(That was the posted URL, but it's usually best to find the highest-quality popular article on a story and then include a link to the "paper" in the thread.
If anyone finds a better URL we can change it again—I just Googled until I found something that wasn't too annoying.)
https://www.scotusblog.com/2019/05/opinion-analysis-divided-...
SCOTUS holds that Apple can be sued for alleged monopoly of the Apple App Store. It does not decide whether or not this alleged monopoly exist.
Interestingly, it's a 5-4 decision, with Kavanaugh writing the decision, joined by the 4 liberal justices. Probably the most unexpected alignment of the current term!
It isn't really. It's just the standard partisan split, albeit with one guy "crossing the floor". Such crossing is common but since most of the media is incapable of understanding anything but partisan point scoring, they portray the Justices as partisan hacks, which they are not.
Heck, they aren't even that good at tracking point-scores, since the most common score at SC United (states) is 9-0.
https://en.wikipedia.org/wiki/2018_term_opinions_of_the_Supr...
https://www.scotusblog.com/2019/05/opinion-analysis-divided-...
Basically in order from left to right numbered 1-9 the majority on this case were 1-4 and 6. So it's only one step away from being a fully partisan split.
>"they portray the Justices as partisan hacks"
I leave it up to others to decide whether scoring each justice on a left-to-right continuum is any more nuanced than this.
Under current US law multiple parties may not sue for the same damage. But at this point of time it is not decided whether the damages sustained by consumers in this lawsuit would be the same damages that app developers could sue for. It is entirely possible that Apple has swindled BOTH.
There is literally nothing else for these folks to strive for except being well regarded in the history books, so they can finally do what they regard as the best thing to do.
Perhaps in the "old" days when Justices had the feelings you're attributing it might be true but now in the current political situation ideologues are who are sought out to appoint and they care only they're well regarded by their own political persuasion.
Or I don't know.. money, bribes, favoritism?
I think that the terms don't actually matter much. The real problem with SCOTUS is that it represents extreme concentration of political power in our system that doesn't have any direct checks on it. Then you have stare decisis, which makes it so much harder to overturn decisions - so even indirect checks are limited. That's why its lack of accountability (e.g. term limits) is such a big problem. It's also why it was inevitable for it to become more partisan over time - having a partisan majority on the court is basically the equivalent of having nukes, and once one side starts moving in that direction, the other will inevitably follow. And now we're at the point where many people vote for president solely on the basis of what kind of judges they will appoint - and it's not even an irrational approach.
So I think that it's better to make the court less powerful, such that those appointments are not quite so important. One particular idea that I had is to abandon simple majorities as the way to decide matters on the court, and run it more like a jury - basically, the only way to declare something to be definitely unconstitutional, or definitely constitutional, should be by unanimous decision, or perhaps a strong supermajority (say 7 out of 9?). If a panel of people who are specifically chosen as legal experts cannot agree what the Constitution means with respect to something, I think the most sensible interpretation is that it's ambiguous - but then going with a simple majority would be very wrong.
Instead, if the judges cannot agree, this should automatically trigger a constitutional amendment process. Basically, have them all write opinions explaining why they cannot agree with their opponents on the court, and what changes to the Constitution would be necessary before they can agree. Submit all those changes as proposals for ratification, using the normal process, except that only one can be ratified, and that automatically rejects the other changes. If one of the amendments is ratified, that resolves the issue unambiguously and with an explicit rule for future cases like that. If none get ratified, then the lower court decision stands, but it does not set a precedent - the constitutional question remains open, and can be challenged again.
I would expect this to result in more unanimous or supermajority decisions with less extreme and more narrow effects, because the judges would be more likely to try to hammer out a compromise to cross the threshold.
Not so! There are many decisions by Kavanaugh that "liberals" (it's weird to me that they're called than in the U.S.) will have trouble predicting the opinions of conservatives [0].
“Who was best able to pretend to be the other?
The results were clear and consistent. Moderates and conservatives were most accurate in their predictions, whether they were pretending to be liberals or conservatives. Liberals were the least accurate, especially those who described themselves as "very liberal." The biggest errors in the whole study came when liberals answered the care and fairness questions while pretending to be conservatives. When faced with statements such as "one of the worst things a person could do is hurt a defenseless animal" or "justice is the most important requirement for a society," liberals assumed that conservatives would disagree.”
And they're probably even worse at this now than they were in 2012, if the inanity of the mainstream moral caricatures is anything to go by.
