Gating the app store is not anti-competitive, because it doesn't harm any other app store. In fact, it could be argued that it helps other app stores since it restricts the number of products available on Apple's store. In theory, and in practice, a consumer would have access to far more product on other app stores than they would have on Apple's App store. So the other app stores have the advantage there. That coupled with the fact that the other app stores also happen to have the dominant market share position...
well, you can kind of see where a supreme court justice might be a little skeptical.
Banning apps could be anti-competitive, if the app can in no way be made available through other app stores. That is to say, if you can run the app, without restriction, on an android phone, from an android app store, you're gonna have a hard time convincing a judge or jury that Apple is engaging in anti-competitive practices.
Firstly, it can be demonstrated in court that your app is available to a larger number of handsets than is Apple's app. (You'd not believe how devastating a download and install demonstration is to a lack of market access argument in open court.) Secondly, there is no mechanism by which Apple is able to use its own App store, to squash the presence of apps on other App stores. That's the sort of mechanism that you'd need under current law. (That mechanism doesn't even have to be Apple's App Store by the way. It could be any mechanism that Apple is using to keep apps off of other app stores. Provided that Apple is the only competitor able to use that mechanism.)
This is all a good example actually of why I've been a big proponent of changing the laws first, and then going after the tech firms. But it seems there is no stomach for that out there right now. Now if we had changed the laws, we might have had a more clear attack vector. We could have said that Apple, is acting as a market participant in its own marketplace. (Not currently illegal under current law.)
There are definitely ways being a market participant, in what is effectively your own market, can be anti-competitive. Problem is, the entire economy has been polluted with companies engaging in this practice over the past 40 or 50 years. I suspect this is part of the reason there is no stomach for cracking down on the practice with new laws. You'd have everyone from Costco and Walgreens, to AMC theaters and Clothing retailers trying to restructure themselves. (Think about it. I create some new wiz bang dog food in my garage that I think is the next big thing in pet food. I try to get it into Costco but they say no. Was that anti-competitive in support of their own brand of dog food? or did my dog food genuinely fall short of their quality guidelines? Or maybe they just made a retailing decision that they have too many dog foods on offer?)
So I can see where new laws might create kind of a mess in the short to medium term, but I really think they are needed right now.
>Gating the app store is not anti-competitive, because it doesn't harm any other app store.
You make a shopping app. Apple makes a rule that says "your app type isnt allowed anymore" but then builds that banned app type itself. Its anti competitive towards shopping apps, not app stores.
Not allowing the user to set a default map app is anti competitive. No matter what map app I prefer, when I click an address it opens in Apple Maps (unless the app i clicked it in supports passing the address to a different map, which is circumventing the os protocol handlers.) The OS and App Store working in tangent to force users to use certain apps, or make the experience with competing apps infinitely more cumbersome, is absolutely anti-competitive.
Saying "you must integrate Sign in with Apple" or your app will be removed from the app store is Apple using its power to force adoption, at the expense of competing sign in solutions. Whether or not that is abuse, would be for a judge to decide.
You have to separate these two ideas, because I guarantee you lawyers and judges will. Is gating the anti-competitive practice? Absolutely not. There are a good many legitimate reasons for gating at a retail establishment. Quality, stock levels, etc etc etc. (In fact, you can even gate customers if you want. It's your right. Though it's rarely done except for issues like, "This guy is only dressed in a thong, he can't come in my store.")
What I said might be anti-competitive, and what you are talking about in your first two examples, is banning apps. If Apple bans a shopping app, is that anti-competitive? Again, the judges would look at a lot more than just the act itself, but I was saying that I believe the act itself to be anti-competitive. But it's completely legal under current law, and our economy has grown around the idea of marketplace owners participating in their own marketplaces. (Which is what I believe to be the root anti-competitive practice here. Again, a practice completely legal under current law.) Since so much of our economy has become dependent on this sort of practice, I'm suspecting that's the reason there is little political will to try to change it.
But yeah, Apple or Android, or even your shopping app telling me that I can't put my shopping app on your shopping app is anti-competitive in my eyes. (But probably not in the eyes of a judge or legal scholar if there are other reasons at play. For example, quality.)
I think the integrate with Apple Sign in thing is a bit of a stretch, but we could try it I suppose? I'm pretty sure that one wouldn't go anywhere though.
The best bet in my mind is the "marketplace owner participating in its own market" angle. But, again, even that one would be a more sure thing if we could change the laws so that even the act of doing that is a violation. Instead of what it is now, where if you have a good reason, ie-that manufacturer's dog food simply fell short of quality standards, then the courts have to defer to that judgement. Currently, courts can't force Walgreen's, for instance, to carry Bob's Bargain Basement Garlic Flavored Mouthwash simply because Walgreen's has its own mouthwash brand in Walgreen's own stores. Walgreen's has the right to say, "garlic flavored mouthwash sucks, and none of my customers will buy it."
