Judge upholds Apple delisting of free Musi app that streams songs from YouTube

Judge tosses Musi case against Apple, sanctions lawyers for "mak[ing] up facts."

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[poochyena]

McDonald’s isn’t the only place you can get sauce compatible with your Big Mac though: you can buy a Big Mac and there’s nothing they can do to stop you adding sauce from anywhere else, or to impede anyone else selling sauce, so that analogy isn’t valid.

You'd have to leave the McDonalds ecosystem to do that. Nothing stopping you from leaving McDonalds much like nothing stopping you from leaving iOS and getting android.

 

[The Wonderful Wizard]

It's called freedom of association. You cannot compel a company to do business with you when you violate their pretty clear and reasonable terms of service.

You can legislate to require a company give up legal rights to gain legal benefits: free speech for tax exemption, for example. There’s no reason that the corporate veil couldn’t be made conditional on providing service to all comers, except where service is at capacity or serving one customer is incompatible with serving another. it’s worth remembering that in the 19th century freedom of association was expanded to include the right to blacklist union members

 

[The Wonderful Wizard]

There are narrow exceptions to this - it is possible for a successful antitrust suit in the instance of a single brand aftermarket -

https://supreme.justia.com/cases/federal/us/504/451/

But, to quote the 9th circuit in Epic vs Apple ....

In sum, to establish a single-brand aftermarket, a plaintiff must show: (1) the challenged aftermarket restrictions are “not generally known” when consumers make their foremarket purchase; (2) “significant” information costs prevent accurate life-cycle pricing; (3) “significant” monetary or non-monetary switching costs exist; and (4) general market-definition principles regarding cross-elasticity of demand do not undermine the proposed single-brand market

And the iOS app store being the only source of native apps on the iPhone is pretty 'generally known' at this point, so the test fails at the first hurdle.

I think the disconnect here is that you’re talking about what the law is, whereas I (and others) are arguing effectively that the law should be changed so that any attempt to lock in a situation where test 3 (or, for some, 3 and 4) alone is true should be sufficient to render that aftermarket with a single brand an illegal single brand aftermarket. Then there’s those who want that to apply in all circumstances, such as myself, and those who would be satisfied if it only applied when the majority of the market for the primary product engaged in those practices.

Ie you seem to be arguing that the decision was good law, we’re arguing that it’s a bad law. The two positions aren’t contradictory.

 

[The Wonderful Wizard]

You'd have to leave the McDonalds ecosystem to do that. Nothing stopping you from leaving McDonalds

No you don’t, you can bring in a bottle of your favourite sauce, or you can modify your takeaway to your heart’s content with no risk of prosecution for telling people how to lift the top off the bun.

much like nothing stopping you from leaving iOS and getting android.

Except if you want a phone less riddled with first-party spyware, all the corporate lickspittles will tell you “nothing stopping you leaving android and getting an iPhone” - and Google are moving to lock down android so even that advantage is going away. Google are even more deeply in bed with the US government too

 

[poochyena]

No you don’t, you can bring in a bottle of your favourite sauce, or you can modify your takeaway to your heart’s content with no risk of prosecution for telling people how to lift the top off the bun.

They have the right to kick you out of the store for doing that.

Except if you want a phone less riddled with first-party spyware, all the corporate lickspittles will tell you “nothing stopping you leaving android and getting an iPhone” - and Google are moving to lock down android so even that advantage is going away. Google are even more deeply in bed with the US government too

I said android, not google. If you don't want a google phone or OS, then get an android phone that wasn't made by google and install non-google OS and apps.

 

[The Wonderful Wizard]

They dont want to be responsible for anything you might put on the phone. Would you be ok with it if sideloading voided your warranty?

If an unprivileged app, side loaded or not, can damage a phone, it’s a broken phone in the first place.

