I see what you’re implying, but tweak one little thing and the answer seems vastly different:
Instead of an Apple device, say you’re using a Google-manufactured Android device (something-or-other), and have installed a third-party App Store on it. But that third-party App Store turns around and uses Google Pay as its payment processor.
All the same qualifications still apply: you essentially used a “Google POS device” (your phone), were routed through Google payment processing, and the results were deployed to a Google device (your phone again.)
But from the perspective of the seller, you were just using an arbitrary Android device to run their App Store on; and Google, to them, is just the payment-processor they chose to use (probably because it’s conveniently integrated on Android devices) but they could have just-as-well used PayPal or Stripe.
Is this third-party App Store—in this particular case—legally “Google?” Even though, in other cases, where people are using other non-Google Android devices to access the store, or maybe selecting a different payment-processor option at checkout, they definitely aren’t legally Google? I would say “obviously no.” Those apps were legally sold by the third-party App Store. Google was just a payment processor there. (Payment processors still also have legal responsibilities regarding the transaction, but they’re different than those of the seller.)
And if that’s true, then what’s the difference between a third-party App Store that you installed as its own app, and a “third-party App Store” that is a section of the Apple App Store app, e.g. a Microsoft section or Adobe section? Isn’t that the same as, say, buying from a physical Microsoft store in an Apple-owned shopping mall?
And if that’s true, then where’s the line between that and “each app you purchase is purchased from its own little stall in this digital mall, which is owned and operated by the software author”? Is there one?
I feel like this is something that’s unclear enough that you could spent eight years arguing the various precedents behind deciding either way.
> [you] have installed a third-party App Store on it.
I believe that is more than "one little thing". Here is why: Plantiffs say that Apple's decision to be the sole source of apps for the iPhone is monopolisitc. In your scenario, the purchaser is buying apps from a third party, not affiliated with Google. So, no, a third party cannot be possibly "legally Google". Critically in your scenario, "you were just using an arbitrary Android device" and "Google, to them, is just the payment-processor they chose to use" and most critically "they could have just-as-well used PayPal or Stripe." So, I believe the facts of your case are very very far from the facts of the Apple case.
Hypothetical Google Case:
- Third Party App Store
- Multiple competing payment solution
Actual Apple Case:
- Only one app store by order of manufacturer/OEM/OS Vendor
- Only one payment processor (who is the app store)
In the scenario with Google, google is no more involved in the purchase than mastercard is in your purchase at Walmart.
In the scenario with Apple, the app developer is no more involved with your purchase than the book author is on Amazon (when you buy directly from Amazon). You purchase FROM APPLE.
The difference is that the hypothetical third party Android App Store could use any payment service it wanted, or even the user could use any App Store it preferred.
With iOS not only you can't buy from a third party, you can't even install an app that hasn't been signed by Apple.
I would argue the point of consumer choice is at device selection. If they choose the ecosystem with the heavy markup, when they had alternatives, then they are responsible for incurring their own additional costs. The information is public regarding app costs between devices and marketplaces. This seems to me a bad ruling based on that.
Blaming the consumer in this case doesn't fly because the consumer owns the device once they purchase it, and it is anticompetitive for Apple to lock out competing services on the consumer's device. The "Just don't buy it" argument also doesn't work for The Right to Repair movement.
Either way, end users have the right to sue Apple here, not just the developers.
That requires making the case that the consumer believes they are buying a general computing device that they can use for any purpose and customize freely, which is simply not the case.
Furthermore, repair applies to the hardware of the device, not the software ecosystem. You have to make a separate, very different argument for software as it is more malleable and less restricted than hardware components are.
> That requires making the case that the consumer believes they are buying a general computing device
Considering Apple has been pushing the "iPad is a PC replacement," it's a fairly easy case to make with regard to iOS and the App store. There is a lot Apple has done to push the idea that the "users" are in control of their information and that "there is an app for that." Couple that with the history of people being able to customize their phones in certain ways, it's not a case that is that hard to make, especially when compared to contemporary phones.
I do think you have a better argument: if Apple has falsely advertised the capabilites of its platform as being capable of general computing, it may be liable on that count. I do not think you can argue a history of customizing phones, given Apple was the first provider with this scale of adoption.
I am arguing it is constrained by its manufacturer and that consumers are well aware of those constraints on purchase. That is sufficient for the consumer to take on liability if the choice does not meet their needs.
Again, a consumer using something doesn't justify anti-competitive behavior with companies. If the bar for antitrust was whether or not a person bought it, then there wouldn't be a need for antitrust law.
