Apple Could Still Push 30% Fee on App Makers After Ruling.
True. It is not unlawful to impose a take rake. It is unlawful to protect the take rake by illicit means, such as price fixing or vertical tying of services.
For example, Amazon Marketplace and Amazon Home Services protect the rake by means of MFNs with third parties. Uber and Lyft unilaterally set prices for drivers to hide the take rake from competition. DoorDash requires restaurants to offer the same price to consumers on the take-out menu. Booking.com requires hotels to offer price parity. Apple and Google tie payment systems to app stores. These restrains to free trade are all illicit under the Sherman Act.
Some marketplaces, such as Airbnb, utilize organic incentives (such as added user protections) to keep users on the platform, which is legal as long as consumers are not prevented from doing business directly with hosts, which they are not, but they don’t get booking protection outside the platform.
Online real estate is one of the few exemptions where take rake itself is unlawful. Real estate brokers can only share fees with other brokers, called referral fees. For a legitimate marketplace to operate in online real estate sector, we cannot charge a take rake on services provided by a Realtor to the consumer. To bypass these regulations requires one to collude with Realtors and to break an antitrust law.
Marketplaces are delicate, wise to befriend the antitrust hammer.
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