That is generally how the consumer welfare standard operates - if the anti-competitive practice could be said to be part of a larger scheme that could be argued to help consumers get better products for less cost overall, then the Rule of Reasons says it's OK (roughly).
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Apple really has nothing like that to point to. They make a ton of money on the hardware, then make a ton of money on the software, the consumer basically just gets overcharged. So they have to come up with some other argument as to why the consumer is somehow not harmed by this.
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The defense of "well you could instead buy a Google phone" is not really a defense, because it is not clear why the ability to buy a Google phone means a consumer is better off than if they could instead buy an iPhone _and_ have an open App Store.
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So, if pressed properly (FINGERS CROSSED EPIC LAWYERS) into it, Apple will have to explain why consumers are better off if, when they buy an already-overpriced iPhone, they are then better served by having to pay Apple 30% of all software purchases instead of an alternative.
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And Epic did a nice job here by clearly offering an alternative payment method that would be cheaper for the consumer. So the court literally has in front of them clear evidence that the consumer would benefit if Apple _didn't_ restrict competition on its hardware.
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Replying to @cmuratori @TimSweeneyEpic
Interesting. Who is to decide that something is “overpriced”? Also, selling things at some margin is always “harming” customers in some way.
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Replying to @meglio @TimSweeneyEpic
The trial is what determines whether it is overpriced. Economic experts are called to testify, and copious evidence is presented. Sometimes - as is the case in these trials for sure - things like direct evidence of employees' internal emails saying the product is overpriced.
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I have not been following the Google trial myself, but, for example, I hear that there is internal Google mail stating that the cost to run the Play Store would put the royalty around 6%, not 30%. So a jury would be presented with that kind of evidence, etc.
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Separately, "consumer harm" is not about preventing harm to consumers in general. It is a limiting principle _applied to restraint of trade_. So the question is not "does it harm consumers", full stop.
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The question is, _if_ there is direct evidence of anti-competitive business practice, _then_ did it harm consumers?
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So you are thinking about this backwards - selling things at a margin might "harm consumers" in your worldview, but it doesn't matter for the legal analysis here, because normally things sold at a margin are not also sold via anti-competitive business practices.
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The consumer harm standard is strictly about determining which anti-competitive practices will and won't be punished under non-per-se antitrust law. (Per se, on the other hand, is when it is illegal outright, regardless of consumer harm - like price fixing, for example.)
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