EU Reportedly Planning to Charge Apple for Violating Digital Markets Act

[MilaM]

That’s a facade.

It's not a facade. Think about how much business is facilitated between third parties on mobile computers today. It's mind-boggling. The goal of this legislation is to create an equal playground for competition on these platforms.

 

[Sophisticatednut]

I have a hard time understanding the entire dma. It seems to benefit only a few developers without benefitting consumers. It seems in fact to be worse than what currently exists. Of course people have their own hardline views in this and after several years and thousands of posts, nobody is changing anybody’s mind.

Because it’s not about the consumer. Read the DMA text and it tells you quite literally to your face it’s about the market itself as the principal of competitive markets

Look at the operating systems that run on the most popular computing platforms today.

iOS - US company

Android - US company

Windows - US company

macOS - US company

The DMA is really just an attempt by EU officials to slow down a handful of U.S. companies in order to give homegrown companies a heads-up.

Look att the common technology products and companies today that relies on ASML lithography to bring the world the most advanced chips.

• iPhones
• MacBooks
• Intel processors
• AMD CPU,GPU and APUs
• Nvidia chips
• Qualcom chips

9 out of 10 Fortune 500 companies use SAP to ensure business and process excellence.
That means Microsoft, Apple, Costco, Amazon, JPMorgan Chase, Ford, Walmart , Google etc etc

Given SAP solutions support 82% of Forbes Global 2000 companies and over 77% of global transaction revenue flows through SAP systems.

So no Europe isn’t trying to give homegrown companies a heads-up. Considering the DMA literally gives American companies a gigantic advantage to step in

Best case scenario - most customers choose not to engage with these DMA-required offerings from Apple, and the DMA winds up not being material to Apple’s financial picture in the long run.

Perhaps but the iOS AppStore is just one of many services targeted.

The ex-ante obligations on 'Gatekeepers' are aimed at ensuring fair and open digital markets.

The DMA will capture the following CPS:

• online intermediation services,
• online search engines,
• online social networking,
• video-sharing platform services,
• number-independent interpersonal communication services (e.g WhatsApp, IMessage),
• operating systems,
• web browsers,
• virtual assistants,
• cloud computing services,
• online advertising services

 

[Sophisticatednut]

That’s a facade.

If it is a facade , it’s the worst on ever constructed and horrible at helping consumers…. How strange it isn’t about the consumer but customers across the board.

 

[bcortens]

My guess is this ends with Apple waiting for the EC to make their last official declaration and then appeals this to a court of rational adults. It's almost a given that the court will rule that by trying to enforce the DMA this way it will be a WTO violation of TRIPS. Under the TRIPS agreement an IP holder cannot be forced to give away IP without fair compensation. The proposed CTF by Apple is more than fair and would fall under FRAND even though it technically would not have to as nothing in the DMA requires it to.

The European Commission was warned early on during the drafting of the law that compelling the distribution of IP without compensation was a WTO violation and they adjusted the final law accordingly. Margrethe Vestager leaves her post in November and my gut is this is just a parting shaft to Apple to tie them up with a legal headache that will drag on for a couple years but ultimately will be overturned.

The problem is the the CTF isn't a universal IP license and that Apple doesn't actually charge for its IP most of the time. As I keep pointing out in this thread, most of the biggest apps in the world (Facebook, Netflix, Amazon) pay only the $99 to Apple for the IP. While normally a company can pick and choose how it charges for IP, the EU has determined that as a Gatekeeper Apple has to play fair and can't make rules that privilege its own platform or which privilege its own apps. Apple has not followed this rule. Apps can choose to remain under the old terms and not pay the CTF, this is privileging its own platform.

Apple could have made a version of the CTF that was fairly applied but they probably know how damaging that would be to the App Store, how willing do you think Facebook will be to pay 0.5/download for all offers various apps?