 

[Cloudgazer]

I think the disconnect here is that you’re talking about what the law is, whereas I (and others) are arguing effectively that the law should be changed so that any attempt to lock in a situation where test 3 (or, for some, 3 and 4) alone is true should be sufficient to render that aftermarket with a single brand an illegal single brand aftermarket. Then there’s those who want that to apply in all circumstances, such as myself, and those who would be satisfied if it only applied when the majority of the market for the primary product engaged in those practices.

Ie you seem to be arguing that the decision was good law, we’re arguing that it’s a bad law. The two positions aren’t contradictory.

But even 3) gets you nowhere because there are not any significant switching costs for consumers to get out of iOS anymore. What does it cost them? Loss of all their premium paid apps? Hardly any such apps even exist anymore. This isn't 2009. The switching cost is a new phone, which people get every couple of years anyway.

 

[anguisette]

Thats all well and good, but by denying sideloading they save themselves the headache of honoring warranty repairs caused by the negligence of stupid users installing stupid programs.

yes, obviously denying warranty repairs benefits the company at the expense of consumers and they will always try to do that where legally possible. but why would anyone defend that? do you really think Apple would go bankrupt if they had to shoulder the cost of warranty repairs for people who somehow broke their phone by installing software on it?

 

[Cloudgazer]

"b) be totally fine if Apple voided your warranty if you did side load / used a 3rd party store." Oh ya, this totally sounds sane.

Um - did you mean to reply to somebody else?

 

[anguisette]

Ie you seem to be arguing that the decision was good law, we’re arguing that it’s a bad law. The two positions aren’t contradictory.

fwiw, i have no problem with the decision in this case as i understand it. Apple should not be required by the government to distribute apps in their app store if they don't want to; that's a clear 1A violation and a type of compelled speech that should be anathema to anyone who calls themselves a liberal.

what Apple should be required to do is permit users to install third-party applications or app stores on phones that they own. i've never really understood why the Ars commentariat seems to be so in favour of this for things like third-party printer ink or right-to-repair, but is staunchly opposed to it when it comes to phones.

 

[shayne.oneill]

Even though I understand why the ruling went the way it did, I kinda wish the judge had ruled on Musi's compliance with the TOS rather than whether Apple can remove apps without cause. Because the without cause precedent sucks for developers, but a with-cause ruling (ie that musi broke the terms) more directly addresses the harm claimed, that Musi is violating IP rights.

 

[The Wonderful Wizard]

But even 3) gets you nowhere because there are not any significant switching costs for consumers to get out of iOS anymore. What does it cost them? Loss of all their premium paid apps? Hardly any such apps even exist anymore. This isn't 2009. The switching cost is a new phone, which people get every couple of years anyway.

I would define significant in relation to the price of the accessories someone is trying to sell as well as the absolute: if the switching cost is hundreds of times the price of the accessory, that’s a significant barrier to selling said accessory. That said, it seems to me that to some extent we can rely on the judgement of the respondents: if a barrier was worth artificially creating, they clearly thought it would be significant

 

[GreyAreaUK]

A lot of apple fans around here that don

Running windows does not make you beholden to MS. You are free to buy your software from whomever you please.

And you can say exactly the same thing for macOS.

 

[gnasher729]

yes, obviously denying warranty repairs benefits the company at the expense of consumers and they will always try to do that where legally possible. but why would anyone defend that? do you really think Apple would go bankrupt if they had to shoulder the cost of warranty repairs for people who somehow broke their phone by installing software on it?

“Apple won’t go bankrupt” is not a reasonable argument. Apple will also not go bankrupt if you go to the store and steal an iPhone.

Apple reviews apps before they go on the store. They shouldn’t damage your phone because Apple reviewed them. If you are sideloading an app or buy on a different App Store, Apple hasn’t reviewed anything, so any damage is between you and the app maker or the store where you bought.

 

[gnasher729]

Even though I understand why the ruling went the way it did, I kinda wish the judge had ruled on Musi's compliance with the TOS rather than whether Apple can remove apps without cause. Because the without cause precedent sucks for developers, but a with-cause ruling (ie that musi broke the terms) more directly addresses the harm claimed, that Musi is violating IP rights.

