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mostlysignssomeportents · 5 months

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An Epic antitrust loss for Google

A jury just found Google guilty on all counts of antitrust violations stemming from its dispute with Epic, maker of Fortnite, which brought a variety of claims related to how Google runs its app marketplace. This is huge:

https://www.nytimes.com/2023/12/11/technology/epic-games-google-antitrust-ruling.html

The mobile app store world is a duopoly run by Google and Apple. Both use a variety of tactics to prevent their customers from installing third party app stores, which funnels all app makers into their own app stores. Those app stores cream an eye-popping 30% off every purchase made in an app.

This is a shocking amount to charge for payment processing. The payments sector is incredibly monopolized and notorious for its price-gouging – and its standard (wildly inflated) rate is 2-5%:

https://pluralistic.net/2023/08/04/owning-the-libs/#swiper-no-swiping

Now, in theory, Epic doesn't have to sell in Google Play, the official Android app store. Unlike Apple's iOS, Android permit both sideloading (installing an app directly without using an app store) and configuring your device to use a different app store. In practice, Google uses a variety of anticompetitive tricks to prevent these app stores from springing up and to dissuade Android users from sideloading. Proving that Google's actions – like paying Activision $360m as part of "Project Hug" (no, really!) – were intended to prevent new app storesfrom springing up was a big lift for Epic. But they managed it, in large part thanks to Google's own internal communications, wherein executives admitted that this was exactly why Project Hug existed. This is part of a pattern with Big Tech antitrust: many of the charges are theoretically very hard to make stick, but because the companies put their evil plans in writing (think of the fraudulent crypto exchange FTX, whose top execs all conferred in a groupchat called "Wirefraud"), Big Tech keeps losing in court:

https://pluralistic.net/2023/09/03/big-tech-cant-stop-telling-on-itself/

Now, I do like to dunk on Big Tech for this kind of thing, because it's objectively funny and because the companies make so many unforced errors. But in an important sense, this kind of written record is impossible to avoid. Any large institution can only make and enact policy through administrative systems, and those systems leave behind a paper-trail: memos, meeting minutes, etc. Yes, we all know that quote from The Wire: "Is you taking notes on a fucking criminal conspiracy?" But inevitably, any ambitious conspiracy can only exist if someone is taking notes.

What's more, any large conspiracy involving lots of parties will inevitably produce leaks. Think of this as the corollary to the idea that the moon landing can't be a hoax, because there's no way 400,000 co-conspirators could keep the secret. Big Tech's conspiracies required hundreds or even thousands of collaborators to keep their mouths shut, and eventually someone blabs:

https://www.science.org/content/article/fake-moon-landing-you-d-need-400000-conspirators

This is part of a wave of antitrust cases being brought against the tech giants. As Matt Stoller writes, the guilty-on-all-counts jury verdict will leak into current and future actions. Remember, Google spent much of this year in court fighting the DoJ, who argued that the company bribed Apple not to make a competing search engine, paying tens of billions every year to keep a competitor from emerging. Now that a jury has convinced Google of doing that to prevent alternative app stores from emerging, claims that it used these pay-for-delay tactics in other sectros get a lot more credible:

https://www.thebignewsletter.com/p/boom-google-loses-antitrust-case

On that note: what about Apple? Epic brought a very similar case against Apple and lost. Both Apple and Epic are appealing that case to the Supreme Court, and now that Google has been convicted in a similar case, it might prompt the Supremes to weigh in and resolve the seeming inconsistencies in the interpretation of federal law.

