U.S. Supreme Court Justice Kavanaugh’s Apple App Store decision has ‘shaken up’ antitrust law

“President Donald Trump’s latest appointee to the Supreme Court joined with liberal justices on Monday to green light a consumer class action accusing Apple (AAPL) of monpolizing the market for iPhone apps,” Erin Fuchs writes for Yahoo Finance. “That appointee, Justice Brett Kavanaugh, wrote the majority opinion holding that iPhone owners qualified as “direct purchasers” with the right to sue Apple for allegedly monopolizing the market for apps through its App Store.”

“‘We got an unexpected boost to antitrust enforcement from Justice Kavanaugh,’ says John Kirkwood, a professor of law at Seattle University School of Law and an adviser to the American Antitrust Institute,” Fuchs writes. “Kirkwood noted that Kavanaugh has in the past been pro-defendant in antitrust cases, as are many conservative judges. ‘He’s shaken things up here. He’s not a reliable vote with the other four conservatives,’ Kirkwood said. ‘There’s more chance of future antitrust enforcement victories.'”

“The dispute stems from Apple’s policy of charging a 30% commission fee on every single app sale and barring developers from selling their apps elsewhere. The iPhone consumers who sued claimed that Apple effectively passed that 30% fee onto consumers, who had no choice but to buy those apps on the App Store,” Fuchs writes. “While a lower court still has to decide the merits of the case, the stakes for Apple here are high since its App Store represents a major part of the services business that it’s increasingly relying on as iPhone sales slow down.”

Read more in the full article here.

MacDailyNews Note: After the U.S. Supreme Court’s decision, Apple released the following statement:

Today’s decision means plaintiffs can proceed with their case in District court. We’re confident we will prevail when the facts are presented and that the App Store is not a monopoly by any metric.

We’re proud to have created the safest, most secure and trusted platform for customers and a great business opportunity for all developers around the world. Developers set the price they want to charge for their app and Apple has no role in that. The vast majority of apps on the App Store are free and Apple gets nothing from them. The only instance where Apple shares in revenue is if the developer chooses to sell digital services through the App Store.

Developers have a number of platforms to choose from to deliver their software — from other apps stores, to Smart TVs to gaming consoles — and we work hard every day to make our store the best, safest and most competitive in the world. — Apple Inc.

SEE ALSO:
U.S. Supreme Court allows antitrust suit against Apple over App Store; AAPL slides 5% – May 13, 2019
Supreme Court rules against Apple in App Store antitrust case – May 13, 2019
Antitrust, the App Store, and Apple – November 27, 2018
Trump administration backs Apple in U.S. Supreme Court over App Store antitrust suit – November 26, 2018
Apple defends App Store fees in U.S. Supreme Court – November 26, 2018
Apple defends App Store fees as U.S. Supreme Court weighs consumer suit – November 23, 2018
Apple wants U.S. Supreme Court to undo previous decision regarding an antitrust suit – October 31, 2018
U.S. Supreme Court will decide if Apple’s App Store is an anti-competitive monopoly – June 19, 2018
U.S. Supreme Court to consider Apple appeal in antitrust suit over App Store prices – June 18, 2018
US DOJ sides with Apple over App Store antitrust allegations in Supreme Court brief – May 10, 2018
9th U.S. Circuit Court of Appeals revives antitrust lawsuit against Apple – January 13, 2017
Apple App Store antitrust complaint dismissed on procedural grounds by U.S. judge – August 16, 2013

75 Comments

  1. … that Kavanaugh is trying to make the liberals look like they were wrong about his right leanings. The guy is no better than the flip-flopping politicians.

    1. There is no reason to consider this a monopoly. Apple created the iPhone. Apple markets the iPhone. Apple actively protects the iPhone from malware and viruses. Apple created a way to put applications on the iPhone. 30 % maybe high but, apparently Apple has to pay Amazon for it’s web services. (Shame) Apple checks the software for malware or virus. What is this really about, putting a porn app on the phone or perhaps some Chinese or Russian back door software.

      There are plenty other platforms and phone to choose from. This is not like Microsoft where they saw a good idea took it and rolled it into there operating system making the competition’s product worth less.

      All these other manufacturers clearly wait until Apple intoduces a phone then copies the features.

      1. If the App Store consisted exclusively by iOS software developed by Apple Inc. I would agree. However their current App Store IS a monopoly since it is now a marketplace that contains Apps developed by 3rd parties that have an interest in having multiple avenues of sale.

        1. App developers can sell their products elsewhere if they choose to do so. The only caveat is that they cannot do so while also selling the same product through the App Store. This makes perfect sense – would your have Target promote and sell a product that the wholesaler offers directly for up to 30% less while leveraging Target’s business model to develop a market and make it popular? Before you answer, also consider that vendors would be able to alter their products as desired, such as collecting personal data without your permission (bypassing Apple rules), even though the product would appear to be identical in all respects. The risks of potential detrimental impacts would be borne by Apple, but with little or no men’s to control the damage to its reputation of enforce its consumer protection policies.