I think a version of the CTF that wasn't just 0.5/download but also had a revenue cap could be considered fair, but it would have to be universal to all apps, if Apple tries to apply it only to digital goods (like the do with most things) those companies will probably take them to the EU and force them to apply it universally, which would, again, likely hurt developer interest in the platform.

When Apple was a small upstart it was possible for them to be more picky but as gatekeeping platform they have to play fairer.

 

[wbeasley]

The law is about competition not consumers. I do not remember seeing anything related to consumers in the DMA. I think you are conflating this with the antitrust case by DOJ. DMA is seeking to foster competition on the Appstore.

From the EU website:

What are the benefits of the Digital Markets Act?​

• Business users who depend on gatekeepers to offer their services in the single market will have a fairer business environment.
• Innovators and technology start-ups will have new opportunities to compete and innovate in the online platform environment without having to comply with unfair terms and conditions limiting their development.
• Consumers will have more and better services to choose from, more opportunities to switch their provider if they wish so, direct access to services, and fairer prices.
• Gatekeepers will keep all opportunities to innovate and offer new services. They will simply not be allowed to use unfair practices towards the business users and customers that depend on them, in order to gain an undue advantage.

 

[surferfb]

Intellectual property rights do matter. The DMA only covers like a handful of the biggest companies - that leaves ample room for innovation. And if anyone’s stifling competition and innovation in the sector, it’s these gatekeepers nowadays - and not the EU.

Ok, so IP rights do matter, but only until the EU decides you are too big (and wrote the rules so shockingly not a single European company is "too big"). Because the EU is saying Apple is not allowed to monetize its IP.

Not sure why they didn't just write the regulation to say that (probably because they don't want to come out and say that because of how anti-business it is, or maybe they suspected it wouldn't fly in court).

 

[wbeasley]

The problem is the the CTF isn't a universal IP license and that Apple doesn't actually charge for its IP most of the time. As I keep pointing out in this thread, most of the biggest apps in the world (Facebook, Netflix, Amazon) pay only the $99 to Apple for the IP. While normally a company can pick and choose how it charges for IP, the EU has determined that as a Gatekeeper Apple has to play fair and can't make rules that privilege its own platform or which privilege its own apps. Apple has not followed this rule. Apps can choose to remain under the old terms and not pay the CTF, this is privileging its own platform.

Apple could have made a version of the CTF that was fairly applied but they probably know how damaging that would be to the App Store, how willing do you think Facebook will be to pay 0.5/download for all offers various apps?

I think a version of the CTF that wasn't just 0.5/download but also had a revenue cap could be considered fair, but it would have to be universal to all apps, if Apple tries to apply it only to digital goods (like the do with most things) those companies will probably take them to the EU and force them to apply it universally, which would, again, likely hurt developer interest in the platform.

When Apple was a small upstart it was possible for them to be more picky but as gatekeeping platform they have to play fairer.

Why would Facebook not leave things exactly the way they are and not pay a CTF at all?

No one is paying for Facebook. They want as many people using it as possible to monetize your info.

Apple hasnt been a small upstart for a very long time.
iOS has been the same since the AppStore started. And by the number of people using it, it's been successful exactly as it was. Walled Garden and all. The users arent complaining. It's a few EU companies. And dodgy Epic that knew the rules and chose to ignore them.

 

[wbeasley]

It's not a facade. Think about how much business is facilitated between third parties on mobile computers today. It's mind-boggling. The goal of this legislation is to create an equal playground for competition on these platforms.

how much fair competition is there when there are two mobile platforms?
Windows couldnt make a go of it with their vast resources.
Rabbit just tried a widely condemned new device and OS.

Exactly how is this going to make it more competitive?

 

[bcortens]

Ok, so IP rights do matter, but only until the EU decides you are too big (and wrote the rules so shockingly not a single European company is "too big"). Because the EU is saying Apple is not allowed to monetize its IP.

Not sure why they didn't just write the regulation to say that (probably because they don't want to come out and say that because of how anti-business it is, or maybe they suspected it wouldn't fly in court).

