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

[SoldOnApple]

It would be a nightmare!

I agree. But at least iOS would have some very polished retro game emulators. My inner geek feels very conflicted about paying for the latest Pro versions of iPhone and iPad, but not being able to run game emulators on them. These devices have some of the best screens and processors in the world and it's crazy that we can't add these emulators, especially now that iOS has native gamepad compatibility.

If Apple allowed any kind of app in the App Store, or allowed other stores like Cydia on any and all iPhones and iPads, then retro game emulation on iOS would be mainstream right now.

 

[PinkyMacGodess]

That because it is a statement of fact, not an argument. Facts don't need arguments, they are just that - facts

Beg to differ. Sometimes the 'facts' we hold as true are the most in need of discussion and refutation. Also manufactured 'facts' are everywhere. I was briefly involved in a group dealing with environmental concerns, and discovered there is a whole industry that churns out 'facts' under the guise of 'sound science', and it's some of the most horrific things, like smoking, dioxin, lead, PTFE, batteries, sewage (as fertilizer, etc), and so much more, and UNIVERSITIES are often involved in manufacturing facts. BIG universities. Big corporations. It's actually amazing how many sources of 'fake facts' there are. Madison Avenue commercials and (dis)infomercials. Social media has been leveraged to make them even more widespread. Some of the insane stuff I've seen on YouTube just make me sad.

One was 'The Moon is HOLLOW!'. Um, no it's not. Good grief. Another was a riff on that with the idea that 'Mars is hollow' too. And the crazy 'Niburu' BS. It's a target rich environment. Wow. A sea of crap.

The 'Birds are fake' operation is something I'm not sure will accomplish what their goal is claimed to be. There is an almost religion around the bogus 'chem-trail' nonsense. And I wish it stopped with just that. Think of something, almost literally anything, and take it to an extreme, and post it, and wait for it to circle around and you see it being parroted by some back to you.

 

[bookofxero]

There's always the possibility of future competition (Bill Gates had been making that argument for decades) but what's relevant is the state of the marketplace at the time in question.

The view some have is that Apple has monopoly power in mobile OS and is blocking app store competition. They feel that multiple app stores (and/or easier sideloading) should be allowed on iOS. It's about allowing app stores to be setup "next door", not directly inside the App Store. If Microsoft were to require that apps for Windows had to be purchased/downloaded through the Microsoft Store, they would face similar scrutiny and lawsuits.

Interestingly, they did just that with Windows S, or 10S, or whatever it was called before walking back the limitation.

 

[webkit]

Again, the threshold is generally much higher that 50% as has been pointed out multiple times. Of course, after this backpedal, I'm not sure what point you are trying to make.

My point was simply that 50% is generally considered the minimum needed for the "share" criteria when evaluating whether or not a company may be a monopoly or have monopoly power.

Again, from the 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.

 

[Abazigal]

Imagine what iOS would be like today if Cydia were on every iPhone from day one.

Tons and tons of pirated apps leading to a less vibrant app marketplace overall. Basically android.

 

[webkit]

Read what I said, I think I was pretty clear. And don’t mix arguments. I wasn’t discussing Microsoft, I was discussing what constitutes ”a monopoly”. I very explicitly said that threshold isn’t necessarily 100%. The point of my comment is that you’re thinking about this wrong. Stop trying to make this easy for yourself by picking a threshold number.

Easy?? These discussions have largely been generalizations. As I've tried to say here, 50% is generally considered the minimum needed for the "share" criteria when evaluating whether or not a company may be a monopoly or have monopoly power. At least in the U.S.

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.

 

[amartinez1660]

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.

Exactly.
That’s the only reason I see the “my phone” advocates have against OtherOS approach: since they won’t be able to use any of the niceties that Apple have already put in place and gotta start from scratch, then suddenly it doesn’t sound like a great idea anymore.

 

[Analog Kid]

Cydia is going to have a much stronger case than Epic, since they predate the App Store and were deliberately muscled off of the devices by the manufacturer, only after the manufacturer launched a competing service. Textbook definition of antitrust behavior.