          Apple’s policy is that you can use our App Store services (software advertising, distribution, payment collection, and customer support) under Apple’s terms. Otherwise, you are on your own.

          1. Smaller companies usually do not have an established brand nor the resources to handle every part of retail and depend on larger companies like Amazon to sell to a larger market. What Apple’s App Store does is prevent App developers that establish enough of a brand (and associated trust) to ‘leave the nest’ as it were.

            The reason a wholesaler is a ‘wholesaler’ is volume. Target is an attractive ‘partner’ that handles the smaller ‘individual’ unit sales and the resulting overhead of managing each inventory unit, aspects that a wholesaler would not desire to deal with. I agree that there is a possibility that vendors may alter their products, but at the same time ask yourself, how many established vendors would risk the social currency they have acquired by putting out ‘bad’ software. It appears you believe that fly-by-night vendors will somehow grab a significant user share without having garnered some prior level of trust.

            Your last statement of Apple’s policy does not ring true since there is no situation presently where ‘you are on your own’ to sell Apps as an iOS App developer. I believe you meant to say ‘you cannot be an iOS App developer’.

      2. Xennex1170,

        Obviously the developers have an interest in having multiple avenues of sale. However, Apple customers also have a legitimate interest in their own security and privacy, which Apple has chosen to protect by limiting software access. Can you promise me that my 93-year-old mother or 13-year-old grandnephew are going to be safe from conmen who could persuade them to install dangerous software on their iOS devices if that became easy to do?

        Do you not expect that Apple would be crucified in the press and sued across the nation in that event? As I point out in a long post below, the public will hold Apple responsible because “it all comes out of the same box.”

        All our local schools have a single fortified point of entry, which makes it difficult for salesmen to enter the school to sell their merchandise to students. Does their interest in having multiple avenues of sale trump those safety concerns?

        1. I agree that Apple customers have a legitimate interest in their own security and privacy, however those that choose to do so will refrain from turning on the ‘Allow 3rd party source” setting which would be expected to be added by Apple should they lose the ‘App Store monopoly’ portion of the proceedings.

          I cannot guarantee that your 93 year old mother or 13 year old grandnephew will be safe should they choose to ignore all the warnings Apple would be expected to pop-up when the aforementioned setting is turned on.

          As with using the phone in a moving vehicle I suspect warnings would be displayed similar to how Pokemon Go had to change their App to remind users that it was dangerous to do unless you were a passenger, not the driver.

          Interest in having multiple avenues of sale would encourage competition in the rate owners of App Stores charge to the benefit of developers and customers. In addition it may also keep Apple competitive in making sure their security policies are the best vs. the policy another iOS App Store may come up with.

          1. In other words, Xennix, people like you who understand technology will be reasonably safe and might save a few bucks on software. As for the tens of thousands of people in the billion-device user pool who get scammed and the dozens (to be outrageously optimistic) who are physically harmed, that’s just collateral damage. If the US forces Apple to allow third-party app stores, why wouldn’t Russia, China, and every other authoritarian regime on earth not REQUIRE their residents to use state-sponsored app stores that only stock spyware? Who cares about them, other than SJWs like Apple? You’ve got what you want. The weak can look after themselves or die.

            1. Understanding basic technology safety should be just common sense. It’s been over a decade since the iPhone was introduced to the world. Of all the iOS users today, do you believe that should Apple make it possible (not easily mind you) to “allow 3rd party sources” a significant percentage of those that are insufficiently tech savvy will dig down deep enough (iOS setting menu levels are increasing) to turn on that one setting? The huge majority of Android/FireOS users never turn on that option for one reason or another, satisfied with the selections at Google Play and Amazon App Store respectively.

              As it stands, what you describe with major countries requiring use of a specific App Store already exists on a smaller scale with Enterprise licensing. Corporations can, among other device management abilities, limit the Apps installed on issued iOS devices to their private ‘store’. Who is to say that some disgruntled developer(s) wouldn’t take advantage. Would Apple be blamed for those malicious Apps? Allowing 3rd party App Stores is only a matter of scale, and not a major undertaking as you would be led to believe.

          2. And just how many people would flip that “allow third party source” switch if they were offered a 20% discount?

            Far too many, that is how many. The product would appear to be identical. It would even come from the same vendor. But the cheaper Candy Crush (for example) would be different under the hood, collecting all sorts of information that is currently prohibited to vendor selling through the App Store

            This is too much like weakening immunization policies except, rather than a measles outbreak, you will have theft of personal data from millions of iOS users. Does your SUV have a switch to turn off the antilock braking system? Does your electrical service panel have a switch to bypass the circuit breakers? Why should Apple support app sales outside of the App Store when it would gain nothing while beating all of the risk, not only for the app, itself, but for its entire iOS business model. Apple does not want iOS to become as insecure as Android, and neither does the majority of Apple customers.

