Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

With a barrage of antitrust headlines it hard to know which one has the greatest impact on the Internet and IT community. But clearly New York’s antitrust filing against Intel in Delaware is near the top of the list. Why Delaware? Apparently NY is using the on-going Advanced Micro Devices (AMD) antitrust suit against Intel as a form of piling on, not to mention that AMD is building a new $4.2 billion plant in NY. NY’s antitrust claims are a lot like the EU antitrust findings that Intel’s business practice of paying computer manufacturers rebates and incentives for using Intel chips rather than those of AMD (or anyone else).

Oracle’s Plan to Acquire Sun Hit an EU Roadblock

Apparently the EU is not pleased that Oracle, the database market leader, intends to acquire Sun which owns the open source database product MySQL without selling off MySQL. The EU is concerned about Oracle’s competitors Microsoft and IBM even though Oracle is the dominant database company. But some think that Oracle’s acquisition of Sun and My SQL will be transformational to the IT industry by providing a different market against Microsoft.

Challenge to EU Browser Settlement

Google, Mozilla, and Opera are still concerned about the Microsoft settlement even though the EU approved Microsoft’s plan to allow customers a choice of browsers, not automatically only provide Microsoft’s Internet Explorer. Net Applications recent market share reports indicates that “Internet Explorer has a 67 percent share of the global browser market,... Firefox has 24 percent, Apple’s Safari, 4.4 percent, Google’s Chrome, 3.5 percent, and Opera, 2 percent.” On the surface it seems that Microsoft’s competitors should be able to increase their EU market share based on the settlement, but stay tuned to see how the EU reacts to these new complaints.

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Apparently the US Justice Department is investigating anticompetitive behavior concerning among others Google, Yahoo! , and Apple since many Internet companies restrict recruiting and hiring of one another’s employees. Since anticompetitive employment agreements in the technology industry are the norm it’s particularly interesting that the Justice Department is pursuing these companies. Internet and IT companies rely of these non-competition provisions to protect trade secrets and Intellectual Property so it will be interesting to see how this develops.

EU Unhappy with Microsoft for Not Distributing a Browser

Following the antitrust dispute in the EU regarding Microsoft’s alleged monopolization of the browser market, Microsoft recently announced that when it distributes Windows 7 there not be any browser. The EU regulators are unhappy with this solution, even though on the surface it does seem that the complaining browser companies (Google, Mozilla, and Opera) should be pleased since they claimed that Microsoft’s embedded Internet Explorer violates antitrust laws.

Are Antitrust Laws Out of Touch with the Internet?

Since antitrust laws evolved from the need to try control monopolies in the 1800’s how much sense does it make to still use these concepts in the Internet world of 2009? Microsoft’s deployment of its operations systems took over the PC market was great for the users since before Microsoft there was no operating system standard on PCs. My Internet Third Big Bang was the 1981 advent of the PC, not just because IBM and Microsoft got into the market, but as result of the PC Clones using Microsoft operating systems a de facto standard developed on Microsof. As a result users could depend on continuity and consistency between software and applications. So maybe the US and EU should re-evaluate antitrust laws for the Internet and IT world that we live with today and in the future.

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The saga of where Yahoo! is headed took another turn when Google decided that it was not worth the federal scrutiny for Google and Yahoo! to work together. Clearly to the two largest search engines working together meant an increase in revenue for Yahoo! Microsoft a spurned suitor made it clear that it did not want Google and Yahoo! working together. As well, the Department of Justice (DOJ) has been reviewing this joint marriage since it was first announced.

How Did the Elections Impact the Cancellation?

Google’s decision to abandon the Yahoo! deal happened a few days after the election. However, Google CEO’s Eric Schmidt campaigned for President-Elect Obama, so one might have concluded that Google would have continued with this deal. In an unrelated event Thomas Barnett, Assistant AG for the Antitrust division of the DOJ, who was skeptical of the Google deal, resigned the day following Google’s decision to abandon the Yahoo! deal. What’s the message here?

What’s Going to Happen Now?

All indications are that Yahoo! has to do something for economical survival and maybe a new deal with Microsoft will be more appealing since the deal with Google ended. Google is the 800 pound gorilla in the search/ad business and everything it does to expand will continue to anticompetitive scrutiny, not unlike virtually every move that Microsoft makes leaves it subject to court scrutiny. However a deal between Microsoft and Yahoo! is anything but a sure thing since the DOJ will want to scrutinize any proposal that may be anticompetitive. As a matter of fact, a DC District Judge still gets reports about Microsoft’s compliance with the 2001 Antitrust Settlement.
 

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