Precedence for openness has little legal bearing on the matter. Unfortunately.
And while precedence may have some
bearing - on "this side of the pond" it still doesn't pack the wallop it does in most civilized countries. Heck, the US often prides itself
on just how little respect it generally has for precedence and history.
US antitrust and anti-competitive restrictions have traditionally only been invoked to enforce some level of open competition in emerging markets. Once a market has reached a level of sustainability or maturity, US law backs off and lets the market decide who the ultimate winners will be. These so-called natural monopolies are usually left alone by US regulators unless some outside party can make a convincing argument that the dominant company is engaging in some form of anti-competitive behavior specifically forbidden by law.
Being so big and powerful that nobody else can compete in the monopoly's market is not sufficient grounds for government intervention. At least not in the USA. Belief in the doctrines of "last man standing" and "to the victor go the spoils" has a long tradition in American business and law. US antitrust laws are not designed to enforce ongoing competition - only to prevent a company from securing an "unfair advantage" when a market is being created or a new industry is emerging.
To a certain extent, you can say that the US business model almost assumes natural monopolies will emerge once a market reaches maturity. This is viewed as both natural and, in many cases, a desirable outcome since economies of scale and cost efficiencies often result. Some see a further advantage in having a single dominant supplier because it tends to bring about product standardization which results in lower consumer prices and the creation of "add-on" businesses.
Or at least so the theory goes...
( Yeah, right!
On the other hand, European antitrust regulations do
seem to have the creation and enforcement of ongoing competition as part of their goal. So if I'm correct in that belief, Apple will likely have a much harder time with European regulators over Xcode.
And be far more likely to face sanctions in the EU.
I forgot to add that I strongly doubt this will ever make it to court.
Apple has way to much to lose by pushing the issue. The minute it looks like they risk having a judgment rendered, they'll relent on the developer tool restrictions. The minute they do that, the issue will become moot.
There's also a lot they could do to Flash such that it could be allowed on the iPad without actually being workable once it got there. One way would be to wrap so many OS-level security 'safeguards' around it that Flash's performance and stability would drop right through the floor.
It's a long way from over folks.
This puppy isn't even the opening act. It's more like hearing the overture music while queuing up for popcorn in the lobby...
(Butter on mine, please?)