            Apple needs to do a much better job of selling its approach to device and consumer security. Google Android is promoting its devices without disclosing the associated risks to consumers. Google (and Samsung) need to be called out forcefully and publicly. The message must be simple and impactful, preferably leveraging real-world examples of damage to consumers.

            1. The number of people that may flip that “allow third party source” given a significant discount only shows how much they value their security and privacy as iOS device owners. I doubt Apple will make it easy to get to the setting in the first place given their history with jailbreaking which would probably further limit those that do ‘flip the switch’ to be reasonably tech savvy group.

              As to safety settings in vehicles you list, if you are once more tech savvy enough to acquire the right device, it is possible to turn them ‘off’. I do not claim it is easy for the average SUV owner, simply that should you be informed enough you have the option to and accept the risks both real and imagined.

              You’re correct, Apple doesn’t need to support outside app sales. However, they may be required to allow the existence of and access to 3rd party iOS app stores, if their App Store inclusion policy discriminates against any criteria outside of privacy or security.

              I agree Apple needs to do a better job of marketing its primary selling point of security and privacy, but not at the risk of opening up the ‘censorship’ can of worms because Apple takes it upon itself to determine something is ‘wrong’ in one way or another. What Apple censors because it is ‘required’ to by other governments of course is an unfortunate business compromise.

              In regards to promoting devices without disclosing the associated risks, it may work with pharmaceuticals where effects are not expected to change, doing so for products where such risks are highly variable depending on Apps installed is unrealistic. It sounds like you suggesting pharmaceuticals should also disclose all drug interactions.

    2. For Apple it does not matter that Kavanaugh voted with the liberals. What matters is that now Apples fantastic legal team (extreme sarcasm intended) has yet another chance to fail miserably.

      I cannot remember a single case where Apple’s legal team has won a decisive victory since the Franklin case. (For those of you too young to remember that one, the company, Franklin Computer, make a direct knock-off of the Apple ][. Apple sued and eventually got Franklin to cease and desist all actions relating to building an Apple ][ type of computer. And, in that case Apple likely only won because of a similar, but completely independent ruling by the appeals court.)

    3. Meh. Liberals simply want to lie (and obstruct any and all things President Trump suggests, even if it agrees with their leanings). The two things I took away from the hearings were “GUILTY UNTIL PROVEN INNOCENT” and #webelievsurvivorsunlessClintontellsusnottoo

  2. Did Kavanaugh go to any parties at Cook’s house? Someone must remember something. Wait, Trump is backing Apple. COLLUSION! DONALD TRUMP IS COLLUDING WITH APPLE and Kavanaugh is canoodling with Cook! Get Pelosi on the phone! Get Elizabeth Warren on the phone. Collusion with Trump is proof Apple needs to be broken up!

    1. You do understand that Kavenaugh voted AGAINST Apple, don’t you? The dissent from Gorsuch, Roberts, Thomas, and Alito is much more coherent and it follows the existing precedents. This is what happens when someone picks judges based on their willingness to substitute their personal interpretation of the wording of a statute for the way that others have previously interpreted it. That is what “textualism” requires.

      1. Because the thread where I posted the following seems to have gone dead, I will repost:

        I’m not surprised at all with the way the Court split. The Chief Justice is a strong believer in providing a predictable justice system in which everyone can know, in advance, what is legally acceptable and what is not. The key to that is the consistency of the judiciary in following its own precedents.

        Roberts is a true conservative, not a right- or left-wing activist. So he believes that tradition is valuable and that change for the sake of change is harmful to the rule of law. So, he has strongly supported the notion that existing precedents should be followed unless they are overturned by a new statute or a new executive order authorized by statute.

        When the Congress has adopted a law, it should not be overturned unless it is plainly inconsistent with the established meaning of the Constitution. When an executive agency interprets a statute that it has the legal duty to administer, its interpretation should be sustained unless it is plainly inconsistent with established law. When the courts have consistently interpreted a statute or constitutional provision in a particular way, that should stand absent a substantial change in circumstances.

        In this case, there was a Supreme Court holding directly on point, Illinois Brick, that supported Apple’s position. It is not surprising that the Chief Justice and his consistently conservative colleagues voted to sustain that precedent rather than to make new law. That also happened to be favorable to Big Business, but at least in the Chief’s case that was very much a secondary consideration.

        We already knew that Justice Kavenaugh was a judicial activist formed in the Federalist Society mold to reject precedent in favor of his own personal reading of the “text” of a law or constitutional provision, as if it were possible to reconstruct from those isolated words alone the original intent of the drafters. Because he is such a clever fellow, he is more likely to get it right than all the judges who have seen the law before him. Indeed, the “original intent” expressed in the bare words of the text should be interpreted by the judiciary without worrying about the legislative history that might suggest what the drafters actually did intend. That is what makes him a “textualist” and “originalist.”