I would recommend looking up what antitrust does and does not cover. This is not suitable grounds for antitrust arguments as the law is currently given; if you were arguing 'Apple has a monopoly on Apple-exclusive apps', you might have a case, but even then there are many apps that are cross platform, and those that choose to develop exclusively for Apple are making a market decision that they may be liable for if the cost of production increases because of it.
I don't think you can argue platform monopoly here any more than you could argue, say, that Amazon has a monopoly on AWS-specific services. Since an app developer can choose which platform to use with approximate levels of parity between those platforms and a few distinctive services per platform, it is my opinion that the 'platform monopoly' argument is rendered void. This argument is only weakened in recent years as feature parity increases between Android and Apple ecosystems.
Vertically integrating and excluding competition is exactly what antitrust covers! The monopoly that Apple has on the app store for the devices it sells allows it to exploit consumers with pricing. That's the case that the Supreme Court has allowed to move forward.
AWS is also a platform but they don't lock customers into only using AWS or AWS-licensed services. This is almost as preposterous as saying, "Someone bought it, so it's not anti-competitive".
All the vertical integration Apple has been able to muster hasn't prevented more open competition from growing in the smartphone market, so your point continues to remain moot.
Again, to make your case, you must argue that Apple products are categorically different from any other device available on market and that they are preventing new entrants from competing with it, which is so blatantly not the case here.
Addendum after edit time passed: the final and primary criticism I'm making about this argument is this: if you selectively narrow your view to the Apple ecosystem and ignore all external entities, you would easily come to the conclusions you are coming to. I believe that is an artificial and distorting narrowing of the scope that must be considered in this argument.
This is incoherent, non sequitur. Again, we're talking about two different categories of devices: general computing vs. non-general. At the moment, smartphones are non-general, insofar as they are not made for user programmability from the device itself.
Secondly, that MS case is a different matter than the one cited here, and does not map well onto this case.
Thirdly, the major precedent of the original ruling appears to have been overturned shortly after. This damages the argument somewhat. The ruling seems scurrilous in the first place, in my opinion.
1. Apple advertised the iPad (which is also an iOS device) as a laptop replacement.
2. My point is not to compare the two cases, legally speaking, but you argued that "consumers are well aware of those constraints on purchase". Well, consumers were well aware of the limitations of Windows and that didn't change the fact that Microsoft was charged with unlawful monopolization.
3. Sorry, I'm not sure what you are referring to here.
A key finding was that Microsoft had a monopoly on the PC OS market, with marketshare > 90%. If 90's Microsoft had Apple's marketshare today, <50% in US, the judgement would have been absurd.
Everyone has a different opinion on this, but I have a hard time believing desktop users (Linux, Mac, Windows) would accept getting their software only from the computer manufacturer's officially approved store.
I certainly don't like it, no, but that doesn't make it antitrust in this case. My feelings and desires aren't what determines law, and thank goodness for that.
In a democracy, they kind of are. Indirectly, obviously.
My feelings and desires affect how I vote, and voting affects legislation as well as such things as who gets appointed to the Supreme Court. (and given our legal system, courts determine law as much as legislators do)
I think it is awful that manufacturers of devices have that level of control of who can sell apps to run on them, and I certainly hope enough other people do to affect law. I'm old enough to remember when you could only buy a (landline) phone through Ma Bell, and luckily the law -- via courts of course -- stopped that eventually.
This is very similar, but in my opinion the current issue is a good bit worse that AT&Ts monopoly.
Is there a general principle at work here? I have a Wii, a PlayStation, an LG smart TV, a Chromecast. All of these runs apps and are substantially more locked down than my iPhone.
If I make a device, you should not be able to force me to support your software running on it. That seems fundamental.
Consumers have a choice, though, and that trumps most other considerations. With Android, they receive an alternative set of constraints. Do I think Apple is wise to be as restrictive as they are? No. Is it within their bounds to do so? Absolutely.
As a consumer, I can be disgruntled that my chosen platform is not as flexible as I wish. I can either throw a fit and lobby congress to force Apple to open its gates, or wait a year or two for my phone to slow down and pick up an Android device. In fact, this kind of migration occurs in both directions on a regular basis. Only religious loyalists stick with a single ecosystem without examining the tradeoffs they're making, as a general rule.
They have a choice between two monopolistic platforms, frankly.
Your purchasing decisions are not mutually exclusive with action from courts and legislators and voters and such. And, especially if you take into account that market theory as well as game theory tends to view individuals as rational agents pursuing self interest (1), a pure free market approach simply does not effectively curtail monopolistic and otherwise anti-competitive behavior of corporations.
And a court would likely take that into account. They might even consider that you have the right to fabricate your own phone, and write the operating system from scratch.
Luckily courts take into accounts the barriers inherent in such things. If few enough people do such things because the difficulty of doing so makes them impractical for most people, they give appropriately low weight to such arguments.