His findings have also never been validated, even by other conservative scholars, and he refuses to provide the data from this study. (Also, the study was a survey given to people attending the Reagan Library during the work week, so a highly self-selective bunch...)
(Jonathan Haidt was a hero of one of my professors...until the scholarly issues with Haidt's research came to light.)
[1] https://www.politico.com/story/2018/12/10/supreme-court-plan...
It’s hard to swallow, but we need a third constitutional convention because this stuff is wrecked in the us.
> Apple filed a petition for writ of certiorari to the Supreme Court in August 2017, posing the question "whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense". The Court agreed to hear the case in June 2018.[8] Oral arguments were held on November 26.[9] [10] Court observers stated that the four liberal Justices were joined by three of the conservative ones, Justices Alito, Gorsuch, and Kavanaugh, as to side with consumers on the question of standing.[11] Justice Sonia Sotomayor stated that Apple's practice creates a closed loop that impacts the price paid by consumers.[12] Justice Neil Gorsuch considered that the prior decision from Illinois Brick may need to be overturned at the federal level, as at least 30 states have rejected the Illinois Brick doctrine.[12]
> The Court issued its 5-4 decision on May 13, 2019, affirming the Ninth Circuit's decision that consumers did have standing under Illinois Brick to sue Apple for antitrust practices. Justice Bret Kavanaugh, writing for the majority, stated that under the test of Illinois Brick, consumers were directly affected by Apple's fee and were not secondary purchasers, that consumers could sue Apple directly since it was Apple's fee that affected the prices of the apps, and that while the structure for any damages that consumers may win in the continuing suit may be complicated, this is not a factor to determine the standing of the suit. Kavanaugh was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The decision remanded the class-action case to continue in lower courts, though did not rule on any of the antitrust factors otherwise at the center of the case.
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.
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.
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.
They are the final word, so they must get it right. Thus they want lots of other lawyers and judges to spend time coming up with all arguments and working out all angles. The worst possible thing would be for them to issue a final ruling, only to realize they are wrong because of some line of reasoning nobody had thought of.
In short, by taking 8 years, many smart people have spent 8 years thinking about the issue. There is a good chance that nobody will think of a different argument that is compelling.
Unfortunately law is not math. There are no fundamental truths to start from. It is a matter of conflicting opinions. We will never be sure that they are right or wrong, but at least they carefully considered their decision trying to get it right.
3/3 of those are true for some digital products like amazon kindle books even where you buy from amazon, not apple.
Or put another way, those are therefor clearly not the correct questions to be asking.
The true motives of a corporation often come out in court.
Nobody's claimed that Apple believes that people buying their phones aren't their customers. Apple claimed (IIUC) that in this scenario, it's the app store vendors that are the customer of the app store. Which is a reasonably valid way to look at it.
And the court (correctly) said no.
Macbook owners with bad keyboards are probably looking at 1 - 2 decades before their settlement checks arrive!
Apple has two possible customers in this issue - the developers it provides distribution services to and the consumers that buy the apps. The point in question is which of these two customers has standing to sue on the basis of the specific harm in question. Under US law the answer cannot be both.
Also, please omit distracting dross like "get a life".
We detached this comment from https://news.ycombinator.com/item?id=19899824 and marked it off topic.
The debate in this case was all about whether the end user was Apple's customer (thus able to sue Apple directly) or the developer's customer.
That said, I don't see how the App Store is a monopoly. How would "monopoly" be defined to even formulate a case against Apple?
* - notwithstanding that many apps want you to create an account on their systems - Apple does indeed allow this.
Because the issue is the price of app distribution, i.e. the part of the price Apple gets, not the part of the price the developer gets. The fact that the developers are getting squeezed is what you expect to happen when some other part of the supply chain is monopolized, because more of the revenue goes to the monopoly and less to the developer.
> Before the App Store, software licenses for Mac software could be priced in the $40-$70 range for software that might have had feature parity with what you get in a $3-$10 app on iOS these days.
The desktop and mobile markets are very different. For one thing, the people paying for desktop apps are primarily businesses whereas iOS apps are sold primarily to individuals. The mobile market is also bigger, which means more customers to amortize costs over which should result in lower prices.
Compare the price of iOS apps to Android apps. They're not lower and if anything are higher.
But Apple is the one that's skimming all the revenue and making huge profits on their forced 30% cut. Apparently they made $12 billion just from the app store in Q3 2018. How is it surprising that a lot of developers are having a hard time making money?
When Apple want to sabotage universal adoption of certain technology (such as DASH for video streaming), they can avoid implementing needed components on the client side in their engine, forcing everyone who wants to target iOS (a sizable chunk of the Web market) to support their own technology instead of only something else.
