
Innovation and Competition in the Digital Network Economy
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case-which led to a December 2005 decision, currently under appeal at the
Seoul High Court, condemning three fundamental tying practices embedded in
Microsoft's global business strategy-the author clearly establishes the
precise nature of Microsoft's anticompetitive practices, complete with clear
technical descriptions of the underlying applications and digital media
systems. The discussion develops valuable guidelines on such core issues as
the following:
network effect, tipping effect, and lock-in effect
separability of Microsoft's tied and tying products
forced purchase by consumers of multiple tied products
Microsoft's reinforcement of market entry barriers
Microsoft's "normal business practice" defense
cumulative damage to consumers' interests
The book's ultimate legal and economic assessment clarifies ways in which
government competition authorities can select from globally available options
on a case-by-case basis, enforce re-pricing measures, avoid belated remedies,
and continuously monitor new types of anticompetitive conduct.
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Content
- Cover
- Half Title Page
- Title Page
- Copyright Page
- Preface
- Acknowledgements
- Summary of Contents
- Contents
- List of Abbreviations
- List of Figures and Tables
- Chapter 1 Introduction
- Chapter 2 Backgrounds and Case Reference
- I. New Digital Network Economy: Digital Media System and Instant Messaging System
- A. Overview of Digital Technology: Computer Programs and the Internet
- 1. Computer Programs: Operating Systems and Applications
- a. Functions of an Operating System
- b. Distinction between an Operating System and an Application
- 2. Internet
- a. A Network of Networks
- b. Quick Spread of Internet and Broadband
- B. Digital Media System
- 1. Definition of Digital Media System
- 2. Structure of Digital Media System
- a. Encoding and Media Formats
- b. Streaming Media Server, Streaming Protocol and DRM
- c. Streaming Media Player
- 3. Importance of Digital Media System Market
- C. Instant Messaging System
- 1. Definition of Instant Messaging System
- 2. Structure of Instant Messaging System
- a. Instant Messaging service
- b. Instant Messenger
- 3. Importance of Instant Messaging System Market
- D. Characteristics of New Digital Network Economy
- 1. Common Characteristics of Digital Media System and Instant Messaging System
- 2. Network Effect
- 3. Tipping Effect
- 4. Lock-in Effect
- 5. Interrelation of Network Effect, Tipping Effect, and Lock-in Effect
- II. Global Case Reference
- A. United States
- 1. US Federal Circuit Court Decision (2001) and Earlier Cases
- a. US Final Judgment (1995)
- b. Federal District Court's Ruling
- c. Federal Circuit Court Decision on Tying and Exclusionary Conducts of IE
- 2. US Final Judgment (2002)
- 3. Antitrust Class Actions and Settlements
- B. European Union
- 1. EC Decision
- 2. Decision and Proceedings by the European Court of First Instance (CFI)
- a. CFI Decision on Application for Provisional Suspension of the EC Decision (2004)
- b. Pending Proceedings on Appeal to the CFI for the Annulment of the EC Decision
- C. Asia
- 1. Japan
- a. JFTC Decision (1998)
- i. Tying of Microsoft Word and Outlook with Excel
- ii. Exclusionary Transaction for IE
- iii. Decision to Prohibit Tying Practices and Exclusionary Conduct
- b. JFTC Decision (2004)
- i. Non-assertion Provision and Survival Provision in the Licensing Agreements of Windows OS Products
- ii. Decision on Prohibition of Unfair Restriction of Other Business Activities
- 2. Taiwan
- a. Monopolistic Pricing and Other Antitrust Issues
- b. Administrative Settlement Between TWFTC and Microsoft (2003)
- D. Other Countries: Windows Starter Edition
- Chapter 3 Korea Microsoft Case: Multiple Tyings in the Digital Media System and the Instant Messaging System
- I. Korea Legal System: The Monopoly Regulation and Fair Trade Act on Tying Practices
- A. Prohibition of Unfair Business Practice: Article 23 Section 1 Subsection 3
- B. Prohibition of Abuse of Market-dominant Position: Article 3-2 Section 1 Subsections 3 and 5
- 1. An Act that Unfairly Impedes Other Business Activities
- 2. An Act that Harms Consumers' Interests
