Antitrust law

microsoft-risks-huge-fine-over-“possibly-abusive”-bundling-of-teams-and-office

Microsoft risks huge fine over “possibly abusive” bundling of Teams and Office

alfaview, anticompetitive behavior, Antitrust law, Digital Markets Act, European Commission, European Union, Google, microsoft, monopoly, Policy, SaaS, slack, software as a service / /
A screen shows a virtual meeting with Microsoft Teams at a conference on January 30, 2024 in Barcelona, Spain.

Enlarge / A screen shows a virtual meeting with Microsoft Teams at a conference on January 30, 2024 in Barcelona, Spain.

Microsoft may be hit with a massive fine in the European Union for “possibly abusively” bundling Teams with its Office 365 and Microsoft 365 software suites for businesses.

On Tuesday, the European Commission (EC) announced preliminary findings of an investigation into whether Microsoft’s “suite-centric business model combining multiple types of software in a single offering” unfairly shut out rivals in the “software as a service” (SaaS) market.

“Since at least April 2019,” the EC found, Microsoft’s practice of “tying Teams with its core SaaS productivity applications” potentially restricted competition in the “market for communication and collaboration products.”

The EC is also “concerned” that the practice may have helped Microsoft defend its dominant market position by shutting out “competing suppliers of individual software” like Slack and German video-conferencing software Alfaview. Makers of those rival products had complained to the EC last year, setting off the ongoing probe into Microsoft’s bundling.

Customers should have choices, the EC said, and seemingly at every step, Microsoft sought instead to lock customers into using only its software.

“Microsoft may have granted Teams a distribution advantage by not giving customers the choice whether or not to acquire access to Teams when they subscribe to their SaaS productivity applications,” the EC wrote. This alleged abusive practice “may have been further exacerbated by interoperability limitations between Teams’ competitors and Microsoft’s offerings.”

For Microsoft, the EC’s findings are likely not entirely unexpected, although Tuesday’s announcement must be disappointing. The company had been hoping to avoid further scrutiny by introducing some major changes last year. Most drastically, Microsoft began “offering some suites without Teams,” the EC said, but even that wasn’t enough to appease EU regulators.

“The Commission preliminarily finds that these changes are insufficient to address its concerns and that more changes to Microsoft’s conduct are necessary to restore competition,” the EC said, concluding that “the conduct may have prevented Teams’ rivals from competing, and in turn innovating, to the detriment of customers in the European Economic Area.”

Microsoft will now be given an opportunity to defend its practices. If the company is unsuccessful, it risks a potential fine up to 10 percent of its annual worldwide turnover and an order possibly impacting how the leading global company conducts business.

In a statement to Ars, Microsoft President Brad Smith confirmed that the tech giant would work with the commission to figure out a better solution.

“Having unbundled Teams and taken initial interoperability steps, we appreciate the additional clarity provided today and will work to find solutions to address the commission’s remaining concerns,” Smith said.

The EC’s executive vice-president in charge of competition policy, Margrethe Vestager, explained in a statement why the commission refuses to back down from closely scrutinizing Microsoft’s alleged unfair practices.

“We are concerned that Microsoft may be giving its own communication product Teams an undue advantage over competitors by tying it to its popular productivity suites for businesses,” Vestager said. “And preserving competition for remote communication and collaboration tools is essential as it also fosters innovation” in these markets.

Changes coming to EU antitrust law in 2025

The EC initially launched its investigation into Microsoft’s allegedly abusive Teams bundling last July. Its probe came after Slack and Alfaview makers complained that Microsoft may be violating Article 102 of the Treaty on the Functioning of the European Union (TFEU), “which prohibits the abuse of a dominant market position.”

Nearly one year later, there’s no telling when the EC’s inquiry into Microsoft Teams will end. Microsoft will have a chance to review all evidence of infringement gathered by EU regulators to form its response. After that, the EC will review any additional evidence before making its decision, and there is no legal deadline to complete the antitrust inquiry, the EC said.

It’s possible that the EC’s decision may come next year when the EU is preparing to release new guidance to more “vigorously” and effectively enforce TFEU.

Last March, the EC called for stakeholder feedback after rolling out “the first major policy initiative in the area of abuse of dominance rules.” The initiative sought to update TFEU for the first time since 2008 based on reviewing relevant case law.

“A robust enforcement of rules on abuse of dominance benefits both consumers and a stronger European economy,” Vestager said at that time. “We have carefully analyzed numerous EU court judgments on the application of Article 102, and it is time for us to start working on guidelines reflecting this case law.”

