In dismay of the District Court\u2019s holding, \u201c[n]early 40 law, business and economics academics\u201d filed an amicus brief in the Court of Appeals for the Ninth Circuit this past January \u201carguing the [district court] judge wrongly accepted Apple’s justifications that restrictions on third-party app distribution are necessary to protect users.\u201d[3]<\/a> The brief hit on various flaws it saw in the District Court\u2019s analysis, such as:<\/p>\n [T]he court could have concluded that, on balance, Apple\u2019s restraints were anticompetitive. Short-circuiting the analysis at an earlier stage prevented the court from assessing the ultimate competitive effects under the Rule of Reason, as courts have done for the past 45 years. The court erred in not balancing harms and benefits.[4]<\/a><\/p>\n Meanwhile, the federal legislature has simultaneously been working to combat anticompetitive policies in app markets. The United States Senate\u2019s introduced Bill 2710, Open App Markets Act, on August 11, 2021, The Congressional Research Service\u2019s bill summary described the bill as follows:<\/p>\n The bill prohibits a covered company from (1) requiring developers to use an in-app payment system owned or controlled by the company as a condition of distribution or accessibility, (2) requiring that pricing or conditions of sale be equal to or more favorable on its app store than another app store, or (3) taking punitive action against a developer for using or offering different pricing terms or conditions of sale through another in-app payment system or on another app store.<\/p>\n A covered company may not interfere with legitimate business communications between developers and users, use non-public business information from a third-party app to compete with the app, or unreasonably prefer or rank its own apps (or those of its business partners) over other apps.[5]<\/a><\/p>\n Just last week at the Global Privacy Summit in Washington, D.C., Apple CEO, Tim Cook, was reported as \u201cslamming\u201d the proposed legislation, arguing that unvetted apps would cause profound results, such as developers circumventing Apple\u2019s privacy rules and putting users at risk.[6]<\/a> The bill for the Open App Markets Act cleared the Senate Judiciary Committee earlier this year.[7]<\/a><\/p>\n As the threat of private suits continue, and as the Congressional bill continues to progress, Apple\u2019s App Store and Google\u2019s Play Store will likely remain under the microscope for the foreseeable future.<\/p>\n <\/p>\n [1]<\/a> Drew Apperson, An Epic Apple Fight<\/em>, Rich. J.L. & Tech. Blog (Dec. 25, 2020), https:\/\/jolt.richmond.edu\/2020\/12\/25\/an-epic-apple-fight\/.<\/p>\n [2]<\/a> Epic Games, Inc. v. Apple Inc.<\/em>, No. 4:20-cv-05640-YGR, 2021 U.S. Dist. LEXIS 172303 (N.D. Cal. Sep. 10, 2021).<\/p>\n [3]<\/a> Bryan Koenig, Apple Can’t Hide Behind Privacy In Epic Fight, 9th Circ. Told<\/em>, Law360 (Jan. 27, 2022, 7:17 PM), https:\/\/www.law360.com\/articles\/1459311<\/a>.<\/p>\n [4]<\/a> Brief of Amici Curiae: Law, Economics, and Business Professors in Support of Appellant\/Cross-Appellee at 38, Epic Games, Inc. v. Apple, Inc., No. 21-16695 (9th Cir. Jan. 27, 2022).<\/p>\n [5]<\/a> S.2710 – 117th Congress (2021-2022): Open App Markets Act, S.2710, 117th Cong. (2022), https:\/\/www.congress.gov\/bill\/117th-congress\/senate-bill\/2710.<\/p>\n
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