The EU hasn't yet ruled they can't charge for IP, the main issue with the CTF in my opinion is not that it is an IP license but that it is an IP license designed to steer app developers away from alternative App stores and towards Apple's existing App Store.

Why would Facebook not leave things exactly the way they are and not pay a CTF at all?

This is is exactly why the CTF is a steering mechanism that is prohibited by the DMA. Facebook is being steered to stay under the current terms. This is evidence that Apple is violating the DMA by privileging it's own services.

No one is paying for Facebook. They want as many people using it as possible to monetize your info.

So? The CTF applies to any free apps distributed outside of the App Store, Apple doesn't want an IP license fee from many apps inside their store, why should they want one from the same Apps if distributed outside of their App Store?

This is (IMO) the main violation.

Apple hasnt been a small upstart for a very long time.
iOS has been the same since the AppStore started. And by the number of people using it, it's been successful exactly as it was. Walled Garden and all. The users arent complaining. It's a few EU companies. And dodgy Epic that knew the rules and chose to ignore them.

So? None of this has anything to do with whether or not Apple is violating the DMA.
My comment w.r.t. the size of Apple is that the DMA only applies to Apple because they are a large gatekeeper, whether or not the DMA should exist at all is a separate topic.

 

[Abazigal]

The EU hasn't yet ruled they can't charge for IP, the main issue with the CTF in my opinion is not that it is an IP license but that it is an IP license designed to steer app developers away from alternative App stores and towards Apple's existing App Store.

My guess is that the EU will basically veto any proposal made by Apple that attempts to charge developers who distribute their apps outside of the App Store. Every supporter of the DMA here basically believes Apple should charge zero percent (and even do away with their App Store cut altogether).

 

[wbeasley]

The EU hasn't yet ruled they can't charge for IP, the main issue with the CTF in my opinion is not that it is an IP license but that it is an IP license designed to steer app developers away from alternative App stores and towards Apple's existing App Store.


This is is exactly why the CTF is a steering mechanism that is prohibited by the DMA. Facebook is being steered to stay under the current terms. This is evidence that Apple is violating the DMA by privileging it's own services.

So? The CTF applies to any free apps distributed outside of the App Store, Apple doesn't want an IP license fee from many apps inside their store, why should they want one from the same Apps if distributed outside of their App Store?

This is (IMO) the main violation.


So? None of this has anything to do with whether or not Apple is violating the DMA.
My comment w.r.t. the size of Apple is that the DMA only applies to Apple because they are a large gatekeeper, whether or not the DMA should exist at all is a separate topic.

But what is to be gained apart from headaches of distributing an app like Facebook outside the App Store?

Facebook would have to promote another place to get the app.
And all the infrastructure to host it etc. And pay for traffic...

So it's better to leave it there for those reasons more than being charged a CTF.

 

[visualseed]

Essentially reading the case law there’s no mechanism to sue EU for violating WTO agreements.
EU law takes precedence at all times. And the DMA is enforced by the EU commission.

In CEU, the Court seemed unbothered by similar concerns. It is worth pointing out that the Court’s appropriation of WTO jurisdiction would not fit in the narrow exception that the Court has formulated to tolerate external interpretations of EU law. Namely, when the Court green-lighted the arbitration system in the Canada-EU trade agreement (CETA) it was adamant that CETA tribunals should only treat EU measures as fact, not as law. CETA tribunals could look at EU measures, to apply CETA law and assess the EU’s responsibility under it. In Opinion 1/17, the Court said that prior involvement was unnecessary, as “the Tribunal will have to confine itself to an examination of EU law as a matter of fact and will not be able to engage in interpretation of points of law… [Therefore,] the CETA Tribunal will have to apply and interpret international law, … and not EU law”.
Opinion 1/17 of 30 April 2019, ECLI:EU:C:2019:341, para. 76-77.

The mechanism is when an enforcement action is brought against you for violation of EU law that itself violates an international agreement.

