Supreme Court Rules Against Apple in App Store Antitrust Case(cnbc.com)
cnbc.com
Supreme Court Rules Against Apple in App Store Antitrust Case
https://www.cnbc.com/2019/05/13/supreme-court-rules-against-apple-in-app-store-antitrust-case.html
38 comments
It's not aggressive.
The case being allowed to proceed is a huge loss for Apple here.
Precedent was clearly on their side, etc.
Speaking as a lawyer, the merits of this one are an almost foregone conclusion.
(It's possible apple wins - that possibility is very small)
Speaking as a lawyer, the merits of this one are an almost foregone conclusion.
(It's possible apple wins - that possibility is very small)
Does it set precedence in other similar cases?
will this impact Google Play too or is this is a one off?
This needs more emphasis. Apple dropped its hail mary pass, it still gets a shot on the merits.
Err, it was not a hail mary.
It was almost certainly the main thrust of their strategy.
(I'm speaking as a lawyer who has strategized this exact issue before!)
They do get a shot at the merits. Their hope of winning on the merits is incredibly low.
The reason they fought so hard (and others do) is because almost all antitrust cases are decided by what the court defines the market as. If you go look through appeals of antitrust cases, you'll see most focus on the definition of the market and only secondarily on whether they caused harm in that market.
It's only when they lose (or it's a foregone conclusion) on the market side that they argue heavily on the harm side.
In this case, the market is defined in such a way that apple is almost certain to lose. Apple is really not going to have a good time saying their 30% cut helps consumers. This is why they argued the standing issue all the way to scotus.
For example, it is highly unlikely they will be able to show that the markup is to do things like "police the app store", because the markup is way too high for that purpose.
Court will almost certainly find it a harmful tax that is not beneficial to consumers.
They do get a shot at the merits. Their hope of winning on the merits is incredibly low.
The reason they fought so hard (and others do) is because almost all antitrust cases are decided by what the court defines the market as. If you go look through appeals of antitrust cases, you'll see most focus on the definition of the market and only secondarily on whether they caused harm in that market.
It's only when they lose (or it's a foregone conclusion) on the market side that they argue heavily on the harm side.
In this case, the market is defined in such a way that apple is almost certain to lose. Apple is really not going to have a good time saying their 30% cut helps consumers. This is why they argued the standing issue all the way to scotus.
For example, it is highly unlikely they will be able to show that the markup is to do things like "police the app store", because the markup is way too high for that purpose.
Court will almost certainly find it a harmful tax that is not beneficial to consumers.
Appreciate your setting me straight. Antitrust law changed a lot since I read it and it's well outside of my practice wheelhouse.
Here's the link to the actual ruling: https://www.supremecourt.gov/opinions/18pdf/17-204_bq7d.pdf
As a non-lawyer, it's a suprisingly easy read in what seems like plain English.
> KAVANAUGH, J., delivered the opinion of the Court, in which GINS-BURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined.
The 5-4 split is also interesting with Kavanaugh siding with the liberal justices.
As a non-lawyer, it's a suprisingly easy read in what seems like plain English.
> KAVANAUGH, J., delivered the opinion of the Court, in which GINS-BURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined.
The 5-4 split is also interesting with Kavanaugh siding with the liberal justices.
> it's a suprisingly easy read in what seems like plain English
I've found almost every SCOTUS and appellate court opinion highly readable. Not only that, often quite fun. (Skip the syllabus, though.)
I've found almost every SCOTUS and appellate court opinion highly readable. Not only that, often quite fun. (Skip the syllabus, though.)
> "Kavanaugh siding with the liberal justices."
Not the first time he's done it either. I think he did something similar about half a year ago.
Not the first time he's done it either. I think he did something similar about half a year ago.
I'm blown away that Kavanaugh and Gorsuch are at ends, it's frankly nice to see that there will still be diversity of thought on the court.
Kavanaugh seems to be interested in diving into the implications and results of law / decisions.
Gorsuch seems more interested in just the letter of the law, regardless if that results in absurdities.