When a US judge sees multiple reasons to judge against you, they will take the reason that is easiest to prove, if that is enough, and ignore everything else because that is cheapest.

 

[Cloudgazer]

I would define significant in relation to the price of the accessories someone is trying to sell as well as the absolute: if the switching cost is hundreds of times the price of the accessory, that’s a significant barrier to selling said accessory.

But it isn't is it? It's essentially zero. Because there is an opportunity for a zero cost switch every couple of years and that is a relatively short time. And given the availability of lower cost Android devices one could argue that the switching cost is negative.

That said, it seems to me that to some extent we can rely on the judgement of the respondents: if a barrier was worth artificially creating, they clearly thought it would be significant

In the context of this article the respondents were Musi so your attempt to look clever by using legal language falls rather flat. Would you like to try again?

 

[Schpyder]

what Apple should be required to do is permit users to install third-party applications or app stores on phones that they own. i've never really understood why the Ars commentariat seems to be so in favour of this for things like third-party printer ink or right-to-repair, but is staunchly opposed to it when it comes to phones.

I'm not a huge fan of it personally, but there are distinct advantages to having a fully locked-down platform available. E.g., my boomer parents, who keep calling me every time they get a scam text or call asking for money (and were 90% of the way to falling for one once, which necessitated a complete digital and financial life reset for them). There are LOADS of nearly completely tech illiterate people out there who I absolutely do not trust not to get phished or socially engineered into enabling third-party app installs and giving root to some scammer. A little extra peace of mind goes a long way when you're family tech support.

 

[reyan]

In my case, two reasons:

1. My phone is a security token that unlocks a large proportion of my digital life, including banking, health care, etc. I appreciate that Apple is enforcing at least some third-party review of software on that device. I'm well aware it's not foolproof, but it is better than nothing.

2. My phone is not my main computing device. I have plenty of other computers on which I can run whatever I want.

I’ll add to this. I used to play around with sideloading on Android, custom ROMs, etc.

I couldn’t care less now. My phone is a tool. I don’t tinker on it, I don’t torrent on it. If I want to torrent something, I’ll do it on a computer and then stream it to my phone. Hell, I barely install App Store apps on it.

The vast, vast majority of people think the same as you and I. Wondering why users in general don’t like this is pretty much a typical Ars-bubble thought process.

 

[TimeToTilt]

(Sigh)

And that’s the region they were shown by a court not to have a monopoly. Which is why I didn’t bother to look it up (I don’t keep iPhone market share for various regions around the planet in my head, hence my guesstimate). It makes no difference.

It also makes no difference to antitrust discussions. Or at a minimum doesn't mean they can't be committing anti trust violations.

AND if it didn't make a difference you wouldn't mention it in the first place. But yes obviously if an American court says there is nothing to see here antitrust wise you can trust that, not like we have fifty years of regulatory capture in our court systems.

 

[TimeToTilt]

It's a moot point though, since monopolies are not, in and of themselves, illegal.

If you want to prove in court that Apple are somehow abusing their control over their own product then, well, good luck.

Right which is literally what I said. Monopolies aren't required for anti trust violations and good luck proving any company in the American system is abusing their market position after fifty years of the federalist society bullshit.

Though it's funny that you being from Europe where multiple governments have said literally that exact thing.

 

[TimeToTilt]

https://www.phonearena.com/news/Pun...-90-of-mobile-pirates-were-on-Android_id79528

The sad bottom line is that Punch Club was available in torrents hours after the official launch. For every Android sale, there were 12 pirates, while for every PC sale there were 4 pirates. For every iOS sale there were 2 pirates


There are a lot of similar single app stories. Though mostly they date from the earlier days of mobile, when piracy rates on iOS would be much higher than today (due to easy jailbreaking) and premium games were much more common.

Premium games have almost entirely died out, and the few that do exist survive entirely off the iOS market.