By ”muscled off”, you mean “closed privilege escalation vulnerabilities allowing third parties to seize control of your device”, right?

 

[visualseed]

By ”muscled off”, you mean “closed privilege escalation vulnerabilities allowing third parties to seize control of your device”, right?

Cydia tried to build a commercial business off the backs of people breaking their EULAs and are now arguing antitrust. It didn't work for Psystar and it won't work for Cydia either.

 

[Maximara]

If they weren't clear, my comments regarding share were speaking to the "share" piece of the pie that can be used in antitrust cases regarding monopolies. 50% (generally!) share is a necessary or minimum condition, among other potential things.

it is possible does NOT equate to generally. More over I will take an actual ruling by a judge (Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21) or an actual lawyer says (Hoeg) rather than what some webpage cranked out by nobody knows whom (most likely not a lawyer and certainly not a judge) that is likely out of date.

"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."

The very judge Apple is in front of has already ruled that 65% is the bare minimum and could only give an incipient ('if you come close then you are in violation') ruling based on state law. Effectively that court was saying that getting a ticket for driving 34 MPH in a 35 MPH zone (ie under the limit) was still valid because you were close to going over. If that sounds a dumb as dirt the Ninth Circuit rightly put that thing on hold until the Epic case works its way through the appeals process. I seriously doubt the Ninth Circuit would be happy if that wonky California law is invoked again.

 

[Maximara]

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

There were four Supreme Court antitrust cases in 2007:
* Weyerhaeuser Co. v. Ross-Simmons Hardware Lumber Co.(Case No. 05-381, decided February 20, 2007)
"In this case, the Supreme Court rejected a claim that the defendant had attempted to monopolize a market by engaging in “predatory bidding” for a key input in that market."
* Bell Atlantic Corp. v. Twombly (Case No. 05-1126, decided May 21, 2007)
* Credit Suisse Securities (USA) LLC v. Billing (Case No. 05-1157, decided June 18, 2007)
* Leegin Creative Leather Products, Inc. v. PSKS, Inc. (Case No. 06-480, decided June 28, 2007)

"These decisions reflect a faith in markets. Leegin and Ross-Simmons show that the Supreme Court believes that market participants ought to enjoy greater flexibility in choosing how to do business, unencumbered by the threat of antitrust lawsuits." - Supreme Court Antitrust Rulings

In Oct 2020 there were two:
* AMG Capital Management v. Federal Trade Commission
"unanimously held that the Federal Trade Commission (FTC) is not authorized to demand monetary relief for the purpose of obtaining restitution under section 13(b) of the Federal Trade Commission Act."
* NCAA v. Alston

 

[Analog Kid]

Easy?? These discussions have largely been generalizations.

Yes, picking a number is easier than understanding its meaning.

As I've tried to say here, 50% is generally considered the minimum needed for the "share" criteria when evaluating whether or not a company may be a monopoly or have monopoly power.

No you haven’t. What you said, and what I responded to was this:

Again, monopolies are generally considered anything over 50% share.

That is straight up wrong. Also, there is no “share criteria”.

At least in the U.S.

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.

No, specifically not in the US. From the document linked by the ”Update” directly above the Section 2 report you quoted:

”WASHINGTON — Christine A. Varney, Assistant Attorney General in charge of the Department’s Antitrust Division, today announced that the Department is withdrawing, effective immediately, a report relating to monopolization offenses under the antitrust laws that was issued in September 2008. As of today, the Section 2 report will no longer be Department of Justice policy. Consumers, businesses, courts and antitrust practitioners should not rely on it as Department of Justice antitrust enforcement policy.”

It was withdrawn in 2009. You do realize that if it was active policy, it wouldn’t be in the “archives”, right? 🤦‍♂️

 

[PlayUltimate]

Cydia is going to have a much stronger case than Epic, since they predate the App Store and were deliberately muscled off of the devices by the manufacturer, only after the manufacturer launched a competing service. Textbook definition of antitrust behavior.

