Legal Archive
The Department of Justice’s antitrust division has come into its own, having filed its third tech monopoly lawsuit in four years. The accumulated experience shows up in the complaint, according to antitrust experts who spoke with The Verge about the complaint filed Thursday accusing Apple of violating antitrust law. The DOJ describes a sweeping arc of behaviors by Apple, arguing that it adds up to a pattern of illegal monopoly maintenance. Rather than focusing on two or three illegal acts, the complaint alleges that Apple engages in a pattern of behaviors that further entrench consumers into their ecosystem and make it harder to switch, even in the face of high prices and degraded quality. ↫ Lauren Feiner at The Verge It’s been somewhat entertaining seeing Apple fanatics claim the complaint is bad, horrible, has no merit, has no chance in court, and that the DoJ has zero clue what it’s doing – while actual experts are actually positively surprised by how the complaint seems better than they expected. I wonder whose judgement to trust more.
Federal investigators have ordered Google to provide information on all viewers of select YouTube videos, according to multiple court orders obtained by Forbes. Privacy experts from multiple civil rights groups told Forbes they think the orders are unconstitutional because they threaten to turn innocent YouTube viewers into criminal suspects. ↫ Thomas Brewster at Forbes United States law enforcement has been asking Google who watches certain YouTube videos, covering as many as 30,000 people per video. They wanted names, addresses, telephone numbers and user activity for all Google accounts who had watched a video within a certain week’s timeframe, and the IP addresses of everyone who watched the video without a Google account. That’s an absolute crapton of data, all because they suspected one person of a money-laundering scheme. And this is just one example. Forbes could not determine if Google complied with the requests, but it does highlight the dangers of having so much data on one place.
For many years, Apple has built a dominant iPhone platform and ecosystem that has driven the company’s astronomical valuation. At the same time, it has long understood that disruptive technologies and innovative apps, products, and services threatened that dominance by making users less reliant on the iPhone or making it easier to switch to a non-Apple smartphone. Rather than respond to competitive threats by offering lower smartphone prices to consumers or better monetization for developers, Apple would meet competitive threats by imposing a series of shapeshifting rules and restrictions in its App Store guidelines and developer agreements that would allow Apple to extract higher fees, thwart innovation, offer a less secure or degraded user experience, and throttle competitive alternatives. It has deployed this playbook across many technologies, products, and services, including super apps, text messaging, smartwatches, and digital wallets, among many others. Apple’s conduct also stifles new paradigms that threaten Apple’s smartphone dominance, including the cloud, which could make it easier for users to enjoy high-end functionality on a lower priced smartphone—or make users device-agnostic altogether. As one Apple manager recently observed, “Imagine buying a Android for 25 bux at a garage sale and it works fine … And you have a solid cloud computing device. Imagine how many cases like that there are.” Simply put, Apple feared the disintermediation of its iPhone platform and undertook a course of conduct that locked in users and developers while protecting its profits. Critically, Apple’s anticompetitive conduct not only limits competition in the smartphone market, but also reverberates through the industries that are affected by these restrictions, including financial services, fitness, gaming, social media, news media, entertainment, and more. Unless Apple’s anticompetitive and exclusionary conduct is stopped, it will likely extend and entrench its iPhone monopoly to other markets and parts of the economy. For example, Apple is rapidly expanding its influence and growing its power in the automotive, content creation and entertainment, and financial services industries–and often by doing so in exclusionary ways that further reinforce and deepen the competitive moat around the iPhone. ↫ DoJ antitrust lawsuit vs. Apple The United States Department of Justice is filing an antitrust lawsuit against Apple.
You know those modal screens that interrupt your groove when you are surfing? There are no laws forcing websites to use them. They use them because they choose to. ↫ Bite code! Cookie banners are not only not required, they’re not even needed, and most implementations you encounter today are illegal anyway. You can use session cookies and anonymous stats cookies without needing any user approval. Companies like to use these cookie banners because they want to make you mad at the law, not at them for tracking you up the wazzoo, and people who actually do know better trot out the cookie banners to enrage you at the government instead of at the corporations exploiting you. EU law only states that if a website wants to track you, they have to let you know. That’s it. Seems very reasonable to anyone who isn’t a corporatist.
