Apple Fails in Bid to Dismiss Cydia Creator's Amended Antitrust Lawsuit

[Maximara]

Monopolies are generally considered anything over 50% share. it doesn't really matter if it's 51% or 99% and the more important issue is anticompetitive practices that would be alleged.

BZZZZ WRONG. From Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21

"The threshold of market share for finding a prima facie case of monopoly power is generally no less than 65% market share. See Image Tech. Servs. II, 125 F.3d at 1206 (“Courts generally require a 65% market share to establish a prima facie case of market power.”); Hunt-Wesson, 627 F.2d at 924–25 (“market shares on the order of 60 percent to 70 percent have because its “ability to charge monopoly prices will necessarily be temporary”). A more conservative threshold would require a market share of 70% or higher for monopoly power. See Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 174 (4th Cir. 2014) (“Although there is no fixed percentage market share that conclusively resolves whether monopoly power exists, the Supreme Court has never found a party with less than 75% market share to have monopoly power. And we have observed that when monopolization has been found the defendant controlled seventy to one hundred percent of the relevant market.” (citations omitted)); Syufy Enters. v. Am. Multicinema, Inc., 793 F.2d 990, 995 (9th Cir. 1986)

More over the judge Apple is in front of already decided: "Relying on the same documents, for 2015, the Court takes Apple’s 18% market share divided by 34% of the mobile share of the global market. For 2016, the Court takes Apple’s 21.8% market share divided by 40% of the mobile share of the global market."

Later there was this:

"Thus, the Court finds the relevant geographic market to be global."

Show me where Apple has ever had 50% of the global market must less the 65% required under legal president law to fall under monopoly.

 

[webkit]

Apple would have to be in the 70-75%+ marketshare range AND egregiously using blatantly illegal means to maintain that marketshare by poisoning the competitive process before they would even get a Microsoft-style slap on the wrist. Simply being a successful business using normal contract terms to enforce their own business interests is not going to rise to the level of an anti-trust violation nor will it qualify them as a sanctionable monopoly. Courts have spent decades refining their methods for determining the difference between competitive and exclusionary conduct and simply harming competitors does not make a company anti-competitive and likewise being extremely successful does not make a company automatically an illegal monopoly simply becuse it crosses some arbitrary marketshare threshold.

One of the greatest ironies is that one thing Apple has been accused of, “premium pricing and profit maximization,” may be one of the things that proves they have not been anti-competitive. Apple has never, to my knowledge, undercut a competitor simply to maximize their market share. Instead Apple has achieved their market position despite charging a premium for their products and services and have done this while starting as a minority entrant in the mobile phone market and competing through organic growth of their own isolated ecosystem against a healthy field of established and emerging competitors that entered the market at much lower price points. Even at times when Apple seems to be charging less, comparison shopping shows that they are simply charging the market rate.

A Judge may take issue with the appearance of Apple’s position on some point of contention and issue a token ruling on a minor aspect of one of these cases and kick it up the ladder for a higher court to affirm or overturn, but short of new laws there likely will never be a US court ruling against Apple for being a monopoly.

There obviously has to be some sort of court determined antirust/anticompetitive ruling against a company for there to be action taken. Time will tell how this may play out with Apple. I'm not necessarily taking sides here other than to say I do think Apple has a monopoly (legal or otherwise) in mobile OS in some countries/regions and some of these suits may be warranted. It's unfortunate that so few players control the OS markets whether it be mobile (Google and Apple having nearly 100%) or desktop/laptop (Microsoft and Apple having around 90%).

 

[webkit]

No they didn't have a choice. Microsoft's Office Suite was gaining huge support and they only made it for Windows (and Mac). Hence, there was little incentive to load any other OS. In a sense, Microsoft strong-armed themselves into existence.

Now we're getting into quality or degree of choice. No, it certainly wasn't the same but my point was that they still had a choice. They also had a litigation path.

It appears that some app developers today feel similarly in that they are being too restricted by the App Store/sideloading limitations and have little recourse, lawsuits being one, given Apple’s unreasonable (at least in their opinion) mobile OS dominance.

 

[Maximara]

Microsoft spent all its time and effort to make Windows what it was and court did tell them what they can't do. Same thing with AT&T and Standard Oil.

"Although there is no fixed percentage market share that conclusively resolves whether monopoly power exists, the Supreme Court has never found a party with less than 75% market share to have monopoly power. And we have observed that when monopolization has been found the defendant controlled seventy to one hundred percent of the relevant market.” (citations omitted)); Syufy Enters. v. Am. Multicinema, Inc., 793 F.2d 990, 995 (9th Cir. 1986)" - Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21

Show us where at any time from 1984 on Apple has ever had a 75% or better marketshare.

