More on iPhone legality

Well, I am not a lawyer so my views on iPhone legality expressed here and here need to be taken with a grain of salt. Dale Clapperton who is one of the authors worried about iPhone legality thinks that getting past the ACCC on this one is not a given. Kim Weatherall, who is a lawyer (although not a competition one), says ACCC past behaviour on this stuff indicates otherwise. That said, if the legislation on third line forcing is rarely a barrier, calls for its reform are even more important. After all, think about all of the uncertainty it created this week. And let’s say that Graeme Samuel — a noted gadgetphile — did actually challenge an iPhone introduction plane as it has occurred around the world and that led to delay or no introduction, I think that this is not going to win that section of the Trade Practices Act any friends (except amongst iPhone ‘grey’ market importers that is).

7 thoughts on “More on iPhone legality”

  1. Then again, Joshua – maybe all those notifications without revocation are an indication that the system is working just fine. Could be said that for the most part, these things aren’t a worry; that some arrangements might however be of concern, so best thing is for the ACCC to (a) have access to information about these arrangements occurring, via the notification, and (b) to retain a residual power to intervene if necessary, with (c) figures published that give practitioners and business some assurance that only in serious circumstances will the ACCC get involved. It’s a very regulatory approach, a very bureaucratic one. But is it a problem?

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  2. Kim, yes it is a problem. Business spends a lot of money, and I mean a lot, preparing notification submissions for the ACCC in relation to third-line forcing arrangements that are competitively neutral, and in many cases blatantly pro-competitive. It is a criminally ineffecient system.

    Cheers
    BBB

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  3. Fair comment, BBB. I don’t have to spend time preparing notification thingies, so pardon my flippant comment. There’s a little part of me that wonders why business spends a lot of money on notifications when the ACCC almost never knocks them back – sounds like something that ought to be a bit of a ‘file and forget’. But if it is indeed the case that there’s a lot of useless paperwork and unnecessary lawyer-subsidy going on here, then yes, let’s get rid of it. I’m no huge fan of increasing the size of the bureaucracy – indeed, I’ve criticised it elsewhere.

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  4. Kim, yes the ACCC are actually very reasonable and “on the ball” with 3LF notifications. The stats bear this out, but I can also speak from on-the-ground experience with ACCC staff. They are not mindless bureaucrats. My feeling is that the low number of rejections (if you could call them that) is largely, though not exclusively, a function of the quality of 3LF notifications and the money spent on professional form-filers. Having said that, I can only speak for my own work! Business spends the money, and the ACCC profits from that (in a sense), in that their job is done for them by the private-practice lawyers. Were I an outsider, I’d be concerned about the regulatory overhead. As one of the people business pays to prepare these documents, and a beneficiary of the lawyer-subsidy that you refer to, I’m (how can I put this) indifferent.

    Finally, to give you some flavour for the rampant absurdity of (some) Australian competition law, I should note that only recently did we get a related bodies corporate exception on this stuff. Yes, that’s right. Up until fairly recently, wholly-owned subsidiaries could not be parties to third-line forcing conduct without going through the same notification process as unrelated entities. We still don’t have a proper and principled competition test for 3LF, but I suppose we ought to thank god for small mercies, eh?

    Cheers
    BBB

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