I am really impressed how much time and effort Apples legal department spends to find every single loop hole in the wording of the DMA. The 50ct per install for alternate app stores, 50ct per install for non-App Store apps after the millionth install, 1 million dollar in securities for alternate app stores, etc all follow the words of the DMA, but not the spirit. I am really interested to see the European Commissian drag Apple in front of a court and them having to legally defend their actions. I assume that all of those things they are setting up to circumvent people from using their rights will really blow up in their faces.
The EU has always been enthusiastic about the spirit of the law, and Apple is not used to this. You can see their temper tantrum unfold every time they find this out.
Is it? Developers used to determinism in software frequently don't understand that in all jurisdictions the law is ultimately interpreted by humans. I've been going through some legal processes myself, and my friend who is a lawyer reminded me more times than I care to admit that this is the case.
In the US, SCOTUS's job is literally to interpret the spirit of the law in the event of ambiguity.
Developers are fully used to this ambiguity and "spirit of the law" when interpreting standards. Search for WeirdNIX (popularly known as Windows NT and other names too).
There's different ways to interpret laws for courts. One of them is called teleological interpretation where you follow the intent of the law. For this courts also look into the documentation the legislation provided when defining the law. This is usually not done by lower courts, but courts like the CJEU use those when the letter of the law is unclear to define this for the lower courts to follow.
The situation in the US seems to suggest that trying to finely analyze the exact sequence of words in a law or the consitution still leaves a whole lot of room for arbitrary decisions. Abortion was a constitutional right until it wasn't and the constitution was not changed between.
All language carries inherent ambiguity. However, developments in American constitutional law aren’t really about that. The Constitution is very general and it uses terms that lack an objective meaning (for example, “Due Process” - what counts as “process”? What process is “due”?) It can’t really be implemented without bringing in a pile of philosophy and policy making.
At the same time, SCOTUS has been guilty of stretching its terms to include ideas that are clearly out of scope. (For example, the dubious invention of “substantive” due process - which all of the abortion stuff hinges on.)
Of all the examples you could've brought up and you thought a person's right to control their body is a stretch? Try "qualified immunity" if you want an example of justices reasoning with their bare ass showing.
Also, substantive due process was not invented for reproductive rights. It was invented in Dred Scott v. Sandford, to prevent “free” states from depriving slave owners of their “property”.
"The phrase substantive due process was not used until the 20th century, but the concept arguably existed in the 19th century. The idea was a way to import natural law norms into the Constitution; prior to the American Civil War, the state courts were the site of the struggle. Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford.[11] Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott but claim that it was employed incorrectly. Indeed, abolitionists and others argued that both before and after Dred Scott, the Due Process Clause actually prohibited the federal government from recognizing slavery. Also, the first appearance of substantive due process, as a concept, had appeared in Bloomer v. McQuewan, 55 U.S. 539 (1852)"
While there is a trace of the idea in Bloomer, it is relatively faint. Dred Scott is much more commonly recognized as the origin of substantive due process. For example:
> We should note right at the outset some of the many remarkable facts about the case.
> * Dred Scott was the first Supreme Court case since Marbury v. Madison invalidating a federal law. Since Marbury created judicial review in the context of a denial of jurisdiction, Dred Scott might plausibly be said to be the first real exercise of the power of judicial review.
> * Dred Scott was the first great effort by the Court to take an issue of political morality out of politics. In that sense, it is the great ancestor of many New Deal and Warren Court cases.
> * Dred Scott was the birthplace of the controversial idea of "substantive due process," used in Roe v. Wade, in many important cases endangering the regulatory/welfare state, and in the recent cases involving the "right to die."
> * Dred Scott was one of the first great cases unambiguously using the "intent of the framers" and in that sense it was the great precursor of the method of Justice Scalia and Judge Bork.
I don't think it's controversial at all to say that substantive due process is understood to have its origin in cases like Dred Scott and Lochner, cases where the Supreme Court overrode the results of the democratic process to protect economic interests. Or, for that matter, that the court took significant license in "interpreting" the Fifth Amendment that way.
