Digital markets should be decided by customers, not judges

It started somewhat innocuously.

The Honorable Elizabeth Warren (D-Massachusetts) gave a speech at an event called "America's Monopoly Problem." That's an interesting topic, but it became more interesting when she expressed her "concerns" with Apple, Google, and Amazon over various business practices.

She had different issues with each but the one I found fascinating was this comment regarding Apple who "has placed conditions on its rivals that make it difficult for them to offer competitive streaming services." Yikes!

Not surprisingly, Spotify immediately agreed with her comments and cried foul against Apple — who recently rejected Spotify's latest app for App Store policy violations. Those violations involved attempts to circumvent Apple's prohibitions on moving billing outside the App Store as a way to avoid giving Apple a cut of the revenues generated inside the app.

I won't get in to the implications of Apple as an alleged monopoly (as the title of the conference, and her remarks implied) as I'm not a lawyer (much to my mother's chagrin). I don't think most of the folks arguing this point are either. (Their parent's chagrin is mileage that will vary).

The bigger issue for Netscape, in my opinion, wasn't loss of market share but the loss of mindshare.

I did cover Microsoft v. DOJ in the 90's. I lived through a suit where Jupiter Media Metrix was sued by the DOJ to block the sale of part of the company for anti-trust issues. I was at Apple when we were challenged as a monopoly in the digital book space.

I won't discuss my opinion on the results of those suits, or about how applying 19th Century railroad laws to the 21st century digital world is silly. Nope. None of those. Not today.

I will say it's not in Spotify's interest to whine.

Prior to Netscape's complaints again Microsoft, Netscape was a perceived powerhouse. Netscape was going to challenge Microsoft directly and change the world. Then came the complaint and the aura went away. The spell was broken. After that, most of industry looked at Netscape as what it was: A dinky company that had very little chance of challenging Microsoft.

The bigger issue for Netscape, in my opinion, wasn't loss of market share but the loss of mindshare.

Spotify is the king of streaming music today. Rhapsody and Tidal, to name just two, paled in comparison in terms of perception… Spotify has the mind share. Until yesterday. Now Spotify's paying subscribers don't look nearly as impressive in a fast changing market. Perhaps Spotify isn't really king of the hill, but just another player in a market that has yet to be defined. And that loses them mind share.

Early players in a space such as digital streaming seldom matter. Part of Microsoft's legal woes revolved around whether Windows Media effectively locked out Real Network in the EU. It took years to resolve. Microsoft lost, and paid a fine and hefty compensation to Real. Funny thing? Neither company won in the place that mattered.

Change happens quickly. A market share advantage can be overcome by small players.

While this was going on, a small company came out of nowhere, created iPod, and iTunes, and quietly became the most powerful player in the music business. Apple won digital downloads, overtaking important competitors such as Walmart. In short, change happens quickly. A market share advantage can be overcome by small players.

Whatever ultimately happens with a new U.S. administration, consumers will be the ultimate judge of who wins and who loses.

Trying to succeed by fighting in the courtroom instead of the hearts and minds of consumers, though, is quick way to kill your shot.

In short, Spotify should shut up and get to work competing instead of kvetching.