- C. Multi-tiered Regulations against Tying Practices of a Dominant Company under the Monopoly Regulation and Fair Trade Act
- II. Factual Background of the Korea Microsoft Case
- A. Summary
- B. Microsoft's Dominant Position in the Markets for PC OS and PC Server OS
- 1. PC OS Market
- 2. PC Server OS Market
- C. Microsoft's Tying Practices
- 1. Key Characteristics of Microsoft's Tying Practices
- 2. Digital Media System
- a. Tying of WMP to Windows PC OS
- b. Tying of WMS to Windows Server OS
- 3. Instant Messaging System: Tying of MS Messenger to Windows PC OS
- D. Sudden Change in Market Circumstances by Microsoft's Tying Practices
- III. KFTC Decision (2005)
- A. Summary
- B. Tying of WMP to Windows PC OS
- 1. The Relevant Market
- a. Relevant Product Market
- i. Relevant Market for the Tying Product
- ii. Relevant Market for the Tied Product
- (a) Streaming Media Player
- (b) Primary Developers and Secondary Developers for the Streaming Media Player
- b. Relevant Geographical Market
- 2. Unfair Business Practice: Harm to Consumers' Interests
- a. Forcing Consumers to Purchase a Tied Product with the Tying Product
- i. Distinction between Windows PC OS and WMP
- (a) Separability of WMP from Windows PC OS
- (b) Distinct Product for Transaction
- (i) Distinct Product in Demand
- (ii) Distinct Product in Supply
- ii. Forcing of Trade
- b. Unfairness of Tying Practice
- 3. Abuse of Market-dominant Position: Anticompetitive Effect
- a. A Practice that Impedes other Business Activities
- i. Leveraging Dominance in the PC OS Market to the Streaming Media Player Market
- (a) WMP Made Ubiquitous through Tying
- (i) Competitors' Difficulty in Competing with the Ubiquity of WMP by Means of Downloading
- (ii) Competitors' Difficulty in Competing with the Ubiquity of WMP by Means of PC Pre-installation
- (A) Additional Costs to PC Manufacturers
- (B) Business Relationship between PC Manufacturers and Microsoft
- (C) Competitors' Difficulties
- (iii) Users' Difficulty in Removing WMP from Their PC OS
- (b) Anticompetitive Tipping of WMP through Tying
- (i) Increasing WMP's Accessibility to Consumers through its Ubiquity Based on Tying
- (ii) Tipping to WMP
- (iii) Interdependence between WMP and other Components of the Digital Media System
- ii. Exclusion of Competitors from the Media Player Market
- (a) Steep Decline in Competitors' Market Share After the Tying
- (b) Reinforcement of Entry Barrier through Tying
- b. A Practice that Harms Consumers' Interests
- C. Tying of WMS to Windows Server OS
- 1. Relevant Market
- a. Relevant Product Market
- i. Relevant Market for the Tying Product
- ii. Relevant Market for the Tied Product
- b. Relevant Geographical Market
- 2. Unfair Business Practice: Harm to Consumers' Interests
- a. Forcing Consumers to Purchase a Tied Product with the Tying Product
- i. Distinction between WMS from Windows Server OS
- (a) Separability of WMS from Windows Server OS
- (b) Distinct Product for Transaction
- (i) Distinct Product in Demand
- (ii) Distinct Product in Supply
- ii. Forcing of Trade
- b. Unfairness of Tying Practice
- 3. Abuse of Market-dominant Position: Anticompetitive Effect
- a. A practice that Impedes the Other Business Activities
- i. Leveraging the Dominance in the PC server OS Market to the Streaming Media Server Program Market
- (a) WMS Made Ubiquitous Through Tying
- (b) Anticompetitive Tipping to WMS Through Tying
- (i) Increasing WMS's Accessibility to Consumers Through Ubiquity Achieved Through Tying
- (ii) Tipping to WMS
- (iii) Interdependence Between WMS and Other Components of the Digital Media System
- ii. Exclusion of Competitors from the Media Server Program Market
- (a) Steep Decline in Competitors' Market Share after Microsoft's Tying of WMS
- (i) Tying of WMS 4.1 to Windows 2000 Server OS
- (ii) Tying of WMS 9 to Windows Server 2003 OS
- (b) Reinforcement of Entry Barrier Through Tying
- b. A practice that Harms Consumers' Interests
- D. Tying of MS Messenger to Windows PC OS
- 1. Relevant Market
- a. Relevant Product Market
- i. Relevant Product Market
- ii. Relevant Market for the Tied Product
- b. Relevant Geographical Market
- 2. MS Messenger: Windows Messenger and MSN Messenger
- a. Basic Facts
- b. Economic Identical Relationship between Windows Messenger and MSN Messenger