 

[jlc1978]

OMG!!! That's brilliant!!! LOVE IT!!!

Glad you liked it.

I just remembered, after having another venting session on what I couldn't get to work, I, tongue in cheek said 'Two tin cans and some string would work better', and the V tech laughed and said 'Yes, but then we'd be selling 'official string', and you'd still have issues with it not working properly'. (I found out, decades later, that he died of a particularly nasty cancer. Ruined my day. I had hoped he would be sharing his opinions still. He did work there until he couldn't any longer. He was always a joy to work with and very helpful when I dumped my Windows Brick)

Cynical humor is great. I remember a passage from Zen and the Art of Motorcycle Maintenance, (IIRC) where the protagonist fixes someone's BMW bike with a shim made from a beer can and remarks how it should have been from a BMW brand can...and cost 10x as much...

"Although there is no fixed percentage market share that conclusively resolves whether monopoly power exists, the Supreme Court has never found a party with less than 75% market share to have monopoly power. And we have observed that when monopolization has been found the defendant controlled seventy to one hundred percent of the relevant market.” (citations omitted)); Syufy Enters. v. Am. Multicinema, Inc., 793 F.2d 990, 995 (9th Cir. 1986)" - Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21

Show us where at any time from 1984 on Apple has ever had a 75% or better marketshare.

The argument, which I disagree with, is the App Store is its own market that Apple controls 100%. If courts were to decide that it would potentially be a dangerous precedent in that markets could now be defined as manufacturer specific; ignoring competing products in the marketplace.

 

[Maximara]

Microsoft spent all its time and effort to make Windows what it was and court did tell them what they can't do. Same thing with AT&T and Standard Oil.

In all those examples those companies were well over the 75% that the Supreme Court set was the lowest standard to be considered a monopoly when a case wound up before them.

 

[mansplains]

Has declaring yourself the omniscient arbiter of facts ever won you an argument?

This line of thought reminds me of Cartman's debate "winning" strategies in Chef Goes Nanners

 

[Maximara]

There obviously has to be some sort of court determined antirust/anticompetitive ruling against a company for there to be action taken. Time will tell how this may play out with Apple. I'm not necessarily taking sides here other than to say I do think Apple has a monopoly (legal or otherwise) in mobile OS in some countries/regions and some of these suits may be warranted. It's unfortunate that so few players control the OS markets whether it be mobile (Google and Apple having nearly 100%) or desktop/laptop (Microsoft and Apple having around 90%).

But this isn't in "some countries/regions" but a US court which follows US laws and the court Apple is in front has already ruled they aren't a monopoly under Federal laws (65% bare minimum and 75% for the Supreme Court) and that the smartphone market is global.

 

[tubular]

Right. In fact, Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21 spells out what the criteria for a monopoly under the law is:

This is why so much of the content of the trial was occupied with contention over what the market in question is defined to be. Epic wanted the market to be narrowed, as much as possble, to the iPhone installs base, to push the Apple percentage as high as possible and make a better case for Apple having a monopoly. Apple wanted a broader definition, and they carried the day comprehensively in part because they won the market-definition issue.

 

[the 12th Doctor]

I haven't used Cydia in years. I think maybe iPhone 5S was the last time. I have switched between Android and iOS for over a decade but have been iOs for a solid 5 years straight now and I have seen no reason to JB. For me. I mean I miss five icon dock and a few other tweaks, but in the end, it got exhausting to make sure I don't update or I lose the JB.

 

[jlc1978]

In all those examples those companies were well over the 75% that the Supreme Court set was the lowest standard to be considered a monopoly when a case wound up before them.

Interestingly enough, AT&T was the result of companies desiring to eliminate competition and develop an interoperable system so they asked for government to step in and create monopolies.

Standard Oil was JD Rockefeller's creation and drove out competition. What often gets overlooked in the discussion abut Standard Oil was that its monopoly drove down the price of gas to the consumer while they were a monopoly; if an oil company did that today they'd no doubt be hailed as heroes.

Interesting but useless fact: Vaseline was once a Standard Oil product.

 

[djgamble]

i remember cydia, a true pioneer of the jailbreaking days. didn't it proceed the app store?

That's right... man I remember it was a golden era when I used my iPod Touch instead of an iPhone because the iPhone only supported 2G (so didn't work in my country - Japan).

I was living in a place with no internet so on snowy days I'd take my Touch around, log into unsecured networks, get Cydia (and other) downloads started and then hide my Touch somewhere that nobody would see (while I went and got dinner). After dinner all the updates/apps would be installed so I'd grab my touch and take it home.