Following its investigation, the EDPS has found that the European Commission (Commission) has infringed several key data protection rules when using Microsoft 365. In its decision, the EDPS imposes corrective measures on the Commission. ↫ European Data Protection Supervisor You often hear people state that EU rules and regulations are designed exclusively to harm non-EU companies. The massive amounts of fines and corrective actions handed out to EU companies in all kinds of sectors already disprove this notion, and here’s a case where even the European Commission itself gets a slap on the wrist for violating its own rules and regulations – rules and regulations, we’re often told by especially American corporatists, are designed specifically to target poor American businesses. Not that corporatists have any use for reality and facts, but still.
Roku customers are threatening to stop using, or to even dispose of, their low-priced TVs and streaming gadgets after the company appears to be locking devices for people who don’t conform to the recently updated terms of service (ToS). This month, users on Roku’s support forums reported suddenly seeing a message when turning on their Roku TV or streaming device reading: “We’ve made an important update: We’ve updated our Dispute Resolution Terms. Select ‘Agree’ to agree to these updated Terms and to continue enjoying our products and services. Press * to view these updated Terms.” A large button reading “Agree” follows. The pop-up doesn’t offer a way to disagree, and users are unable to use their device unless they hit agree. ↫ Scharon Harding at Ars Technica The best part of this story? And by best I mean worst? You have to send a letter – a paper one, with stamps and everything, like in the before times – to Roku’s lawyer in California containing the names of all the people opting out, the devices and services in question, and a damn purchase receipt. They’re one step away from wanting your passport and your firstborn child.
A powerful House committee advanced a bill on Thursday that could lead to a nationwide ban against TikTok on all electronic devices, renewing lawmakers’ challenge to one of the world’s most popular social media apps and highlighting unresolved fears that TikTok may pose a Chinese government spying risk. The measure that sailed unanimously through the House Energy and Commerce Committee would prohibit TikTok from US app stores unless the social media platform — used by roughly 170 million Americans — is quickly spun off from its China-linked parent company, ByteDance. ↫ Brian Fung at CNN TikTok obviously needs to be banned. It’s an extension of a genocidal, totalitarian government that has no place on our our phones. Yes, I understand Facebook, Apple, Google, Microsoft also collect vast amounts of data, but at least they are (nominally) beholden to our legal systems, and while there is, of course, a vast power imbalance between us as individuals and them as megacorporations, it’s still nowhere even close as to being an arm of a totalitarian government – they’re just not comparable. China’s state surveillance tools have no place on our devices.
The European Court of Human Rights yesterday banned a general weakening of secure end-to-end encryption. The judgement argues that encryption helps citizens and companies to protect themselves against hacking, theft of identity and personal data, fraud and the unauthorised disclosure of confidential information. Backdoors could also be exploited by criminal networks and would seriously jeopardise the security of all users’ electronic communications. There are other solutions for monitoring encrypted communications without generally weakening the protection of all users, the Court held. The judgement cites using vulnerabilities in the target’s software or sending an implant to targeted devices as examples. ↫ EU Reporter Excellent ruling, and it throws up another roadblock to weakening end-to-end encryption in the EU, after the European Parliament also took a stance against such weakening.
Europe’s right-to-repair rules will force vendors to stand by their products an extra 12 months after a repair is made, according to the terms of a new political agreement. Consumers will have a choice between repair and replacement of defective products during a liability period that sellers will be required to offer. The liability period is slated to be a minimum of two years before any extensions. The rules require spare parts to be available at reasonable prices, and product makers will be prohibited from using “contractual, hardware or software related barriers to repair, such as impeding the use of second-hand, compatible and 3D-printed spare parts by independent repairers,” the Commission said. ↫ Jon Brodkin at Ars Technica An excellent set of rules, and once again puts the EU at the forefront of consumer protection. Maybe some of it will trickle down to other places in the world.