 

[MilaM]

My guess is that the EU will basically veto any proposal made by Apple that attempts to charge developers who distribute their apps outside of the App Store. Every supporter of the DMA here basically believes Apple should charge zero percent (and even do away with their App Store cut altogether).

I don't think so, and we will know in only a couple of weeks. The Commission will very likely rule that the CTF undermines the competition between first-party and third-party stores. They will maybe even suggest, that Apple can charge the fee, if it applies to all publishers equally.

 

[bcortens]

My guess is that the EU will basically veto any proposal made by Apple that attempts to charge developers who distribute their apps outside of the App Store. Every supporter of the DMA here basically believes Apple should charge zero percent (and even do away with their App Store cut altogether).

Perhaps, I can see that there is also an argument that the EU could make that Apple doesn't charge for IP in general and that them doing so in Europe isn't a good faith effort to recoup costs to develop that cost but instead is a punitive action to punish the EU for forcing them to open their platform. I think the EU could reasonably make the case that Apple choosing not to charge for access to tools, and SDK beyond the $99/year fee up till now (and still not charging outside of the EU) amounts to Apple not actually caring about IP licensing costs.

 

[bcortens]

But what is to be gained apart from headaches of distributing an app like Facebook outside the App Store?

Facebook would have to promote another place to get the app.
And all the infrastructure to host it etc. And pay for traffic...

So it's better to leave it there for those reasons more than being charged a CTF.

That doesn't change the fact that being charged the CTF is another reason to keep exclusive to the store, which is still (IMO) an illegal form of steering that violates the DMA.

 

[JimmyHook]

Not a single person on this planet was forced to buy an iPhone. Not a single one. Android is the dominant OS on the planet. People on here act like they have no choice but to buy an iPhone, ignoring around 80 percent of the smartphone market. It’s more accurate to say that some people love Apple products, and especially the money that their users spend (far more than Android users on a per app basis), but feel entitled to modify them as they see fit.

Don’t like Apple’s business practices? Vote with your wallet.

All I’m hearing is, “But I love the iPhone. I want to buy them, but I don’t like how Apple operates.”

I've never fully understood this argument. It's absolutely not desirable for every service provider, not even every app store, to have their own hardware ecosystem. It would more or less take us back to the pre-smartphone days of separate devices for everything.

I fully understand why companies such as Apple and Google would want to funnel all activity through their store fronts on their hardware platforms, after all that's an additional revenue stream to selling you the hardware in the first place, but as everything becomes more digital I'm not convinced a position where a digital store has to run on the provider's own hardware is really desirable.

That doesn't preclude the possibility that the App Store would (and probably will) come out on top. Steam, for example, is incredibly dominant in selling games on PC by providing good service, but you are still free to buy your games from GOG, Epic or whoever else might want to run a store.



Sure, but contrary to popular belief the EU is not actually a state, and yet its institutions still have a certain degree of democratic legitimacy. That was the point. The people do not directly vote for the Commission President but the Parliament does, which is directly elected. Similar systems are used in various parliamentary systems (even though there admittedly the person to become the leader of the government will very often lead the campaign, so it's not entirely comparable).

Beyond that, not a single member of the US cabinet is directly elected. Not a single department head is directly elected. Not a single civil servant in those departments is directly elected. Etc etc etc

The person elected telling everyone which policies to enact is a very simplistic view on how governments and public policy making actually works and if you want to talk about democratic legitimacy you may find that the EU's approach lags behind in some, but is ahead in others. People electing the EC's President directly would be better, but does not make the whole system undemocratic by default. That's the point I'm trying to make.

The EU is quasi-democratic at best. Cabinet secretaries are picked by the person we directly elect, and are confirmed by Senators we directly elect. That makes sense for a democratic republic, as we wouldn’t want a cabinet secretary that is opposed to their leader’s policies. That wouldn’t make sense.

