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Lina Khan Is Taking on the World's Biggest Tech Companies - and Losing (wsj.com) 74

Federal Trade Commission Chair Lina Khan is taking on the world's biggest technology companies -- and losing. From a report: Khan failed Tuesday in her latest effort to block a big-tech deal when a federal judge denied her agency's bid to block Microsoft from closing its purchase of videogame publisher Activision Blizzard. The FTC suffered a similar setback earlier this year when it tried to thwart Meta Platforms' purchase of a virtual-reality gaming company. Khan, who gained prominence as a critic of Amazon, entered office in 2021 vowing to stiffen antitrust enforcement. Past enforcers were too cautious about bringing tough cases, she has said, and failed to confront the rise of companies such as Facebook owner Meta that gained monopoly-like power in digital industries, she said.

"I'm certainly not someone who thinks success is marked by a 100% court record," Khan said last year in remarks at the University of Chicago. "If you just never bring those hard cases, I think there is severe cost to that, that can lead to stagnation and stasis." Under the Biden administration, antitrust agencies have challenged more mergers than in previous years, including some that historically the government wouldn't have tried to block. Microsoft and Activision aren't head-to-head competitors, making the case against the deal less straightforward and more dependent on the FTC's prediction that the combined company would abuse its power to hurt competition in the future.

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Lina Khan Is Taking on the World's Biggest Tech Companies - and Losing

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  • by rsilvergun ( 571051 ) on Wednesday July 12, 2023 @09:46AM (#63679771)
    with pro-corporate, anti-consumer judges because we kept electing people based on who pushed our buttons the best and our favorite moral panics. While we were all worried sick about political correctness gone made they were quietly putting judges in place that would screw our pocket books. So the Microsoft/Activision merger is about to get approved not because the FTC wants to but because a judge said they don't have standing. Despite the fact that they literally just bought Bethesda and made their big titles exclusives making it painfully obvious they'll abuse their market dominance.

    Elections have consequences. Start thinking & voting with your wallet.
    • by virtig01 ( 414328 ) on Wednesday July 12, 2023 @10:53AM (#63679999)

      they literally just bought Bethesda and made their big titles exclusives making it painfully obvious they'll abuse their market dominance.
       

      What dominance? MS has been an also-ran for years in console gaming. And as far as exclusives, schoolyard bully Sony has done plenty of their own. As was revealed during the court proceedings, the future of Call of Duty on Xbox was in jeopardy. Effectively, the FTC was being used by Sony to stop one of their competitors to maintain their own market dominance.

      • by Anonymous Coward
        You're saying the FTC was being used to maintain Sony's market dominance. As in, if the FTC did not bring their case then Sony would lose their market dominance to Microsoft as a result of Microsoft buying up the most important software supplier to Sony. You are literally saying that the FTC's case was sound.
        • by _xeno_ ( 155264 )

          As in, if the FTC did not bring their case then Sony would lose their market dominance to Microsoft as a result of Microsoft buying up the most important software supplier to Sony.

          Except, no. The judge ruled that wouldn't happen, that Sony's market dominance is likely to survive even if they did lose Call of Duty, and that there was no evidence shown that Microsoft would pull Call of Duty from PlayStation platforms, while evidence for why they'd keep doing PlayStation releases was provided.

          There's good reason to want Microsoft to be able to better compete against Sony in the "console wars." Sony has been able to maintain their market dominance despite heavy supply chain issues. Even

        • You are literally saying that the FTC's case was sound.

          Errr no. The FTC does not exist to protect a company's market dominance. In fact it is literally the opposite.

    • The plutocrats manipulated religious zealots to gain power, but are finding the zealots are gradually turning on them, like the Disney content battles, sports and entertainment venues having to do deal with restroom wanker cops (NBA changing all-star location), and employees who don't want to work where their bodies are regulated (Musk's engineers).

      They created the Frankengelical monster but can't kill it now.

    • by Anonymous Coward

      You do realize that the judge that ruled on this was a Biden appointee, right?

      • You do realize that the judge that ruled on this was a Biden appointee, right?

        Don't let facts get in the way of the discussion. Unarticulated tangential feelings and impassioned grunts for the win.

    • Despite the fact that they literally just bought Bethesda and made their big titles exclusives making it painfully obvious they'll abuse their market dominance.

      Remind me again which console you have to own if you wanna play that new Zelda game that is all the rage? Exclusives are just business as usual in the gaming industry, and someone else summed it up nicely in a comment the other day: evil corp. allowed to merge with more evil corp.

      The Sprint/T-Mobile merger mattered. This merger, however, is a nothingburger.

    • Extremely well said, but I would add that nobody gives a shit about gaming, especially the presiding judge.
    • You mean we've been putting judges in place that follow the law?

      If you want different policy, you need a different Congress that passes actual legislation that puts forth the policy you desire. Khan is failing because she's an activist that doesn't realize the limits of her powers bestowed on her office by Congress. She's not a dictator that can just say 'I hate big tech' and go forth and punish. The courts do not exist to make decisions based on a political ideology. They exist to make decisions based

  • Question (Score:5, Insightful)

    by ArchieBunker ( 132337 ) on Wednesday July 12, 2023 @09:57AM (#63679809)

    Does the Microsoft/Activision merger benefit consumers any?

    Will it lead to increased competition in the market? No.
    Will it lead to lower prices in the market? No.

    The only people to benefit from this are the suits.

    • A bigger question (Score:4, Insightful)

      by JBMcB ( 73720 ) on Wednesday July 12, 2023 @10:07AM (#63679843)

      Will it matter?

      Look at the track record of large mergers and acquisitions in the games industry. Usually company A is trying to acquire a successful franchise from company B. The buy the IP, and, often, a bunch of developers leave company B to start another company. Company A then runs company B in to the ground, as the important part isn't the IP, it's the developers whom made the IP.

      There are exceptions, but it's generally the case.

      • by Anonymous Coward

        This is an $80,000,000,000 dollar company not one company buying some random studio and losing a few developers that start a new company. It likely has strategic importance and judging from what they are buying, it's probably a bet that the future of military is intersecting with games, much like predicted by science fiction like Ender's game.

        • Re:A bigger question (Score:4, Interesting)

          by HBI ( 10338492 ) on Wednesday July 12, 2023 @10:26AM (#63679911)

          Attempts to militarize gaming technology are uniform (ha) failures. I've been a military contractor working in communications and electronics for the last 25 years. I've watched initiative after initiative crash into the rocks. The two mindsets are completely alien to each other. Getting people who work in FAANG companies - or Microsoft to talk to actual soldiers is laughable. And smaller firms don't have the technology you are talking about, or the gravitas to get their way with the military.

          I'll give a brief example. It occurred to someone that Microsoft's edge stacks - with a local implementation of Azure - would be great stuff for forward deployed units. The demand from the MSFT side (and in essence the hardware provider) was that only their staff handle basic maintenance, like replacing drives. This then breaks on the rocks of "who is going to go to Kabul or whatever other shithole we happen to be operating in to replace this hardware". Then, the military's clear reluctance to be dependent on a commercial entity for the actual logistics of fighting a war. They'll hire consultants to consult and train their people, but not to be dependent upon, even though an honest conversation with officers will result in them admitting they _are_ utterly dependent on the external support. They have to pretend otherwise for leadership consumption.

          Another example is the Google rebellion over sharing AI with the DoD. Are they really going to get in bed with organizations that would do that with them? Fuck no.

          Lastly, the people that work in those companies have no relationship to military imperatives of mission, 24x7 operations regardless of circumstance, that kind of thing. Two different languages. The problem has gotten _worse_ rather than better over time. Embedding say, MSFT people in with a unit does bridge the gap a little, but only a little.

          • by Zak3056 ( 69287 )

            Attempts to militarize gaming technology are uniform (ha) failures.

            I don't believe that's quite true. IIRC, multiple militaries utilize a version of DCS World built for that purpose and the US military has utilized the Arma games and their predecessors (or customized versions) for various training purposes.

            There is also the near certainty that within the next few decades, a lot of manned aircraft are going to be remote piloted drones, or human directed AI controlled packs of drones, and at that point I would say that "militarizing gaming technology" would become almost ne

            • by HBI ( 10338492 )

              Only the last one has merit. The training software has nothing to do with operations and isn't taken seriously by soldiers themselves.

              The last one...maybe. I think the real problem with remotely piloted drones is the lag time on the comm links. Keep that in mind, and remotely piloted drones are very limited, actually. I think the operations of same are going to have to change because of that kind of logistics and it won't be from some rear echelon center, and all the considerations I bring to attention

    • But the case they brought to court was a shit case. I'd have dismissed it myself.

      There was ample material to construct a much stronger one.

    • Re: (Score:3, Interesting)

      by backslashdot ( 95548 )

      Not everything is about "would it benefit consumers?", the road to hell is paved that way. Some of it is following laws and not infringing rights. Does *everything* YOU do benefit the world and consumers? When government gets obsessed with "maximize consumer benefit", they go down dark paths. Are there things you could give up so that the homeless rate can be reduced?

      • Does *everything* YOU do benefit the world and consumers? When government gets obsessed with "maximize consumer benefit", they go down dark paths. Are there things you could give up so that the homeless rate can be reduced?

        I am not a mega corporation. Anything I do will not make a blip on any bottom line. One of the world's largest software companies and one the world's largest gaming companies on the other hand can have a huge impact. The entire point of the FTC is to protect consumers. It's literally their slogan.

      • by Anonymous Coward

        Sorry, I think you might have transcribed the second sentence too quickly from your party's handbook. Can you double check it's word-for-word correct?

      • Not everything is about "would it benefit consumers?", the road to hell is paved that way. Some of it is following laws and not infringing rights. Does *everything* YOU do benefit the world and consumers? When government gets obsessed with "maximize consumer benefit", they go down dark paths. Are there things you could give up so that the homeless rate can be reduced?

        Yes, there are things I'd give up to help the homeless. Time volunteering, money when I have spare to charities that seem to actually give a damn, and selling off unneeded items to have more money to give to those charities just to name a small few things I've actually done.

        To the larger point, "would it benefit consumers" is the road to hell? Is it more or less of a road to hell than the current government take, where everything is literally about maximizing corporate profits, citizens be damned. Maybe an

      • by necro81 ( 917438 )

        Not everything is about "would it benefit consumers?"

        Antitrust jurisprudence these days is entirely about "consumer welfare". This is due to the decades-long dominance of the so-called "Chicago School [antitrustlawsource.com]" legal theory on antitrust. In short: unless you can prove that something resulted in higher prices for consumers, or some other easily quantifiable harm, then anything goes. This is partly why enforcement actions against, say, Facebook or Google are so difficult. Their price to consumers is zero, and it

    • Probably not but we have a decades long precedent of a pretty hands off protocol in regards to M&A for a long while now.

      Just look at the escalation in the amount and size since 1980:

      List of largest mergers and acquisitions [wikipedia.org]

      The executive and Judicial branches by design can only do so much here. Legislation is required to change this direction.

    • by Anonymous Coward

      Does the Microsoft/Activision merger benefit consumers any?

      Will it lead to increased competition in the market? No. Will it lead to lower prices in the market? No.

      The only people to benefit from this are the suits.

      Fortunately government doesn't get to control our lives by deciding what it thinks is best for any number of various parties, individuals, or corporations. They get to intervene when someone claims they have been harmed, a contract has been violated, or property has been damaged. But fuckwits like you keep voting to control and harm other people out of vengeance...so here we are. I give exactly zero shits if Microsoft and Activision merge--or if Microsoft does something you think is "evil" (like maybe st

      • Re: (Score:2, Insightful)

        Fortunately government doesn't get to control our lives by deciding what it thinks is best for any number of various parties, individuals, or corporations.