        Justice Kavenaugh has also written that he would reject the precedents allowing the Executive Branch authority to resolve statutory ambiguities in laws within their expertise. Because judges are such clever fellows (and completely unanswerable to the electorate), we need them to rule on such matters outside their expertise. I expected it to take longer for Judge Kavenaugh to actually start voting in accordance with his radically activist views, but he has hit the ground running.

        1. “Roberts is a true conservative, not a right- or left-wing activist. So he believes that tradition is valuable and that change for the sake of change is harmful to the rule of law.”

          So this is why he recently voted with the majority in a case where someone was suing California in a Nevada court? He voted against more than 40 years of precedent that previously had stated that you can’t sue one state from another state, which was a de facto precedent even more than 40 years ago when the Supreme Court made it official.

          The majority ruling made no real sense to me or anyone else with whom I have spoken. Justice Thomas, who many claim to be a strict constructionist, basically abandoned the implied separation of states and states’ rights not to be sued from other states. The core of his argument seems to be, “We don’t need to follow precedent if we don’t want to do so. We don’t really need a strong reason to change things.”

          And, who picked Justice Thomas to write the majority decision? Chief Justice Roberts. One of the few absolute powers the Chief Justice has in the court is that he gets to pick the person who writes the majority opinion if he, the Chief Justice, is voting with the majority. (Really, the Chief Justice does not have a lot of unilateral power, but this is one.)

          So, so in choosing Justice Thomas to write such a weak, anti-precedent ruling Chief Justice Roberts has signaled to the world that he’s OK with the court overturning precedent whenever the court wants to do so, damn the legal rationales behind such a change.

        2. Shadowself,

          Are we reading the same case? It sounds like you are describing Franchise Tax Board of California v. Hyatt, decided yesterday on its third trip to the Supreme Court, but the holding in the Thomas opinion is exactly the opposite of what you said. The Court ruled 5-4 (with the usual suspects) that Hyatt could NOT sue a California state agency in a Nevada court.

          That repudiated the rule in Nevada v. Hall (1979) that had eliminated interstate sovereign immunity. The Hall doctrine had been “dead man walking” for years, but the issue had just never made it back to DC with a full 9-judge court. In this case, almost all of the precedents before 1979 cut the other direction, as did all the subsequent Rehnquist and Roberts Court decisions supporting states’ rights. The Hyatt decision yesterday was really more of a clean up than the rejection of a viable precedent.

          Nobody had any doubt how the case was going to come out. The only surprise was, as you say, that the Chief assigned the case to Thomas, who took the opportunity to write a bunch of dicta on the criteria for overruling precedent. The Breyer dissent ominously hints that this might be the prelude to reversing far more significant recent precedents, but that may be overdramatizing the situation. We will see.

          There was a really good analysis of Hyatt posted today by Richard M. Re at http://www.scotusblog.com

      1. It’s pretty simple, if you don’t want to pay the 30%, then sell on Android. The market there is FAR larger than the iPhone anyway. Makes no sense why anyone would willingly pay the 30% tax to Apple. Unless they are suckers. Maybe they are, but lawsuits won’t make them any less of a sucker, it just means another racket {legal) is taking further advantage of the suckers.

        1. Perhaps, but I thought this lawsuit was initiated by the consumers, not the developers (though I think they also share an interest in having multiple iOS App Stores).

    1. To say that Apple has a monopoly on Apps is like saying McDonald’s has a monopoly on Big Macs. You can’t buy a Big Mac from anyone else, and you can’t get an App from anywhere else.

      Should McDonald’s be sued over this? If they are, I’m pretty sure the suit will be laughed out of court.

      1. I am not sure that is right. The Apple store sells apps made by others, requiring a fee for those apps to be stocked. McDonalds sells only its own products, which it produces.

  3. It would be interesting to see Apple’s actual overhead costs for distributing apps. 30% seems high for software.

    Apple may have sunk their case for jacking up the prices on iOS apps if they have spent the last several years on the MacOS Store taking a smaller markup. If Apple always takes the same fat cut on iOS, that tacitly admits they are leveraging their storefront monopoly. I for one would welcome Apple opening up the iOS platform to allow other stores. If Apple offered superior store value via guaranteed security or privacy, then Apple would have nothing to worry about from a profit perspective. It would merely need to work a bit harder to show users their self-declared App store superiority.

    Regardless, it’s good to see that the court is willing to hear the case instead of just siding with the richest corporation, as they have basically done in corporate cases for the last 50 years.

    1. 30% seems high? So some apps charge $0.99. They get $0.33. For that they have to create and maintain an account. Then do accounting. Move funds. Provide server space. Provide searching. The reality is they lose money on the VAST majority of apps.

      Also, before the app store, physical distributors often took 50% and more for shelf space on distribution. So the app store is quite a deal by any measure that came before it.

      It’s super easy to count OTHER people’s money and tell them what they ought to do. Let’s turn the scope on you. What do you make. Do you really deserve to make that much? Maybe the people paying you could do better. Let us decide. We know whats best.