Perhaps. But the only way that they could get on the device was by having the user break the EULA. That might make it an illegal modification of a device regulated by the FCC.

 

[Analog Kid]

Cydia tried to build a commercial business off the backs of people breaking their EULAs and are now arguing antitrust. It didn't work for Psystar and it won't work for Cydia either.

"The Court finds that, having having successfully picked your front door lock, the Plaintiff is entitled to list your spare bedroom on Air B&B."

 

[5232152]

With respect you are NOT smart enough to know what to do and not do if you go anywhere near an app store such as Cydia.
Malware writers etc are smarter than you and if they can outsmart and hack the federal government then with respect you will be child's play.

Calling MacOS and Window malware filled cesspools are we? Your logic is flawed, good sir.

 

[5232152]

The point is not about whether users can handle multiple app distributions. What I see is that some apps may choose to only be available on one app distribution, forcing users to use a specific app distribution. Does anyone protect the choice from some of us who "choose" to stay in the walled garden? Quite a hypocrite to those developers who dreamed themselves to be a destructor. And honestly, it is even not enough to target the general developers who infringe on the user's privacy, how can legislators frivolously "regulate" the platform first?

Will this leave to potential problems? Obviously. But remember when App store had a calculator that would let you Wifi bridge other devices. The garden isnt as safe as you wanted it to be. On top of that, I also trust Apples developer team to be able to come up with some format where apps are forced to taddle if they use information outside of what they are allowed (or just plain block them). On top of that sandboxing each app on boot would be in the realm of possible solutions.

 

[falkon-engine]

Are you saying that Cydia was ever an easy to install product, or did they need to create a malware installer to get it onto your system? It's pretty clear that the iPhone/iOS ecosystem was always designed to be a walled garden and rather than sue Cydia like they maybe would any other malware vendor they could identify by name, they chose to make it irrelevant by simultaneously viewing their own security holes as their own problem, and making people less interested in hacking capabilities onto their device by making their first party experience more desirable.

Likewise, are you saying that the licensing terms are an exercise of monopoly power? Because Apple clearly had no monopoly power in phones when the iOS restrictions were put in place and therefore couldn't be leveraging that power to achieve a monopoly in another market. Apple has seen the hardware/software/distribution model as unified since the early days when they were still a scrappy little upstart.

iOS is based on MacOS, but it is not MacOS so MacOS is irrelevant to this discussion, just like saying CrackerJacks and Grandma's cookies are too sweet and don't need to be because Frito Lays also sells Doritos which are too salty instead. Different products, different solutions, different discussions.

Saying a company can't provide an integrated experience and using the power of government to kill a valid and useful technology model is going to have all kinds of negative repercussions. I get that some minority of people want the iOS ecosystem to be different, and for whatever reason don't want to go with Android which offers all the wonderful features they seem to find so valuable, but that's not a reason to bring Big Brother in to punish legitimate, and popular, technological design decisions.

There’d be no reason to jailbreak to install cydia if other app stores were allowed in the first place. We all saw the benefit it brought to iOS…apple in fact went on to integrate many of the tweaks found on cydia into the OS itself. In fact cydia was the first App Store before apple decided an App Store was a thing to have. The original iPhone didn’t launch with an App Store if you remember.

It doesn’t matter if the apple ecosystem was designed to be a walled garden, the question is are Apple’s terms an illegal restriction of trade between willing parties? Also, does apple have an illegal monopoly over the iOS app distribution market, restricting otherwise competition (not competition between apps in the App Store, but rather competition between apple and other app distributors?).

You’re cute with the frito lay reference but I point out that iOS is based on macOS because they share the underlying kernel code and device drivers. I don’t know where the iOS/iPadOS kernels diverge from macOS kernel, but the kernels are similar. The kernel is where all the memory management and device drivers live. IOKit et Al. It is where malware attacks. So the point I’m making which you conveniently seem to ignore or perhaps it goes over your head is: if the macOS kernel is safe enough for apple to allow sideloading on an m1 processor in a Mac and iOS and iPadOS run the same or nearly the same kernel (with iPad using the same m1 as in a Mac), why is apple pushing this rhetoric about sideloading would destroy privacy and enable malware ? Why is the m1 in a Mac allowed to run code from outside the App Store but the same exact processor inside an iPad is restricted and locked down?