So control over the browser engines in the store gives them anti-competitive control which extends way beyond it. It's surprising no one challenged that garbage until now.
https://www.oyez.org/cases/2018/17-204
A non-PDF version of the opinions can be found through that link or at https://supreme.justia.com/cases/federal/us/587/17-204/#tab-... (which is at that link)
+ Rejected challenges to NSA authority
+ Rejected workers rights to picket
+ Opinionated diverting public funds to religion schools
+ Rejected meat labeling requirements
+ Repeatedly restricted the EPA
https://www.politico.com/story/2018/07/09/brett-kavanaugh-tr...
Kavanaugh is highly anti-consumer. That he's sided with consumers in this case is very surprising to me.
I think it's a bit disingenuous to assume partisanship on the basis of a <1 year voting record. That's a serious charge to levy against a judge, as it implies he/she is violating his/her judicial oath by failing to "administer justice without respect to persons, and do equal right to the poor and to the rich".
It's rather unfortunate that courts have become the foci of partisan politics. It reflect the reality that Congress has been effectively abdicating their duty as the ones who must write the law.
This one is pro-consumer, not anti consumer.
Key paragraph from opinion.
Do you have a source for this? Reading the decision here it seems like both the developers and the consumers have standing to sue, although for slightly different reasons [0].
[0] from the decision: "Here, some downstream iPhone consumers have sued Apple on a monopoly theory. And it could be that some upstream app developers will also sue Apple on a monopsony theory. In this instance, the two suits would rely on fundamentally different theories of harm and would not assert dueling claims to a “common fund,” as that term was used in Illinois Brick. The consumers seek damages based on the difference between the price they paid and the competitive price. The app developers would seek lost profits that they could have earned in a competitive retail market. Illinois Brick does not bar either category of suit."
How the court defines the market will decide whether you win or lose in almost all cases.
Here, this is a case about the app store. The market was defined as consumers of apple phones who use the app store.
In that market, apple is clearly a monopolist.
In some larger or smaller market, they may not be.
In this case I think it is going to be a hard sell to demonstrate an anti-trust issue, but "A vertical arrangement may violate the antitrust laws, however, if it reduces competition among firms at the same level (say among retailers or among wholesalers) or prevents new firms from entering the market."[1]
I think claiming that Apple has some kind of monopoly on the smartphone market is a nonstarter, since they are well below 50% of the smartphone market in every country, including the US.
It's not clear that Apple's policies reduce competition among firms at the application creator level. However, Apples policies clearly do prevent new firms from entering the market. For example, Apple has explicit rules forbidding entire classes of apps that it believes compete with it's own services.
I think you might be able to make the following case, although the lack of an actual monopoly makes it more difficult (but not impossible) to frame it as an anti-trust issue: The levels of this vertical integration are 1. selling phone hardware 2. providing phone operating systems 3. reselling of applications (app stores) 4. production and sale of applications (app developers). Apple doesn't allow competing app stores at all on the hardware it sells, so it's clearly using it's control of a large segment of the smartphone hardware selling market in a way that discourages competition in the application store market.
[1] https://www.ftc.gov/tips-advice/competition-guidance/guide-a...
The only option is to Jailbreak your own device. Yes your own device not Apples.
The question is if the way Apple controlled the market fell afoul of legal standards in a way that effected makers and users. If this is deemed so it would be true regardless of what percentage of users would install apps from a third party store.
The only kind of place I've seen prices less than MSRP is discount stores like cdkeys. For example, try to find microsoft windows that costs less than MSRP -- on all stores, first party and third party, the price will be the same.
So, lack of 30% markup is very unlikely to reduce the final asking price by 30%.
Or apps that get denied from the Apple App Store. Emulators come to mind, but also the recent Steam Link app is still not allowed on the App Store.
For a department store, it is very clear that you are buying from the department store. They own the physical goods at the time of sale.
For an App Store, most people would agree that the Store does not own the digital goods they are selling to consumers.
So, while a superficially similar transaction occurs, both the nature of digital goods and the difference between goods and services makes for pretty vast differences under the surface.
Just to bit pick and it doesn't really change your point, but I thought a lot of places basically do consignment now for their vendors and don't own much of their stock?
Or Sony, because they are the only vendor of Playstation games?