      1. Why are you assuming only a single copy of an App is sold? To put the ‘cost’ in perspective think of paying twice the average tip (15%) at a restaurant for your bill. Does that feel low to you? Now imagine that the restaurant is exclusively takeout and only plates/packages the food cooked by another restaurant next door and the only way you can get that 2nd restaurant’s food is via the first restaurant. Sure they check the quality periodically and provide the serving help. Do you believe a 30% ‘tip’ is warranted let alone 15%?

      2. Xennex1170,

        I pay tips for the service, which in your hypothetical is provided by the first restaurant. It is also collecting the payments, handling the cash, securing itself against robbers, interacting with customers, and performing all the other traditional “front of house” duties. If I get food poisoning, I will sue the restaurant that handed me the meal, so it should also be paying for insurance and health inspections.

        The second restaurant is essentially just a kitchen. If the menu prices are not high enough to make a profit, they should raise their prices… not expect the other restaurant to hand over the tips that it has earned.

        1. Then I will take that to mean you believe 15-30% is acceptable and you have no problem with the 1st restaurant forcing the 2nd to sell their food.exclusively through them despite the ‘kitchen’ possibly having their own dining area and/or catering service.

          1. In the analogy above using the restaurant as its basis, food cost in most restaurants is only 20% to 25% of the total bill (before any tip). Kitchen labor is typically in the 10% range (or less). Often restaurants try to make a 10% profit (most fail to make even that which is a major reason why about 50% of all restaurant startups fail within the first two or three years).

            So taking out the costs for the backend and the profit, a typical restaurant has as much as 55% or more of the ticket price as the “front end” costs. If you add on the typical tip the front end costs within that bill could be as much as 70% of the overall cost to you as the consumer.

            People just don’t know that and rarely even ponder the breakdown.

        2. That’s where the analogy breaks down. The second restaurant does not have its own dining area. These special meals, like iOS software, can only be consumed in a dining room associated with the first restaurant. Since the consumer is eating in #1’s dining room, any negative reviews on Yelp, TripAdvisor, and Zagat are going to drive away their customers.

          That won’t affect #2 much, because it sells most of its food (albeit at a lower price) through a third restaurant, Android Bar and Grill, that has almost six times as many customers.

          1. I can agree that smaller ‘restaurants’ may not have their own dining area (App Store). Larger ones on the other hand may have all the resources to have their own dining area but can’t make use of it for a specific group of customers (iOS) because they are forced to provide food to those customers exclusively via the first restaurant.

          2. The third-party app stores can’t provide their own dining room, because iOS software can only be consumed on Apple devices. If someone is harmed by an app running on an Apple device, they are going to sue and/or wage a media war against Apple, not the fly-by-night software company that sold them the malware. Plaintiffs always go for the one with deep pockets. By the time the scam surfaces, the scammers will have shut down their dummy corporation and moved on, leaving the angry consumer with nobody to blame except for Apple.

            1. Hmm.. I think we may be mixing up where something is ‘served’ vs where it is ‘consumed’ by using the idea of ‘dining’ room/area.

              Rolling back to my starting post for this thread of the first restaurant being “exclusively takeout and only plates/packages the food cooked by another restaurant next door”, we can say that the ‘place’ being consumed (iOS device) is the same whether you get it from the first restaurant or somehow get it from the second. It is clear that the second restaurant could, given the resources, have their own ‘take out window’ saving the consumer the overhead or have a third party provide the ‘window’ for a different rate.

              Google Play has been in this ‘open garden’ since the start. If you can cite me cases where Google, or Android device OEMs, have been sued for a malicious third party app it would go a long way to showing that Apple would possibly face the same.

  4. “The vast majority of apps on the App Store are free and Apple gets nothing from them.”

    Bullshit!
    You get value added to your censorious ecosystem that you can abolish anything you want with the push of a button.

  5. Monopoly is not the only anti-competitive behavior.
    Who needs monopoly when you can selectively prevent applications from existing, without recourse.

  6. Kavanaugh is an ****ing moron and his face beams it out proudly. By his thinking, since the cost of being on the app store is a cost that affects a price, therefore, apple sets the price, therefor cause for anti-trust…

    Well then, by that same argument, apparently FedEx and UPS are monopolists in every industry because shipping/handling is a cost that affects final cost.

    Idiots, the entire supreme court, a bag of idiot sauce.

  7. 1) Apple is only a ‘monopoly’ if you think of iPhone as fundamentally different from other phones and that people can’t choose other phones like Androids. Just the other day Tim Cook said iPhone has only 15% market share.

    Most major app developers also make for Android.

    2) There has to be a reason why Eric Schmidt, the CFO of Huawei (daughter of the billionarie founder), the largest phone maker in China etc use iPhones. And I don’t think it’s just the ‘camera’ etc, the Huawei CFO had an old iPhone 7 so she doesn’t care about the newest camera etc . It’s security. She’s worried the Android apps on even her companies own phones might be compromised.

