Posted by Social Science Research Network
By Stephen Houck
This paper considers the viability of a Sherman Act § 2 enforcement action in respect of Google’s Android operating system. It discusses the applicability of the D.C. Circuit’s 2001 Microsoft opinion in which Microsoft was found to have engaged in anticompetitive conduct to maintain its Windows operating system monopoly. The paper explains why, despite some superficial similarities, the facts that gave rise to liability in Microsoft are different in crucial respects from those pertaining to Android. The paper concludes 1) that Google lacks monopoly power in a properly defined market in which Android competes; and 2) that Google has not engaged in the type of anticompetitive conduct condemned in Microsoft. The facts underlying Microsoft and the D.C. Circuit’s reasoning strongly suggest that an enforcement action in the United States is unlikely to succeed notwithstanding the European Commission’s July 2018 Android decision.