Microsoft risks huge fine over “possibly abusive” bundling of Teams and Office Read More »

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Judge mulls sanctions over Google’s “shocking” destruction of internal chats

Antitrust law, department of justice, Google, google monopoly trial, google search ads, Policy, search engines, us v google / /
Kenneth Dintzer, litigator for the US Department of Justice, exits federal court in Washington, DC, on September 20, 2023, during the antitrust trial to determine if Alphabet Inc.'s Google maintains a monopoly in the online search business.

Enlarge / Kenneth Dintzer, litigator for the US Department of Justice, exits federal court in Washington, DC, on September 20, 2023, during the antitrust trial to determine if Alphabet Inc.’s Google maintains a monopoly in the online search business.

Near the end of the second day of closing arguments in the Google monopoly trial, US district judge Amit Mehta weighed whether sanctions were warranted over what the US Department of Justice described as Google’s “routine, regular, and normal destruction” of evidence.

Google was accused of enacting a policy instructing employees to turn chat history off by default when discussing sensitive topics, including Google’s revenue-sharing and mobile application distribution agreements. These agreements, the DOJ and state attorneys general argued, work to maintain Google’s monopoly over search.

According to the DOJ, Google destroyed potentially hundreds of thousands of chat sessions not just during their investigation but also during litigation. Google only stopped the practice after the DOJ discovered the policy. DOJ’s attorney Kenneth Dintzer told Mehta Friday that the DOJ believed the court should “conclude that communicating with history off shows anti-competitive intent to hide information because they knew they were violating antitrust law.”

Mehta at least agreed that “Google’s document retention policy leaves a lot to be desired,” expressing shock and surprise that a large company like Google would ever enact such a policy as best practice.

Google’s attorney Colette Connor told Mehta that the DOJ should have been aware of Google’s policy long before the DOJ challenged the conduct. Google had explicitly disclosed the policy to Texas’ attorney general, who was involved in DOJ’s antitrust suit over both Google’s search and adtech businesses, Connor said.

Connor also argued that Google’s conduct wasn’t sanctionable because there is no evidence that any of the missing chats would’ve shed any new light on the case. Mehta challenged this somewhat, telling Connor, “We just want to know what we don’t know. We don’t know if there was a treasure trove of material that was destroyed.”

During rebuttal, Dintzer told Mehta that Google’s decision to tell Texas about the policy but not the federal government did not satisfy their disclosure obligation under federal rules of civil procedure in the case. That rule says that “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may” the court “presume that the lost information was unfavorable to the party.”

The DOJ has asked the court to make that ruling and issue four orders sanctioning Google. They want the court to order the “presumption that deleted chats were unfavorable,” the “presumption that Google’s proffered justification” for deleting chats “is pretextual” (concealing Google’s true rationale), and the “presumption that Google intended” to delete chats to “maintain its monopoly.” The government also wants a “prohibition on argument by Google that the absence of evidence is evidence of adverse inference,” which would stop Google from arguing that the DOJ is just assuming the deleted chats are unfavorable to Google.

Mehta asked Connor if she would agree that, at “minimum,” it was “negligent” of Google to leave it to employees to preserve chats on sensitive discussions, but Connor disagreed. She argued that “given the typical use of chat,” Google’s history-off policy was “reasonable.”

Connor told Mehta that the DOJ must prove that Google intended to hide evidence for the court to order sanctions.

That intent could be demonstrated another way, Mehta suggested, recalling that “Google has been very deliberate in advising employees about what to say and what not to say” in discussions that could indicate monopolistic behaviors. That included telling employees, “Don’t use the term markets,” Mehta told Connor, asking if that kind of conduct could be interpreted as Google’s intent to hide evidence.

But Connor disagreed again.

“No, we don’t think you can use it as evidence,” Connor said. “It’s not relevant to the claims in this case.”

But during rebuttal, Dintzer argued that there was evidence of its relevance. He said that testimony from Google employees showed that Google’s chat policy “was uniformly used as a way of communicating without creating discoverable information” intentionally to hide the alleged antitrust violations.

Judge mulls sanctions over Google’s “shocking” destruction of internal chats Read More »

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Apple deal could have been “suicide” for Google, company lawyer says

Antitrust law, Apple, department of justice, Google, google monopoly trial, monopoly, Policy, us v google / /

Woulda coulda shoulda? —

Judge: What should Google have done to avoid the DOJ’s crosshairs?

