Saturday, April 2, 2022

Microsoft rightly withdrew support for ACT | The App(le) Association (which it once created) -- why are Verizon, Intel, AT&T, Verisign still behind advocacy against 99.9% of app developers?

It's getting lonely around Apple. No one loves the Hermit App Kingdom. Still worse, hardly anyone even wants to be associated with it anymore in industry policy contexts--because of its App Store monopoly. This also weakens Apple's advocacy efforts around standard-essential patents (SEPs), despite the fact that the positions the Hermit App Kingdom takes in the SEP context are overwhelmingly shared by the likes of Samsung, Xiaomi, and OPPO, as well as all car makers and also companies like Intel and Cisco. Whether one agrees or disagrees with Apple on SEPs, there can be no question that it's merely the most powerful exponent of certain views on fair, reasonable, and non-discriminatory (FRAND) licensing terms, but far from the only one. When it comes to mobile app distribution terms and policies, however, the only party that has mutual interests with Apple is Google, as evidenced by this week's amicus curiae briefs in Epic Games v. Apple, where virtually all of the support for Apple came from entities backed by Apple itself and by Google, though even Google has issues with Apple (game streaming and messaging, for instance).

It is high time for Verizon, Intel, AT&T, and Verisign to reconsider their status as "sponsors" of ACT | The App(le) Association unless they believe it is conducive to their business to position themselves as co-sponsors of advocacy that goes against the interests of roughly 99.9% of the digital economy, which is now very much an app economy. I understand that they may all share Apple's views on SEP enforcement and licensing. But the end doesn't justify the means, guys. If Apple wants to astroturf, let Apple astroturf, but let Apple do it alone.

I applaud Microsoft for finally (I had been waiting for this for about a year) having withdrawn its support for ACT | The App Association, which by now should more accurately be called ACT | The Apple Association.

This is extremely significant because ACT was essentially founded by Microsoft more than two decades ago. When Microsoft got into antitrust trouble (over conduct that was laughably negligible compared to what we've seen from Apple and Google in recent years), it set up ACT according to none other than The New York Times, which wrote in June 2000 (according to a Wikipedia article): "[...] Microsoft has also created new trade groups, the Association for Competitive Technology (ACT) [now called ACT | The App Association] and Americans for Technology Leadership (ATL), to generate support for the company through Web sites and a sophisticated and largely hidden grassroots lobbying campaign."

Dr. Roy Schestowitz is the #1 Microsoft hater. I sometimes agreed with him on particular industry issues but he is really obsessed with Microsoft, while other companies are now the problem and Microsoft is on the right side of history with respect to app distribution. Dr. Schestowitz has written extensively about ACT's (past) ties with Microsoft. On this page of his TechRights blog you can find a number of links going back to the late 2000s. For him it must be like hell freezing over to see Microsoft abandon ACT.

I first encountered ACT when I was campaigning against a piece of software patentability legislation in Europe. At the time, Microsoft was very much in favor of strong patent enforcement, even including SEPs--but a few years later I already noticed that Microsoft was becoming more and more balanced, especially with respect to injunctive relief and, generally speaking, the balance between patent plaintiffs and defendants. As Microsoft became a moderate in patent policy, ACT changed direction, too, and warned against SEP abuse--after many years of taking a "the stronger, the merrier" position on anything involving patents, regardless of whether they are standard-essential or not.

That about-face on SEPs must have attracted Apple to the group. Intel already had an interest in ACT's advocacy when it faced some antitrust issues itself, and Intel--like Apple, to be fair--has also been very consistent about patents on industry standards.

At some point, ACT renamed itself. ACT (Association for Competitive Technology) became ACT | The App Association--and in such contexts as Philips v. Thales they make submissions to courts that suggest it's an IoT startup group. In reality, the way all those "members" became members appears to be that they just signed up for a newsletter, never paying any dues or undergoing the slightest vetting.

Without specifically mentioning ACT,'s Samuel Stolton discussed the problem of Big Tech Astroturfing in an excellent article in November 2021. Politico quoted German Member of the European Parliament (MEP) Alexandra Geese (Greens): " [M]any tech associations in Brussels, even those purporting to represent small- and medium-sized enterprises, are often bankrolled by Big Tech." The article discusses the problem of genuine small and medium-sized enterprise (SME) organizations being sidelined by deep-pocketed astroturfers.

I hadn't even noticed Microsoft's withdrawal from ACT until I saw a tweet by Epic CEO Tim Sweeney challenging ACT's claim that Epic Games never had small developers in mind. I replied with only a screenshot (the bottom section--because they try to hide those disclosures--of ACT's About page) to which I added an arrow):

As I was producing that image, I noticed that Microsoft was no longer listed. So I checked on the Internet Archive (Wayback Machine), where I found a January 24 capture of the same page. At that point, Microsoft was still listed between Apple and Verizon:

Microsoft's withdrawal from ACT is a reason to celebrate--and should really give Verizon, Intel, AT&T, and Verisign pause.

It's not a question of where one stands on SEPs. I'm pretty implementer-friendly, which is why I often agreed with Apple and even with ACT on specific SEP-related issues, but I look at it case by case, dispute by dispute. It's not that everything ACT said about SEPs is wrong--but to date I haven't seen a single statement by ACT on mobile app stores that wasn't an insult to human intelligence because no genuine representative of small app developers would ever say anything like the things they say.

What is also an insult to human intelligence is the suggestion that small app developers care about SEPs. Hardly any small app developer ever implements an industry standard: that's typically done by the platform itself. The iPhone implements 5G; an iOS app simply runs on the iPhone.

In February I commented on the most absurd thing ACT | The App(le) Association has ever done. It sponsored a "poll" that produced results like this:

"More than 60 percent of voters favor the federal government setting clear guidelines on what [FRAND] terms are for [SEPs] (61 percent favor / 32 percent oppose)."

You'd be lucky if even 0.61% of the general electorate (that's like 200 million people in the U.S.) knew what a SEP is.

I urge the likes of Verizon and Intel to take the following into consideration: It's one thing to lend support to organizations or academics because they take positions you like. That's par for the course in tech advocacy. It's another when an organization claims to speak for the victims of the app store tyranny but gets paid for it by the very tyrant. That's where every reputable and honorable company should draw the line. It's like setting up a pseudo-PETA, funded by the cosmetic industry, to defend animal testing, arguing that it actually benefits small animals.

Google--Apple's only ally (with limitations) in the app store context--has its own ACT called Developer Alliance. That's another story.

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