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

[visualseed]

Apple iOS has approximately 58% share of mobile OS market in the U.S. (percentage can vary by country) and since Apple's App Store is the "exclusive" app store for that market, it could potentially be argued that the App Store therefore has similar share and monopoly power. This can depend on how the jurisdiction/judge/etc. decides to define share.

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.

 

[MacheadSK]

This is just to get some money from Apple. Yes, I used Cydia on jailbroken iPhone in early days, after all, jailbreaking and SIM unlocking was the only way how to use 1st gen outside of US.

Anyway, claims about Apple preventing running Cydia are only for uneducated public and mainly judge.

we have to realize that every jailbreak for every iOS version was possile only by discovering and using a security bugs, nothing else. And it’s absolutely logical Apple has been closing such bugs to prevent any harm, like it’s doing on macOs and like every software maker does. Not to prevent Cydia but to protect users data.

 

[coolfactor]

Automobile manufacturers aren't allowed to restrict where we buy gasoline for our cars, and smartphone makers shouldn't be allowed to restrict where we buy apps for our phones.

That's a poor analogy. That's like saying that Apple controls where we can get the electricity from to charge our iPhones, which is totally not true!

A closer analogy would be replacement parts for the car's engine, and automobile manufacturers do exert some level of control over that!

 

[jav6454]

I understand the reasoning behind that case but my point was computer makers still had choice too which is what you were saying about consumers having the choice of going with Android instead of iOS.

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.

 

[coolfactor]

First sales doctrine? It's not their hardware

So they should not run iOS on it at all, then, according to the First Sale Doctrine that you're referencing.

See here:

1854. Copyright Infringement -- First Sale Doctrine

This is archived content from the U.S. Department of Justice website. The information here may be outdated and links may no longer function. Please contact webmaster@usdoj.gov if you have any questions about the archive site.

www.justice.gov

Most computer software is distributed through the use of licensing agreements. Under this distribution system, the copyright holder remains the "owner" of all distributed copies. For this reason, alleged infringers should not be able to establish that any copies of these works have been the subject of a first sale.

If Cydia was a complete replacement for iOS, that would be a totally different story, but it is not.

 

[teh_hunterer]

Automobile manufacturers aren't allowed to restrict where we buy gasoline for our cars, and smartphone makers shouldn't be allowed to restrict where we buy apps for our phones.

Ridiculous analogy. Automobile manufactures aren't required to help you install your own software over what came installed in the car, just like Apple isn't.

 

[teh_hunterer]

Its wrong to sell a peice of hardware but not the means to control it to whatever extent you wish.

Why?

 

[fishkorp]

2 things I’d like to mention.

First, early in the thread a lot of folks were arguing about doing what you want to your device. For many people (and I’m assuming a majority in the US), it’s not your device. If you’re on an installment plan through Apple or your carrier, it’s their phone until paid off. Not yours. Similar to the restrictions you have when leasing a car.

Second, I’m chiming in on the piracy aspect of this. Because a lot of people don’t understand how damaging this could be to small developers. Many make the argument that “they weren’t going to pay for it anyway.” True. But what about backend costs? People don’t consider that. I do, you know why? Because it nearly bankrupted me. I had a fairly popular app back in iOS 4. It was one of the first that used push notifications and the costs were pretty high for what was happening on the server powering the core functionality of the app. Once people started installing pirated copies my costs kept skyrocketing. Once my monthly costs were 3x my monthly revenue I had to throw in the towel. And people saying devs can switch to IAP instead, you can circumvent that. Ask even easier if they allow side loading. I won’t mention the name, but you can install something on Android that runs as a proxy and any IAP goes through that and is approved. The same will happen with iOS. Sideloading will be the death of a lot of small developers.

 

[duffman9000]

He (the judge) made a mistake and the win that Apple got is likely to be temporary. The following is an analysis by an Apple defender.

Demarcation between Section 1 (concerted action) and Section 2 (unilateral conduct): what Apple, Epic Games, and their amici tell the Ninth Circuit

No matter how hard I try, I can't think of a more fundamental question of U.S. antitrust law than where to draw the line between Section 1 (...

www.fosspatents.com

You think Florian is accurate? LOL… that guy has been wrong so many times over the years it’s not even funny anymore.

 

[amartinez1660]

Right!!!

Everything I have seen from these people is hypocrisy.

If Epic made their own phone with EpicOS I have no doubt apps would only be from an Epic Store. Will they allow Steam Store? Doubt it.

I looked at many forums and many posts for so many years now.