You cant separate the App Store from the Operating System. The Apple Platform as a whole is one thing. As a whole Apple can behave anti-competitively, by banning competing web browsers, sign in solutions, payment solutions. By being the luxury, top tier experience, they have extreme market power, without having the majority of the market share.
The argument is, that by Apple being the Platform and the Gatekeeper Apple is both a foundation and a competitor. Its the same argument against amazon selling third party products and clones of those products. Im not saying its a great argument. I do think on the OS side, Apple has gone a little too far in what power it gives its own apps, and some of its default settings.
Another food for thought, is Apple being anti-competitive towards other major tech companies (towards google and facebook) more ok than them squashing startups at birth?
A lot to unpack here, but I have to be brief. I have a lot of real work to do too.
First, current anti-trust law does not care at all whether you are a luxury brand, what your "market influence" is, etc etc etc. Current anti-trust law is mostly about market share and anti-competitive practices. Along with a few ancillary but closely related issues. (Again, another reason we need to change the laws, but that's not happening right now.)
Second, being the platform and the gatekeeper is the entire business model I've been talking about. That's the business model that has taken over the US over the past 50 or so years. Which is why I suspect that no one has the balls to go after it. Costco is the platform and the gatekeeper. So is Target. So is Walgreens. Don't even get me started on Amazon and Walmart. Etc etc etc. All, and more businesses to boot, are both the foundation and a competitor in what are effectively markets controlled by themselves. (Again, really good reason to change the law and make owning and participating in the same marketplace illegal. But the scale of the problem is a really good reason not to mess with it. I understand that, but I still think the law should be changed to make that one thing illegal and almost all the problems go away. Well, long term they'll go away. Obviously there would be short term pain.)
Finally, yeah, in layman's terms there is the idea of, let's call it, "able competition". I can't claim that my map app failed because Apple and Google were anti-competitive. The reason that claim is going nowhere is because of the idea that I never had a reasonably high chance of success in the first place. All that to say, yes, legally, in a court of law, how much of a competitor you are can absolutely come into play.
It's not corruption that makes the law pay more attention to the major players either. You can think of it this way, no one should award me millions in damages because my app failed, unless there was actually some kind of reasonable opportunity for my app to succeed in the absence of Apple's anti-competitive actions. You can probably see where that would go if ruled favorably on those kinds of questions. When you allow those kinds of claims, you just open up the door to frivolous time wasters that would be filed by millions of developers against Apple, and Google, and probably Steam as well. And that doesn't even count the physical world. The guy who made Bob's Bargain Basement Garlic Flavored Mouthwash could claim that Walgreen's and Walmart not giving him shelf space was the reason he failed. But for their anti-competitive practices, he would have made millions. But, um, yeah, he wouldn't have.
well, you can kind of see where a supreme court justice might be a little skeptical.
Banning apps could be anti-competitive, if the app can in no way be made available through other app stores. That is to say, if you can run the app, without restriction, on an android phone, from an android app store, you're gonna have a hard time convincing a judge or jury that Apple is engaging in anti-competitive practices.
Firstly, it can be demonstrated in court that your app is available to a larger number of handsets than is Apple's app. (You'd not believe how devastating a download and install demonstration is to a lack of market access argument in open court.) Secondly, there is no mechanism by which Apple is able to use its own App store, to squash the presence of apps on other App stores. That's the sort of mechanism that you'd need under current law. (That mechanism doesn't even have to be Apple's App Store by the way. It could be any mechanism that Apple is using to keep apps off of other app stores. Provided that Apple is the only competitor able to use that mechanism.)
This is all a good example actually of why I've been a big proponent of changing the laws first, and then going after the tech firms. But it seems there is no stomach for that out there right now. Now if we had changed the laws, we might have had a more clear attack vector. We could have said that Apple, is acting as a market participant in its own marketplace. (Not currently illegal under current law.)
There are definitely ways being a market participant, in what is effectively your own market, can be anti-competitive. Problem is, the entire economy has been polluted with companies engaging in this practice over the past 40 or 50 years. I suspect this is part of the reason there is no stomach for cracking down on the practice with new laws. You'd have everyone from Costco and Walgreens, to AMC theaters and Clothing retailers trying to restructure themselves. (Think about it. I create some new wiz bang dog food in my garage that I think is the next big thing in pet food. I try to get it into Costco but they say no. Was that anti-competitive in support of their own brand of dog food? or did my dog food genuinely fall short of their quality guidelines? Or maybe they just made a retailing decision that they have too many dog foods on offer?)
So I can see where new laws might create kind of a mess in the short to medium term, but I really think they are needed right now.