This is a key moment in the long project to wrest antitrust away from the pro-monopoly side, who spent decades "training" judges to produce verdicts that run counter to the plain language of America's antitrust law:

https://pluralistic.net/2021/08/13/post-bork-era/#manne-down

There's 40 years' worth of bad precedent to overturn. The good news is that we've got the law on our side. Literally, the wording of the laws and the records of the Congressional debate leading to their passage, all militate towards the (incredibly obvious) conclusion that the purpose of anti-monopoly law is to fight monopoly, not defend it:

https://pluralistic.net/2023/04/14/aiming-at-dollars/#not-men

It's amazing to realize that we got into this monopoly quagmire because judges just literally refused to enforce the law. That's what makes one part of the jury verdict against Google so exciting: the jury found that Google's insistence that Play Store sellers use its payment processor was an act of illegal tying. Today, "tying" is an obscure legal theory, but few doctrines would be more useful in disenshittifying the internet. A company is guilty of illegal tying when it forces you to use unrelated products or services as a condition of using the product you actually want. The abandonment of tying led to a host of horribles, from printer companies forcing you to buy ink at $10,000/gallon to Livenation forcing venues to sell tickets through its Ticketmaster subsidiary.

The next phase of this comes when the judge decides on the penalty. Epic doesn't want cash damages – it wants the judge to order Google to fulfill its promise of "an open, competitive Android ecosystem for all users and industry participants." They've asked the judge to order Google to facilitate third-party app stores, and to separate app stores from payment processors. As Stoller puts it, they want to "crush Google’s control over Android":

https://www.epicgames.com/site/en-US/news/epic-v-google-trial-verdict-a-win-for-all-developers

Google has sworn to appeal, surprising no one. The Times's expert says that they will have a tough time winning, given how clear the verdict was. Whatever this means for Google and Android, it means a lot for a future free from monopolies.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/12/12/im-feeling-lucky/#hugger-mugger

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mostlysignssomeportents · 1 month

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The antitrust case against Apple

I'm on tour with my new, nationally bestselling novel The Bezzle! Catch me TONIGHT (Mar 22) in TORONTO, then SUNDAY (Mar 24) with LAURA POITRAS in NYC, then Anaheim, and beyond!

The foundational tenet of "the Cult of Mac" is that buying products from a $3t company makes you a member of an oppressed ethnic minority and therefore every criticism of that corporation is an ethnic slur:

https://pluralistic.net/2024/01/12/youre-holding-it-wrong/#if-dishwashers-were-iphones

Call it "Apple exceptionalism" – the idea that Apple, alone among the Big Tech firms, is virtuous, and therefore its conduct should be interpreted through that lens of virtue. The wellspring of this virtue is conveniently nebulous, which allows for endless goal-post shifting by members of the Cult of Mac when Apple's sins are made manifest.

Take the claim that Apple is "privacy respecting," which is attributed to Apple's business model of financing its services though cash transactions, rather than by selling it customers to advertisers. This is the (widely misunderstood) crux of the "surveillance capitalism" hypothesis: that capitalism is just fine, but once surveillance is in the mix, capitalism fails.

Apple, then, is said to be a virtuous company because its behavior is disciplined by market forces, unlike its spying rivals, whose ability to "hack our dopamine loops" immobilizes the market's invisible hand with "behavior-shaping" shackles:

http://pluralistic.net/HowToDestroySurveillanceCapitalism

Apple makes a big deal out of its privacy-respecting ethos, and not without some justification. After all, Apple went to the mattresses to fight the FBI when they tried to force Apple to introduced defects into its encryption systems:

https://www.eff.org/deeplinks/2018/04/fbi-could-have-gotten-san-bernardino-shooters-iphone-leadership-didnt-say

And Apple gave Ios users the power to opt out of Facebook spying with a single click; 96% of its customers took them up on this offer, costing Facebook $10b (one fifth of the pricetag of the metaverse boondoggle!) in a single year (you love to see it):

https://arstechnica.com/gadgets/2021/02/facebook-makes-the-case-for-activity-tracking-to-ios-14-users-in-new-pop-ups/

