stories to illegally diminish Snapchat from 2016–2018?

Google
Investigation question: Has Google anticompetitively excluded its rivals?

Ticketmaster/Live Nation
Investigation questions: Has Live Nation used its power as a promoter to protect Ticketmaster’s monopoly on sales? Was Songkick the victim of an illegal exclusion campaign? Should the Ticketmaster/Live Nation union be dissolved?

T-Mobile/Sprint
Investigation question: Would the merger between T-Mobile and Sprint likely yield higher prices and easier coordination among the three remaining firms?

U.S. Airline Industry
The U.S. airline industry is the exemplar of failed merger review.
Investigation and regulatory questions: Should one or more of the major mergers be reconsidered in light of new evidence? Alternatively, given the return to previous levels of concentration, should firmer regulation be imposed, including baggage and change-fee caps, minimum seat sizes, and other measures?

U.S. Hospitals
Legislative question: Should Congress or the states impose higher levels of scrutiny for health care and hospital mergers?
Investigation question: In light of this, was the trial court’s approval of the AT&T and Time Warner merger clearly in error?

Apple, the App Store and monopoly

This morning’s Observer column:

Because Apple has always specialised in control freakery and doesn’t allow anybody else to use its iOS platform without prior approval, the App Store was from the beginning owned and controlled by Apple. If you wanted to create an app for the iPhone (and later the iPad), it had to be approved by Apple and sold on the App Store. And if a developer wanted to charge for the app, then Apple took a 30% cut on the price.

So, in relation to the App Store, Apple is definitely a monopolist. The question underlying the supreme court hearing was: is it an abusive monopolist? And if so, are customers of the App Store entitled to damages? Does the operation of the store give rise to consumer harm and thereby trigger redress under US antitrust law?

The case goes back to 2011…

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Controlling digital giants: new ideas wanted

This morning’s Observer column:

The five biggest companies in the world are now all digital giants, each wielding monopolistic power in their markets. We are increasingly aware that some of their activities are socially damaging: they are deepening inequality, avoiding taxation, undermining democratic processes, creating addictive products, eroding privacy and so on. And yet, with the odd exception (mostly represented by the European commission), our societies seem transfixed by them, like rabbits paralysed in the tractor’s headlights. Politicians bleat about the need to do something about the digital giants, but so far it’s been all talk and no action.

This is strange because democracies have extensive legal toolkits for dealing with overweening corporate power. We have antitrust and competition laws, monopolies and merger commissions and federal trade commissions coming out of our ears. And yet – again with the single exception of the European commission – they seem unable to deal with the digital giants. Why?

The answer is partly historical and partly ideological…

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So are the Democrats ready to unfriend Facebook?

Nice Observer piece by Thomas Frank, reminding us of how Obama & Co drank the Facebook Kool-Aid:

Seated with a panel of entrepreneurs from around the world, the president [Obama] lobbed his friend Zuckerberg an easy question about Facebook “creating this platform for entrepreneurship around the world”. In batting it out of the park, the Facebook CEO, clad in his humble costume of jeans, T-shirt and sneakers, took pains to inform everyone that what animated him were high-minded ideals. “When I was getting started,” he burbled, “I cared deeply about giving everyone a voice, and giving people the tools to share everything that they cared about, and bringing a community together …”

No rude senator spoke up to interrupt this propaganda. Instead, Zuckerberg went on to describe his efforts to connect everyone to the internet as a sort of wager on human goodness itself.

“It’s this deep belief that you’re trying to make a change, you’re trying to connect people in the world, and I really do believe that if you do something good and if you help people out, then eventually some portion of that good will come back to you. And you may not know up front what it’s going to be, but that’s just been the guiding principle for me in the work that we’ve done …”

That’s how it works, all right. Gigantic corporate investments are acts of generosity, and when making them, kind-hearted CEOs routinely count on Karma to reward them. That’s the “guiding principle”.

Reader, here is what the president could be heard to say as Zuckerberg ended this self-serving homily: “Excellent.”

