back to article Aaarrgh, zombie! Dead Apple iOS monopoly lawsuit is reanimated

A US Court of Appeals has resurrected a class-action lawsuit accusing Apple of monopoly behavior with its iOS App Store. The case, Pepper et al v Apple, was sparked by Cupertino customers Robert Pepper, Stephen Schwartz, Edward Hayter and Eric Terrell, who were upset at Apple's stranglehold on software for their iThings. …

  1. Joerg

    Who is paying these corrupted judges, uh?

    Who is paying these corrupted judges, uh?

    This is not justice. The justice system is so corrupted worldwide.

    Attacking Apple like this based on silly pathetic lies is a shame and the whole IT industry should be seriously afraid of any judges acting like this.

    There is no damn monopoly! iOS is and Apple OS product, the App Store is for iOS based devices and customers. Period.

    Who doesn't like Apple and iOS for whatever reason can buy the atrocious Android crap or the almost dead WindowsPhone/Windows10 stuff.

    Judges can't be allowed the right to damage Apple business along with iOS developers publishing on the App Store and earning money.

    If any judges worldwide is allowed to affect any business like that the whole system would go down and a lot of people would lose jobs.

    These judges must be put in jail! That is where they belong!

    1. Gene Cash Silver badge
      Headmaster

      Re: Who is paying these corrupted judges, uh?

      Since you failed to actually read the article, they're suing over the fact that iProducts are locked to the iStore, and you can't go to another app store w/o jumping over large technical hurdles like jailbreaking.

      Yes, this looks like a monopoly to me.

      To me, the idiot decision was the lower court deciding they weren't Apple customers.

      1. Anonymous Coward
        Anonymous Coward

        Re: Who is paying these corrupted judges, uh?

        I guess it looks like a monopoly to you because you don't understand the meaning of monopoly. The US defines it as having all or substantially all the market share in a relevant market, and an ability to exert control over that market (i.e. pricing etc.)

        What's a relevant market? It is a market category, like "mobile phones" or "smartphones". It is NEVER "product x from a single company" unless there are no comparable products available from other companies (i.e. if Apple had patents that prevented anyone else from making a smartphone that worked even remotely like an iPhone, or possessed trade secrets and no one else had the technical know how) Since Samsung among many other makes smartphones comparable to the iPhone, Apple by definition has no App Store monopoly.

        The ruling is only about whether this group of people have legal standing to sue. Saying they do does not mean the suit will be successful. It has 0% chance of success, because people who want smartphones not locked to Apple's App Store have tons of choices.

        1. Justin S.
          Boffin

          Re: Who is paying these corrupted judges, uh?

          'What's a relevant market? It is a market category, like "mobile phones" or "smartphones". It is NEVER "product x from a single company" unless there are no comparable products available from other companies'

          Incorrect. Apple-- among others-- sold personal computers during the mid- to late-90s, at the same time Microsoft was in its prime. That didn't stop the Department of Justice from filing an antitrust suit against Microsoft in the mid 90s, and then again in the late 90s.

          The complaint filed by the DoJ in the latter case specifically referenced "Intel-based" personal computers, and specifically stated the monopoly position existed for them. From the complaint: "The market for personal computer operating systems consists of operating systems written for the Intel x86/Pentium (or 'PC') class of microprocessors... Thus, OEMs and PC users do not consider an operating system that runs a non-Intel-based personal computer to be an effective substitute for an operating system that runs an Intel-based personal computer... And because there is no viable competitive alternative to the Windows operating system for Intel-based computers, OEMs consider it a commercial necessity to preinstall Windows on nearly all of their PCs." (See also: https://www.justice.gov/atr/complaint-us-v-microsoft-corp)

          In the current instance, Apple manufacturers the hardware and operating system, but they do not write all the software, leaving that up to third-party developers. No third-party can make an Apple-compatible device (legally), and only through Apple can third-party software be sold.

          This is different from Android-compatible applications, which can be run on devices from many different manufactures, and sometimes on devices that do not claim compatibility-- like Amazon devices, which are based on the Android OS, but which are not really, legally Android.

          The market for Apple devices is smaller than Android overall (according to IDC), but is nonetheless substantial, and companies frequently write software for both so as not to miss profiting from each ecosystem's substantial user-base.

          If the EC can make an argument for Google-- which gives away Android for 'free'-- being a monopolist in the Android ecosystem, where does that leave Apple and its iron-fisted control over the Apple ecosystem?

          1. Anonymous Coward
            Anonymous Coward

            Re: Who is paying these corrupted judges, uh?

