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After long peace, Big Tech faces US antitrust reckoning

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US Assistant Attorney General for the Antitrust Division of the Department of Justice Jonathan Kanter speaks at the "Enforcers' Roundtable" panel at the American Bar Association's 2024 antitrust spring meeting in Washington, on April 12, 2024
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After more than a decade of leaving Big Tech largely to itself, US antitrust enforcers have cranked up the heat, with several high-profile cases underway that could radically change the way the industry’s giants do business.

Launched under both the Trump and Biden administrations, five major cases from the Federal Trade Commission (FTC) and the Department of Justice (DOJ) are moving forward against major US technology companies — including two against Google that could see the company split up.

The most recent came in March against Apple by the FTC, which alleges the iPhone maker abuses its dominance of the premium smartphone sector.

Washington had largely remained silent on Big Tech cases since its wars with Microsoft that began in the 1990s and ended in a settlement in the early 2000s, after a bruising battle with the DOJ.

Inspired by moves in Europe and elsewhere, the new generation of cases allege that the practices of tech giants including Amazon and Meta stifle competition, harm consumers, and warrant significant changes in business operations.

The cases are on different timelines, before different federal judges and are based on a wide variety of allegations. With appeals, the lawsuits could drag on as long as a decade.

The first case in the campaign, launched in 2020 against Google over its search engine, could have an initial decision as early as the end of this year.

In the second Google case, also brought by the DOJ, the company is targeted for its dominance of the digital advertising sector. Amazon and Meta meanwhile face cases with the FTC.

The suits have drawn applause from lawmakers, with frustration over the power of big tech companies running high with the public. 

But many in the business community and legal profession have balked, seeing the lawsuits as legally thin or politically motivated.

The heads of the FTC and the DOJ’s antitrust section adamantly stand by their cases, seeing their mission as a means to protect consumers.

“It’s always good to kind of look at the actual facts rather than go off of the vibes,” FTC chair Lina Khan told a conference in Washington, organized by the American Bar Association, in response to her critics.

“We’re really addressing the pain points that affect people’s lives including health care and digital (tech), but way, way beyond that,” she said.

Instead of getting bogged down in legal theory, Khan said the FTC’s cases were “fit for purpose in the year 2024.”

“That means… not relying on outdated assumptions and theories that are clearly contravened with what we’re seeing with our own eyes,” she added.

– Legally creative? –

In an informal survey of 19 top antitrust scholars by University of Michigan Law professor Daniel Crane, a majority of respondents believed the cases would be difficult to prosecute.

“Gathering the overall sense, it’s fair to say that there is an expectation that more of the cases will lose than win,” Crane wrote, with the Google cases seen as the government’s strongest and Amazon as the weakest.

Khan’s critics point to widespread opinions in the legal community that the Biden administration’s cases walk on thin legal ground.

“I’m kind of exasperated by these lawsuits, because they seem highly motivated, rather than based on sober legal and economic analysis,” said Michael Santoro, a professor of management at Santa Clara University, who was not part of the survey.

A senior executive from a tech giant, on condition of anonymity, said that “ultimately they are turning antitrust law upside down.”

Speaking in Washington with her US counterparts, the EU’s competition czar Margrethe Vestager said she wished she had been more on the offensive in her earlier antitrust decisions.

“If I were to redo it, I would have been bolder, because we don’t have a lot of time. Concentration is increasing in every jurisdiction,” she said.

Vestager, in office for almost a decade, has pursued her own wave of cases against tech companies that have been accused of being far-fetched or legally creative.

In its latest tech-related decision, last month the EU hit Apple with a 1.8-billion-euro fine ($1.9 billion) for preventing music streaming services from offering subscription options outside of its App Store.

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EU says Apple iPad operating system to face stricter rules

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Apple has six months to prepare to comply with the EU's Digital Markets Act
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The EU on Monday said Apple’s operating system for iPads must comply with tougher new rules that Brussels is imposing to rein in the world’s biggest digital companies.

The European Commission designated Apple’s iPadOS system as a “core” service under the landmark Digital Markets Act (DMA), which forces companies to modify their business ways to encourage competition between online platforms.