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The best question Zuckerberg was asked was the one he couldn’t answer

I agree with Dave Winer:

Senator Lindsey Graham asked Zuck the right question on Tuesday. Who are your competitors? The answer is they have none, though Zuck wouldn’t say that. That is the big problem. Solve it and all the others go away.

Zuck tried to laugh off the question, but the answer was as clear as day and he knew it. In the social-networking business, Facebook is the monopoly to end all monopolies.

Facebook meets irresistible force

Terrific blog post by Josh Marshall:

I believe what we’re seeing here is a convergence of two separate but highly charged news streams and political moments. On the one hand, you have the Russia probe, with all that is tied to that investigation. On another, you have the rising public backlash against Big Tech, the various threats it arguably poses and its outsized power in the American economy and American public life. A couple weeks ago, I wrote that after working with Google in various capacities for more than a decade I’d observed that Google is, institutionally, so accustomed to its customers actually being its products that when it gets into lines of business where its customers are really customers it really doesn’t know how to deal with them. There’s something comparable with Facebook.

Facebook is so accustomed to treating its ‘internal policies’ as though they were something like laws that they appear to have a sort of blind spot that prevents them from seeing how ridiculous their resistance sounds. To use the cliche, it feels like a real shark jumping moment. As someone recently observed, Facebook’s ‘internal policies’ are crafted to create the appearance of civic concerns for privacy, free speech, and other similar concerns. But they’re actually just a business model. Facebook’s ‘internal policies’ amount to a kind of Stepford Wives version of civic liberalism and speech and privacy rights, the outward form of the things preserved while the innards have been gutted and replaced by something entirely different, an aggressive and totalizing business model which in many ways turns these norms and values on their heads. More to the point, most people have the experience of Facebook’s ‘internal policies’ being meaningless in terms of protecting their speech or privacy or whatever as soon as they bump up against Facebook’s business model.

Spot on. Especially the Stepford Wives metaphor.

How things change

The €2.4B fine on Google handed down by the European Commission stemmed originally from complaints by shopping-comparison sites that changes in Google Shopping that the company introduced in 2008 had amounted to an abuse of its dominance in search. But 2008 was a long time ago in this racket, and shopping-comparison sites have become relatively small beer because Internet users researching possible purchases don’t start with a search engine any more. (Many of them start with Amazon, for example.)

This is deployed (by the Internet giants) as an argument for the futility of trying to regulate behaviour by dominant firms: the legal process of investigation takes so long that the eventual ruling is so out of date as to be meaningless.

This is a convenient argument, but the conclusion isn’t that we shouldn’t regulate these monsters. Nevertheless it is interesting to see how the product search scene has changed over time, as this chart shows.

Source

The obvious solution to the time-lag problem is — as the Financial Times reported on January 3 — for regulators to have “powers to impose so-called “interim measures” that would order companies to stop suspected anti-competitive behaviour before a formal finding of wrongdoing had been reached.” At the moment the European Commission does have powers to impose such measures, but only if it can prove that a company is causing “irrevocable harm” — a pretty high threshold. The solution: lower the threshold.

Amazon and the long game

This morning’s Observer column:

The news that Amazon had acquired Whole Foods Market for $13.7bn sent shivers down the spine of every retailer in America. Shares in Walmart fell 7%, and rival Kroger by 17%. Amazon’s market capitalisation, in contrast, went up by $11bn. So why the fuss? At first sight it seemed straightforward: Amazon wanted to get into food sales, and it fancied having a network of 400 urban stores; and Whole Foods (which some of my American friends call “whole wallet” because of the cost of its products) was ailing. There was also a small political angle: John Mackey, co-founder of Whole Foods, had been enmeshed in a row with an activist investor that threatened to drive him from power; by selling to Amazon, he gets to keep his job. So: small earthquake in food retailing, not many dead?

Er, not quite, and only if you avoid taking the long view. And, with Amazon, the long view is the only one that makes sense…

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