Friday, January 22, 2021

Coronavirus Reporter complaint against Apple raises serious antitrust issues: Apple's COVID app rule should be declared illegal (Google's isn't better)

After almost six months of commenting on App Store antitrust cases, above all Epic Games v. Apple, the time has come for me to state clearly that, just like Epic, I am convinced that Apple and Google have monopoly power in their respective app distribution markets. And while the focus varies from app maker to app maker, I, too, have experienced and continue to experience abusive conduct by both.

So far, I had expressed firm opinions solely on aspects of Epic's case against Apple that related to access to emergency relief (temporary restraining order, preliminary injunction). Especially after I heard Judge Yvonne Gonzalez Rogers (Northern District of California) tell counsel for Epic and Apple that the key issues in the case wouldn't be decided at that early stage, I wanted to take my time to understand. Now, I'm not saying I necessarily agree with Epic on each and every aspect of its cases (though I may when the cases go to trial), and I'm particularly not taking a position on the 30% cut yet. But there's one thing I can say at this stage: I definitely concur with Epic's definition of app distribution markets and its assertion that Apple and Google possess monopoly power in those markets.

The clearest case of abuse of that monopoly power to have come to light so far is the Coronavirus Reporter v. Apple litigation in the District of New Hampshire (this post continues below the document):

21-01-19 Coronavirus Report... by Florian Mueller

The Coronavirus Reporter app, if Apple had not withheld it from the iOS user base, would have served as a communication s tool. People could have reported their COVID-19 symptoms along with their location, their health status, their test results, and whether they were in quarantine. For screenshots etc. let me refer you to this article by The Register's Thomas Claburn.

At a time when there was no corona app on the App Store, the Coronavirus Reporter development team submitted its app, but Apple rejected it because it would accept COVID applications only "from recognized institutions such as government, hospital, insurance company, NGO, or a university." Shortly thereafter, Apple published an updated version of that clarification of how it intended to interpret its review guidelines, hypocritically entitled Ensuring the Credibility of Health & Safety Information. Later today I will publish evidence that Apple actually does the very opposite in connection with a list of products, and I'm not talking about user-generated content, which Apple obviously couldn't control.

The Apple statement I just linked to is outrageous. The first paragraph is simply a marketing statement and, as I just said, Apple's own decisions belie it.

The second paragraph says Apple is "evaluating apps critically"--but if that's what Apple truly meant, they'd have to review COVID-related submissions on an app-by-app basis, and not just rule out broad categories of submissions ("Entertainment or game apps with COVID-19 as their theme will not be allowed.") without sifting the wheat from the chaff, and they wouldn't reject COVID-related apps from tens of millions of developers when those apps, like Coronavirus Reporter, could be developed by anĂ½ developer. In Coronavirus Reporter's case, what makes it even more absurd is that they actually claim to have NASA's former Chief Physician (during the Space Race) on their team. But that shouldn't even be necessary for an app that is all about the information exchange between users.

The complaint is right that Apple's COVID contact-tracing initiative, on which they ultimately partnered with Google, failed to deliver significant benefits to society. Some of the world's most reputable media have discussed the failure of contact-tracing apps (except, of course, in a few countries such as China and South Korea, where they did have an effect but where their use was mandated by governments). Here's a headline from a November 2020 TIME magazine article:

"Contact Tracing Apps Were Big Tech's Best Idea for Fighting COVID-19. Why Haven't They Helped?"

Coronavirus Reporter is suing Apple for damages and seeking a permanent injunction that would "restraining Defendant’s App Store from restricting reasonable applications from access to the global internet." I, too, believe Apple is liable for damages because its position on COVID apps constitutes monopoly abuse; I agree with Coronavirus Reporter that "the Apple App Store violates antitrust law by disallowing third-party applications using arbitrary and capricious standards"; and I do believe Apple's conduct should be enjoined, though I'd have phrased the prayer for injunctive relief differently (I don't see a point in that reference to "the global internet" when it's about the ability to have access to the iOS user base; and I'd have to think about whether the requested injunction would have to be a bit more specific).

The complaint notes that other app developers have received similar treatment from Apple. I'm one of them, and I'm sure there are many others. Apparently Coronavirus Reporter's lawyer would like to put together a class action, for which he needs other plaintiffs to join. If the prayer for injunctive relief was phrased differently, and if the complaint could be amended (though it already does make a number of very good points), I would give serious consideration to joining. If I don't join, I'll evaluate the possibility of filing an amicus curiae brief in support of plaintiff at some point.

My next two posts will also discuss App Store issues. I'm now officially a member of the #AppRising movement. That doesn't mean that I agree with every single app developer on everything; in fact, that would even be impossible, given that it's a diverse group of people and entities. But I, too, have concluded that the most noble cause in the history of the tech industry is to fight against Apple's and Google's abuse of their app distribution monopolies. (Google's position on COVID-related apps isn't really better than Apple's.)

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