    Security goes all the way from the hardware, the encryption , to the CURATED app store.

    On Apple’s OS the only way to say get a banking app is go through the App Store. Supposing on Android the ONLY way to get the same app is from third party App stores? How do you know the app isn’t compromised on Android ? Zdnet which is not particularly friendly to apple calls Android a Toxic Hellstew of Malware. And malware checkers like anti virus etc aren’t particularly effective for phones.

    APPLE STATEMENT ( in the Spotify lawsuit):
    “At its core, the App Store is a safe, secure platform where users can have faith in the apps they discover and the transactions they make. And developers, from first-time engineers to larger companies, can rest assured that everyone is playing by the same set of rules.”

    3) Apple spends a lot of effort to keep their system running properly. In their defence against Spotify lawsuit they said they had to work with Spotify hundreds of separate times to keep their app running smoothly. Apple engineers had to work with (often uncooperative) Spotify to integrate AirPlay, Siri , CarPlay etc. And now the Apple Watch.

    4) If Apple is forced to ‘open up’ When Apps started breaking down or infected by malware consumers will start blaming Apple. Today even phishing scams that affected celebrities’ phones (celebrities who gave out their passwords or used simple insecure ones) , the blame from the press and the affected people is Apple saying Apple security is not tough enough etc.

    5) If Apple is forced to allow third party stores what is to stop say developers just putting a ‘free’ placeholder app on the Apple App store which links to an external app Store which makes the money. Will Walmart allow you to put big FREE signs inside Walmart stores with links to buy from your rival online store? Will Walmart allow Amazon to put free kiosks inside Walmart so that shoppers can buy Amazon ?

    Illustrating from the Spotify case again:
    Apple says that Apple makes No money from Spotify’s Ad supported channel. (Spotify makes money from the ads but not Apple). What Spotify now wants is for Apple to keep putting Spotify placeholder apps (their ad supported channel where Apple gets nothing) on their App store but when customers upgrade to paid subscriptions, apple to get nothing as well.

    6) Google I think knew from the start that they would run into monopoly, anti trust issues , that’s why they claim their platform is open and free (it really isn’t ‘open’ if you study OEM contracts but thats another issue). So they make their money from spying.

    1. I’ve told this story before, but it still fits:

      When my brother was in college, he answered the phones on weekends at a local NBC affiliate. Most of the calls on Saturday and Sunday were from people who were complaining about programs, service interruptions, or whatever else was annoying them… and at least half of the complaints were actually about one of the other network affiliates. He would try to explain that NBC had no control over CBS or ABC, to which the invariable response was, “It all comes out of the same box, doesn’t it?”

      Crank that forward a few decades, and most people who have a problem with their iPhone are going to call Apple to complain about any software problem they encounter because “It all comes out of the same box, doesn’t it?”

      There are two–and I suspect only two–ways for a mobile device manufacturer to address that issue. One is to disclaim responsibility for anything that comes out of the box that is not provably caused by faulty hardware. That is the choice that the Android manufacturers have made.

      They make no promises of reliability, security, or privacy, so they cannot get bad press or a class-action lawsuit when something goes terribly, terribly wrong with a third-party app that a user has installed on their phone. Because they have not promised a high-end experience, they are free to charge low-end prices.

      The other way is to take responsibility for everything that comes out of the box. That is the choice that Apple has made.

      Promising reliability, security, and privacy exposes Apple to essentially open-ended liability unless it can actually protect its customers from anything that might pop out of the box without either the user or Apple seeing it coming. The way our society has evolved, having your phone taken over by malware is not just an inconvenience. It can be life-threatening if you cannot call for help in an emergency or (worse) if your phone guides an attacker directly to your location or your bank account.

      I cannot think of any way to provide that protection without taking a “closed garden” approach. If Apple or Samsung could think of another way, I am sure they would try it. Doing it the Apple way is expensive, but because the company can deliver on a high-end experience, it can charge high-end prices to cover the extra costs required for security. All that money might as well be thrown down the toilet if users can easily circumvent the security by installing malware from another source.

      My father ran a high-tech company for nearly fifty years. After he died, we had to throw away his Windows desktop computer because even a relatively sophisticated user had managed to install so many layers of malware disguised as security software that the machine did not work and could not be repaired for less than the price of a new computer.

      My 93-year-old mother is quite satisfied with that computer’s perfectly safe replacement–an iPad. I have no doubt that she could be even more easily persuaded to install malware than my father if Apple had not made it impossible. If the courts force Apple to make it possible, I have no doubt that the press will blame the resulting disaster on Apple and not the courts. The class-action lawyers will certainly be looking at Apple and not the courts.

      1. Reasonably argued but based on a flawed assumption that any expectation of security can be guaranteed or warranted. The liability remains infinite if they warrant such a thing.