That's talking probably about non US markets though which don't have the income disparity.

Also it's kind of insane the way they conversation around apple goes around here. I literally asked for evidence on the claim the issue was piracy and got downvoted for not accepting something that runs contrary to every reported explanation for the spending difference between the two platforms in the US.

That would never happen anywhere else except maybe a SpaceX thread. It's so weird to me how many people pick "teams" in politics much less cell phone platforms.

 

[GreyAreaUK]

Right which is literally what I said. Monopolies aren't required for anti trust violations and good luck proving any company in the American system is abusing their market position after fifty years of the federalist society bullshit.

Then what is your point? They’re not a monopoly, and they developed iOS themselves for sole use on their hardware. This is fundamentally no different than Xbox or PlayStation- platforms that are also locked to only running authorised software.

I hate to break it to you, but “doing something you don’t like” isn’t in-and-of-itself illegal.

 

[Cloudgazer]

Right which is literally what I said. Monopolies aren't required for anti trust violations and good luck proving any company in the American system is abusing their market position after fifty years of the federalist society bullshit.

In the US there are two broad laws that control anti-trust. Sherman act which does require monopoly and the Clayton act.

https://en.wikipedia.org/wiki/Clayton_Antitrust_Act_of_1914

Go ahead and point to the part of the Clayton act you think Apple violated.

 

[Cloudgazer]

That's talking probably about non US markets though which don't have the income disparity.

You asked for evidence that piracy was higher on Android than iOS. You said you had never seen any. Why do you no longer want evidence that piracy is higher on Android than iOS? 'Oh it's just higher on Android because of income levels' would be your claim that you would have to provide evidence for. I've never seen any evidence that piracy rates between iOS and Android are identical once normalized for income level. I doubt such evidence could even exist.

Also it's kind of insane the way they conversation around apple goes around here. I literally asked for evidence on the claim the issue was piracy and got downvoted for not accepting something that runs contrary to every reported explanation for the spending difference between the two platforms in the US.

No, you literally said

You have anything to backup that first claim about piracy? Not sure it's wrong, just never seen that claim made anywhere.

I suspect people downvoted you because you are not brand new and you had of course seen that claim made before. Because it's not new or shocking. Everybody knows piracy is higher on Android. We knew it when the platforms were new and it has only become more true since.

 

[gnasher729]

yes, obviously denying warranty repairs benefits the company at the expense of consumers and they will always try to do that where legally possible. but why would anyone defend that? do you really think Apple would go bankrupt if they had to shoulder the cost of warranty repairs for people who somehow broke their phone by installing software on it?

Denying me a warranty repair for what people see as”unfair” reasons will cost the company because fewer people will buy their products if they think that could happen to them as well.

 

[gnasher729]

But it isn't is it? It's essentially zero. Because there is an opportunity for a zero cost switch every couple of years and that is a relatively short time. And given the availability of lower cost Android devices one could argue that the switching cost is negative.

If I buy an iPhone, then replacing it with an Android phone six months later costs me money. If I buy an Android phone, then replacing it with another Android phone six months later also costs me money.

 

[gnasher729]

You don't purchase it. You purchase a license to use it.

Edit: that applies to software which, in hindsight, wasn't what you meant.

An interesting fact: If you buy a Mac, then upgrade the OS to a newer version for free, then sell the Mac, US copyright law doesn’t give you a license to sell it with the new OS version, only with the original one. However, Apple’s T’s and C’s explicitly allow it.

 

[Cloudgazer]

If I buy an iPhone, then replacing it with an Android phone six months later costs me money. If I buy an Android phone, then replacing it with another Android phone six months later also costs me money.

I realise it is a complicated concept but you can wait until you were going to get a new phone and switch then.

If you really concentrate then in about 18months when it is time get that new phone it will have sunk in and then you can switch away from iOS and stop complaining about the terrible no good very bad things that Apple is doing to you.

For FREE!