[thelist] Business practices and Anti-Trust

Paola Kathuria paola at limitless.co.uk
Sun Mar 18 19:21:29 CST 2001

Many apologies for opening this can of worms.  Rather than
trying to fan the flames, I am here to say that this same
price fixing debate has been going on in web-related mailing
lists since at least 1995!

Although I agree with zac that a case specifically testing
mailing list discussions would be illuminating, I've now done
enough reading to be persuaded that such discussions would
be seen as illegal in the US (see the quote from Lewis Rose

I think the antitrust discussion here is mostly over; if not,
I suggest that you read the 1995 thread from the HTML Writer's
Guild list and the 1996 discussions from the webconsultants
list because I suspect that there's nothing really new to add.
Both sets of discussions are quite interesting reads.

If anyone would like my collated links and highlights on US
antitrust law, mail me and I'll send them to you (er, Adrian,
ignore my message to you about this).


Here is a message from 1995 from the HTML Writer's Guild mailing
list which eventually prompted them to publish a guide to fees.
http://www.aip.org/hypermail/guild/0267.html (follow the "Next in
thead" links).

It resulted in a similar thread.

Marshall Kragen and Lewis Rose (the lawyers named on the HWG FAQ)
were both subscribers to the list at the time and were active
in the thread.

http://www.aip.org/hypermail/guild/0315.html is where Kragen
describes the case involving the brokers.

The message by Lewis Rose is also compelling
http://www.aip.org/hypermail/guild/0425.html - in it he says
that a trade assoc (like the Guild) can publish a price survey
in a structured format.

He also wrote:
"When does a discussion imply an agreement? When a judge says so. Sorry,
there is no easy response to that. But the issue really is, what is the
pro-competitive justification for such a discussion? How does it help
competition for competitors to discuss how to price for their services and
to discuss specific prices? Sure, it makes it easier for one or another of
you to determine whether your price is fair, but that justification will be
condemned. Indeed, it is fair to say that the DOJ, FTC, state
attorneys-general will be hard-pressed to find any justification for such a
A search on "Marshall Kragen" finds a similar discussion on
the webconsultants mailing list in 1996.


http://www.just4u.com/webconsultants/dig509.htm#price (broken HTML - have
to view source...)
Marshall Kragen wrote
"The legal way to do this is to have a journalist independently investigate
and post prices.  There just can't be a discussion between those who may
otherwise be competitors. And for those who have argued and will argue
we're not competitors the prosecution can make a prima facie case that you
are and then shift the burden to you to prove otherwise, and then we're
talking the big bucks in legal fees Jack mentioned."

http://just4u.com/webconsultants/dig529.htm#animated (broken HTML)

(end - phew!)

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