GOLDEN days, before everything in my digital life became sandboxed.

Side note - I swear Saurik ran for a political office at some point? Can't find any records of it though.

 

[Maximara]

The argument, which I disagree with, is the App Store is its own market that Apple controls 100%. If courts were to decide that it would potentially be a dangerous precedent in that markets could now be defined as manufacturer specific; ignoring competing products in the marketplace.

If anyone actually sits down with that nonsense and thinks about it it would be akin to saying Ford would have to use Honda part or some over level of crazy.

 

[Maximara]

This is why so much of the content of the trial was occupied with contention over what the market in question is defined to be. Epic wanted the market to be narrowed, as much as possble, to the iPhone installs base, to push the Apple percentage as high as possible and make a better case for Apple having a monopoly. Apple wanted a broader definition, and they carried the day comprehensively in part because they won the market-definition issue.

That and the fact that even if the court had given Epic what it wanted it failed to get to the 65% never mind the 75% required by the Supreme Court. I wonder what the judge is going with this this case as the Ninth Circuit didn't come off as too happy with California's weird law (Epic's only win) and this could cause them to get mad and go 'screw this, that law is unconstitutional due to being too vague'

 

[PlayUltimate]

Legal monopoly?

depends on how restrictively you define the market.

 

[duffman9000]

I get a similar hunch, especially every time I re-suggest the idea of fighting instead for a real “my phone my freedom to do whatever I want with it” (not originally mine, got the idea many months ago from around here).

Let the phone -on boot- offer the option to install OtherOS (just like the first bulky PS3s did and YellowDogLinux appeared there). With the required many warnings, switches and popups.
It would be completely separated from iOS, maybe not reversible once one is chosen (to account from unknown security side effects) and it would give the devs and community a 100% barebones development grounds.

They would have the freedom to create the OS, camera/WiFi/Bluetooth/modem drivers, software app stores, CPU/GPU/NeuralEngines with all the tiny coprocessors communication implementations, host all of the required things that need to be hosted, etc times 100. Who knows, maybe a Linux and a myriad of open source endeavors happen.

But every time there’s a comment about “how it wouldn’t fly with the rules, laws, government” and whatnot. Ok, sure, maybe, but fight for that instead? If the argument is -for real- to “open up MY phone” then maybe that’s the way?

Don’t get me wrong, I wouldn’t touch that “OtherOS” with a stick (and it was actually how the vulnerability on PS3 happened), but I get the feeling that since it sounds like too much work and not freeloading from an existing established proprietary one then it’s bashed.

You are right: it’s your phone and you are free to do whatever you want with it. Here’s the catch though: Apple is not obligated to help you.

 

[webkit]

BZZZZ WRONG. From Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21

"The threshold of market share for finding a prima facie case of monopoly power is generally no less than 65% market share. See Image Tech. Servs. II, 125 F.3d at 1206 (“Courts generally require a 65% market share to establish a prima facie case of market power.”); Hunt-Wesson, 627 F.2d at 924–25 (“market shares on the order of 60 percent to 70 percent have because its “ability to charge monopoly prices will necessarily be temporary”). A more conservative threshold would require a market share of 70% or higher for monopoly power. See Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 174 (4th Cir. 2014) (“Although there is no fixed percentage market share that conclusively resolves whether monopoly power exists, the Supreme Court has never found a party with less than 75% market share to have monopoly power. And we have observed that when monopolization has been found the defendant controlled seventy to one hundred percent of the relevant market.” (citations omitted)); Syufy Enters. v. Am. Multicinema, Inc., 793 F.2d 990, 995 (9th Cir. 1986)

More over the judge Apple is in front of already decided: "Relying on the same documents, for 2015, the Court takes Apple’s 18% market share divided by 34% of the mobile share of the global market. For 2016, the Court takes Apple’s 21.8% market share divided by 40% of the mobile share of the global market."

Later there was this:

"Thus, the Court finds the relevant geographic market to be global."

Show me where Apple has ever had 50% of the global market must less the 65% required under legal president law to fall under monopoly.

From the United States DOJ archives:
Some courts have stated that it is possible for a defendant to possess monopoly power with a market share of less than fifty percent. These courts provide for the possibility of establishing monopoly power through non-market-share evidence, such as direct evidence of an ability profitably to raise price or exclude competitors. The Department is not aware, however, of any court that has found that a defendant possessed monopoly power when its market share was less than fifty percent. Thus, as a practical matter, a market share of greater than fifty percent has been necessary for courts to find the existence of monopoly power.