Gorsuch seems more interested in just the letter of the law, regardless if that results in absurdities.
Gorsuch's approach is the better one. We have a legislature for a reason. Letting judges interpret the law so that a given end is achieved leads to chaos as no one can know what the law means until you've personally been subjected to lawsuits.
I'm pretty skeptical about complaints about when judges "interpret" the law. No law coverall the circumstances or outcomes that may happen in life or absurdities that could come from it.
I'm also skeptical about those complaints as they typically just are translated "this should be read strictly because the outcome is what I want".
I'm also skeptical about those complaints as they typically just are translated "this should be read strictly because the outcome is what I want".
Consider DACA. It is not legislation It is an executive order by a prior president ordering ICE to create a system in which people who meet certain criteria are given effective amnesty. Obama had no authority to do this beyond simple prosecutorial discretion. Spending money on administering such a program without legislative approval, creating non-individualized discretion decisions, the law does not give the president this power. When the Trump administration attempted to end the program, at least two judges said no the program must continue to be operated.
There is no authority by which judges can promote executive orders to the status of law, and then proceed order that the government spend money on the program. This was precisely a situation where the judges were uncomfortable with the outcome so they legislated from the bench.
There is no authority by which judges can promote executive orders to the status of law, and then proceed order that the government spend money on the program. This was precisely a situation where the judges were uncomfortable with the outcome so they legislated from the bench.
>Obama had no authority to do this beyond simple prosecutorial discretion.
DACA was differed action, it was not amnesty.
>creating non-individualized discretion decisions
Prioritizing deportations and prosecution based on criminal history has been done for ages, that doesn't seem much different and isn't questioned much at all...
DACA was differed action, it was not amnesty.
>creating non-individualized discretion decisions
Prioritizing deportations and prosecution based on criminal history has been done for ages, that doesn't seem much different and isn't questioned much at all...
> DACA was differed action, it was not amnesty.
When was action going to be taken? Under DACA participants can renew every two years with no limit on how many renewals they can do. That's amnesty.
Regardless, there is nothing in the constitution that says an executive order cannot be reversed by a later president. The courts acted as if there is and ordered the continued implementation of DACA.
When was action going to be taken? Under DACA participants can renew every two years with no limit on how many renewals they can do. That's amnesty.
Regardless, there is nothing in the constitution that says an executive order cannot be reversed by a later president. The courts acted as if there is and ordered the continued implementation of DACA.
You don't have to set a date for action to be taken... that still isn't amnesty.
Just because a president can reverse a decision doesn't mean they always can.
The case that kept DACA going was on behalf of those participating right? So it would seem something related to that was the reason for continuing the program.
Just because a president can reverse a decision doesn't mean they always can.
The case that kept DACA going was on behalf of those participating right? So it would seem something related to that was the reason for continuing the program.
> You don't have to set a date for action to be taken... that still isn't amnesty.
I clearly stated "effective amnesty" in my original post. If the day of action can be indefinitely put off, then it's effective amnesty.
>Just because a president can reverse a decision doesn't mean they always can.
What is the constitutional basis for a prior president's executive orders being irreversible by a later president?
>The case that kept DACA going was on behalf of those participating right? So it would seem something related to that was the reason for continuing the program.
What's the constitutional, or statutory, basis for non-citizens who have no lawful status in the country, to have a right to remain in the country?
I clearly stated "effective amnesty" in my original post. If the day of action can be indefinitely put off, then it's effective amnesty.
>Just because a president can reverse a decision doesn't mean they always can.
What is the constitutional basis for a prior president's executive orders being irreversible by a later president?
>The case that kept DACA going was on behalf of those participating right? So it would seem something related to that was the reason for continuing the program.
What's the constitutional, or statutory, basis for non-citizens who have no lawful status in the country, to have a right to remain in the country?
I feel like you could answer most of your questions by simply reading the decision(s) related to the DACA case.
You're understanding or at least shifting statements that revolve around this being purely a case where a president has the right to change course is simply not the only factor at play.