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John Schmidtlein, partner at Williams & Connolly LLP and lead litigator for Alphabet Inc.'s Google, arrives to federal court in Washington, DC, US, on Monday, Oct. 2, 2023.

Enlarge / John Schmidtlein, partner at Williams & Connolly LLP and lead litigator for Alphabet Inc.’s Google, arrives to federal court in Washington, DC, US, on Monday, Oct. 2, 2023.

Halfway through the first day of closing arguments in the Department of Justice’s big antitrust trial against Google, US District Judge Amit Mehta posed the question that likely many Google users have pondered over years of DOJ claims that Google’s market dominance has harmed users.

“What should Google have done to remain outside the crosshairs of the DOJ?” Mehta asked plaintiffs halfway through the first of two full days of closing arguments.

According to the DOJ and state attorneys general suing, Google has diminished search quality everywhere online, primarily by locking rivals out of default positions on devices and in browsers. By paying billions for default placements that the government has argued allowed Google to hoard traffic and profits, Google allegedly made it nearly impossible for rivals to secure enough traffic to compete, ultimately decreasing competition and innovation in search by limiting the number of viable search engines in the market.

The DOJ’s lead litigator, Kenneth Dintzer, told Mehta that what Google should have done was acknowledge that the search giant had an enormous market share and consider its duties more carefully under antitrust law. Instead, Dintzer alleged, Google chose the route of “hiding” and “destroying documents” because it was aware of conflicts with antitrust law.

“What should Google have done?” Dintzer told Mehta. “They should have recognized that by demanding locking down every default that they were opening themselves up to a challenge on the conduct.”

The most controversial default agreement that Google has made is a 21-year deal with Apple that Mehta has described as the “heart” of the government’s case against Google. During the trial, a witness accidentally blurted out Google’s carefully guarded secret of just how highly it values the Apple deal, revealing that Google pays 36 percent of its search advertising revenue from Safari just to remain the default search tool in Apple’s browser. In 2022 alone, trial documents revealed that Google paid Apple $20 billion for the deal, Bloomberg reported.

That’s in stark contrast to the 12 percent of revenue that Android manufacturers get from their default deals with Google. The government wants the court to consider all these default deals to be anti-competitive, with Dintzer suggesting during closing arguments that they are the “centerpiece” of “a lot” of Google’s exclusionary behavior that ultimately allowed Google to become the best search engine today—by “capturing the default and preventing rivals from getting access to those defaults.”

Google’s lawyers have argued that Google succeeds on its merits. Today, lead litigator John Schmidtlein repeatedly pointed out that antitrust law is designed to protect the competitive process, not specific competitors who fail to invest and innovate—as Microsoft did by failing to recognize how crucial mobile search would become.

“Merely getting advantages by winning on quality, they may have an effect on a rival, but the question is, does it have an anti-competitive effect?” Schmidtlein argued, noting that the DOJ hadn’t “shown that absent the agreements, Microsoft would have toppled Google.”

But Dintzer argued that “a mistake by one rival doesn’t mean that Google gets to monopolize this market forever.” When asked to explain why everyone—including some of Google’s rivals—testified that Google won contracts purely because it was the best search engine, Dintzer warned Mehta that the fact that Google’s rivals “may be happy cashing Google’s checks doesn’t tell us anything.”

According to Schmidtlein, Google could have crossed the line with the Apple deal, but it didn’t.

“Google didn’t go on to say to Apple, if you don’t make us the default, no Google search on Apple devices at all,” Schmidtlein argued. “That would be suicide for Google.”

It’s still unclear how Mehta may be leaning in this case, interrogating both sides with care and making it clear that he expects all his biggest questions to be answered after closing arguments conclude Friday evening.

But Mehta did suggest at one point today that it seemed potentially “impossible” for anyone to compete with Google for default placements.

“How would anybody be able to spend billions and billions of dollars to possibly dislodge Google?” Mehta asked. “Is there any real competition for the default spot?”

According to Schmidtlein, that is precisely what “competition on the merits” looks like.

“Google is winning because it’s better, and Apple is deciding Google is better for users,” Schmidtlein argued. “The antitrust laws are not designed to ensure a competitive market. They’re designed to ensure a competitive process.”

Proving the potential anti-competitive effects of Google’s default agreements, particularly the Apple deal, has long been regarded as the most critical point in order to win the government’s case. So it’s no surprise that the attorney representing state attorneys general, Bill Cavanaugh, praised Mehta for asking, “What should Google have done?” According to Cavanaugh, that was the “right question” to pose in this trial.