        The very fact that iOS devices can be jailbroken is due to a vulnerability. All OSs, even Unix (OSX), and Linux have exploitable bugs. All of them! Recently, WhatsApp was hacked by a VOIP packet! A phone call! This impacted both iOS and Android devices. If a hacker emptied someone’s bank account, do you think Apple would be liable? We already know they would not, and they likely should not.

        Apple wins dismissal of Texas lawyer’s FaceTime eavesdropping lawsuit

        So the “we curate for safety” is at best well intentioned, and I betray by cynic credibility at being that magnanimous. More likely it minimizes support costs, but that is not the user’s problem.

        A more responsible approach would be to invoke “malpractice” type practices for all commercial OSs. Then one cannot disclaim either.

        1. “a flawed assumption that any expectation of security can be guaranteed or warranted.”

          Your argument is deeply flawed. No one including Apple is guaranteeing security. What TxUser and others are saying is that a closed garden approach while no guarantee affords users the best and highest level of protection. No other approach can do that. Any other approach results in a lower level of protection for users. Waving your hands around and saying a more open approach could have just as high a level of protection is utter nonsense and has no basis in reality.

          The question then is should the user choice of opting into the highest level of protection available via the closed garden approach be legislated out of existence? Should the court take that choice away from users? I think not.

          1. TxUser brought up liability, not me.

            “The other way is to take responsibility for everything that comes out of the box. That is the choice that Apple has made.”-TxUser

            I will leave the remainder of your reading comprehension to the privacy of your “Flawed” logic.

          2. On the question of user choice, why shouldn’t the user be given an additional option to choose based on recognizing the possible risk? Should the court deny giving the choice to users? Who’s to say that there could not be a 3rd party App Store that has even higher security than Apple?

  8. My point (5) is somewhat inaccurate. Apple already allows ‘free’ apps in their store which uses paid content bought elsewhere like Amazon’s kindle. It just doesn’t allow purchases inside the iOS app where Apple makes nothing.

    Another point, Apple recently cancelled Facebook apps when Facebook , as Mashabel describes it: Facebooks’ attempts to put software in their apps to ” “research” teens internet habits.

    Open everything up and you will have a whole lot of that. Much of these ad ware, spyware is not even illegal today (legislation has not caught up with it), it’s only Apple curating that helps keep much of it out.

      1. don’t really want to get into a big discussion on ‘what might happen’ but I can practically guarantee Apple will get into other class action lawsuits when consumers complain after their third party apps mis-perform or hurt them, they’ll argue “Why did Apple allow dangerous third party app stores to access the iPhone. They should realize it was dangerous “ and if history is an example, Apple will lose that lawsuit as well and pay hundreds of millions in damages. as in the minds of too many jurors Apple is the evil rich corporation.

        Like i argued Apple is not really a ‘monopoly, you can always use Android etc You are NOT denied access to phone calls, 911 emergency help, the internet etc. People have CHOICE.

        MAKING APPLE LIKE ANDROID ACTUALLY REDUCES CHOICE!!! You no longer have a safe protected garden.

        note there are many third party Android stores that provide PIRATED apps that look exactly like the real ones but which might contain malware , many from countries where USA etc have no legal control over.

        that’s one reason developers don’t like Android as pirates take their revenue.

        on a side note do people want their KIDS to download (malware ridden) ‘free’ apps on their iPhones like games (or even porn) from some sleazy asshats from some boondock country?

        Like i said now there is CHOICE. Curated Apple or Toxic Hellstew Android. Make them the same and choice is less. That is LESS freedom.

          1. so you say Mac users and windows users are completely safe because ‘no one forces them to shop outside the garden’?

            once you open up the device to side loading all kinds of screwy things start happening.

            You can’t just keep to the Mac app store because many developers won’t keep to the store anymore and sometimes you need apps to work or collaborate with business associates etc. If the iPhone is opened People might send you stuff from their compromised IPhones say from a pirated app to your ‘real’ app and you can get screwed.

            Another example You can’t buy photoshop from the Mac store. You have no choice but to buy outside. And for many pro users interacting with clients Photoshop for collaboration purposes like accurate 4 colour printing is a must. Before Photoshop CC when you could buy standalone Adobe products from dozens of online and box outlets I actually bought an entire Adobe creative suit from an online retailer. The retailer looked like a legit store but it was PIRATED. i had no idea as it came with a key etc. (I should have been suspicious as it was a couple of hundreds bucks cheaper as they said they had a sale . it was still over a couple of thousand if i remember correctly) I used it for awhile until i wanted to upgrade with adobe and Adobe froze my software. The pirated software didn’t but could have loaded malware into my system.

            Why did TXUsers dad’s PC (see his post) get Infected?

            Last year I got a suspicious message from my wife’s friend with an attachment. luckily I didn’t open it. When we contacted her we found it was a fake email. Her Android had been compromised and someone stole our personal info like email addresses from her. if we had an Android and opened the email it would have infected us.

            1. “once you open up the device to side loading all kinds of screwy things start happening.”

              Then don’t. Apple store only….