Many OSI Affiliates engaged with the European Commission, European Parliament and European Council during 2023. With the welcome coordination of Open Forum Europe, a group met regularly to keep track of progress explaining the issues. Many of us also committed time and travel to meet in-person. As a result of all this effort from so many people, the final text of the CRA mitigated pretty much all the risks we had identified to individual developers and to Open Source foundations. ↫ Simon Phipps (yes, the Simon Phipps) Many in the open source community were deeply worried about the EU’s Cyber Resiliency Act’s impact on open source software, and rightfully so. It’s great to hear that the EU communicated and cooperated closely with the open source community to ensure the impact of the CRA on open source would be minimal, and it turns out they listened. Excellent news.
The developer OpenAI has said it would be impossible to create tools like its groundbreaking chatbot ChatGPT without access to copyrighted material, as pressure grows on artificial intelligence firms over the content used to train their products. Chatbots such as ChatGPT and image generators like Stable Diffusion are “trained” on a vast trove of data taken from the internet, with much of it covered by copyright – a legal protection against someone’s work being used without permission. ↫ Dan Milmo for the Guardian I can’t become a billionaire without robbing banks so therefore robbing banks should be legal.
In August, word leaked out that The New York Times was considering joining the growing legion of creators that are suing AI companies for misappropriating their content. The Times had reportedly been negotiating with OpenAI regarding the potential to license its material, but those talks had not gone smoothly. So, eight months after the company was reportedly considering suing, the suit has now been filed. The Times is targeting various companies under the OpenAI umbrella, as well as Microsoft, an OpenAI partner that both uses it to power its Copilot service and helped provide the infrastructure for training the GPT Large Language Model. But the suit goes well beyond the use of copyrighted material in training, alleging that OpenAI-powered software will happily circumvent the Times’ paywall and ascribe hallucinated misinformation to the Times. ↫ John Timmer at Ars Technica OpenAI and similar companies are giant copyright infringement machines, and tools like GitHub Copilot are open source license violations at an industrial scale never before seen. They need to face a reckoning for their illegal behaviour, and need to start asking creators – of journalism, of art, of code – for permission to use their works, just like anybody else needs to do. “AI” needs to play by the rules, or get steamrolled by the justice system.
Japan is preparing regulations that would require tech giants like Apple and Google to allow outside app stores and payments on their mobile operating systems, Nikkei has learned, in a bid to curb abuse of their dominant position in the Japanese market. Legislation slated to be sent to the parliament in 2024 would restrict moves by platform operators to keep users in the operators’ own ecosystems and shut out rivals, focusing mainly on four areas: app stores and payments, search, browsers, and operating systems. ↫ Ryohei Yasoshima and Riho Nagao for Nikkei Asia All around the world, the walls are closing in on these big tech monopolies. It’s a Christmas miracle.
Three years after Fortnite-maker Epic Games sued Apple and Google for allegedly running illegal app store monopolies, Epic has a win. The jury in Epic v. Google has just delivered its verdict — and it found that Google turned its Google Play app store and Google Play Billing service into an illegal monopoly. After just a few hours of deliberation, the jury unanimously answered yes to every question put before them — that Google has monopoly power in the Android app distribution markets and in-app billing services markets, that Google did anticompetitive things in those markets, and that Epic was injured by that behavior. They decided Google has an illegal tie between its Google Play app store and its Google Play Billing payment services, too, and that its distribution agreement, Project Hug deals with game developers, and deals with OEMs were all anticompetitive. ↫ Sean Hollister for The Verge Good news, of course, but it does make one wonder why a judge in Epic’s case versus Apple ruled the exact opposite as the jury did today. We don’t yet know what this verdict will mean for Google in a practical sense – that’s up to the judge, and Google intends to appeal, for course – so if consumers will actually see any benefit from this remains to be seen.