- i. Identical Appearance and Functions between the Two Messengers
- ii. Microsoft's Admission that Window Messenger is Identical to MSN Messenger
- iii. Microsoft's Inducing Consumers to Use MSN Messenger through Windows Messenger
- 3. Unfair Business Practice: Harm to Consumers'
- a. Forcing Consumers to Purchase a Tied Product with the Tying Product
- i. Distinction of Windows PC OS from MS Messenger
- (a) Separability of MS Messenger from Windows PC OS
- (b) Distinct Product for Transaction
- (i) Distinct Product in Demand
- (ii) Distinct Product in Supply
- ii. Forcing of Trade
- b. Unfairness of Tying Practice
- 4. Abuse of Market-dominating Position: Anticompetitive Effect
- a. A practice that Impedes Other Business Activities
- i. Leveraging Dominance in the PC OS Market to the Instant Messenger Market
- (a) MS Messenger Made Ubiquitous Through Tying
- (i) Competitors' Difficulty in Competing with the Ubiquity of MS Messenger by Means of Internet Downloading
- (ii) Competitors' Difficulty in Competing with the Ubiquity of MS Messenger by Means of PC Pre-installation
- (iii) Users' Difficulty in Removing MS Messenger from Windows PC OS
- (b) Anticompetitive Tipping to MS Messenger through Tying
- (i) Increasing Accessibility to MS Messenger through Ubiquity Achieved by Tying
- (ii) Tipping to MS Messenger
- ii. Exclusion of Competitors from the Instant Messenger Market
- (a) Steep Decline in Competitors' Market Share after MS Messenger Tying
- (i) Tying of MSN Messenger to Windows ME
- (ii) Tying of Windows Messenger to Windows XP
- (b) Reinforcement of Entry Barrier through Tying
- (c) Analysis on the Growth of Nate-On Messenger in Korea
- b. A Practice that Harms Consumers' Interests
- E. Review of Microsoft's Defence
- 1. Normal Business Practice
- 2. Consumers' Freedom of Choice and No Charge
- 3. Efficiency of Tying Practices
- a. For Consumers
- b. For Application Program Developers and Content Providers
- c. For PC Manufacturers
- F. Corrective Order: Remedial Measures and Administrative Fines
- IV. Appeal of the KFTC Decision to the KFTC
- A. Summary of Microsoft's Appeal to the KFTC
- B. KFTC Decision on the Appeal
- V. Appeal of the KFTC Decision to the Court
- A. Seoul High Court Decision on Microsoft's Motion for Provisional Injunction to Suspend the Enforcement of the KFTC Decision
- 1. Summary of Microsoft's Motion
- 2. Rejection of Microsoft's Motion
- B. Seoul High Court Proceeding on Microsoft's Filing for Annulment of the KFTC Decision
- 1. Court Cases Before 2006
- 2. Pending Court Case on Annulment of the KFTC Decision
- Chapter 4 An Assessment on the Multi-tying Practice
- I. Purposes and Methods of Legal and Economic Assessment on the Korea Microsoft Case
- A. Purposes of Assessment
- B. Methods for Assessment
- II. Microeconomic Assessment
- A. Harm to Consumers' Interests Each Tying Practice
- 1. Tying of WMP to Windows PC OS
- a. Phase 1: Before Tying
- b. Phase 2: After Tying and Before Imposing Costs on Consumers
- c. Phase 3: Tying Becoming an Unfair Business Practice
- 2. Tying of WMS to Windows Server OS
- a. Phase 1: Before Tying
- b. Phase 2: Tying Becoming an Unfair Business Practice
- 3. Tying of MS Messenger to Windows PC OS
- a. Phase 1: Before Tying
- b. Phase 2: After Tying and Before Imposing Costs on Consumers
- c. Phase 3: Tying Becoming an Unfair Business Practice
- B. Damaging Consumers' Interests through Multi-tying
- 1. Further Restriction of Consumers' Freedom of Choice
- a. Cumulative Restrictions on Freedom of Choice
- b. Restriction of Freedom to Keep Using the Existing or Earlier Version
- c. Restriction of Freedom to Choose an Upgrade Untied Version
- 2. Cumulative Damage to Consumers' Interests
- 3. Maintenance of Abusive Pricing
- III. Macroeconomic Assessment
- A. Anticompetitive Effect of Each Tying Practice
- 1. Tying of WMP to Windows PC OS
- a. Leveraging Dominance in the PC OS Market to the Media Player Market through Tying
- i. Obtaining the Dominance in the Media Player Market
- (a) Standard to Determine Share in the Media Player Market
- (b) Obtaining the Dominance in the Media Player Market through Tipping Effect
- ii. Excluding Competitors from the Media Player Market
- (a) Raising an Entry Barrier Against the Competitors