            2. ““once you open up the device to side loading all kinds of screwy things start happening.”

              Then don’t. Apple store only….”

              as usual ACynic you are not reading my post.
              i wrote dozens of lines above explaining how difficult it would be to keep to the app store if developers flee it, if pirate apps appear and are used by collaborators (like project management apps sharing files online ) , etc. There are hardly any 3D creation software in the Mac app store for example.

              Like I said look at what happened to Windows.

              Apple had to implement a ‘trusted certification’ download scheme for Macs which although good is hardly secure as iOS.

            3. “how difficult … if developers flee it”

              Is that the Soviet Russia defense of closed borders?
              If the Apple Store is not competitive, they SHOULD flee it!
              Just as it’s anticompetitive to not be able to sell your labor through other channels.

    1. Apple isn’t worried about opening up their store. They are worried about opening up their devices. I agree that the closed garden approach isn’t perfect. Hackers and malware can still get through, but at least the threat is manageable. When something goes wrong, Apple shares the blame and should share the liability. They cannot afford to share the liability for software that is utterly beyond their control.

      Yes, Apple could probably limit their liability simply by taking out ads announcing to purchasers up front that iOS is no safer than Android (and it obviously wouldn’t be if it were equally vulnerable to attack). However, that would destroy the company’s business model and remove the justification for charging extra for privacy and security. Since they aren’t going to do that for free, they would stop trying and we would all be carrying a wiretap in our pocket.

        1. If you love an ‘open’ system so much JUST GET AN ANDROID.

          Most android reviewers say the top Android phones have equivalent screens, cameras, with vast choice like even having removable batteries etc. So what is the problem ?

          They say the only difference is Apple’s closed App store. The tight integration of developers Apps due to Apple supervision.
          But you don’t like that so Android should be paradise for you : Open and Vast Choice. So why bother iPhone users like me who like closed ?

          Remove ‘closed’ philosophy and Apple turns into Android. So why LIMIT CHOICE? Now at least you choose between safe curated (iPhone) and Toxic Hellstew of Malware (android).

          Xioami, Huawei (except for the top brass like the CFO who uses an iPhone), Samsung (except their top staff who often caught tweeting ‘sent from my iPhone’), Google (except for top staff like Eric Schmidt who use iPhones) etc will be very happy if idiots force Apple to be ‘open’.

          (Like I wrote above Huawei CFO the daughter of the founder and the rest use iPhones because they know curated is safer. No way the Chief financial Officer of Huawei is going to trust her companies secret documents to an Android phone even one made by her own company (largest phone maker in China). She Also uses a Macbook which although less safe than iOS is still better than Huawei Windows Matebook laptop !! !! !! All these Apple devices were found on her when she was arrested in Canada )

          1. “JUST GET AN ANDROID”

            Is that a suggestion or a demand?
            Having other iOS stores need not impact you at all as a user. Kindly worry about your own device.

            1. get an android as you keep on complaining about closed apple. You can curate yourself. Meanwhile the leaders of android like Eric Schmidt are using iPhones.

              And the Huawei CFO’s iPhone and Mac weren’t just ‘for studying a rival’ as she requested them back when she went on bail. She said she needed them to do work. the canadians made a copy of the drives and sealed them for court. BTW she ALSO had an iPad !!!

              article : “Apple touts its iPhone and iOS ecosystem as one of the most secure and private on the planet, and Meng’s devices appear to suggest she similarly believed the same, to hold her data private from third parties and governments”

            2. “I want control over my iOS devices. I have 2 iPad Pros.”

              Get an Android tablet if you hate the closed safety and security of Apple. Or a surface device.

              I have two iPad Pros myself. Me , I want safe eco system.

              The Huawei CFO , and Huawei makes tablets like the MediaPad, uses an iPad exclusively. When caught she had an iPad and was not carrying a Huawei tablet. Guess she wants a safe ecosystem as well. (On the website Huawei boasts their tablet is ‘blistering fast’ with Octa core processor… etc. But she prefers an iPad. ) Please note she’s not some low level flunky but the Chief Financial Officer and daughter of the founder.

          2. What I desire for my iPads is none of your concern, and it doesn’t impact you at all on what you do with your own iOS devices. Stop telling me what to get, I have every class of major device and OS.

            1. And there we have it. You feel that what one person desires for his iPad is nobody else’s concern. Since we are all tech-savvy, you aren’t going to be adversely affected by opening up iOS to malware and (I hope) neither are Davewrite or I. You aren’t concerned about anybody other than #1 and you can’t understand why anybody else might be.

              Some of us, however, do give a damn about the victims who would get scammed or possibly even killed if their personal devices were not secure. Apple Inc. happens to be in that camp, not yours. They can sell you a phone, but they can’t give you empathy.

            2. No sir, not at all. I have always supported your right to shop “Apple Only”.given a choice.

              But a developer should be able to code a “pin the donkey tale on the Jobs” app, and I should be able to run it.

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