Yes, though I have no idea if you would win. This decision doesn't decide that Apple has a monopoly or that Apple is abusing a monopoly. It decides that the end-user purchasers of apps on the app store are Apple's customers, not customers of the app developer only. It follows that they are entitled to raise a suit that Apple is abusing monopoly powers in a way that harms them. Whether Apple has a monopoly, and if so, whether Apple is abusing that monopoly both remain to be decided. (My guess is neither.)
https://www.washingtonpost.com/technology/2018/11/26/iphone-...
> iPhone users can sue Apple over “monopolistic” prices in the iOS App Store, prices that a group of consumers allege are driven higher by the commissions Apple charges independent appmakers.
Some providers like Netflix and Spotify are deliberately not offering the option to subscribe through the iOS app to avoid paying the Apple tax currently at 30%, and for subscriptions I believe the cut is reduced if the user is subscribed for a certain period of time.
This was not unexpected but precedent was on Apple's side.
Apple was basically playing the "whoa, we don't sell apps, we just make an app store. They buy apps from the developers" card.
This is technically true.
In that situation, Illinois Brick/etc would normally say consumers cannot sue you, only app developers can. Most of the reasoning in those decisions is around how hard it is to calculate damages, etc.
However, the court refused to buy it.
The abstract they give is pretty easy to understand: "Second, Apple’s theory is not persuasive economically or legally. It would draw an arbitrary and unprincipled line among retailers based on their financial arrangements with their manufacturers or suppliers. And it would permit a consumer to sue a monopolistic retailer when the retailer set the retail price by marking up the price it had paid the manufacturer or supplier for the good or service but not when the manufacturer or supplier set the retail price and the retailer took a commission on each sale.
Third, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement. "
Technically? It doesn't look like it. Apple decides what is sold, how it is sold, IF it is sold, and what the thing sold may do. It will decide how to take payment, Apple takes payment and pays something else to the app developer after 30% and more. Apple decides when the developer gets money. Apple may retroactively cancel the sale within 90 days. Since the developer is paid within 60 days, it will do so.
Apple is what is bills the customer and Apple(or one of Apple's many subsidiaries) is who pays the developer.
Does the developer know who buys the things? No. They just give an infinite supply of widgets to Apple who sells them and gives the developer a cut.
How is it technically true? Apple collects the payment and takes a cut. Yes, the developer gets to set their prices, but I don't see this as any different to manufacturers of products setting their cost price for retailers, who then go and apply their markup to it.
(this is also what the court found)
Also keep in mind that various kinds of price fixing by manufacturers (IE forcing retailers to sell at a certain price) are also subject to antitrust arguments. It's simply no longer "per-se" illegal. For a long time, the precedent was that various forms of price fixing and price maintenance were illegal on their face. YOu didn't have to prove it hurt anyone, only that it existed.
They are now subject to rule of reason analysis (basically, balancing of harms).
The reason such lawsuits are uncommon is not because the price fixing is okay, but because it is incredibly expensive and time consuming to litigate for a very uncertain outcome :)
Well, one thing is certain, and that is that Spotify will be happy with this as it may end up making their competition against Apple Music a bit easier.
A reference to the American board game "Monopoly" and its "Get out of jail free" card. https://en.wikipedia.org/wiki/Monopoly_(game)
Now this case can proceed, then what stops consumers or sellers from suing Amazon, eBay or Google Express? They are a monopoly in their own domain.
Amazon, for example, charges 15% for sellers fulfilled for every sale. The fee is even higher if the seller elects to be filled by Amazon.
https://www.oyez.org/cases/2018/17-204
Link to Oral Argument Audio:
https://apps.oyez.org/player/#/roberts10/oral_argument_audio...
Antitrust lawsuits are brought by the government itself, not consumers.
For example, Federal Trade Commission v. Qualcomm Incorporated or United States vs. Microsoft Corporation.
They all implicitly agree that buyers have standing to sue sellers who illegally use a monopoly to overcharge the buyer.
But - somehow - that is no longer true if the seller also overcharges their supplier. Then the dissent says that any harm is "passed-through" the supplier.
Huh? The buyer isn't buying from the supplier, they're buying from the seller. If any harm passes from the seller to a supplier, then the only way for it to get back to the buyer is for it to then flow back through the seller to the buyer. AKA the overcharge is still coming from the seller.
I believe that (barring a hacked system) there is no side loading of games that aren't Sony-blessed.
I'm not. There is a pretty big cloud of illegitimacy over his head. He needs allies in case the next administration encourages some of the proposed inquiries to proceed.
Sorry, but you have to take the 30% hit, or you can't mention your website, and you certainly can't put in a third party payment system. You'll get booted fast, or, won't even make it in the door when they review your app.