>And if that’s true, then where’s the line between that and “each app you purchase is purchased from its own little stall in this digital mall, which is owned and operated by the software author”? Is there one?
To use your analogy, the line is if someone can set up their own shop outside the mall. As a consumer, if I have no way to avoid purchasing from a store inside a single mall then I'm effectively purchasing from the mall itself.
How do you resolve this with the fact that exclusives exist and are tolerated in just about every industry.
You can only buy the new Jordan's from X stores, only available on PS4, exclusively at Target, etc.
And places that sell things are well within their right to choose their vendors unless you want to demand that the BMV dealership be leglly required to sell Ford trucks if Ford desired.
Put exclusivity and vendor selection together and you have a digital app store. Apple doesn't even pretend to be open -- they're a product with licensed 3rd party integrations.
On what grounds should they be compelled to be anything else?
Exclusivity deals are pretty complicated under the Sherman/Clayton acts. It's hotly contested - hardly "tolerated in just about every industry." Here are some links:
That's why this is going to the Supreme Court - we all recognize that the App Store uses exclusive dealing, but it's non-obvious whether or not it's lawful.
>And places that sell things are well within their right to choose their vendors unless you want to demand that the BMV dealership be leglly required to sell Ford trucks if Ford desired.
Not sure what that has to do with anything. Apple's point was that they aren't selling anything - therefore appstore customers wouldn't have standing to bring an antitrust against them.
> You can only buy the new Jordan's from X stores, only available on PS4, exclusively at Target, etc.
When this matters is when you have a dominant market position. Target doesn't have to sell Nike because you can reasonably buy them at Walmart. Nike doesn't have to sell to Target because Target can reasonably buy from Reebok, which is a reasonable substitute.
The issue here is that there is no reasonable substitute for Apple's App Store, because they have made it that way on purpose. You can't sell your iOS app through Walmart or Google Play or Amazon. You can't download it from the developer's website. And you can't run Android apps on iOS devices. So Apple has a dominant position in iOS app distribution, and with that comes the antitrust restrictions that don't apply to competitive markets.
> So Apple has a dominant position in iOS app distribution
Is iOS app distribution a thing that can be dominated though, legally? In your example I get how stores and shoes are both things that can be dominated but what category of thing does iOS app distribution fall into? Is it still in the same category if one deletes iOS and just calls it in "app store"? Would Apple still dominate apps?
It's all confusing to me. I'm asking sincerely because I honestly don't know.
This is getting into market definition, which is kind of complicated and subjective, but one of the key factors is substitution.
So for example, is "Clorox bleach" its own market, separate from just "bleach"? Well, no. Clorox bleach is chemically identical to any other bleach. You could switch one for the other and not even be able to tell the difference.
On the other hand, is "broadband internet service in Pittsburgh" a different market than just "broadband internet service"? It kind of is. There may be a dozen different ISPs in varying cities across the country, but the prerequisite to using one that doesn't offer service in your city is to sell your house and move somewhere else. That doesn't make it a particularly viable substitute.
So then is "iOS app store" a different market than just "app store"? Well, what do you have to do to substitute one for the other? Is it reasonable to have to exchange your $600 phone, or buy a second $600 phone, in order to buy a $1 app from a different store?
You would still have to buy a new $600 phone to use that $1 app irrespective of whether Apple had multiple stores or not. iOS is a platform and apps can only work on that platform.
> You would still have to buy a new $600 phone to use that $1 app irrespective of whether Apple had multiple stores or not.
You need a phone to use an app in the same way that you need a piece of real estate to get internet service. That doesn't mean Cox in Omaha is a competitor to Comcast in Pittsburgh, because people aren't reasonably going to make a choice with hundreds of times greater implications just in order to do that.
> iOS is a platform and apps can only work on that platform.
You're only providing reasons that it is a separate market from apps on other platforms.
The argument discussed was literally Apple trying to argue that you aren't their customer for the purpose of legal liability while you pay them money to install apps from their store on a device they configured to only be able to buy from their store.
This decision makes clear that legal weasels lost.
Understanding next steps requires constructing the argument correctly. One could ask why should Apple be forced to open "their" phone for example. This too would be weasel words because nobody on earth is asking Apple to open the phones in their pockets.
A more reasonable person might ask that Apple allow owners to control THEIR OWN PHONES.
You ask erroneously if BMW should have to stock ford Trucks. This isn't remotely analogous. This is asking if BMW owners ought to have to go to a BMW gas station, seek repairs only at BMW owned service stations. Listen to BWM approved music on BMW approved stereos.
Fundamentally using control of a users device after sale to maximize future revenue is inappropriate and the only remedy is to give users full control.