I’m looking forward to see how the courts rule on the issue it is a worthy discussion to have. Good day.

 

[Maximara]

Yes, picking a number is easier than understanding its meaning.

No you haven’t. What you said, and what I responded to was this:

That is straight up wrong. Also, there is no “share criteria”.

No, specifically not in the US. From the document linked by the ”Update” directly above the Section 2 report you quoted:

”WASHINGTON — Christine A. Varney, Assistant Attorney General in charge of the Department’s Antitrust Division, today announced that the Department is withdrawing, effective immediately, a report relating to monopolization offenses under the antitrust laws that was issued in September 2008. As of today, the Section 2 report will no longer be Department of Justice policy. Consumers, businesses, courts and antitrust practitioners should not rely on it as Department of Justice antitrust enforcement policy.”

It was withdrawn in 2009. You do realize that if it was active policy, it wouldn’t be in the “archives”, right? ?‍♂️

I pointed that out in post 288 by citing the header to that material which read (and I will again quote the thing) "This is archived content from the U.S. Department of Justice website. The information here may be outdated and links may no longer function."

More over I cited (several times) an actual court case by the very Judge that Apple is going in front of (and whose case actually involved Apple) regarding the minimum percentage for a monopoly being 65% and "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

As you can see that didn't stop this "monopolies are generally considered anything over 50% share" claim being rolled out again like a Trump supporter claiming that 'the election was stolen' even though investigation after investigation showed that no such steal took place.

 

[Beautyspin]

it is possible does NOT equate to generally. More over I will take an actual ruling by a judge (Case 4:20-cv-05640-YGR Document 812 Filed 09/10/21) or an actual lawyer says (Hoeg) rather than what some webpage cranked out by nobody knows whom (most likely not a lawyer and certainly not a judge) that is likely out of date.

"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."

The very judge Apple is in front of has already ruled that 65% is the bare minimum and could only give an incipient ('if you come close then you are in violation') ruling based on state law. Effectively that court was saying that getting a ticket for driving 34 MPH in a 35 MPH zone (ie under the limit) was still valid because you were close to going over. If that sounds a dumb as dirt the Ninth Circuit rightly put that thing on hold until the Epic case works its way through the appeals process. I seriously doubt the Ninth Circuit would be happy if that wonky California law is invoked again.

EPIC GAMES is appealing the decision (and of course, so is Apple). However, Whitehouse, 35 state AGs have filed Amicus Briefs supporting EPIC in this case. The list of parties who have filed Amicus briefs supporting EPIC is given at the end of the following article. There are many.

Epic largely lost to Apple, but 35 states are now backing its fight in a higher court

Microsoft and the EFF are, too.

www.theverge.com

DocumentCloud

www.documentcloud.org

The following is an excerpt from the joint brief submitted by the AGs of the 35 states. It looks very tough for Apple to get a similar ruling in the appeal.

"Epic's brief highlights what a proper balancing test would look like in this case. And Amici States have a significant interest in seeing that
the test occurs. Apple's conduct has harmed and is harming mobile app developers and millions of citizens within the Amici States' boundaries. Meanwhile Apple continues to monopolize app-distribution and in-app payment solutions for iPhones, stifle competition, and amass supracompetitive profits within the almost trillion-dollar-a-year smartphone industry. Apple must account for its conduct under a complete rule of reason analysis."

 

[teh_hunterer]

I don't accept the supposition that the iPhone's security is the result of Apple's self-directed monopoly on app distribution. For example, what prevents Apple from offering the app validation they perform now on apps distributed elsewhere, like Apple's MFI Certification Program for hardware? They could charge vendors a fee for the program the same as they do for MFI.