“What should they have done 10 years ago when there was a recognition” that “we’re monopolists” and “we have substantial control in markets” is ask, “How should we proceed with our contracts?” Cavanaugh argued. “That’s the question that they answered, but they answered it in the wrong way.”

Seemingly if Google’s default contracts posed fewer exclusionary concerns, the government seems to be arguing, there would be more competition and therefore more investment and innovation in search. But as long as Google controls the general search market, the government alleged that users won’t be able to search the web the way that they want.

Google is hoping that Mehta will reject the government’s theories and instead rule that Google has done nothing to stop rivals from improving the search landscape. Early in the day, Mehta told the DOJ that he was “struggling to see” how Google has either stopped innovating or degraded its search engine as a result of lack of competition.

Closing arguments continue on Friday. Mehta is not expected to rule until late summer or early fall.

Apple deal could have been “suicide” for Google, company lawyer says Read More »

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Google mocks Epic’s proposed reforms to end Android app market monopoly

android, android app marketplace, Android Apps, anticompetitive behavior, Antitrust law, App Store, epic games, epic games store, gaming, Google, Google Play Store, monopoly, Policy / /
Google mocks Epic’s proposed reforms to end Android app market monopoly

Epic Games has filed a proposed injunction that would stop Google from restricting third-party app distribution outside Google Play Store on Android devices after proving that Google had an illegal monopoly in markets for Android app distribution.

Epic is suggesting that competition on the Android mobile platform would be opened up if the court orders Google to allow third-party app stores to be distributed for six years in the Google Play Store and blocks Google from entering any agreements with device makers that would stop them from pre-loading third-party app stores. This would benefit both mobile developers and users, Epic argued in a wide-sweeping proposal that would greatly limit Google’s control over the Android app ecosystem.

US District Court Judge James Donato will ultimately decide the terms of the injunction. Google has until May 3 to respond to Epic’s filing.

A Google spokesperson confirmed to Ars that Google still plans to appeal the verdict—even though Google already agreed to a $700 million settlement with consumers and states following Epic’s win.

“Epic’s filing to the US Federal Court shows again that it simply wants the benefits of Google Play without having to pay for it,” Google’s spokesperson said. “We’ll continue to challenge the verdict, as Android is an open mobile platform that faces fierce competition from the Apple App Store, as well as app stores on Android devices, PCs, and gaming consoles.”

If Donato accepts Epic’s proposal, Google would be required to grant equal access to the Android operating system and platform features to all developers, not just developers distributing apps through Google Play. This would allow third-party app stores to become the app update owner, updating any apps downloaded from their stores as seamlessly as Google Play updates apps.

Under Epic’s terms, any app downloaded from anywhere would operate identically to apps downloaded from Google Play, without Google imposing any unnecessary distribution fees. Similarly, developers would be able to provide their own in-app purchasing options and inform users of out-of-app purchasing options, without having to use Google’s APIs or paying Google additional fees.

Notably, Epic filed its lawsuit after Google removed the Epic game Fortnite from the Google Play Store because Epic tried to offer an “Epic Direct Payment” option for in-game purchases.

“Google must also allow developers to communicate directly with their consumers, including linking from their app to a website to make purchases and get deals,” Epic said in a blog post. “Google would be blocked from using sham compliance programs like User Choice Billing to prevent competing payment options inside an app or on a developer’s website.”

Unsurprisingly, Epic’s proposed injunction includes an “anti-retaliation” section specifically aimed at protecting Epic from any further retaliation. If Donato accepts the terms, Google would be violating the injunction order if the tech giant fails to prove that it is not “treating Epic differently than other developers” by making it “disproportionately difficult or costly” for Epic to develop, update, and market its apps on Android.

That part of the injunction would seem important since, last month, Epic announced that an Epic Games Store was “coming to iOS and Android” later this year. According to Inc, Epic told Game Developers Conference attendees that its app-distribution platform will be the “first ever game-focused, multiplatform store,” working across “Android, iOS, PC and macOS.”

Google mocks Epic’s proposed reforms to end Android app market monopoly Read More »

facebook-secretly-spied-on-snapchat-usage-to-confuse-advertisers,-court-docs-say

Facebook secretly spied on Snapchat usage to confuse advertisers, court docs say

Amazon, anticompetitive behavior, Antitrust law, facebook, Google, Instagram, mark zuckerberg, Meta, online advertising, Policy, Snapchat, social media ads, youtube / /

“I can’t think of a good argument for why this is okay” —

Zuckerberg told execs to “figure out” how to spy on encrypted Snapchat traffic.

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Facebook secretly spied on Snapchat usage to confuse advertisers, court docs say

Unsealed court documents have revealed more details about a secret Facebook project initially called “Ghostbusters,” designed to sneakily access encrypted Snapchat usage data to give Facebook a leg up on its rival, just when Snapchat was experiencing rapid growth in 2016.

The documents were filed in a class-action lawsuit from consumers and advertisers, accusing Meta of anticompetitive behavior that blocks rivals from competing in the social media ads market.

“Whenever someone asks a question about Snapchat, the answer is usually that because their traffic is encrypted, we have no analytics about them,” Facebook CEO Mark Zuckerberg (who has since rebranded his company as Meta) wrote in a 2016 email to Javier Olivan.

“Given how quickly they’re growing, it seems important to figure out a new way to get reliable analytics about them,” Zuckerberg continued. “Perhaps we need to do panels or write custom software. You should figure out how to do this.”

At the time, Olivan was Facebook’s head of growth, but now he’s Meta’s chief operating officer. He responded to Zuckerberg’s email saying that he would have the team from Onavo—a controversial traffic-analysis app acquired by Facebook in 2013—look into it.

Olivan told the Onavo team that he needed “out of the box thinking” to satisfy Zuckerberg’s request. He “suggested potentially paying users to ‘let us install a really heavy piece of software'” to intercept users’ Snapchat data, a court document shows.

What the Onavo team eventually came up with was a project internally known as “Ghostbusters,” an obvious reference to Snapchat’s logo featuring a white ghost. Later, as the project grew to include other Facebook rivals, including YouTube and Amazon, the project was called the “In-App Action Panel” (IAAP).

The IAAP program’s purpose was to gather granular insights into users’ engagement with rival apps to help Facebook develop products as needed to stay ahead of competitors. For example, two months after Zuckerberg’s 2016 email, Meta launched Stories, a Snapchat copycat feature, on Instagram, which the Motley Fool noted rapidly became a key ad revenue source for Meta.

In an email to Olivan, the Onavo team described the “technical solution” devised to help Zuckerberg figure out how to get reliable analytics about Snapchat users. It worked by “develop[ing] ‘kits’ that can be installed on iOS and Android that intercept traffic for specific sub-domains, allowing us to read what would otherwise be encrypted traffic so we can measure in-app usage,” the Onavo team said.

Olivan was told that these so-called “kits” used a “man-in-the-middle” attack typically employed by hackers to secretly intercept data passed between two parties. Users were recruited by third parties who distributed the kits “under their own branding” so that they wouldn’t connect the kits to Onavo unless they used a specialized tool like Wireshark to analyze the kits. TechCrunch reported in 2019 that sometimes teens were paid to install these kits. After that report, Facebook promptly shut down the project.

This “man-in-the-middle” tactic, consumers and advertisers suing Meta have alleged, “was not merely anticompetitive, but criminal,” seemingly violating the Wiretap Act. It was used to snoop on Snapchat starting in 2016, on YouTube from 2017 to 2018, and on Amazon in 2018, relying on creating “fake digital certificates to impersonate trusted Snapchat, YouTube, and Amazon analytics servers to redirect and decrypt secure traffic from those apps for Facebook’s strategic analysis.”

Ars could not reach Snapchat, Google, or Amazon for comment.

Facebook allegedly sought to confuse advertisers

Not everyone at Facebook supported the IAAP program. “The company’s highest-level engineering executives thought the IAAP Program was a legal, technical, and security nightmare,” another court document said.

Pedro Canahuati, then-head of security engineering, warned that incentivizing users to install the kits did not necessarily mean that users understood what they were consenting to.

“I can’t think of a good argument for why this is okay,” Canahuati said. “No security person is ever comfortable with this, no matter what consent we get from the general public. The general public just doesn’t know how this stuff works.”

Mike Schroepfer, then-chief technology officer, argued that Facebook wouldn’t want rivals to employ a similar program analyzing their encrypted user data.

“If we ever found out that someone had figured out a way to break encryption on [WhatsApp] we would be really upset,” Schroepfer said.

While the unsealed emails detailing the project have recently raised eyebrows, Meta’s spokesperson told Ars that “there is nothing new here—this issue was reported on years ago. The plaintiffs’ claims are baseless and completely irrelevant to the case.”

According to Business Insider, advertisers suing said that Meta never disclosed its use of Onavo “kits” to “intercept rivals’ analytics traffic.” This is seemingly relevant to their case alleging anticompetitive behavior in the social media ads market, because Facebook’s conduct, allegedly breaking wiretapping laws, afforded Facebook an opportunity to raise its ad rates “beyond what it could have charged in a competitive market.”

Since the documents were unsealed, Meta has responded with a court filing that said: “Snapchat’s own witness on advertising confirmed that Snap cannot ‘identify a single ad sale that [it] lost from Meta’s use of user research products,’ does not know whether other competitors collected similar information, and does not know whether any of Meta’s research provided Meta with a competitive advantage.”

This conflicts with testimony from a Snapchat executive, who alleged that the project “hamper[ed] Snap’s ability to sell ads” by causing “advertisers to not have a clear narrative differentiating Snapchat from Facebook and Instagram.” Both internally and externally, “the intelligence Meta gleaned from this project was described” as “devastating to Snapchat’s ads business,” a court filing said.

Facebook secretly spied on Snapchat usage to confuse advertisers, court docs say Read More »

amazon-hides-cheaper-items-with-faster-delivery,-lawsuit-alleges

Amazon hides cheaper items with faster delivery, lawsuit alleges

Amazon, antitrust, Antitrust law, European Commission, online marketplace, Policy / /

A game of hide-and-seek —

Hundreds of millions of Amazon’s US customers have overpaid, class action says.

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Amazon hides cheaper items with faster delivery, lawsuit alleges

Amazon rigged its platform to “routinely” push an overwhelming majority of customers to pay more for items that could’ve been purchased at lower costs with equal or faster delivery times, a class-action lawsuit has alleged.

The lawsuit claims that a biased algorithm drives Amazon’s “Buy Box,” which appears on an item’s page and prompts shoppers to “Buy Now” or “Add to Cart.” According to customers suing, nearly 98 percent of Amazon sales are of items featured in the Buy Box, because customers allegedly “reasonably” believe that featured items offer the best deal on the platform.

“But they are often wrong,” the complaint said, claiming that instead, Amazon features items from its own retailers and sellers that participate in Fulfillment By Amazon (FBA), both of which pay Amazon higher fees and gain secret perks like appearing in the Buy Box.

“The result is that consumers routinely overpay for items that are available at lower prices from other sellers on Amazon—not because consumers don’t care about price, or because they’re making informed purchasing decisions, but because Amazon has chosen to display the offers for which it will earn the highest fees,” the complaint said.

Authorities in the US and the European Union have investigated Amazon’s allegedly anticompetitive Buy Box algorithm, confirming that it’s “favored FBA sellers since at least 2016,” the complaint said. In 2021, Amazon was fined more than $1 billion by the Italian Competition Authority over these unfair practices, and in 2022, the European Commission ordered Amazon to “apply equal treatment to all sellers when deciding what to feature in the Buy Box.”

These investigations served as the first public notice that Amazon’s Buy Box couldn’t be trusted, customers suing said. Amazon claimed that the algorithm was fixed in 2020, but so far, Amazon does not appear to have addressed all concerns over its Buy Box algorithm. As of 2023, European regulators have continued pushing Amazon “to take further action to remedy its Buy Box bias in their respective jurisdictions,” the customers’ complaint said.

The class action was filed by two California-based long-time Amazon customers, Jeffrey Taylor and Robert Selway. Both feel that Amazon “willfully” and “deceptively” tricked them and hundreds of millions of US customers into purchasing the featured item in the Buy Box when better deals existed.

Taylor and Selway’s lawyer, Steve Berman, told Reuters that Amazon has placed “a great burden” on its customers, who must invest more time on the platform to identify the best deals. Unlike other lawsuits over Amazon’s Buy Box, this is the first lawsuit to seek compensation over harms to consumers, not over antitrust concerns or harms to sellers, Reuters noted.

The lawsuit has been filed on behalf of “all persons who made a purchase using the Buy Box from 2016 to the present.” Because Amazon supposedly “frequently” features more expensive items in the Buy Box and most sales result from Buy Box placements, they’ve alleged that “the chances that any Class member was unharmed by one or more purchases is virtually non-existent.”

“Our team expects the class to include hundreds of millions of Amazon consumers because virtually all purchases are made from the Buy Box,” a spokesperson for plaintiffs’ lawyers told Ars.

Customers suing are hoping that a jury will decide that Amazon continues to “deliberately steer” customers to purchase higher-priced items in the Buy Box to spike its own profits. They’ve asked a US district court in Washington, where Amazon is based, to permanently stop Amazon from using allegedly biased algorithms to drive sales through its Buy Box.

