The second argument I have heard is that the transactions or practices involved in high-tech cases are too dynamic to effectively challenge. There is certainly some validity to this critique. For one, the constant innovation in fast-moving markets means the market at issue in a case or investigation can literally change. One moment we may be claiming Intel is a monopolist in the market for the x86 processor (the only major processor that most of us use for daily computing) and is seeking to take control of the entire computing platform, but the advent of tablets and smartphones may mean that the market tips such that ARM or some other processor is the dominant processor. In other instances it may be that when we start an investigation, mobile advertising is offered through one means (such as cost-per-click), but that some new, better technology (be it developed by Apple, Google, Microsoft, or a startup we’ve never heard of) comes up with a better means to deliver targeted advertising. This can make market definition very challenging – particular when these events occur (as they sometimes have) during our investigations. Indeed, one can argue that the more thorough the agencies are in their investigations (or, to put it bluntly, the longer the investigations drag on), the more we risk having events overtake us.
This raises a related problem with fast-moving high-tech markets which is that they do not fit snugly into the drawn out litigation process that we have in the U.S. By my estimate, from the time an agency sues until all appeals are exhausted, a case can take (conservatively) 3-4 years to work its way through our court system – and that assumes no bumps along the way. In this regard, while I laud the Justice Department for their suit against Microsoft, I think it’s safe to say that the drawn out process there to secure a remedy is a cautionary tale that we at the government live with every time we decide to
4