It joins other Apple products that were already in the DMA net since September: iOS for iPhones, the App Store, and the Safari browser.

Under the DMA, digital firms designated as “gatekeepers” have to abide by a list of rules including allowing interoperability with rivals’ communication services and limiting how data is shared between products put out by the same parent company.

Apple is on the gatekeepers list, alongside the likes of Google parent Alphabet, Amazon, TikTok owner ByteDance, Meta and Microsoft. 

– EU-Apple tussle –

The inclusion of iPadOS as a core service adds to a long tussle between the European Union and Apple over the bloc’s new digital laws.

Apple has been one of the DMA’s most vocal public critics. It claims the law ushers in privacy and security threats for users.

The commission, the EU’s powerful competition regulator, said it named the iPadOS system because it locked users into the iPad operating system.

“Apple leverages its large ecosystem to disincentivise end users from switching to other operating systems for tablets,” it said.

The operating system also “locked-in” Apple’s business users, it said, “because of its large and commercially attractive user base, and its importance for certain use cases, such as gaming apps”.

Apple has six months to comply with the DMA gatekeeper rules, the commission said in a statement.

“Today’s decision will ensure that fairness and contestability are preserved also on this platform, in addition to the 22 other services we designated last September,” the EU’s competition commissioner, Margrethe Vestager, said.

Apple said in a statement after the announcement that it would “continue to constructively engage with the European Commission to comply with the DMA, across all designated services”.

It added: “Our focus will remain on delivering the very best products and services to our European customers, while mitigating the new privacy and data security risks the DMA poses for our users.”

Apple already faces a commission investigation under the DMA.

In March, Brussels said it would probe whether Apple’s App Store allows developers to present users with offers outside of its app marketplace, free of charge.

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TikTok creators fear economic blow of US ban

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The appetite for short-form video online is expected to remain strong even if TikTok is banned in the United States, boding well for rival platforms
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Ayman Chaudhary turned her love for reading into a living on TikTok, posting video snippets about books like those banned in schools in ultra-conservative parts of the United States.

Now the online platform she relies on to support her family is poised to be banned in what entrepreneurs using TikTok condemn as an attack on their livelihoods.

“It’s so essential to small businesses and creators; it’s my full-time job,” the 23-year-old Chicago resident told AFP.

“It makes me really worried that I live in a country that would pass bans like these instead of focusing on what’s actually important, like gun control and healthcare and education.”

A new US law put TikTok’s parent, Chinese tech giant ByteDance, on a nine-month deadline to divest the hugely popular video platform or have it banned in the United States.

US lawmakers argued that TikTok can be used by the Chinese government for espionage and propaganda as long as it is owned by ByteDance.

“Everybody who’s involved in deciding whether or not this platform is going to get banned is turning a blind eye to how it’s going to affect all of the small businesses,” said Bilal Rehman of Texas. 

His @bilalrehmanstudio TikTok account, which playfully promotes his company’s interior design projects, has some 500,000 followers.

“They don’t really understand social media and how it works,” the 24-year-old added.

TikTok has gone from a novelty to a necessity for many US small businesses, according to an Oxford Economics study backed by the platform.

TikTok fuels growth for more than seven million businesses in the United States, helping generate billions of dollars and supporting more than 224,000 jobs, the study determined.

“It’s become such a huge part of our economy that taking that away is going to be devastating to millions of people,” Rehman said of TikTok.

Chaudhary took to TikTok to share her passion for reading in early 2020 while enduring Covid-19 lockdowns.

“I made a handful of videos and, long story short, one went viral,” Chaudhary said.

Opportunities to make money from sponsors or advertising came as her audience grew, and posting on her @aymansbooks TikTok account became a job.

She saw books she extolled snapped up by readers, as she shined attention on titles banned from schools or libraries in parts of the country.

– Unique vibe –

A TikTok ban would be a particularly hard blow to businesses just starting out, according to eMarketer analyst Jasmine Enberg.

“Social media has democratized the commerce landscape, and TikTok really supercharged that,” Enberg told AFP.

“It’s become a crucial platform for many small businesses, especially those that are in niche industries or sell quirky products.”

