The scenario: using one Google service allows the other Google services to know that you are present.
Since you have chosen to use a Google service, having the others announce themselves is not a surprise. So what’s the problem, and why is the E.U. upset?
Note: None of the following reflects any research into the legal details, so reading more will just be coming along for the ride. You can skip right to the end to see if you think it might be fun, and then come back here.
BRING IT ON
Arguably, unless the other services prevent you from doing what you had originally set out to do, the voluntary appearance of the other services should be seen as a convenience, even if that is incidentally
If other Google services prevent you from using alternatives to themselves, then they become suspect. But if the other Google services don’t do that, then the Google services should be seen as options.
And the other Google services may go on to present yet more Google offers. But if that preferential presentation does not prevent awareness of non-Google offers, then the Google offers should be seen as marketing.
Surely, the convenient marketing of options cannot be construed to be monopolistic unless it actually prevents the user from going somewhere else to find out about something else in a different way.
SHELFWARE
The closest parallel to the situation might be a walk inside a department store that is run by a chain store company. While inside the store, one may see that store’s own “brand” of items as well as brands that are not the store’s own. What would be the principle that dictates how the different brands should be made accessible? If the department store chose to specially highlight its own brand and not specially highlight the other brands, the highlighting would not necessary prevent anyone from finding and choosing the other brands. The difference is always made through just two supported mechanisms: awareness and access.
To what extent is the store obligated to promote awareness and access of other brands? By including them in the store at all, and by not preventing access nor preventing awareness, has it not already met the baseline criteria that is the primary value proposition of providing a store? That is, the contrasting matter here would be not providing a store that included those brands. Worst case, one company might do something to prevent another company from providing a store at a given location, while also not providing a store itself.
But we know that this doesn’t really happen on the internet unless the “location” is actually already restricted somehow. (Thus the fight over broadband and over net neutrality…)
HOW MUCH IS ENOUGH?
If we look at things clearly, then, what appears to be the more logical source of tension is the difference between whether Google is treated as a supplier or instead as a marketer.
Those different roles sit in a commercial “chain” with two other roles between them. In the chain, a supplier engages a vendor, a vendor engages a provider, and a provider engages a marketer.
What distresses this conventional commercial lineup in the world of the web is that the role of “vendor” has been hugely hit by the availability of free products. The effect of “free” products is that the supplier and the provider do not need a vendor.
This means that the provider can compete against other providers on terms that may be advantageous from a cost basis. The provider can logically claim that it is not competing against vendors at all. By definition, the provider’s behavior is not anti-competitive regarding the fate of vendors; instead, it is non-competitive.
We know that a commercial operation like Google can afford to dismiss the vendor role and be a provider of free products (a service is just another type of product) because it subsidizes the product cost with proceeds from another role: marketing. In that way, however, we can also argue that the marketing role is executing a vending function by selling market presence for a price greater than zero.
That has the superficial appearance of being a vendor; so what we wind up with is the possible scenario where a company that is a vendor of one kind of product (let’s say “email”) is competing with a different company that is a vendor of a different kind of product (let’s say “advertising”) – and it is virtually the two vendors who are competing with each other.
I am not sure if there are any significant legal grounds for anti-trust grievance in virtual competition.
We might as well have the Seattle Sounders soccer team suing the Seattle Seahawks football team for the Seahawks habitually having a significantly greater “market share” of pro sports revenue in Seattle.
THE WHO CARES TEST
What we have not looked at yet is another role that may be more important than all of the above: the Shopper. The totality of convenient service options known as Google could arguably be seen as a picture and profile of a shopper.
This requires a mental shift from the Supply-side perspective to the Demand-side perspective. A commercial “demand chain” includes roles like Shopper and Buyer. The end customer can easily employ a second party to perform shopping and/or buying as a procurement agent. The end customer can choose freely which agent to select from any group of any type of agent. Having been chosen, there is no reason why the agent should be obligated to do anything other than exploit its own most convenient options for identifying and re-presenting products that meet the customer’s selection criteria.
Again, it is blindingly obvious that Google, as a constellation of services, configures easily as an automated Shopper.
So, on what legal grounds can a supplier or vendor sue a shopper for anti-trust?
Post A Comment:
0 comments: