I have a vague recollection about an old literature in consumer economics that I think is called attribution theory. Consumers buy products based on various attributes -- which can include not only the tangibles of having something serve the specific needs for which the consumer bought it, but also intangibles such as sex appeal, status, and so on. Businesses such as clothing and cars, even food, are expert in knowing how to infuse a product with all perceived value. Value is very much in the eye of the consumer.
Coming back to the DOJ case, Microsoft keeps arguing that consumers have benefited, not been hurt, by their policies. The DOJ gives lots of specifics on how consumers are unhappy or getting screwed. What's a judge to do? Is this DOJ litany going to stand up, in an evidentiary sense, to prove harm to consumers? Or, is a finding of (1) strong market power and market share, coupled with (2) aggressive or "predatory" competitive behavior, and (3) all manner of consumer complaints, going to amount to a violation? From my reading of the antitrust cases, the courts seem to infer harm to consumers from (1) and (2) above. Harm to consumers is deduced from market structure, as it is in Econ 101.
For its part, when MSFT's turn in the trial comes, it will present a barrage of evidence that consumers are delighted, despite the glitches and imperfections which characterize high-tech products in general (biotech products aren't perfect either, as the FDA knows). So, we'll have two bodies of evidence on the specifics of consumer harm/benefit -- the complaints and the bouquets. This weighing of facts will tend to benefit MSFT.
Jackson's going to have his hands full in finding overall "harm to consumers" from the specific complaints of customers, since those are inevitable. And it will be a mixed record. He can, however, fall back on deducing harm to consumers from market structure. |