As long as the EU remains quasi-democratic, with the most powerful body evading direct elections, I don’t consider the EU to be a legitimate body.

The fact that governments in Europe went out of their way to make the commission unaccountable to the people should give everyone pause.

 

[surferfb]

Perhaps, I can see that there is also an argument that the EU could make that Apple doesn't charge for IP in general and that them doing so in Europe isn't a good faith effort to recoup costs to develop that cost but instead is a punitive action to punish the EU for forcing them to open their platform. I think the EU could reasonably make the case that Apple choosing not to charge for access to tools, and SDK beyond the $99/year fee up till now (and still not charging outside of the EU) amounts to Apple not actually caring about IP licensing costs.

Apple has been charging for their IP since Day 1 of the App Store. Just because they didn't say "of the 30%, 25% is an IP fee and 5% is a payment processing fee" doesn't mean they weren't charging for it.

 

[JimmyHook]

What's the difference between the EU fining Apple for breaking EU law and Apple taking a cut of app developer's sales? Apple is acting like a mafia, demanding a cut or else shutting down your business. Who are they to capitalize someone else's success?

Apple actually built the entire platform from scratch using their intellectual property and engineering resources. The EU contributes nothing useful to society. They leech off the hard work of others, and say it’s for your own good. Let them design and operating system, hardware, and manage a platform if they don’t like iOS.

 

[bcortens]

Apple has been charging for their IP since Day 1 of the App Store. Just because they didn't say "of the 30%, 25% is an IP fee and 5% is a payment processing fee" doesn't mean they weren't charging for it.

If Apple doesn't spell it out in the agreement that the commission was an IP charge then it (likely in my opinion) won't hold up in the EU as a license charge.

Besides, this doesn't get at my core point that the some of the biggest companies on earth with the most popular apps don't pay that. They don't pay Apple anything, Netflix pays apple 0%, which is the same as Facebook, Amazon, etc...

It will be hard to prove to the EU that the existing commission is a valid IP/SDK/Tooling charge when so many of the most profitable and popular apps that derive the most value from Apple's IP/SDK/Tooling don't pay it...

Furthermore they are still charging a commission if you are in the App Store and outside of it, you just get double charged now paying both the CTF and the commission for your apps inside the store.

Yet more counter examples, the exemption of physical goods and services stores from paying the commission further exacerbates the likelihood of being found in violation. While Apple could get away with treating apps that sell physical goods and digital goods differently from an IP licensing perspective when they were a small company, as a gatekeeper I don't know that they will be allowed to do so.

 

[Abazigal]

That doesn't change the fact that being charged the CTF is another reason to keep exclusive to the store, which is still (IMO) an illegal form of steering that violates the DMA.

In an earlier post, I laid out the likely challenges that Apple will face should they attempt to bill developers a percentage of revenue, because Apple will have zero insight into how much a developer makes from apps sold in a third party app store when they don't use iTunes. I don't think Apple wants to take on the burden of auditing a developer's tax receipts either, or is the EU offering to play Police for them in this regard?

I mean, Apple could offer to charge developers 10% (or any amount that suits your fancy), but how would Apple know whether the amount sent their way is accurate or not? The only way it would work is to either charge developers a flat fee, or to not charge at all.

And I don't believe the EU is ignorant of this.

 

[visualseed]

The problem is the the CTF isn't a universal IP license and that Apple doesn't actually charge for its IP most of the time. As I keep pointing out in this thread, most of the biggest apps in the world (Facebook, Netflix, Amazon) pay only the $99 to Apple for the IP. While normally a company can pick and choose how it charges for IP, the EU has determined that as a Gatekeeper Apple has to play fair and can't make rules that privilege its own platform or which privilege its own apps. Apple has not followed this rule. Apps can choose to remain under the old terms and not pay the CTF, this is privileging its own platform.

Apple could have made a version of the CTF that was fairly applied but they probably know how damaging that would be to the App Store, how willing do you think Facebook will be to pay 0.5/download for all offers various apps?