Bruce Schneier has a name for this practice: "feudal security." That's when you cede control over your device to a Big Tech warlord whose "walled garden" becomes a fortress that defends you against external threats:

https://pluralistic.net/2021/06/08/leona-helmsley-was-a-pioneer/#manorialism

The keyword here is external threats. When Apple itself threatens your privacy, the fortress becomes a prison. The fact that you can't install unapproved apps on your Ios device means that when Apple decides to harm you, you have nowhere to turn. The first Apple customers to discover this were in China. When the Chinese government ordered Apple to remove all working privacy tools from its App Store, the company obliged, rather than risk losing access to its ultra-cheap manufacturing base (Tim Cook's signal accomplishment, the one that vaulted him into the CEO's seat, was figuring out how to offshore Apple manufacturing to China) and hundreds of millions of middle-class consumers:

https://www.reuters.com/article/us-china-apple-vpn/apple-says-it-is-removing-vpn-services-from-china-app-store-idUSKBN1AE0BQ

Killing VPNs and other privacy tools was just for openers. After Apple caved to Beijing, the demands kept coming. Next, Apple willingly backdoored all its Chinese cloud services, so that the Chinese state could plunder its customers' data at will:

https://www.nytimes.com/2021/05/17/technology/apple-china-censorship-data.html

This was the completely foreseeable consequence of Apple's "curated computing" model: once the company arrogated to itself the power to decide which software you could run on your own computer, it was inevitable that powerful actors – like the Chinese Communist Party – would lean on Apple to exercise that power in service to its goals.

Unsurprisingly, the Chinese state's appetite for deputizing Apple to help with its spying and oppression was not sated by backdooring iCloud and kicking VPNs out of the App Store. As recently as 2022, Apple continued to neuter its tools at the behest of the Chinese state, breaking Airdrop to make it useless for organizing protests in China:

https://pluralistic.net/2022/11/11/foreseeable-consequences/#airdropped

But the threat of Apple turning on its customers isn't limited to China. While the company has been unwilling to spy on its users on behalf of the US government, it's proven more than willing to compromise its worldwide users' privacy to pad its own profits. Remember when Apple let its users opt out of Facebook surveillance with one click? At the very same time, Apple was spinning up its own commercial surveillance program, spying on Ios customers, gathering the very same data as Facebook, and for the very same purpose: to target ads. When it came to its own surveillance, Apple completely ignored its customers' explicit refusal to consent to spying, spied on them anyway, and lied about it:

https://pluralistic.net/2022/11/14/luxury-surveillance/#liar-liar

Here's the thing: even if you believe that Apple has a "corporate personality" that makes it want to do the right thing, that desire to be virtuous is dependent on the constraints Apple faces. The fact that Apple has complete legal and technical control over the hardware it sells – the power to decide who can make software that runs on that hardware, the power to decide who can fix that hardware, the power to decide who can sell parts for that hardware – represents an irresistible temptation to enshittify Apple products.

"Constraints" are the crux of the enshittification hypothesis. The contagion that spread enshittification to every corner of our technological world isn't a newfound sadism or indifference among tech bosses. Those bosses are the same people they've always been – the difference is that today, they are unconstrained.

Having bought, merged or formed a cartel with all their rivals, they don't fear competition (Apple buys 90+ companies per year, and Google pays it an annual $26.3b bribe for default search on its operating systems and programs).

Having captured their regulators, they don't fear fines or other penalties for cheating their customers, workers or suppliers (Apple led the coalition that defeated dozens of Right to Repair bills, year after year, in the late 2010s).

Having wrapped themselves in IP law, they don't fear rivals who make alternative clients, mods, privacy tools or other "adversarial interoperability" tools that disenshittify their products (Apple uses the DMCA, trademark, and other exotic rules to block third-party software, repair, and clients).