One factor setting TikTok apart from rival platforms is the potential for videos to be spread quickly by a highly engaged audience, according to Enberg.

“The potential to be discovered on TikTok is really unparalleled, and that’s largely thanks to its algorithm as well as the entertaining kind of content that it hosts,” she said.

A young generation is using TikTok as a search engine of sorts, making queries as they might on Google and seeing what the algorithm serves up, said SOCi director of market insights Damian Rollison.

“It feels like it has been created by your peers, so they’re telling you the real deal about whatever the topic might be,” Rollison said of the trend.

TikTok lovers say it has a unique style that will be missed in the case of a ban.

“There is definitely a different vibe on TikTok versus YouTube or Instagram,” said Chaudhary.

“TikTok has a lot more humor in it and a lot more creativity than I see happening on Instagram.”

“My favorite part about TikTok is, it feels almost like you’re on a FaceTime call with your friend,” Rehman said.

“It feels really raw and authentic.”

Rollison advised businesses relying on TikTok to make contingency plans in event of a ban, sticking with short-form video, given the appetite for such content.

“The demand signals are so powerful amongst younger users that I believe the usage patterns are going to survive any of the outcomes,” Rollison said.

“Learning that ecosystem is not only a useful but even critical strategy.”

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Cybersecurity firm Darktrace accepts $5 bn takeover

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Darktrace chief executive Poppy Gustafsson (L) said the group's 'technology has never been more relevant in a world increasingly threatened by AI-powered cyberattacks'
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Cybersecurity firm Darktrace said Friday it had accepted a $5.3-billion takeover bid from US private equity firm Thoma Bravo, which highlighted the British group’s “capability in artificial intelligence”.

The cash bid comes after Thoma Bravo expressed takeover interest two years ago.

“Darktrace is at the very cutting edge of cybersecurity technology, and we have long been admirers of its platform and capability in artificial intelligence,” Thoma Bravo partner Andrew Almeida said in a statement.

“The pace of innovation in cybersecurity is accelerating in response to cyber threats that are simultaneously complex, global and sophisticated.”

Darktrace chief executive Poppy Gustafsson said the group’s “technology has never been more relevant in a world increasingly threatened by AI-powered cyberattacks”.

Darktrace, headquartered in the university city of Cambridge close to London, floated on the London stock market in 2021.

The cash deal announced Friday is worth $7.75 dollars per Darktrace share — a 44 percent premium on the group’s average share price in the last three months, according to Thoma Bravo.

Following the announcement, the share price surged 18 percent to 612 pence ($7.7).

Created in 2013, Darktrace employs more than 2,300 people around the world.

“The proposed acquisition will provide Darktrace access to a strong financial partner in Thoma Bravo, with deep software sector expertise, who can enhance the company’s position as a best-in-class cyber AI business headquartered in the UK,” Darktrace chair Gordon Hurst said in the statement.

The pair hope to complete the deal in the second half of the year thanks to shareholder and regulatory approval.

Almeida noted that Thoma Bravo has invested “exclusively in software for over twenty years” which would allow it to bring “operational expertise and deep experience of cybersecurity in supporting Darktrace’s growth”.

Prior to Friday’s announcement, shares in Darktrace has bounced back strongly after the company was cleared by independent auditors EY of having irregularities in its accounts.

Explaining its decision to go private, Darktrace said its “operating and financial achievements have not been reflected commensurately in its valuation with shares trading at a significant discount to its global peer group”.

– Takeover boom – 

The bid comes at the end of a week in which the London stock market has been gripped by takeover activity, helping the top-tier FTSE 100 index to record highs.

British mining giant Anglo American on Friday rejected a blockbuster $38.8-billion takeover bid from Australian rival BHP, slamming it as “highly unattractive” and “opportunistic”.

A battle to buy UK music rights owner Hipgnosis Songs Fund meanwhile took a fresh twist after US rival Concord increased its takeover offer, slightly beating a bid by Blackstone. 

Concord on Wednesday offered $1.5 billion for Hipgnosis, whose catalogue includes Justin Bieber, Shakira and Neil Young.

This is more than its original $1.4 billion offer that preceded a higher bid from US asset manager Blackstone.

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