>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."
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.
At least in my opinion. I'm not a lawyer.