The extent of damages that Amazon could owe are currently unknown but appear significant. It’s estimated that 80 percent of Amazon’s 300 million userbase is comprised of US subscribers, each allegedly overpaying on most of their purchases over the past seven years. Last year, Amazon’s US sales exceeded $574 billion.

“Amazon claims to be a ‘customer-centric’ company that works to offer the lowest prices to its customers, but in violation of the Washington Consumer Protection Act, Amazon employs a deceptive scheme to keep its profits—and consumer prices—high,” customer’s lawsuit alleged.

Amazon hides cheaper items with faster delivery, lawsuit alleges Read More »

meta-relents-to-eu,-allows-unlinking-of-facebook-and-instagram-accounts

Meta relents to EU, allows unlinking of Facebook and Instagram accounts

anti-competition, anticompetitive behavior, Antitrust law, Digital Markets Act, dma, EU, European Union, facebook, gdpr, General Data Protection Regulation, Instagram, Meta, online advertising, Online Privacy, Policy / /
Meta relents to EU, allows unlinking of Facebook and Instagram accounts

Meta will allow some Facebook and Instagram users to unlink their accounts as part of the platform’s efforts to comply with the European Union’s Digital Markets Act (DMA) ahead of enforcement starting March 1.

In a blog, Meta’s competition and regulatory director, Tim Lamb, wrote that Instagram and Facebook users in the EU, the European Economic Area, and Switzerland would be notified in the “next few weeks” about “more choices about how they can use” Meta’s services and features, including new opportunities to limit data-sharing across apps and services.

Most significantly, users can choose to either keep their accounts linked or “manage their Instagram and Facebook accounts separately so that their information is no longer used across accounts.” Up to this point, linking user accounts had provided Meta with more data to more effectively target ads to more users. The perk of accessing data on Instagram’s widening younger user base, TechCrunch noted, was arguably the $1 billion selling point explaining why Facebook acquired Instagram in 2012.

Also announced today, users protected by the DMA will soon be able to separate their Facebook Messenger, Marketplace, and Gaming accounts. However, doing so will limit some social features available in some of the standalone apps.

While Messenger users choosing to disconnect the chat service from their Facebook accounts will still “be able to use Messenger’s core service offering such as private messaging and chat, voice and video calling,” Marketplace users making that same choice will have to email sellers and buyers, rather than using Facebook’s messenger service. And unlinked Gaming app users will only be able to play single-player games, severing their access to social gaming otherwise supported by linking the Gaming service to their Facebook social networks.

While Meta may have had choices other than depriving users unlinking accounts of some features, Meta didn’t really have a choice in allowing newly announced options to unlink accounts. The DMA specifically requires that very large platforms designated as “gatekeepers” give users the “specific choice” of opting out of sharing personal data across a platform’s different core services or across any separate services that the gatekeepers manage.

Without gaining “specific” consent, gatekeepers will no longer be allowed to “combine personal data from the relevant core platform service with personal data from any further core platform services” or “cross-use personal data from the relevant core platform service in other services provided separately by the gatekeeper,” the DMA says. The “specific” requirement is designed to block platforms from securing consent at sign-up, then hoovering up as much personal data as possible as new services are added in an endless pursuit of advertising growth.

As defined under the General Data Protection Regulation, the EU requiring “specific” consent stops platforms from gaining user consent for broadly defined data processing by instead establishing “the need for granularity,” so that platforms always seek consent for each “specific” data “processing purpose.”

“This is an important ‘safeguard against the gradual widening or blurring of purposes for which data is processed, after a data subject has agreed to the initial collection of the data,’” the European Data Protection Supervisor explained in public comments describing “commercial surveillance and data security practices that harm consumers” provided at the request of the FTC in 2022.

According to Meta’s help page, once users opt out of sharing data between apps and services, Meta will “stop combining your info across these accounts” within 15 days “after you’ve removed them.” However, all “previously combined info would remain combined.”

Meta relents to EU, allows unlinking of Facebook and Instagram accounts Read More »

regulators-aren’t-convinced-that-microsoft-and-openai-operate-independently

Regulators aren’t convinced that Microsoft and OpenAI operate independently

AI, anticompetitive behavior, Antitrust law, competition, competition and markets authority, European Commission, generative ai, microsoft, monopoly, openai, Policy, virtual worlds / /

Under Microsoft’s thumb? —

EU is fielding comments on potential market harms of Microsoft’s investments.

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Regulators aren’t convinced that Microsoft and OpenAI operate independently

European Union regulators are concerned that Microsoft may be covertly controlling OpenAI as its biggest investor.