I think a version of the CTF that wasn't just 0.5/download but also had a revenue cap could be considered fair, but it would have to be universal to all apps, if Apple tries to apply it only to digital goods (like the do with most things) those companies will probably take them to the EU and force them to apply it universally, which would, again, likely hurt developer interest in the platform.

When Apple was a small upstart it was possible for them to be more picky but as gatekeeping platform they have to play fairer.

I don’t think any of that matters. Every company that licenses IP has diffence licensing regiments depending on class of customers. Even giving it to some classes or individuals free in exchange for other consideration. The laws are very clear that compulsory licensing can not be enforced without allowing for licensing fees.

The EU can make the argument that Apple is using the CTF to circumvent the DMA and Apple is likely to argue that the CTF is justified to recoup the lost value of their IP when not being used by developers in the AppStore. Courts will be very hesitant to say a company can’t be paid for their IP in a case that does not rise to a level of wide social benefit and would more than likely create unintended negative precedents affecting a wide swath of industries and trade agreements.

 

[JimmyHook]

Why does Apple have the right to dictate who I can and cannot sell my software to? I'm not a subsidiary of Apple. If my customers use iPhones, I want to make software for them. Supply wants to meet demand.



It's hard to believe that someone can patronize more than one business, but I'll bite. I did compensate them. I bought their computer to make software since I can't use my Windows machine for it. I bought their phone to test it on since I can't use a Samsung for it. I pay annually for a developer account to access the tools and information I need. I've paid significantly - if they undercharged me, that's their mistake.

Now for your questions, collapsed below to save space.

Spoiler: Individual responses below the fold.

I don't see why not. I am not affiliated with or at odds with Sony. Ideally, yes, you should be able to use your PlayStation browser to download and play my software. I would be more than happy to pay Sony for development hardware and software tools - buying tools is a reasonable cost of doing business. I already bought tools from Apple.



Yes. Aftermarket car features have been a thing for decades. I can roll my car into my local Best Buy and get a new stereo, head unit with CarPlay, backup camera, and more without paying a dime to my auto manufacturer.

Isn't it funny that some Tesla models support Steam? You can buy and use software from a third-party storefront right from the driver's seat. It's wild.



You can already install third-party software on Peloton since they're Android-based. Partnering with Apple would be a great business move for Peloton, as would access to more applications. Ethically, yes, Pelotons should be open to external software, and Apple should have a right to sell to Peloton customers. Peloton does not own their customers.

Some of this is taking these points to an extreme. A game console, a car, and a cycling machine are appliances, not general purpose computers. Meanwhile our mobile phones have largely replaced general purpose computers in our lives. That's the difference here. I use an Xbox to play games, a car to drive, and a peloton to get in some exercise.

Meanwhile, people buy phones to do everything. Nobody is editing video, creating a spreadsheet or making music on a Peloton.

When you buy Apple hardware, you only compensated them for the hardware. You didn’t compensate them for developer APIs or anything related. Your developer account doesn’t compensate them either. They have specific mechanisms for compensation, the very mechanisms y’all are whining about.

Also, claiming these rules should only apply to “general purpose” computers, and not game consoles, is completely arbitrary. Y’all act like the market isn’t free. It is. If you don’t like Apple, buy a competitor’s product. Vote with your wallet. Forcing change on a company, simply because you like some parts of it but not others, is ridiculous.

 

[JimmyHook]

👉 Why do patents have an expiry date?

Because monopolies and monoculture over the long run are bad for competition, potential competitors, innovation and ultimately consumers.

The right to monetise as you see fit, can be justified as reward for your innovation for a certain period of time. But not forever. Long-running monopolists get complacent and adopt rent-seeking behaviour to the detriment of society and the greater economy.

👉 You can think of the legislation as conceptually similar to Apple's patent (their exclusive right of sales/monetising) expiring.

