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Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
From: |
Alexander Terekhov |
Subject: |
Re: Hey Terekhov: Wallace lost. Who'd guess.... ;) |
Date: |
Sat, 20 May 2006 15:43:02 +0200 |
John Hasler wrote:
>
> Alexander Terekhov writes:
> > As for proof, "A plaintiff must prove (1) that the prices complained
> > of are below an appropriate measure of its rival's costs
>
> The marginal cost of production of copies of Linux is at most the cost of
> pressing a DVD. The marginal cost of granting a GPL license is zero.
Wallace's case is not about copies (material objects). His case is about
predatory fix pricing of Intellectual Property in violation of § 1 of
the Sherman Act.
>
> > and (2) that the competitor had a reasonable prospect of recouping
> > its investment in below cost prices."
>
> David Kastrup wrote:
> > Basically, the standard demands proving that the prices must be both
> > below cost as well as profitable.
>
> What they mean is that the plaintiff must prove that if the defendant
> succeeded in driving him out of business with predatory pricing he would
> subsequently be able to recoup the money he lost selling below cost by
> selling at the elevated price he would be able to demand as a result of
> having disposed of his competitor.
This is indeed one example of recoupment. But ancillary revenues can
also be used to recoup losses.
"Proof that a profit-maximizing firm took predatory action should
suffice to demonstrate the threat of substantial exclusionary effect;
to hold otherwise would be to ascribe irrational behavior to the
defendant. Moreover, predatory conduct, by definition as well as by
nature, lacks procompetitive business motivation. See Aspen Skiing,
472 U.S. at 610-11 (evidence indicating that defendant's conduct was
"motivated entirely by a decision to avoid providing any benefits" to
a rival supported the inference that defendant's conduct "was not
motivated by efficiency concerns"). In other words, predatory behavior
is patently anticompetitive. ... Microsoft has no intention of ever
charging for licenses to use or distribute its browser. Id. ¶¶ 137-38.
Moreover, neither the desire to bolster demand for Windows nor the
prospect of ancillary revenues from Internet Explorer can explain the
lengths to which Microsoft has gone. In fact, Microsoft has expended
wealth and foresworn opportunities to realize more in a manner and to
an extent that can only represent a rational investment if its purpose
was to perpetuate the applications barrier to entry. Id. ¶¶ 136,
139-42. Because Microsoft's business practices "would not be
considered profit maximizing except for the expectation that . . .
the entry of potential rivals" into the market for Intel-compatible
PC operating systems will be "blocked or delayed," Neumann v.
Reinforced Earth Co., 786 F.2d 424, 427 (D.C. Cir. 1986), Microsoft's
campaign must be termed predatory. Since the Court has already found
that Microsoft possesses monopoly power, see supra, § I.A.1, the
predatory nature of the firm's conduct compels the Court to hold
Microsoft liable under § 2 of the Sherman Act."
Note that Wallace's case is an action under § 1 of the Sherman Act.
regards,
alexander.
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), (continued)
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), John Hasler, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;),
Alexander Terekhov <=
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), David Kastrup, 2006/05/20
- Re: Hey Terekhov: Wallace lost. Who'd guess.... ;), Alexander Terekhov, 2006/05/20