On Tuesday, the European Commission (EC) announced that it is currently “checking whether Microsoft’s investment in OpenAI might be reviewable under the EU Merger Regulation.”

The EC’s executive vice president in charge of competition policy, Margrethe Vestager, said in the announcement that rapidly advancing AI technologies are “disruptive” and have “great potential,” but to protect EU markets, a forward-looking analysis scrutinizing antitrust risks has become necessary.

Hoping to thwart predictable anticompetitive risks, the EC has called for public comments. Regulators are particularly keen to hear from policy experts, academics, and industry and consumer organizations who can identify “potential competition issues” stemming from tech companies partnering to develop generative AI and virtual world/metaverse systems.

The EC worries that partnerships like Microsoft and OpenAI could “result in entrenched market positions and potential harmful competition behavior that is difficult to address afterwards.” That’s why Vestager said that these partnerships needed to be “closely” monitored now—”to ensure they do not unduly distort market dynamics.”

Microsoft has denied having control over OpenAI.

A Microsoft spokesperson told Ars that, rather than stifling competition, since 2019, the tech giant has “forged a partnership with OpenAI that has fostered more AI innovation and competition, while preserving independence for both companies.”

But ever since Sam Altman was bizarrely ousted by OpenAI’s board, then quickly reappointed as OpenAI’s CEO—joining Microsoft for the brief time in between—regulators have begun questioning whether recent governance changes mean that Microsoft’s got more control over OpenAI than the companies have publicly stated.

OpenAI did not immediately respond to Ars’ request to comment. Last year, OpenAI confirmed that “it remained independent and operates competitively,” CNBC reported.

Beyond the EU, the UK’s Competition and Markets Authority (CMA) and reportedly the US Federal Trade Commission have also launched investigations into Microsoft’s OpenAI investments. On January 3, the CMA ended its comments period, but it’s currently unclear whether significant competition issues were raised that could trigger a full-fledged CMA probe.

A CMA spokesperson declined Ars’ request to comment on the substance of comments received or to verify how many comments were received.

Antitrust legal experts told Reuters that authorities should act quickly to prevent “critical emerging technology” like generative AI from being “monopolized,” noting that before launching a probe, the CMA will need to find evidence showing that Microsoft’s influence over OpenAI materially changed after Altman’s reappointment.

The EC is also investigating partnerships beyond Microsoft and OpenAI, questioning whether agreements “between large digital market players and generative AI developers and providers” may impact EU market dynamics.

Microsoft observing OpenAI board meetings

In total, Microsoft has pumped $13 billion into OpenAI, CNBC reported, which has a somewhat opaque corporate structure. OpenAI’s parent company, Reuters reported in December, is a nonprofit, which is “a type of entity rarely subject to antitrust scrutiny.” But in 2019, as Microsoft started investing billions into the AI company, OpenAI also “set up a for-profit subsidiary, in which Microsoft owns a 49 percent stake,” an insider source told Reuters. On Tuesday, a nonprofit consumer rights group, the Public Citizen, called for California Attorney General Robert Bonta to “investigate whether OpenAI should retain its non-profit status.”

A Microsoft spokesperson told Reuters that the source’s information was inaccurate, reiterating that the terms of Microsoft’s agreement with OpenAI are confidential. Microsoft has maintained that while it is entitled to OpenAI’s profits, it does not own “any portion” of OpenAI.

After OpenAI’s drama with Altman ended with an overhaul of OpenAI’s board, Microsoft appeared to increase its involvement with OpenAI by receiving a non-voting observer role on the board. That’s what likely triggered lawmaker’s initial concerns that Microsoft “may be exerting control over OpenAI,” CNBC reported.

The EC’s announcement comes days after Microsoft confirmed that Dee Templeton would serve as the observer on OpenAI’s board, initially reported by Bloomberg.

Templeton has spent 25 years working for Microsoft and is currently vice president for technology and research partnerships and operations. According to Bloomberg, she has already attended OpenAI board meetings.

Microsoft’s spokesperson told Ars that adding a board observer was the only recent change in the company’s involvement in OpenAI. An OpenAI spokesperson told CNBC that Microsoft’s board observer has no “governing authority or control over OpenAI’s operations.”

By appointing Templeton as a board observer, Microsoft may simply be seeking to avoid any further surprises that could affect its investment in OpenAI, but the CMA has suggested that Microsoft’s involvement in the board may have created “a relevant merger situation” that could shake up competition in the UK if not appropriately regulated.

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