Also, I think many people are too teleological when they evaluate judicial doctrines and philosophies. "Reproductive rights are good, so let's find a way to justify substantive due process." Jurisprudence is part of a structure and process that is bigger than any specific outcome, and bad jurisprudence shouldn't be excused just because it leads somewhere we might like.
Maybe substantive due process links the two cases in the most nebulous and abstract way, but fundamentally Roe v Wade is about a person's right to control their own body (e.g., nobody can force me to donate a kidney even if I'm a perfect match), whereas Dred Scott was about the exact opposite.
Edit: I also disagree that looking at where judicial philosophies lead is a bad idea. At the end of the day, the judicial system exists for two main purposes: 1) enforce contract law and 2) enforce the moral zeitgeist in the most fair way possible. If an inflexible judicial philosophy is unable to keep up with the morals of the times, we should consider revising the judicial philosophy. I believe this is considered fairly mainstream legal philosophy, and a big reason "originalism" is considered basically a sham by the legal profession.
But that's the thing, when your law is legally binding in 24 different languages it's really impractical if not entirely impossible to have a system based on letter-of-the-law interpretations...
I’m so tired of this, instead of doing the right thing, Apple just keeps trying to brute force the legal framework. You don’t need fancy legal team to know this is not the way.
From a business point, I can totally understand what Apple is doing. Making this as painful and unpredictable (as a developer you never know if your app will be successfull and gain more than 1 million installs) is the way to keep developers using the old contract and keep them on the app store. This makes sense for Apple to find every loophole possible ...
As a consumer, and an Apple users, I want them to be slapped as hard as possible for how they implement this.
Funny how things go. As a consumer especially, but even as a developer I don’t want the DMA to succeed and purposefully want iOS to be a walled garden. It’s literally one of the reasons why I’m on iOS!
That's the nice thing about the DMA ... Nobody forces you to install a 3rd party app store, nobody forces you to install apps from websites, nobody forces you out of the walled garden. For you nothing changes. Those that want to use their 1000€ device differently than you now have the chance to.
As the “tech guy” in the family things might change actually.
(One of) the reasons why I like the walled garden is how it simplifies everything troubleshooting-wise. I have a few quirks to know, the rest is because of hardware failure and that’s it.
My peer not being tech-savvy might install stupid things from stupid places and it might be a problem.
The way it’s done it’s unlikely, but still it just complexify things for next to no reasons in my book. (Yes 30% is a lot; I personally don’t care, though I do recognize I’m a good position and I can afford not to–but then again, the most vocal about the 30% are not the most unwealthy…)
That's also solveable. For android you need to enable deep inside of the settings to allow 3rd party installs. Nobody is preventing Apple to do something like this. Or that you can create a profile that disables that setting that you can install on your familys devices. Nothing in the DMA prevents this.
Just because it makes your life easier as the family tech support is a pretty selfish reason to hope for a very good pro-consumer law to fail.
The way it’s going I’m actually pretty sure if they did that they’d get reprimanded…
Also it makes my life annoying when I open Safari and am presented w/ what can be told as the worst pop-up ever and have to spend literally minutes dismissing it for something I neither wanted nor needed. It’s the cookie banner all over again.
Does not seem like a lot, but as a developer I use devices in a factory configuration a lot, and it’s just as annoying as it’s useless.
Basically it’s the cookie banner again. Served no-one (at least definitely not the consumers), but annoyed a lot.
As for the “those that want to use their 1000€ device differently than you now have the chance to,” well……… nobody forced them to buy a 1000€ device did they?? They knew of the limitations; they had to, or they’re very dumb.
The law is not pro-consumer contrary to people say, it’s anti-garden, which is definitely not the same, and I’ll die on this hill.
Nearly no sites comply with the cookie-banner law, if they did, you wouldn't mind it.
It essentially says "Tell the user you're tracking them, give them a button to click not allow you to do that". If sites actually did that, I honestly couldn't care less about the extra second it would take to click "No, fuck off".
> Basically it’s the cookie banner again. Served no-one (at least definitely not the consumers), but annoyed a lot.
Oh no, you have to be given the option to not permit your data to be shared with ~1000 different partners with "legitimate" interests. Honestly, the only thing that is wrong with GDPR is that it came out too late.