You seem more concerned about the question of immigration rather than the actual law / decisions in play.
You're understanding or at least shifting statements that revolve around this being purely a case where a president has the right to change course is simply not the only factor at play.
You seem more concerned about the question of immigration rather than the actual law / decisions in play.
Remember, the media is a business. They don’t care to go into the complexity of humanity. Everything is black and white for the dollar.
Not on the areas people were concerned about regarding human rights
It's not really clear from the article, but the prize here doesn't appear to be forcing Apple to pay hundreds of millions of dollars of penalties. (The court didn't even award penalties, but merely cleared the way for end-users to sue Apple under anti-trust regulations.)
The real prize is forcing Apple to allow users to install software from any source:
> Apple Inc. v. Robert Pepper is the latest salvo in a legal fight over Apple’s iOS App Store. A group of iPhone buyers are claiming that Apple’s locked-down ecosystem artificially inflates the prices of apps because all developers must go through a single store that takes a cut of their revenue. The buyers argue that Apple has established an unlawful monopoly over iOS apps, and they’re asking the courts to make Apple allow third-party iOS apps, in addition to repaying every iOS user it’s overcharged in the past.
https://www.theverge.com/2018/6/20/17479480/supreme-court-ap...
By extension, any company maintaining a walled garden could be sued for anti-trust violations by end users. That hasn't been possible until now due to a previous Supreme Court ruling called "Illinois Brick":
> Arguing for Apple, lawyer Daniel Wall told the justices that the iPhone users’ claim is exactly the kind of claim that is prohibited under the Supreme Court’s 1977 decision in Illinois Brick Co. v. Illinois, which held that only consumers who are direct purchasers of a product can bring a lawsuit seeking the triple damages available for violations of federal antitrust laws: Here, Wall said, the only theory of damages in the case is that Apple charges app developers a 30-percent commission, which in turn causes the developers to increase the prices that consumers pay for apps. Therefore, Wall argued, it is the app developers, not the iPhone users, who are direct purchasers under Illinois Brick.
https://www.scotusblog.com/2018/11/argument-analysis-justice...
The real prize is forcing Apple to allow users to install software from any source:
> Apple Inc. v. Robert Pepper is the latest salvo in a legal fight over Apple’s iOS App Store. A group of iPhone buyers are claiming that Apple’s locked-down ecosystem artificially inflates the prices of apps because all developers must go through a single store that takes a cut of their revenue. The buyers argue that Apple has established an unlawful monopoly over iOS apps, and they’re asking the courts to make Apple allow third-party iOS apps, in addition to repaying every iOS user it’s overcharged in the past.
https://www.theverge.com/2018/6/20/17479480/supreme-court-ap...
By extension, any company maintaining a walled garden could be sued for anti-trust violations by end users. That hasn't been possible until now due to a previous Supreme Court ruling called "Illinois Brick":
> Arguing for Apple, lawyer Daniel Wall told the justices that the iPhone users’ claim is exactly the kind of claim that is prohibited under the Supreme Court’s 1977 decision in Illinois Brick Co. v. Illinois, which held that only consumers who are direct purchasers of a product can bring a lawsuit seeking the triple damages available for violations of federal antitrust laws: Here, Wall said, the only theory of damages in the case is that Apple charges app developers a 30-percent commission, which in turn causes the developers to increase the prices that consumers pay for apps. Therefore, Wall argued, it is the app developers, not the iPhone users, who are direct purchasers under Illinois Brick.
https://www.scotusblog.com/2018/11/argument-analysis-justice...
Yes, the people saying this is no big deal I think have failed to notice that SCOTUS just overturned a major previous SCOTUS decision that has stood for over 40 years and which is going to have a massive influence on a large category of class action lawsuits in the future. That this is understood to be an important decision is verified by the stock market response which was to immediately go into freefall. The reaction was swift and not anticipated in advance by market uncertainty because this decision was a huge surprise since no one thought they had the votes, the assumption being that conservative Kavanaugh would side with the conservative majority on issues of unquestioned corporate power. This may be an indicator that in many other cases involving corporations there exists a SCOTUS majority that will be overturning other past decisions and in general not be automatically deferential to business interests.