The people who want Apple to have a third party store or side loading ar just pirates. They say they want choice!! Support developers!! Cheaper apps!!!

It’s all lies. They want to pirate apps and side load them. Almost every time I saw these people they were about 20 years old average and want everything for free. They won’t give one cent to developers if there is side loading or another store.

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.

 

[amartinez1660]

2 things I’d like to mention.

First, early in the thread a lot of folks were arguing about doing what you want to your device. For many people (and I’m assuming a majority in the US), it’s not your device. If you’re on an installment plan through Apple or your carrier, it’s their phone until paid off. Not yours. Similar to the restrictions you have when leasing a car.

Second, I’m chiming in on the piracy aspect of this. Because a lot of people don’t understand how damaging this could be to small developers. Many make the argument that “they weren’t going to pay for it anyway.” True. But what about backend costs? People don’t consider that. I do, you know why? Because it nearly bankrupted me. I had a fairly popular app back in iOS 4. It was one of the first that used push notifications and the costs were pretty high for what was happening on the server powering the core functionality of the app. Once people started installing pirated copies my costs kept skyrocketing. Once my monthly costs were 3x my monthly revenue I had to throw in the towel. And people saying devs can switch to IAP instead, you can circumvent that. Ask even easier if they allow side loading. I won’t mention the name, but you can install something on Android that runs as a proxy and any IAP goes through that and is approved. The same will happen with iOS. Sideloading will be the death of a lot of small developers.

Thanks for sharing your experience, didn’t think nor know some of these hacks existed or potential serious drawbacks.

I think there’s a hefty amount of shame that has disappeared over time… people will always want free money and free rides and more regulations, governments and their laws are allowing more of that by the minute. “The death of a lot of small developers” in those eyes will be a justified price to pay.

 

[5232152]

Except the amount of people using Cyda does not represent anywhere near a billion iOS users. The more users are there, the more potential issues to have.

Having the option does not mean you should. Easy.

 

[Sophisticatednut]

So they should not run iOS on it at all, then, according to the First Sale Doctrine that you're referencing.

See here:

1854. Copyright Infringement -- First Sale Doctrine

This is archived content from the U.S. Department of Justice website. The information here may be outdated and links may no longer function. Please contact webmaster@usdoj.gov if you have any questions about the archive site.

www.justice.gov

If Cydia was a complete replacement for iOS, that would be a totally different story, but it is not.

Very interesting actually. And fascinating that EU and USA comes to the polar opposite conclusion.

In EU the copyrights holder loses all ownership of said copy after first sale. And the consumer gain complete ownership of his unique copy.

 

[BootsWalking]

Ridiculous analogy. Automobile manufactures aren't required to help you install your own software over what came installed in the car, just like Apple isn't.

Installable apps are a core feature of smartphones. They're not a core feature for cars.

 

[randyhudson]

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

No, all proceeds went to the World Wildlife Foundation

 

[jlc1978]

A standard form contract (sometimes referred to as a contract of adhesion, a leonine contract, a take-it-or-leave-it contract, or a [boilerplate] contract) is a contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position.
While these types of contracts are not illegal per se, there exists a potential for [unconscionability]. In addition, in the event of an ambiguity, such ambiguity will be resolved [contra proferentem] i.e. against the party drafting the contract language.

The OP claimed TOS/EULAs were unenforceable due to the doctrine of first sale; which is clearly incorrect. A contract may or may not be valid; or have terms that are declared unenforcable; but that is a sperate issue as you also point out, from TOS/EULA and first sale doctrine.

We always assume when side-loading is allowed on iOS that there will be flood of small, independent developers opening shops for boutique apps. What nobody considers is big business moving in and trying to corner the market with Walmart style app stores that focus on low-price, volume sales, with slim margins. Where they can pay their own developers to knock-off popular apps with low-cost imitators that satisfy the public's desire to not pay a lot for software while preying on developers that have to choose between getting a decent cut of lower sales or reaching more people knowing that if they don't distribute in that store their apps will just be knocked-off and they will lose those sales.

Good points. People assume that somehow this will be a bonanza and usher in a new era of prosperity and vast new app growth; when expereince shows that it may drive just the opposite.

If I have a finished iOS app that nanny Apple doesn't like for whatever arbitrary reason it decides that Tuesday, can I take it right to the Play Store?

Sure; just be smart up front what developer tools you use.

I think it would be far more versatile. There were so many functions on Cydia that benefited the user.
Imagine if Winterboard alone had been an App Store app? It showed us what iOS was capable of.

Yes. Constant crashing.

2 things I’d like to mention.