Every time you dismiss a "we care for your privacy" banner, you're being made aware that your data is shared with hundreds or thousands of data brokers with "legitimate interest". The fact that vendors prefer to make your experience miserable rather than give up tracking is another example of "malicious compliance".
What happens is that you now have the right to request a copy of the personal information a site has collected and ask them to delete it. You can also sue them if they don't fulfil your request. You're welcome to exercise your rights as an EU citizen at any time.
> Also it makes my life annoying when I open Safari and am presented w/ what can be told as the worst pop-up ever and have to spend literally minutes dismissing it for something I neither wanted nor needed. It’s the cookie banner all over again.
Know what's cool? Firefox on android supports ublock origin. There are some chromium forks too with desktop extension support (on android). Funny what an open(er) market and easy of installing apps does, huh?
People (myself included) say the same thing about why they buy their tech illiterate relatives macOS computers. And it works. And guess what, it works despite Apple not getting a cut of every everything.
My girlfriend only install the handful of apps she wants both on her Mac and her iPhone and doesn't go back to the app store. She just put things on auto update. Most people don't fiddle with their computing device. And if installation steps are confusing, she just asked me to do it. I guess that's why Microsoft are enabling so many things on Windows as most users won't enable them by themselves.
That's neither here nor there for whether Apple has the right to insert themselves into every transaction on their platform and gets to decide which apps are allowed to exist.
And let's not kid ourself: Microsoft is enabling (and re-enabling and re-enabling and re-enabling) so many things because they are slowly turning their OS into spyware to make more money, not because they care at all about their users.
I'll re-iterate Cory Doctorow's quote: "Anytime someone puts a lock on something you own, against your wishes, and doesn't give you the key, they're not doing it for your benefit".
It's perfectly reasonable to create even more walled gardens than the Apple walled garden, once you open up for different markets. That's the beauty of choice.
I doubt it. "Walled" and "Safety" are getting confused here.
I think you like the App Store for its safety. You trust it, enough to be happy with it.
What does that have to do with wanting others to be denied alternatives? That deliver however much safety and different benefits that other people want?
If safety is one of Apple store's selling points, then competitive app stores will push Apple to deliver even more safety. Perhaps new forms of safety others pioneer. Apple didn't invent security or sandboxes. While also encouraging it to loosen non-safety driven (and therefore quietly non-customer friendly) restrictions on innovation.
For years Apple has placed deliberately crafted limitations on 3rd party apps that put theirs at an advantage. They've done anything but treat developers fairly. If they did, maybe this legislation was unneeded, but with the way they've been acting, it feels like a long time coming.
Until some apps are not in the App Store or a website is chromium-compatible only… Or that apps (e.g. youtube) outside the App Store is surprisingly more feature-complete than the equivalent in the App Store…
Don’t worry they’ll find a way to make it socially mandatory (the same way not having a google account nowadays seems impossible (I don’t personally but still do because of work for instance)).
And if you don't trust an app vendor without Apple's underpaid Chinese reviewers playing with it on an iPad for 5 minutes to guarantee your safety, then don't use those apps that pull out of the App Store. If YouTube or FB pull out of Apple's App Store and go to their own, Apple will have to cut it's hosting fees to get them back or lose that business and you'll suffer not because Google and FB pulled out of the App Store but because Apple pushed them out with exorbitant fees. You should want Apple facing that threat because it'll lead to lower App Store prices as developers won't pad a $5 app with $1.50 in extra cost to you to cover the exorbitant Apple fees. But you'd rather blame users who want to run what ever software they want on the computers they purchased than blame Apple's shitty business practices. That's on you, bud.
> And if you don't trust an app vendor without Apple's underpaid Chinese reviewers
This misses the mark so badly that it’s not even worth reading the rest.
App Review is based out of Sunnyvale and has more than 300 people that make on average $85k/y in their first few years, and mostly over $100k/y after three years.
Long tenured people, the ones that last more than 5 years and are advancing towards a decade of doing the work get close to $200k/y with some exceptions over that number.
Many of those 300 people are multilingual, some specialize in a specific language, but to expand and better serve non-English markets, Apple recently opened a branch in Ireland and one in Shanghai.