- (b) Free Distribution for WMP and Abusive Pricing for PC OS
- b. Reinforcement of the Dominance in the PC OS Market
- 2. Tying of WMS to Windows Server OS
- a. Leveraging Dominance in the PC Server OS Market to the Media Server Program Market
- i. Obtaining the Dominance in the Media Server Program Market
- ii. Excluding Competitors from the Media Server Program Market
- (a) Raising an Entry Barrier Against the Competors
- (b) Free Distribution for WMS and Abusive Pricing for PC OS
- b. Reinforcement of the Dominance in the PC Server OS Market
- 3. Tying of MS Messenger of Windows PC OS
- a. Leveraging Dominance in the PC OS Market to the Instant Messenger Market through Tying
- i. Obtaining the Dominance in the Instant Messenger Market
- (a) Standard to Determine Share in the Instant Messenger Market
- (b) Dealing with Windows Messenger and MSN Messenger as an Identical Produce
- (c) Obtaining Dominance in the Instant Messenger Market through Tipping Effect
- ii. Excluding Competitors from the Instant Messenger Market
- (a) Raising an Entry Barrier against the Competitors
- (b) Free Distribution for MS Messenger and Abusive Pricing for PC OS
- (c) Analysis on the Recent Growth of Nate-On Messenger
- iii. Reinforcement of the Dominance in the PC OS Market
- B. Anticompetitive Effect through Multiple Tyings and Multi-tying
- 1. Multiple Tyings and Interdependence in the Digital Media System: Tyings of Media Player and Media Server Program
- a. Multiple Tyings of Products with Interdependence
- b Eroding RealPlayer's Superior Position through Interdependent Multiple Tyings
- 2. Multi-tying and Interrelation between Different Systems: Tying of WMP and MS Messenger
- a. Anticompetitive Effect of Multi-tying
- b. Multi-tying and Inter-tying Effect
- 3. Multi-tying with Interdependence and Interrelation in the Digital Media System
- 4. Multiple Tyings and Multi-tying with Interdependence and Interrelation
- IV. Assessment on Efficiencies of Multi-tying Practice
- A. General Standard of the Tying Efficiency Assessment
- B. Assessment on Efficiency of Each Tying
- 1. Efficiency of Each Tying WMP and MS Messenger
- a. Substitutability for Efficiency of Each Tying
- b. Insignificant Increase of Efficiency from Each Tying
- c. Reduction of the Tying's Efficiency
- i. Forced Efficiency as Inefficiency
- ii. Inefficiency of Impeded Competition
- 2. Efficiency of Tying WMS
- C. Assessment on Efficiency of Multi-tying
- 1. Minimal Efficiency of Multi-tying
- 2. Accumulation of Inefficiency
- 3. Impediment of Innovation
- 4. Comparison with Other Tying Practices
- V. Assessment on Corrective Remedies
- A. Corrective Measures
- 1. Key Measures to Correct Competition Distortion: Options
- a. Prohibition of Tying: Untied Version of Windows PC OS
- b. Must-carry
- c. Mixed Untying: Distribution of Untied Version with Tied Version
- d. Modified Version: Media Player Center/ Messenger Center for Access to Competing Products
- 2. Additional Corrective Measures Necessary to Restore Competition
- a. Re-pricing of the Untied Version
- b. Compatibility and Interoperability with Microsoft Products
- c. Prohibition of Imposing Cost Incurred from Corrective Measures on any Other Party
- d. Prohibition of Circumvention
- 3. Coordinating and Balancing between Options: Tied Version, Untied Version, and/or Korean Modified Version
- B. Monetary Remedies and Sanctions
- 1. Penalty or Fine
- 2. Damages
- C. Timing of Enforcement
- 1. Importance of Timing
- 2. Corrective Order before Anticompetitive Tipping
- 3. Dilemmas of Regulating Ex Post Dominance
- VI. Transjudicial Availability of the Assessment on Microsoft's Multi-tying Practice
- A. Similarity of Global Market Circumstances
- B. Global Availability of Microsoft Cases in the Digital Network Economy
- 1. Common Issues in Microsoft Cases from Various Countries
- 2. Global Availability between Microsoft Cases
- a. Mutual Support between the Existing Microsoft Cases: the European Case (2004) and the Korean Case (2005)
- b. Global Availability of the Korea Microsoft Case to Other Potential Microsoft Cases
- 3. Reference of the Korea Microsoft Case to Other Similar Tying Cases in the Digital Network Economy
- Chapter 5 Conclusion
- Appendices
- Reference
- Glossary
- Index
- Back Cover
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