As I said, whether you want to admit it or not, the inherent security and simplicity of the iPhone is a core selling point. There is a huge market out there that does stuff differently which you are welcome to buy into. Android is the majority, in case you didn't notice.

As for "what prevents Apple?" - the fact they don't want to do the thing you want them to do.

Consumers don't buy into an ecosystem expecting it to turn into an anti-competitive monolith.

Consumers have had over a decade to understand the iPhone ecosystem, and clearly choose to keep buying in over and over.

And Apple doesn't have to violate our antitrust laws. We all have options.

Just because you don't like the way Apple does iOS, doesn't mean it's illegal.

 

[webkit]

it is possible does NOT equate to generally.

Generally considered means generally considered and can vary by country, case, etc. and may be higher or even lower than 50% (hence, generally). However, it is not necessarily about reflecting the average or typical. The minimum age to be President of the United States is 35 but most presidents have actually been much older.

 

[BootsWalking]

As I said, whether you want to admit it or not, the inherent security and simplicity of the iPhone is a core selling point.

Where did I claim Apple's security and simplicity was not a core selling point? What I said was locking down app distribution wasn't necessary to achieve that.

There is a huge market out there that does stuff differently which you are welcome to buy into. Android is the majority, in case you didn't notice.

It's not what I want or don't want. It's what will be required of Apple by the FTC.

As for "what prevents Apple?" - the fact they don't want to do the thing you want them to do.

Again, it's not what I want them to do but what the FTC and Federal Government will eventually compel them to do.

Consumers have had over a decade to understand the iPhone ecosystem, and clearly choose to keep buying in over and over.

Consumers had even longer to understand Standard Oil, Microsoft, and others. That has no relevance to what the government will find in terms of Apple's anticompetitive practices.

Just because you don't like the way Apple does iOS, doesn't mean it's illegal.

Again, nothing to do with what I think or want but instead what the government will want.

 

[webkit]

Yes, picking a number is easier than understanding its meaning.

I understood exactly what I meant by my share percent comments; if it was unclear to others, fine. These discussions have largely been in generalizations anyway.

It was withdrawn in 2009. You do realize that if it was active policy, it wouldn’t be in the “archives”, right? ?‍♂️

Just because something is archived doesn’t mean it isn't still applicable or can't/doesn't reflect current standards; especially as lawyers and courts often use past cases, rulings, etc. as guidance in current cases. Do you have something else from the DOJ regarding all courts requiring a company's share be above 50% to qualify to be even considered a monopoly or have monopoly power? Again, the discussions here have largely been generalizations and even the 50% in the DOJ statement said that the percentage could be higher or lower. Rules, regulations, etc. can also vary by country. Hence, "generally." There are multiple factors.

 

[teh_hunterer]

Where did I claim Apple's security and simplicity was not a core selling point? What I said was locking down app distribution wasn't necessary to achieve that.

It is. If you don't like it, then you fundamentally disagree with one of the major design philosophies behind the iPhone - I'd suggest buying something else.

Consumers had even longer to understand Standard Oil, Microsoft, and others. That has no relevance to what the government will find in terms of Apple's anticompetitive practices.

You said: "Consumers don't buy into an ecosystem expecting it to turn into an anti-competitive monolith."

Customers have been buying the iPhone for over a decade, and continually choose to buy in over and over. Your repeated assertion that they're buying the product with one expectation and instead getting something else is simply ridiculous. It has operated like this for 14 years.

It's not what I want or don't want. It's what will be required of Apple by the FTC.


Again, it's not what I want them to do but what the FTC and Federal Government will eventually compel them to do.

Again, nothing to do with what I think or want but instead what the government will want.

What I see here is you complaining that Apple didn't design the iPhone the way you want them to. Guess we'll have to wait and see if the government forces them to incorporate your preferred design philosophy.

 

[BootsWalking]

What I see here is you complaining that Apple didn't design the iPhone the way you want them to. Guess we'll have to wait and see if the government forces them to incorporate your preferred design philosophy.

What you see is apparently what you want to see rather than what is contained in the text I actually posted.