            Microsoft had over 95% of the relevant market - i.e. the market for personal computers - during that time. Apple was in its death throes around that time. The FTC believed that gave them sufficient market power to exercise control over pricing and suppliers, which was proven by the fact that they DID do exactly that. Monopoly does not and never has required 100% share of a market. Only a large enough share that they dominate all market relationships.

            Compare with Apple and the App Store. Apple exercises control over the App Store - i.e. choosing what apps can be offered in it. Crucially however, that control DOES NOT extend to the Google Play store. i.e. Apple is not telling devs "if you want to get your app approved for the App Store, you can't write an Android version of it". If they had sufficient market power to do that, and used it, then the FTC could consider antitrust action against them.

            The language about "Intel based PCs" came about because Microsoft and Intel worked together to dominate that market, and the FTC also took action against Intel on multiple occasions as well. But they did consider Apple as competition in the personal computer space, just such minor competition that they really didn't make any difference in the amount of control Microsoft was able to exercise over OEMs.

            1. Mike 16 Silver badge

              Re: Who is paying these corrupted judges, uh?

              Just an observation about:

              ----------------

              Apple is not telling devs "if you want to get your app approved for the App Store, you can't write an Android version of it".

              ---------------

              Nintendo did pretty much that, and got away with it. Just sayin.

        2. stanimir

          Re: Who is paying these corrupted judges, uh?

          I will try to help you out, Doug;

          It's impossible to ship any app(lication) that involves JIT alike runtime for iOS (Java/Javascrip/web technologies, etc). The customers cannot benefit from lower price or competition.

          That's not the end of it. The customers cannot benefit from having alternative install mechanism aside being locked by the infamous 30%(US) or whatever 40 is in EU (after VAT). Imagine you buy car but you cannot buy new tires from any other shop.

    2. The Indomitable Gall

      Re: Who is paying these corrupted judges, uh?

      " There is no damn monopoly! iOS is and Apple OS product, the App Store is for iOS based devices and customers. Period. "

      No, the app store is for some iOS-based devices and some Apple customers.

      The App Store does not allow software houses to market new apps for older 32-bit iOS devices (Apple will only approve new 64-bit apps).

      The App Store does not allow software houses to maintain distinct versions for older and newer versions of iOS, effectively forcing publishers to drop support for older devices in order to get access to the latest libraries and hardware features and to keep their software current.

      This is perhaps the weakest link in Apple's armour -- their policies seem to promote early obsolescence of hardware by choking out the software ecosystem.

      Prior to the release of iOS 10, I regularly deleted apps and installed as required, as part of my memory management strategy. However, I can't do that any more, because the moment one of my favourite apps becomes iOS 10 only, my non-retina iPad Mini won't run it any more. I'm also really worried any time I'm offered an upgrade that the new version will suffer fatal bugs and there's no way to roll back -- and if the fixed version is 10 only, I'm stuffed.

      Basically, Apple is taking software away from people who've already paid for it and making you pay them more money to get access to it again (by buying a new device) and this money isn't even shared with the app developers who's product it is that I really want.

  2. hellwig

    How were they not customers?

    So, if I go to 7-11 and buy a Coke, I'm not a 7-11 customer? I'm a Coca-Cola customer, and I have to file a grievance over pricing with Coca-Cola? Don't US Anti-Trust laws prevent manufacturers from dictating retail prices? I.e. Coca-Cola cannot force 7-11 to sell a 20-oz bottle for $3. It's up to 7-11 to figure out what it charges?

    Now I've muddied my own picture. In this case, Apple is acting as a clearing house, not a store. The app writers set their own price, not a price dictated by Apple. Yes, Apple takes 30%, but that's actually not bad considering most "consignment" shops take 50%.

    I guess if Apple should be sued for anything, sue it for calling it's service an "App Store". It's clearly not a store that sells Apps, legally you can't buy an App (only license it).

    Seriously, lets make these companies call it what it is. You don't own anything you buy (music, movies, apps, books, etc...). You're just leasing them until the creator decides to pull the plug.

    Maybe call it the Apple "give us your money for fleeting moments of joy before the crushing weight of the world suffocates you... uh... place".

    1. Criminny Rickets

      Re: How were they not customers?

      "Now I've muddied my own picture. In this case, Apple is acting as a clearing house, not a store. The app writers set their own price, not a price dictated by Apple. Yes, Apple takes 30%, but that's actually not bad considering most "consignment" shops take 50%."

      Except that consignment shops aren't offering their own competing products. So not only are the app dev's being charged a 30% fee, they are also competing against Apple's own apps, that does not have the burden of the 30% fee.

      1. Anonymous Coward
        Anonymous Coward

        Re: How were they not customers?

        Apple's devs are giving their apps away for free, so even if the App Store charged nothing it would be hard to compete with that.

