Friday, October 1, 2021

Not a class ACT: the so-called App Association is simply an Apple Association and does NOT represent app developers' interests in fair distribution terms

Enough is enough. While I have previously agreed, and may in the future agree, with ACT | The App(le) Association on some patent policy questions, its pro-Apple advocacy in the App Store antitrust context--which I already mentioned in May--gets worse by the month. Judges, policy makers, and journalists should see that lobbying scheme for what it is.

Three months ago, New York-based attorney David Cohen wrote a blog post entitled "On Deceptive Apps and Practices: Unmasking the ACT App(le) Association." Mr. Cohen was rightfully astonished when he saw ACT claiming to speak on small businesses' behalf at a Federal Trade Commission (FTC) hearing. I trust he will not attempt to assert any copyright against me for borrowing the term "App(le) Association" from him, and I appreciate that he quoted me in the aforementioned post.

Our criticism of ACT | The App(le) Association has since been validated by the vaunted New York Times in an August 27, 2021 article that contains the follownig passage:

"The biggest praise came from the App Association, an organization that claims to give 'a voice to small technology companies' but is funded by big technology companies, including Apple. 'Our members need Apple to continue to lead on privacy, security and safety to preserve the trust consumers have in platforms,' the group said." (emphases added)

In other words, Apple was using its mouthpiece named ACT to tell the media that Apple should continue with its stranglehold on app developers large and small. In reality, there's not a single app developer out there who truly thinks Apple's death grip is a good thing--and if any make public declarations to the contrary (which are few and far between), it's because they expect (which doesn't necessarily mean they've been promised) Apple to reciprocate that favor in some form or another.

If ACT respected not only itself but also, more generally, human intelligence, it would have realized that when the New York Times exposes an apparent lack of credibility and legitimacy, it's over. I mean, seriously, the NYT paragraph I quoted above should have given them and their other backers pause. Apple stops at nothing to defend its iOS app distribution monopoly, but other companies should be profoundly concerned that this App Store propaganda effort also discredits ACT's work on other issues, such as SEPs, regardless of whether those positions may be correct.

Instead of stopping its App Store crap, ACT even doubled down on its Apple propaganda on September 1, 2021, claiming that South Korea's recently-enacted law--which was a major breakthrough for app developers large and small--"will only benefit global brands like Spotify, Epic Games, and Tile while also potentially freezing out small business app developers in South Korea and around the world." In reality, small app developers are free to still use Apple's in-app purchasing (IAP) system in South Korea, just like before--they just have the additional option of using other payment systems. It's true that Spotify, Epic Games, and Tile are three of the most active #OpentheAppStore advocates, alongside many others such as Match Group (Tinder). But they don't really have clout in South Korea. In fact, Epic competes with major South Korean game makers.

Out of ACT's ten most recent public statements, three related to SEPs and seven to App Store issues. Small app developers don't implement SEPs. What we do is that we create apps for operating systems like iOS and Android that run on devices that implement SEPs. There are startups that implement SEPs, but they make hardware, not software, and apps are software. Another insult to human intelligence.

ACT is not alone in trying to advance Apple and Google's interests in monopoly maintenance. CCIA does the same, and they're a Google front in that regard--in their case, like in ACT's, I don't understand why other members, particularly those who have just the opposite interests as Google, accept it. But at least CCIA doesn't claim to speak for app developers. Whatever they say, they say as a lobby group representing large (and mostly American) tech companies. That's fair.

Google has its own ACT, and its called Developers Alliance (previously "Application Developers Alliance"). The "Developers" Alliance's policy statement on "digital platform competition" (though competition is precisely what they work against) begins with the following sentence: "Healthy companies that invest and innovate are integral to a successful developer ecosystem." No one would dispute that commonplace statement, but that's not the issue: Google and Apple have enough of an incentive and every ability to invest and innovate. What they lack, however, is reasonable competitive constraints with respect to app distribution. Resources alone don't create innovation--they would just end up being distributed to shareholders (dividends and share buybacks). It takes the combination of resources (i.e., a viable business model) and competitive pressure.

The "Developers" Alliance rarely takes positions on patent enforcement, and unlike ACT they at least appear to focus on patent policy issues that are indeed relevant to small companies, such as access to post-grant review before the Patent Trial and Appeal Board of the USPTO. The "Developers" Alliance's feedback to the European Commission's IP Action Plan discusses the need to protect trade secrets (which is indeed in the interest of companies large and small) and "[t]he prevention of potential abusive litigation practices." In that regard, the "Developers" Alliance is more sophisticated and selective than ACT, which will simply parrot Apple's positions on any issue, no matter how irrelevant to small app developers it may be.

That still doesn't make the "Developers" Alliance a legitimate representative of small developers. They're just more careful about not making themselves completely ridiculous.

The fight for app developers' rights has not ended with Apple's victory over Epic, a decision that merely marks the end of the beginning (even in that dispute, which will probably end up being adjudged by the Supreme Court). Apple and Google have every right to state their positions, but app developers (like me) have the right to contradict in no uncertain terms when others falsely claim to represent us.

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