Reading over the opinion and the dissent (https://www.scribd.com/document/409788583/Apple-Supreme-Cour...), I think the crux for the majority is that the customers purchase the app through Apple.
The Illinois Brick ruling prevents "pass-through" claims of damagers. So if I buy something from Company A, and they bought something from Company B required to make my item, and Company B is a monopoly, I cannot claim damages as a "pass-through." Company A has to claim damages. The majority's point is clear:
"In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase apps directly from the retailer Apple, who is the alleged antitrust violator. The iPhone owners pay the alleged overcharge directly to Apple. The absence of an intermediary is dispositive. Under Illinois Brick, the iPhone owners are direct purchasers from Apple and are proper plaintiffs to maintain this antitrust suit."
The Illinois Brick ruling prevents "pass-through" claims of damagers. So if I buy something from Company A, and they bought something from Company B required to make my item, and Company B is a monopoly, I cannot claim damages as a "pass-through." Company A has to claim damages. The majority's point is clear:
"In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase apps directly from the retailer Apple, who is the alleged antitrust violator. The iPhone owners pay the alleged overcharge directly to Apple. The absence of an intermediary is dispositive. Under Illinois Brick, the iPhone owners are direct purchasers from Apple and are proper plaintiffs to maintain this antitrust suit."
Eventually it will be illegal for Apple to prevent competitive app stores. That will also be the beginning of when Grandma can get viruses again (or spyware battery apps like on Android).
Not sure the best way to weigh the benefits/risks.
Not sure the best way to weigh the benefits/risks.
Huh. All market places charge this 30% though, right? The Amazon Fire/Music stores and Google Play all take ~30%. (If you really want to support a band, BandCamp only takes 15%).
Could this open the floodgates for finally getting rid of ridiculous commissions for digital works of these digital stores? I don't think Amazon/Google/Apple will really hurt that much if this becomes the case, and creators could early quite a bit more for their works.
Or is this case very limited to Apple and their monopoly based on their control of Apple devices?
Could this open the floodgates for finally getting rid of ridiculous commissions for digital works of these digital stores? I don't think Amazon/Google/Apple will really hurt that much if this becomes the case, and creators could early quite a bit more for their works.
Or is this case very limited to Apple and their monopoly based on their control of Apple devices?
You can install 3rd party app stores on Android devices.
Apple forces all developers to only use their app store, and then makes them pay 30%.
Apple forces all developers to only use their app store, and then makes them pay 30%.
At I understand, this specifically affects Apple because there is no possible alternative marketplace on iOS. As much as Google sets up roadblocks to installing apps outside of Google Play, it's still straightforwardly possible to install FDroid or the Epic Store or whatever you want.
I don't know much about Amazon's Android fork, but I assume it's possible to sideload an appstore there too (though I could be wrong).
I don't know much about Amazon's Android fork, but I assume it's possible to sideload an appstore there too (though I could be wrong).
You can sideload applications and/or other app stores on Android phones. In addition, Google does not nearly have as much vertical control as Apple (from Hardware to Software Distribution).
Android can side load, use alternative stores. Samsung phones for instance have Samsung store (Galaxy) as well.
Does the 30% take into account the transfer fee ? Because as an artist, this is a supplementary charge in Bandcamp. So I actually receive 77.5% on a 10€ sale. It's better than 30%, but it's not 15%.
It seems that the Supreme Court only ruled that users can bring the case against Apple (not only developers), not that Apple’s 30% fee was a case of monopoly abuse.
That is true, but that part is an almost foregone conclusion on the merits.
Skip the "analysis": https://www.scribd.com/document/409788583/Apple-Supreme-Cour...
HN submission of the actual rulling: https://news.ycombinator.com/item?id=19899373
"The plaintiffs purchased apps directly from Apple and therefore are direct purchas- ers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws."
[1] https://www.supremecourt.gov/opinions/18pdf/17-204_bq7d.pdf