        The government already controls your life in countless ways. The zoning for your property, the insurance you must carry on your vehicle, how fast you can drive said vehicle, the safety features the manufacturer is required to install in your vehicle, the codes your home is built to, the amount of nicotine in the cigarettes you smoke, what drugs you are allowed to purchase, the food storage temperatures at the store you buy groceries. Need me to go on?

      • by gtall ( 79522 )

        "Fortunately government doesn't get to control our lives by deciding what it thinks is best for any number of various parties" like abortion for instance.

      • by necro81 ( 917438 )

        They get to intervene when someone claims they have been harmed...

        Please look up the term "prior restraint" and "preliminary injunction", then come back to the conversation. Governments and the courts intervene all the time to prevent harms from happening, not only after when bad things happen.

    • by Tablizer ( 95088 )

      The only people to benefit from this are the suits.

      Suits are people too...I think.

    • by RobinH ( 124750 )
      A better question is "why does it matter?" We're not talking about monopolies of transportation, food, energy, or even operating systems here. This isn't even about the distribution of video games... Activision is a publisher and not only are there lots of publishers, but it's also not that hard to self-publish. Steam is the obvious monopoly because they pretty much own the distribution channels for PC games, with Microsoft Store being the only real competitor. Amazon Gaming is a bit of a joke.
    • Does the Microsoft/Activision merger benefit consumers any?

      That is a pointless question with no legal basis at all. Consumer benefit is never considered in mergers. Consumer harm is, and the FTC failed to prove harm, incidentally their main reasoning was directly addressed by Microsoft.

  • This judge was appointed by Biden, as part of HIS attempt to pack the courts. Even she (the judge) is not rabid enough to agree with Lina Khan. That should tell you something about Lina Khan.

    In addition this was the near monopolist, Sony, trying to hold on to their near-monopoly, not anything like what Khan was claiming, as best I can tell.

    Khan is anti-capitalism. Her modus operandi is simply to make life as difficult as possible for large corporations. Nothing more.

    • by Dadoo ( 899435 )

      Khan is anti-capitalism. Her modus operandi is simply to make life as difficult as possible for large corporations. Nothing more.

      You say that like it's a bad thing.

  • by gordonb ( 720772 ) on Wednesday July 12, 2023 @11:52AM (#63680213)
    The judge just denied a preliminary injunction. This is a finding only that the FTC did not make the case that there was imminent harm. It may signal that the court believes the FTC is unlikely to prevail in their suit, but the lawsuit can still proceed absent the injunction.
    • but the lawsuit can still proceed absent the injunction.

      This isn't as insignificant as you think. The injunction was to prevent a merger. Once a merger has occurred even if the FTC prevails the resulting unravelling of companies can be a significant headache.

  • From the WSJ article: “I’m certainly not someone who thinks success is marked by a 100% court record,” Khan said last year in remarks at the University of Chicago. “If you just never bring those hard cases, I think there is severe cost to that, that can lead to stagnation and stasis.”

    The idea that regulators should be in the business of expanding the law through litigation is one that I think is Flat Wrong. It might not cost the taxpayers anything, but responding to failed re

    • But only bringing to court cases that have a 100% chance of success is allowing the scope of law to shrink since you're only enforcing part of the law.

      • With respect, you and I clearly have different perspectives on the law and the role of the courts in interpreting law (versus making the law.)

  • All of the FTC's lawyers did was sound like shills for Sony, They didn't make a strong case that there was much if any problem to the overall video game market. I'm not surprised the injunction was thrown out.

    As for the FTC as a whole in their crusade against big tech, they should persue issues that would lead to actual problems and make arguments as such, not just chase every possible issue that involves large companies.
  • Though gaming is big business, monopolies within it hardly affect the economy the way monopolies in food, transportation or energy do. It looks as if Khan tried to make a name for herself by using a stupid case to go after the biggest player of them all in order to score political points. As expected, it backfired in the most horrible way. She can make a much bigger difference by quietly going after much more worthwhile and more economically relevant sectors like food, energy or transportation. Perfect case

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