Apple allows you just as much control as every other product. If you were to break all of the security controls you could do whatever you want including adding a new App Store just like Cydia did.
The question is whether Apple should make it easy for you to do this. And there is no legal basis for that.
Sure there is. Section 2 of the Sherman Act makes it illegal to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations." You may think that Apple's conduct does not fall under that provision, and it remains to be seen whether the federal courts will agree, but if the legal argument were totally baseless then Apple wouldn't have gone to the Supreme Court to shut it down at a preliminary stage.
So? What makes it okay to lock down a telephone but not a computer? What would prevent a computer OEM from locking down devices to a single store like Windows 10S?
Look I want to have full control of my devices but I don't think owning the physical hardware entitles you to any rights other than you may do with the device as-is as you please.
If we decide that designing a toaster to only accept $vendor's bread is illegal that's all well and good but the justification for such a law will be that it's monopolistic behavior, not that the end user owns the toaster.
It's really hard to prove that a person who paid money for an object in their hand, without an explicit leasing agreement, is not the "owner" of that object.
Without a compelling, court-tested, legal precedent for Apple to claim "you don't own that iPhone in your hand", the assumption is that you do, regardless of what the EULA might say. EULAs that are contrary to standing law are not valid.
The fact that one can buy iPhones on the secondary market lends credence to notion that consumers own their devices.
And given that Atari and Nintendo both tried, and failed, to make similar arguments against 3rd party software manufacturers, I think it's pretty clear which way the courts would go, if it were to ever be tested.
We don't live in a society where corporations get to make up whatever rules they want, as long as they can convince someone to sign on the dotted line.
The thing is that fundamentally you can in software undermine any degree of real ownership.
Say I sell you a car outright. I decide to push an update that bricks the car and pops up a window on the in dash entertainment with an offer to re enable it for a monthly fee or an offer to buy it back for pennies on the dollar.
I think we can agree that I basically just stole your car and offered to rent it to you.
My ability to control the heart of your device means we can either
- spend the next century litigating in what fashion and circumstances I am and am not allowed to fuck you and to what degree while hoping that the side with the deepest pockets doesn't win most rounds
- pretend that the dysfunctional hand of the free market is capable of solving a complex societal problem this time
- admit that the privileges and rights that we already acknowledge and value implicitly must include the right to access and modify the software included or they can literally be taken away wholly or in part for the increasing percentage of things that include a chip.
I think this is true implicitly but am entirely open on the idea of spelling this out explicitly in terms of additional laws and lawsuits.
I'm in no way saying that companies should be allowed to do evil things like that, only that the justification for preventing them would be consumer protection, not device ownership. Which I guess in your world is option 1.
I actually think the option 1 world would actually be better than deriving rights from device ownership because then it would be super easy to get around by renting devices or by using SaaS services; consumer protection litigation protects you against various types of fucking in all cases.
I don't really want to live in a world where companies are allowed to be maximally evil with their software but it's okay because you are technically allowed to replace it with your own. All this would do is allow a tiny tiny fraction of the population to enjoy their devices while everyone else would be fucked.
I'm on the side of "I would personally love if companies were required to allow/support device modification but the justification for such a thing is weak and wouldn't actually protect or solve problems for consumers."
Instead of an Apple device, say you’re using a Google-manufactured Android device (something-or-other), and have installed a third-party App Store on it. But that third-party App Store turns around and uses Google Pay as its payment processor.
All the same qualifications still apply: you essentially used a “Google POS device” (your phone), were routed through Google payment processing, and the results were deployed to a Google device (your phone again.)
But from the perspective of the seller, you were just using an arbitrary Android device to run their App Store on; and Google, to them, is just the payment-processor they chose to use (probably because it’s conveniently integrated on Android devices) but they could have just-as-well used PayPal or Stripe.
Is this third-party App Store—in this particular case—legally “Google?” Even though, in other cases, where people are using other non-Google Android devices to access the store, or maybe selecting a different payment-processor option at checkout, they definitely aren’t legally Google? I would say “obviously no.” Those apps were legally sold by the third-party App Store. Google was just a payment processor there. (Payment processors still also have legal responsibilities regarding the transaction, but they’re different than those of the seller.)
And if that’s true, then what’s the difference between a third-party App Store that you installed as its own app, and a “third-party App Store” that is a section of the Apple App Store app, e.g. a Microsoft section or Adobe section? Isn’t that the same as, say, buying from a physical Microsoft store in an Apple-owned shopping mall?
And if that’s true, then where’s the line between that and “each app you purchase is purchased from its own little stall in this digital mall, which is owned and operated by the software author”? Is there one?
I feel like this is something that’s unclear enough that you could spent eight years arguing the various precedents behind deciding either way.