Comment by dredmorbius | Hacker News Reader

Comment by dredmorbius | Hacker News Reader

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Conspiring to create a monopoly, however, is.

One of the reasons Intel refused the offer was that Andy Grove had established a goal: that the company would seek a monopoly position, but would do so by legal means. It's a philosophy which didn't entirely survive his departure from the company as you may recall Intel reached a settlement with the DoJ over anticompetitive monopolistic practices (though in fairness: the company did settle and fairly quickly).

The conspiracy and means Gates proposed, along with many, many other actions of Microsoft, did in fact constitute illegal monopolization, as Judge Thomas Penfield Jackson's findings of fact established: http://www.justice.gov/atr/cases/f3800/msjudgex.htm

As George Hoar, one of the authors of the Sherman Antitrust Act stated: "... [a person] who merely by superior skill and intelligence...got the whole business because nobody could do it as well as he could was not a monopolist..(but was if) it involved something like the use of means which made it impossible for other persons to engage in fair competition."

And in particular, the statute itself states: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."

So, while your hypothetical has certain merits, in the particulars of this situation, it rather markedly fails to apply, as established by both the relevant statute and legal findings.

Conspiracy to create a monopoly is also up to government discretion, ie purely subjective. It's only conspiracy if the Feds pursue it and prove it.

If I pursue a monopoly intentionally, the government can choose not to care about that fact at all. We can see the real nature of this subjectivism at play in how the Bush White House and the Clinton White House each dealt with Microsoft (and also in how IBM was dealt with across different presidencies). Selective enforcement, and selective consequences.

Ultimately a violation is what the government says it is, even with the case history. The ground rules for all of this have been constantly shifting for a century. They'll change from one DOJ to the next. What constitutes conspiracy? Ask the next DOJ, they'll have a different opinion than the last one.

Conspiracy to create a monopoly is ... purely subjective

You've asserted that twice. To the extent that a law not prosecuted is a law that doesn't exist, you're correct, however I've provided the statutory citation which states that "every" contract, etc., in restraint of trade, "is declared to be illegal".

I'm afraid the burden rests on you to provide some level of documentary proof of your assertions, which at present, stand on nothing.

http://blog.garrytan.com/grahams-hierarchy-of-disagreement-h...

> To the extent that a law not prosecuted is a law that doesn't exist, you're correct, however I've provided the statutory citation which states that "every" contract, etc., in restraint of trade, "is declared to be illegal".

Laws are not interpreted de novo, to mean whatever you think they mean. In our common-law system, laws are interpreted by the courts, over a long period of jurisprudence. In the case of the Sherman Act, we have over a hundred years of case history to guide us.

The courts say that it must be an "unreasonable" restraint of trade. After all, every contract is a restraint of trade! If a grocery store signs a contract with a farm to buy all of their lettuce, then the grocery store isn't going to the central produce market, where everyone has a chance to compete. If Apple signs an agreement with Samsung to source its ARM CPUs, that means that Nvidia doesn't get a chance to compete for the duration of the contract.

But that's completely ridiculous, right? They got the chance to compete for the contract. And that's exactly why it's not an antitrust violation. It's a restraint of trade, but it's very much reasonable.

Note that the word "unreasonable" doesn't actually appear in the Sherman Act. It just says "restraint of trade." The Courts added this test because they felt it would be counterproductive to interpret the Sherman Act literally. As you're doing.

Laws are not interpreted de novo

I'm not contesting that. Nor was I born yesterday.

I've asked you to provide references. You haven't.

> I've asked you to provide references. You haven't.

Google.

I even gave you the phrase to Google for: "unreasonable restraint of trade." In fact, add the term "every contract," and you'll find thousands of relevant hits, including Supreme Court cases going back a century.

If you don't like Googling, then I recommend picking up a good textbook on antitrust law -- "unreasonable" will be in the index. It's just such a fundamental concept to antitrust law. Rivers of ink have been spilled debating what kind of behavior is reasonable and what is unreasonable.

What you've just done is the antitrust equivalent of demanding a citation for the sky being blue. I give up. There's no way I can have a productive conversation about antitrust law with someone who aggressively demands citations for even the most basic of concepts. It shows that the primary motive is not to understand the topic at hand, but simply to argue.

P.S. Since you like to accuse people of violating the rules of debate, this isn't an "appeal to authority." It's a suggestion that you get a better background in antitrust law before arguing with people about it.

I even gave you the phrase to Google

Sure, I can Google. But if you're not talking out of your ass, then you've got specific legal gloss, case history, and decisions you can point to. You're not. Lazy or intellectually dishonest? Hard to tell.

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