The latter mainly focusing on the Chinese market and the one in Ireland specializing in European languages and supplementing the English market.
Once again there are alternatives; nobody forced anybody to buy iPhones.
It’s not like Apple lied at any point saying “buy our phones and do whatever you want on them!” No. It’s clear. You do what they want. In what name should they be forced to “open” it to anybody?
What’s next? Force google to make their map data open? How would that go? It’s mostly the same thing.
To be blunt, Apple, Google, and other tech megacorps should be glad that we as a society allow them to exist in the first place, even despite growing to the size where they are clearly hindering free market (by actively blocking competition). Never forget that corporations are artificial entities chartered by governments; and nobody has a natural right to a corporate charter, so those can and should come with hefty strings attached.
I have no idea what your argument is here. That people shouldn't advocate for greater competition in the marketplace just because they already bought a phone?
It's not at all the same thing? Also there's a more apt comparison, which is forcing Google to make Android open and allow alternative app stores (oh wait, they already do).
App stores are a natural monopoly. An app store with more users attracts more developers. An app store with more apps attracts more users. It has a strong network effect and economies of scale. Natural monopolies should be regulated to prevent abuse by the first companies that capture wide market share.
> I am really impressed how much time and effort Apples legal department spends to find every single loop hole in the wording of the DMA.
Maybe this is an American trait, but I would be surprised at any company that wouldn't be doing this. A law has been made that affects our business: How do we comply with the law with as little impact as possible to us?
Some of the comments here seem to expect Apple to simply give up, as though a parent just walked in the room and said "You better do it or else."
If it's really the spirit of the law that counts, then the law should require no specificity. A simple "Treat everyone fairly, installs can come from anywhere" would be sufficient.
Perhaps it seems unusual, as Apple has so much technical control, an unusually extensive legal budget, and doing a very effective job of castrating any "threats" or as the EU might say "significant competition".
And Apple has the cash to play chicken with any potential fines if it comes to it, so its not hedging much if at all.
It is clear that the EU is going to have to get very tough, before Apple is going to proactively take into account any of the "spirit of the law" that the EU would like it to understand.
Theres literally billions of dollars of pure profit on the line here. Id be surprised if they dint do absolutely everything they could to keep the app store the way it is.
Being a complacent market leader may come back to bite them in the backside.
The world is getting more technical. People will demand openness. If I buy a product, I should have reasonable flexibility to use it how I want. Even if I break it, repurpose it or improve it, I want the choice to do so, just like I have with pretty much every other thing I own.
People will vote with their wallets if Apple refuses to open things up a bit.
Complying with what you guess at the lawmakers' intentions was/were is a fool's errand. The law is the text, nothing more, nothing less. That's the point of the law. If the law falls short or has loopholes, it's a bad law and it's the legislature's job to fix it, not citizens' to suss it out.
To assume the law means things that aren't written in the law is, quite basically, undemocratic.
The DMA is perfectly clear regarding its intention and context. Trying to split hairs to find wiggle-room in the text just so a gatekeeper can maintain the status-quo for a while longer is absolutely malicious.
Furthermore, Apple’s behaviour is quite discouraging for us EU based developers who actually understand and aspire to the EU’s values and what we consider “normal” treatment of the people using our apps and services.
Obviously Apple doesn't hold the EU's values in high regard (few people in the Bay or even the US do), so of course they will try to fight it. It's perfectly rational and even expected behavior.
And it's perfectily rational for the EU to take appropriate actions against companies that hold its values in contempt. Apple should expect that and temper their contempt accordingly if they intend on continuing to do business here.
Written it in another comment. If there are ambiguities in the written law, for example because the legislature did not specify in the text of the law, that you can't charge for the access to the platforms, high courts like the CJEU will take approaches where they determine the spirit of the law (i.e. by looking at the discussion material the legislature presented for passing the law) to find out what the intent of the legislature was and then defines this law.
This is for example how Germany now has a basic right to data protection. It's not written in the constitution, it was formed by our supereme court by looking at what the intentions of the author's of our constitution were. Same principle applies to EU laws.
I agree that this is not a citizen's job. That's why I wrote that I am very happy to see the EU commission drag Apple in front of the CJEU.