        Anyway, the fact Google takes the same 30% means any attempts to claim that 30% is excessive are unlikely to succeed.

        1. Justin S.

          Re: How were they not customers?

          "Anyway, the fact Google takes the same 30% means any attempts to claim that 30% is excessive are unlikely to succeed."

          Maybe, maybe not. Unlike Apple, Google allows third-party app stores (e.g. Amazon's app store, etc; search "third party android app stores" for a large list of potentially dodgy options), and therefore is not a monopolist for app stores on the Android platform.

          1. Anonymous Coward
            Anonymous Coward

            Re: How were they not customers?

            " Unlike Apple, Google allows third-party app stores"

            This is actually untrue - you can side load iOS applications through MDM systems. That's how large companies do it for their employees.

            Heck - you can download Xcode and put any application you like on an iOS device. Sure, it costs a annual subscription, but it barely compares to a mobile phone bill.

            The fact that this isn't particularly simple to do all this is a different matter - and wouldn't be a good argument in court. Even in Android land, third-party apps are probably only a 2% use case.

            1. Richard 12 Silver badge

              Re: How were they not customers?

              An annual subscription to Apple, and a computer bought from Apple - you're not allowed to compile iOS software on your Windows PC.

              So it is impossible to legally put any software on an iOS device without paying Apple a cut.

              iOS has a very large part of the mobile software market, and anyone who wishes to access that market is forced to pay Apple to do so.

              That is basically the monopolistic practice.

              Legally, they do not have to have the entire market, only a significant part to which they raise unreasonable barriers.

              1. CrazyOldCatMan Silver badge

                Re: How were they not customers?

                An annual subscription to Apple, and a computer bought from Apple - you're not allowed to compile iOS software on your Windows PC.

                This is nonsense. As others have pointed out, you can sideload iOS apps using MDM. We have (in the past) cross-compiled apps (using Windows PCs) and then side-loaded them on iOS devices..

            2. tiggity Silver badge

              Re: How were they not customers?

              Last time I looked the Amazon app for android (not the most unknown company ever) were not on play store and needed "sideload" (enabling of non play store apps) - and Amazon operate their own android software store., promoted onn Amazon web site

              No idea of market penetration of Amazon android apps - but they are marketed heavily & I could imagine quite a few Amazon customers use the app - I would hazard one of the most likely vectors for "Joe Public" to have non play store content downloaded to their android

        2. The Indomitable Gall

          Re: How were they not customers?

          @DougS

          " Apple's devs are giving their apps away for free, so even if the App Store charged nothing it would be hard to compete with that. "

          Apple have made some of their apps free that they earlier charged money for. As a non-retina user, I had to pay for Pages, and would still have to pay for Keynote if I wanted it. I activated my iPad the month before iMovie and GarageBand became free apps (and bought 3rd party video and audio editors instead).

          Are all of their apps free to new users now?

      2. John Brown (no body) Silver badge

        Re: How were they not customers?

        "So not only are the app dev's being charged a 30% fee, they are also competing against Apple's own apps, that does not have the burden of the 30% fee."

        I thought devs were not allowed to compete with Apple? Don't Apple have a specific policy of not allowing 3rd party apps which offer the same functions as Apple apps?

  3. Rafael 1

    Grab the popcorn!

    Next they will sue Apple/Microsoft/Google because they have a specific set of languages, tools and APIs that must be used to develop programs for their devices, and some people want the liberty to code in Cobol or PL/I for said devices.

    1. Richard 12 Silver badge

      Re: Grab the popcorn!

      You can code in any language you like when targetting Android - yes, including Cobol.

      http://www.veryant.com/products/cobol-mobile.html

      The same is not true when targetting iOS, where Apple have strict rules about the languages you can use - for example, you cannot run an interpreter at all.

      1. Anonymous Coward
        Anonymous Coward

        Re: Grab the popcorn!

        >for example, you cannot run an interpreter at all.

        For about 5 minutes back in 2010.

  4. PTW
    Pirate

    IANAL but...

    I'm guessing anti-trust/monopoly laws are the only option open to them/us.

    Yes, yes, I know that no-one is forced to buy Apple, etc, etc. But once you've taken the first bite, then you are forced to buy [from] Apple. Come on, Apple even tried it with the cables, what next only Apple cases?

    Imagine if you purchased a Ford car and they had fitted some device where you could only buy tyres, radios, or floor mats, etc. from Ford.

    That's pretty much what car manufacturers did with servicing during the warranty period, thankfully now outlawed by the European courts. And I see this as no different, no-one was "forced" to buy new car and be tied to main dealer servicing but it was still seen a detrimental to the customer. MVBER(EU) 461/2010

  5. james 68

    No rocket science is necessary for the understanding of this story.