It’s about a legal battle between Intel and NEC in the 1980s over the microcode of the 8086 processor. But whilst it may be about events a long time ago, the themes are still familiar today. Whilst writing it, I couldn’t help but think about the ongoing lawsuit between Qualcomm and Arm. About how the future of both companies, and indeed others, including Intel, may be crucially affected by the results of a ruling on intellectual property protection. The court case we’ll discuss today would also have important implications for Intel, the US semiconductor industry, its Japanese competitors and for intellectual property law in general. Lawsuits. Lawsuits never change.
Google is hoping regulators will bail it out of the messaging mess it has created for itself after years of dysfunctional product reboots. The Financial Times reports that Google and a few cell carriers are asking the EU to designate Apple’s iMessage as a “core” service that would require it to be interoperable under the new “Digital Markets Act.” The EU’s Digital Markets Act targets Big Tech “gatekeepers” with various interoperability, fairness, and privacy demands, and while iMessage didn’t make the initial cut of services announced in September, Apple’s messenger is under a “market investigation” to determine if it should qualify. The criteria for gatekeeper services all revolve around business usage. The services the EU wants to include would have more than 45 million monthly active EU users and more than 10,000 yearly active business in the EU, a business turnover of at least 7.5 billion euros, or a market cap of 75 billion euros, with the caveat that these are just guidelines and the EU is open to arguments in both directions. When the initial list was announced back in September, the EU said that iMessage actually met the thresholds for regulation, but it was left off the list while it listens to Apple’s arguments that it should not qualify. The sooner the various messaging services are forced to interoperate – preferably via completely open specifications anyone can build for – the better. These services should not be locking users in.
The European data regulator has agreed to extend a ban imposed by non-EU member Norway on “behavioural advertising” on Facebook and Instagram to cover all 30 countries in the European Union and the European Economic Area, it said on Wednesday. Meta runs the risk of getting fined up to 4% of its global turnover, the Norwegian data regulator said. Sure, the European Union isn’t perfect – no government is – but the Union’s fight against the utter dominance of tech giants, as well as standing up for citizen privacy, is commendable.
State attorneys general in 41 states and the District of Columbia sued Meta today. The move comes after the conclusion of a multistate probe launched in 2021, where a bipartisan coalition of state enforcers began examining how Facebook and Instagram features are designed to allegedly addict and harm kids. Back in 2021, the Massachusetts attorney general’s office led the multistate probe investigating “Instagram’s impacts on young people” after Facebook whistleblower Frances Haugen revealed that Facebook knew Instagram was “toxic” to teen girls but downplayed risks to the public. In a press release today, Massachusetts Attorney General Andrea Joy Campbell accused Meta of “deliberately” exploiting “young users’ vulnerabilities for profit.” Everyone liked that.
Patents are thought of by some as hardware focused and used by the big guys to intimidate with petty lawsuits. In reality, of course, patents are used for much more. They are used to help secure financing, attract M&A interest, create partnerships, and more. From 2007 to 2011, a particularly interesting patent lawsuit took place that showcases just how strategic patents can be. i4i Limited, a Canadian company, sued Microsoft over a patent it owned relating to custom XML encoding, which Microsoft used in Word. In the end, Microsoft lost and had to pay $200 million in damages and was nearly restricted from selling Word over a feature used by almost none of its users. It is a fascinating tale of how software patents used to work, especially as they are coming back into vogue. I mean, I won’t shed a tear for Microsoft in this case, but it does highlight just how ridiculous software patents are.
The Verge has an excellent write-up of Satya Nadella’s day in court during the Google antitrust trial today. The power of defaults is one of the central questions of the entire US v. Google case and will continue to come up. (The witness after Nadella is former Neeva CEO Sridhar Ramaswamy, who has also said his search engine was crushed in part because overcoming Google’s default status was so difficult.) Nadella is in the rare position to have seen both sides — what it’s like to be the default and what it’s like to contend when you’re not — and argued resolutely that defaults are the only thing that truly matters. Google, on the other hand, says that building the best product is the only thing that truly matters and that Bing has never come close to doing that. Which side of that debate Judge Mehta agrees with may be the story of this entire trial. It’s an excellent and at times even funny read.
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