 

[BootsWalking]

Primary Utility of a smart phone is still a phone. Voice and text. Your analogy is bad.

I'm amazed how little thought people put into their replies. Your claim is demonstrably false. Look around and observe everyone with their face buried in their phones. Are their lips moving?

 

[BootsWalking]

"Although there is no fixed percentage market share that conclusively resolves whether monopoly power exists, the Supreme Court has never found a party with less than 75% market share to have monopoly power. And we have observed that when monopolization has been found the defendant controlled seventy to one hundred percent of the relevant market.” (citations omitted)); Syufy Enters. v. Am. Multicinema, Inc., 793 F.2d 990, 995 (9th Cir. 1986)" - Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21

Show us where at any time from 1984 on Apple has ever had a 75% or better marketshare.

How many antitrust cases have you read about going to the Supreme Court?

 

[tubular]

From the United States DOJ archives:
Some courts have stated that it is possible

There are courts, and there is the Supreme Court.

Also, “some courts” recognizing the existence of a theoretical possibility is miles from having anything solid enough to hang an actual judgement on in this case, especially given the history cited by the DoJ.

 

[jav6454]

Now we're getting into quality or degree of choice. No, it certainly wasn't the same but my point was that they still had a choice. They also had a litigation path.

It appears that some app developers today feel similarly in that they are being too restricted by the App Store/sideloading limitations and have little recourse, lawsuits being one, given Apple’s unreasonable (at least in their opinion) mobile OS dominance.

Some developers are trying to pull fast ones when it comes to data harvesting. That's the issue here, others are in it to get rid of the commission. Back in the 90s, it was about grabbing the market, now it's the market and the data the market provides.

 

[visualseed]

There obviously has to be some sort of court determined antirust/anticompetitive ruling against a company for there to be action taken. Time will tell how this may play out with Apple. I'm not necessarily taking sides here other than to say I do think Apple has a monopoly (legal or otherwise) in mobile OS in some countries/regions and some of these suits may be warranted. It's unfortunate that so few players control the OS markets whether it be mobile (Google and Apple having nearly 100%) or desktop/laptop (Microsoft and Apple having around 90%).

The DOJ has been looking at this for several years and every time they are pressured to act they find some excuse to kick the can further down the road. There has been immense political pressure to “do something” but the reality is there is not much that can be done. If Apple (or even other tech companies) were the big, bad, monopolists they are sized up to be in public opinion, there would have been actionable enforcement long ago.

The best I can tell is Apple hasn’t changed their business plan in decades and if anything they are doing now was helping them illegally maintain their marketshare they would have been illegally doing it years ago too. Which just doesn’t seem plausible. Most of the thing people are complaining of now that are “creating lock-in” are things that should have prevented their marketshare from growing over the years if they were unfriendly to consumers. The reason why they are only being sued over sour grapes by companies in civil court using anti-trust as an argument is because there really isn‘t much substance to go on for any truly definitive anti-trust case against them.

The DOJ wouldn’t need to wait for a company like EPIC to win their case to act if there was any evidence Apple was doing something illegal. Courts are also very reluctant to declare big companies “monopolies” without some sort of evidence they are abusing their market position. Doing so simply based on their marketshare of arbitrary relevant markets would create a legal minefield of bad precedents that would encourage a flood of bad-faith lawsuits and stall economic growth across multiple industries. This seems to be the case both here and abroad where the focus is put on new legislation rather than enforcement of current laws that Apple doesn’t seem to violate.

 

[I7guy]

How many antitrust cases have you read about going to the Supreme Court?

Never say never. There is always a first time.

 

[jlc1978]

Some developers are trying to pull fast ones when it comes to data harvesting.

They are no doubt upset that Apple can limit data harvesting, and want the government to intervene to support their business model. They can't make a good PR case around data harvesting so they have to hide their goal to make them seem the poor aggrieved victims of big bad Apple.

That's the issue here, others are in it to get rid of the commission.

Even more to the point, some want to get rid of Apple's cut while still maintaining unfettered free access to Apple's App Store.

Back in the 90s, it was about grabbing the market, now it's the market and the data the market provides.

If Apple is forced to open up I would hope they put in options to prevent 3rd party apps from accessing data stores such as contacts without explicit permission, as well as anti-tracking options as well. It would be hard then to argue against such options since they clearly are in consumers' interests.

 

[PlayUltimate]

Microsoft strong-armed themselves into existence.

Not initially. But definitely true for the Microsoft that was sued by the Federal Govt. Lots of stories about how companies were, due to MS' OS marketshare: DOS and Windows, forced into various levels of submission.