First, early in the thread a lot of folks were arguing about doing what you want to your device. For many people (and I’m assuming a majority in the US), it’s not your device. If you’re on an installment plan through Apple or your carrier, it’s their phone until paid off. Not yours. Similar to the restrictions you have when leasing a car.

Second, I’m chiming in on the piracy aspect of this. Because a lot of people don’t understand how damaging this could be to small developers. Many make the argument that “they weren’t going to pay for it anyway.” True. But what about backend costs? People don’t consider that. I do, you know why? Because it nearly bankrupted me. I had a fairly popular app back in iOS 4. It was one of the first that used push notifications and the costs were pretty high for what was happening on the server powering the core functionality of the app. Once people started installing pirated copies my costs kept skyrocketing. Once my monthly costs were 3x my monthly revenue I had to throw in the towel. And people saying devs can switch to IAP instead, you can circumvent that. Ask even easier if they allow side loading. I won’t mention the name, but you can install something on Android that runs as a proxy and any IAP goes through that and is approved. The same will happen with iOS. Sideloading will be the death of a lot of small developers.

Good points. Apple's 15% cut is a ceiling for alternative stores; and likely to make many unprofitable. Sideloading is likely to open up wider piracy and drive developers out of business. Apple's model has resulted in a decent market for developers and reasonable prices for users.

Up front costs are also likely to go up; with stores wanting to be paid for hosting, etc.; and Apple likely to add charges to make up for lost revenue if it has a material impact on their revenue.

Very interesting actually. And fascinating that EU and USA comes to the polar opposite conclusion.

In EU the copyrights holder loses all ownership of said copy after first sale. And the consumer gain complete ownership of his unique copy.

The US and EU are not that different overall. In the US, you still own the copy you bought and can dispose of it, watch it, etc. What you can't do is make copies and sell them as you do not own the copyright. If you license something, or sign a contract, you are bound by those terms as well.

I thought Windows Phone was dead. I had a 'Windows Phone', and a banana would have been just as usable.

You mean like this:

I have one. Gets interesting looks on the metro...

 

[PinkyMacGodess]

You mean like this:

View attachment 2011632

I have one. Gets interesting looks on the metro...

OMG!!! That's brilliant!!! LOVE 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)

 

[MedRed]

Apps don't represent a primary utility of automobiles. They do for smartphones.

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

 

[sorgo †]

Walmart has a monopoly on what is sold in Walmart. We are using monopoly in a ridiculous non economic way.

Exactly. Thank you for articulating this

 

[JM]

Has whatever you just did won you an argument, ever, or a friend? And there are no arbiters of facts, there are facts and not facts. Ie opinions even falsehoods, but facts remain as facts

Who decides what the “facts” are? ?

I don’t have a useful opinion in this anti-trust conversation, but you don’t get to claim your subjective opinion as “it’s just a fact, sweaty. ?”

 

[Maximara]

First sales doctrine? It's not their hardware

If it was that simple John Deere (and many other companies) wouldn't be doing the same thing with next to no serious legal challenges.

 

[cocky jeremy]

****ing stupid that they feel they deserve to be randomly given access to Apple's proprietary system.

 

[jonblatho]

Sure; just be smart up front what developer tools you use.

The correct answer is, with few exceptions, no — you cannot bring a completed iOS app to the Play Store without substantial work. Most iOS apps are built with Xcode using iOS’s native UIKit or SwiftUI APIs, which of course won’t work on Android.

The “few exceptions” are games — if you build your game with deprecated OpenGL or a cross-platform engine — and cross-platform development, which is risky because Apple reserves the right to reject apps which eschew UIKit and SwiftUI, and app review is notoriously fickle.

You know, it’s funny… We had an image URL in our iOS app at work which evidently upset Apple because it had “.ir” in the filename, because it thought that was referring to Iran’s TLD. Actually, it was referring to “infrared,” for an infrared weather satellite image. Last summer, Apple started rejecting our app updates out of nowhere (that URL has been the same for years) and wouldn’t approve it until that URL was gone from the app. Appeals wouldn’t work, even though we provided them with the image URL and they could plainly see that the image had nothing to do with Iran.

Thankfully, that image was no longer actively used anyway, so we were able to simply remove the URL altogether, but otherwise we’d have needed to make server-side changes for nothing — all because Apple apparently doesn’t know how to write a proper URL regex. It’s dumb.

 

[svish]

Legal troubles never seem to end for Apple…..

 

[Maximara]

Simply not true. Read the whole judgement in Apple vs. Epic.

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:

"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."