Friday, January 22, 2021

Filed complaints with competition authorities about Apple's and Google's COVID app rules

Reuters just reported on my antitrust complaints to competition authorities in multiple jurisdictions, challenging the basis on which they don't allow tens of millions of app developers to publish COVID-related apps on their stores, no matter how legitimate those apps may be.

In alphabetical order, these are the jurisdictions:

  • Australia: Australian Competition and Consumer Commission

  • European Union: European Commission, Directorate-General for Competition (DG COMP)

  • Germany: Bundeskartellamt (Federal Cartel Office)

  • The Netherlands: Autoriteit Consument & Markt (Authority for Consumers & Markets)

  • United Kingdom: Competition & Markets Authority

  • United States: Department of Justice

On Monday I will also file with the Competition Commission of India.

What these jurisdictions have in common is that they've all been particularly affected by COVID-19, and these competition authorities either have ongoing investigations or pending complaints or (in the case of the Federal Cartel Office of Germany) have expressed an interest in app platform antitrust issues.

For me it was quite a difficult decision to do this. I'd rather just have continued to watch cases like Epic Games v. Apple, but after much thought I concluded that the issue I have with Apple and Google in this context is part of a broader problem. When I made this decision, I had no idea that a U.S. antitrust lawsuit over Apple's COVID app rules--Coronavirus Reporter v. Apple--was being prepared. I learned about it only a couple of days ago, and commented on it today. But I figured that there'd be other legitimate COVID-related apps that must have been rejected only because they were not submitted by governmental entities or healthcare providers.

What my company had to do to our Corona Control Game in order to comply with Apple's and Google's rules is best explained with an analogy:

Imagine what it would have meant if the makers of the Titanic film had had to deal with only two movie theater operators, each of which controlled a distinct part of the world. Each of these cinema operators would have stated its rules slightly differently, but the net effect would have been the same: do the Titanic film without the Titanic ship, or else.

The distribution channel would have given no reason for that, or maybe it would have told the movie company that the Titanic was such a tragedy that it's offensive to create an entertainment product involving it.

The message would have been: you can make a movie about a sinking luxury ship. So if you name it "Sinking Ship", "Luxury Ship", or give it a fantasy name like "Dobogandalupa", that solves the problem with the title. But that's not enough: the ship must not look like the Titanic, it must not bear the name "Titanic", any tickets, posters or whatever must not contain that name, and, lest we forget, the actresses and actors must never say "Titanic".

Technically, it would be pretty much the same film if you analyze it purely quantitatively. You could have the same storyline and the same cast, but... it would be the Titanic film without the Titanic ship. It becomes a different product. A creative product like a game is not just a question of how many lines of your program code you can reuse (that percentage was obviously pretty close to 100%).

There were some opportunists who simply rebranded and rethemed sidescrolling jump-and-run games or Angry-Birds-style games to get attention for a "COVID" game. But those games weren't legitimate COVID games. Their gameplay had nothing to do with the problem of viral contagion, much less with disease control measures.

Despite the restrictions, some reviews noted the game's ability to make a positive contribution to the fight against COVID-19. Some examples:

That's nice, but it still doesn't solve the problem. People who are looking for a COVID-themed game should be able to find it, because it's a legitimate game about viral infections (this post continues below the video):

We also created a special edition, Viral Leaders Trump & Johnson, which Google approved, but Apple rejected. You can find it here (Android app, or as a browser game on Mac and Windows computers).

As the Reuters article notes, "Google and Apple rules say COVID-19 related apps must be government approved in order to avoid promoting conflicting or incorrect health advice" (and Apple just banned all COVID-related games, no matter how legitimate).

I have only this one issue with those companies (and with Google I disagree on API copyrights, but that's nothing new). I tend to agree with them on patent policy, especially when it comes to standard-essential patents. But their COVID app rules, which adversely affected my creative product and, as the Coronavirus Reporter v. Apple case shows, caused harm to other kinds of apps, are unreasonably restrictive--and the stated reason (ensuring that users aren't misinformed) is totally inconsistent with the fact that both Apple and Google distribute products that definitely misinform users in connection with COVID-19 and its symptoms:

On the App Store and on the Google Play Store, you can find homeopathy apps. Give me a break. That's a scam, and it's been debunked over and over. The Department of Justice--one of the agencies I'm complaining to--has even taken legal action against someone who recommended homeopathic medications in connection with COVID-19 ("U.S. Attorney’s Office Files Enforcement Action Against Chiropractor Promoting Fake COVID-19 Treatment").

If Apple and Google are all that concerned about people being misinformed during this pandemic, the best starting point is not to disallow an app like Coronavirus Reporter, which merely lets users communicate, or an educational game that was designed from ground up to encourage people--especially, but not only younger audiences--to comply with governmental disease control efforts. Instead, Apple and Google should purge their app stores of homeopathy apps.

It's not just that they're distributing homeopathy apps. It gets a lot worse. They even distribute books that tell people the best way to confront a pandemic is to rely on homeopathy. Here's the Apple Books Preview of Homeopathy for Epidemics, and here's the Google Play Store page. On the Google Play Store I even found this book: Ancient Bible And Modern Natural Secrets To Fight Virus Epidemics. Yeah, that's probably the best way to keep iOS and Android users healthy. The description of that book specifically mentions homeopathy. So some nutheads and some credulous people who believe in homeopathy will get infected and go on to infect others. And many of them will oppose vaccination. That's just what society needs these days.

I also don't understand why Apple allows a Mac app, Amphetamine, to be named after an addictive substance. In that case, the name simply isn't necessary: some may find it funny, but in reality it promotes bad stuff and there would be non-objectionable, even more descriptive alternatives.

While my game demonstrates the problem of viral infections and encourages good behavior, one of the most popular apps on both those stores has the following objective: "Infect the world." That other title is about creating a deadly pathogen and extinguishing humanity despite people's disease control efforts. If depraved and/or deranged people play that in the midst of a pandemic, such a game might even induce them to spread the coronavirus with full intent.

On this blog I'm not going to cover my own complaints more extensively than I would if others had brought the same complaints. Actually, there are things I won't say when I'm a complainant but do say when I just watch cases. I did, however, wish to shed some light here on why I did what I did.

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