    Here's the deal: Write an app that directly competes with an app made by Apple. See how long it lasts in the app store before it gets removed - IF - Apple even allows it into the app store in the first place.

    That's your anti-trust/monopoly right there, it's pretty much the definition of anti-competitive practices.

    1. Richard 12 Silver badge
      Unhappy

      Re: No rocket science is necessary for the understanding of this story.

      They don't allow them at all. IIRC it's even in the developer T&Cs.

      1. John Brown (no body) Silver badge

        Re: No rocket science is necessary for the understanding of this story.

        Hasn't there been stories of established 3rd party apps being pulled from the Apple app store after Apple launched their own versions too?

        1. Anonymous Coward
          Anonymous Coward

          Re: No rocket science is necessary for the understanding of this story.

          Stanza vs iBooks comes to mind.

          Stanza used to be the leading eBook reader on iOS. Apple then launched iBooks and Stanza kept getting pulled (then re-instated) to the App Store.

          Lexcycle (creators of Stanza) went bust.

          1. James R Grinter

            Re: No rocket science is necessary for the understanding of this story.

            I seem to recall Lexcycle being bought by Amazon, and then them removing it from sale because they wanted to promote their proprietary DRMd content reader instead.

            1. Anonymous Coward
              Anonymous Coward

              Re: No rocket science is necessary for the understanding of this story.

              >I seem to recall Lexcycle being bought by Amazon

              Yep for a very tidy sum too - buyout was their end game and Apple didn't offer enough.

            2. Anonymous Coward
              Anonymous Coward

              Re: No rocket science is necessary for the understanding of this story.

              Ahhh cool. Thought they went bust. Seems like not then. ;)

      2. Stuart Castle Silver badge

        Re: No rocket science is necessary for the understanding of this story.

        "They don't allow them at all. IIRC it's even in the developer T&Cs."

        Wrong. Apple do place restrictions on certain kinds of apps (for instance, any browser must use the inbuilt Webkit engine, or do it's processing off device (as Opera Mini does).

        In terms of apps duplicating functionality of Apple apps (even on device ones), while Apple do reserve the right to pull an app at any time, they do allow apps to duplicate functionality of both the built in apps, and any Apple provided apps.

        Don't believe me? Look at the number of media player apps (duplicating functionality from the Music and Videos apps on the device). Look at the number of ebook apps (Kindle being one notable example), Almost every app provided by Apple has competitors on the App store providing similar functionality. Even Siri has competing personal assistants.

        Apple do use APIs in iOS in their own apps that they don't allow other apps to use (try and write an app that makes changes to the system settings and see how far you get getting them to publish it). This *could* be considered anti competitive, but I don't think it's been tried in court yet.

    2. Anonymous Coward
      Anonymous Coward

      Re: No rocket science is necessary for the understanding of this story.

      Well Spotify, Netflix, Office and Google Maps are all in the AppStore, and they definitely compete with Apple stuff...

      1. james 68

        Re: No rocket science is necessary for the understanding of this story.

        All companies with the funds to make a long drawn out court battle if Apple scrapped them, not so for the little guys though - totally different ball game.

  6. whoseyourdaddy

    If this lawsuit moves forward, the zombie apocalypse will commence.

    Lockin's to the Apple store means app developers don't have to worry about criminals launching an app with the same look and feel..with all that pesky 'droid malware the Register loves to report on.

    But, with popcorn in hand, please. Continue to vent your frustration.

    1. Anonymous Coward
      Anonymous Coward

      > Lockin's to the Apple store means app developers don't have to worry about criminals launching an app with the same look and feel.

      You forgot to use the sarcasm tag. Unless you were being serious, in which case you've not noticed the abundance of copycat/lookalike apps on their store?

  7. oneeye

    Another lawsuit where Judge is wrong

    ICYMI CBS/Paramount filed CA lawsuit against a fan film related to Star Trek. The judge threw out fair use, and his other rulings boggle the mind. Here is one link but there is commentary going back to the beginning. http://fanfilmfactor.com/2017/01/08/could-the-axanar-lawsuit-go-all-the-way-to-the-supreme-court-part-1/

  8. Reeder

    Price fixing by Other "Monopolies"

    If they have it in for Apple, perhaps they will take up the case of authors who publish with Amazon....Amazon takes 30 or more percent depending on where you are. And Amazon owns the characters in your books so Amazon write stories using them without the original author's approval. I know this is not the same thing but it still is a monopoly over publishing works with Amazon.

    Back to Apple - the requirement to adhere to certain standards does make the Apple app store apps safer (mostly)...

    As so the debate continues....

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