They've been rewarded more than handsomely, becoming the biggest company in the world as a result. Now it's about time the balance is readjusted to allow third parties to reap the benefits of their own innovation - by restricting Apple's ability to "tax" them, compete against or undercut them with inferior products/services.


I'll wholeheartedly support your right to sell your better self-driving software if and once Tesla

• had had a long-running, entrenched monopoly or duopoly in cars
• and abuses its position to restrict your market access by anticompetitive pricing/access terms
• and (Tesla) have no or limited competition that you can sell your software to (they may have their own automated driving features and collude with Tesla).

👉 If you have a superior self-driving software, you deserve to be able to bring it to the market.

At least over the long run. It's good for economy and society (and you) if you're able to do it.

Given the market conditions (and concentration) in cars, it's a non-issue though. But if Tesla were to stall or deny your market entry or success just so they can make more money by anticompetitively maintaining the dominance of their own inferior product long-term, regulating Tesla seems appropriate.

Your superior product deserves to compete (fairly).
And society deserves to enjoy the benefits of it.

I love how casually y’all add “duopoly” to your arguments, because you can’t argue Apple is a monopoly. Goalposts keep moving…

 

[bcortens]

In an earlier post, I laid out the likely challenges that Apple will face should they attempt to bill developers a percentage of revenue, because Apple will have zero insight into how much a developer makes from apps sold in a third party app store when they don't use iTunes. I don't think Apple wants to take on the burden of auditing a developer's tax receipts either, or is the EU offering to play Police for them in this regard?

I mean, Apple could offer to charge developers 10% (or any amount that suits your fancy), but how would Apple know whether the amount sent their way is accurate or not? The only way it would work is to either charge developers a flat fee, or to not charge at all.

And I don't believe the EU is ignorant of this.

There are ways they could do it but they would require some form of invasiveness. However, charging a percentage isn't new or unusual, the MPEG group does it, so does Qualcomm, so does Unreal, etc... It isn't an unheard of practice.

I think the only reasonable way they can actually make the CTF work is some form of revenue percentage cap, otherwise there are always going to be apps with low per user revenue but high user counts that won't be viable under a static per download amount. (Unless the amount is so trivial as to be not worth implementing).

I think Apple knows that the CTF isn't a system that will lead to a healthy platform, and if applied to apps in their own store it would lead to many apps switching to PWAs, which I don't think Apple wants. This is why IMO that the changes they brought didn't bring the CTF to their own store and allowed devs to continue on with the existing terms.

 

[bcortens]

I don’t think any of that matters. Every company that licenses IP has diffence licensing regiments depending on class of customers. Even giving it to some classes or individuals free in exchange for other consideration. The laws are very clear that compulsory licensing can not be enforced without allowing for licensing fees.

The EU can make the argument that Apple is using the CTF to circumvent the DMA and Apple is likely to argue that the CTF is justified to recoup the lost value of their IP when not being used by developers in the AppStore. Courts will be very hesitant to say a company can’t be paid for their IP in a case that does not rise to a level of wide social benefit and would more than likely create unintended negative precedents affecting a wide swath of industries and trade agreements.

When companies get big enough and their tech stack becomes important enough they do have to start engaging in licensing schemes that are more universally applied. FRAND patents for example are required to be licensed in very specific ways. Telecoms aren't allowed to monetize their IP in certain ways, in places where net neutrality has passed they can't charge a different commission to different websites for access to their IP for example. The DMA is the Eu taking a step towards treating gatekeeping platforms more like FRAND or telecoms than they currently are.

The idea that governments can't prevent companies from charging differently based on different customers is easily proven false by looking at telecoms, who aren't allowed to charge users who access Netflix differently to those who access Amazon Prime.

Again, I'm not even convinced that Apple could actually successfully argue that they charge for their tools and sdk using the 30/15% commission right now, given how inconsistently they have argued what that fee is for publicly and given the terms of the $99/year fee already seem to include the license to distribute commercially using the tools and SDK...