True virtue rests not merely in resisting temptation to be wicked, but in recognizing your own weakness and avoiding temptation. As I wrote when Apple embarked on its "curated computing" path, the company would eventually – inevitably – use its power to veto its customers' choices to harm those customers:

https://memex.craphound.com/2010/04/01/why-i-wont-buy-an-ipad-and-think-you-shouldnt-either/

Which is where we're at today. Apple – uniquely among electronics companies – shreds every device that is traded in by its customers, to block third parties from harvesting working components and using them for independent repair:

https://www.vice.com/en/article/yp73jw/apple-recycling-iphones-macbooks

Apple engraves microscopic Apple logos on those parts and uses these as the basis for trademark complaints to US customs, to block the re-importation of parts that escape its shredders:

https://repair.eu/news/apple-uses-trademark-law-to-strengthen-its-monopoly-on-repair/

Apple entered into an illegal price-fixing conspiracy with Amazon to prevent used and refurbished devices from being sold in the "world's biggest marketplace":

https://pluralistic.net/2022/11/10/you-had-one-job/#thats-just-the-as

Why is Apple so opposed to independent repair? Well, they say it's to keep users safe from unscrupulous or incompetent repair technicians (feudal security). But when Tim Cook speaks to his investors, he tells a different story, warning them that the company's profits are threatened by customers who choose to repair (rather than replace) their slippery, fragile glass $1,000 pocket computers (the fortress becomes a prison):

https://www.apple.com/newsroom/2019/01/letter-from-tim-cook-to-apple-investors/

All this adds up to a growing mountain of immortal e-waste, festooned with miniature Apple logos, that our descendants will be dealing with for the next 1,000 years. In the face of this unspeakable crime, Apple engaged in a string of dishonest maneuvers, claiming that it would support independent repair. In 2022, Apple announced a home repair program that turned out to be a laughably absurd con:

https://pluralistic.net/2022/05/22/apples-cement-overshoes/

Then in 2023, Apple announced a fresh "pro-repair" initiative that, once again, actually blocked repair:

https://pluralistic.net/2023/09/22/vin-locking/#thought-differently

Let's pause here a moment and remember that Apple once stood for independent repair, and celebrated the independent repair technicians that kept its customers' beloved Macs running:

https://pluralistic.net/2021/10/29/norwegian-potato-flour-enchiladas/#r2r

Whatever virtue lurks in Apple's corporate personhood, it is no match for the temptation that comes from running a locked-down platform designed to capture IP rights so that it can prevent normal competitive activities, like fixing phones, processing payments, or offering apps.

When Apple rolled out the App Store, Steve Jobs promised that it would save journalism and other forms of "content creation" by finally giving users a way to pay rightsholders. A decade later, that promise has been shattered by the app tax – a 30% rake on every in-app transaction that can't be avoided because Apple will kick your app out of the App Store if you even mention that your customers can pay you via the web in order to avoid giving a third of their content dollars to a hardware manufacturer that contributed nothing to the production of that material:

https://www.eff.org/deeplinks/2023/06/save-news-we-must-open-app-stores

Among the apps that Apple also refuses to allow on Ios is third-party browsers. Every Iphone browser is just a reskinned version of Apple's Safari, running on the same antiquated, insecure Webkit browser engine. The fact that Webkit is incomplete and outdated is a feature, not a bug, because it lets Apple block web apps – apps delivered via browsers, rather than app stores:

https://pluralistic.net/2022/12/13/kitbashed/#app-store-tax

Last month, the EU took aim at Apple's veto over its users' and software vendors' ability to transact with one another. The newly in-effect Digital Markets Act requires Apple to open up both third-party payment processing and third-party app stores. Apple's response to this is the very definition of malicious compliance, a snake's nest of junk-fees, onerous terms of service, and petty punitive measures that all add up to a great, big "Go fuck yourself":

https://pluralistic.net/2024/02/06/spoil-the-bunch/#dma

But Apple's bullying, privacy invasion, price-gouging and environmental crimes are global, and the EU isn't the only government seeking to end them. They're in the firing line in Japan:

https://asia.nikkei.com/Business/Technology/Japan-to-crack-down-on-Apple-and-Google-app-store-monopolies

And in the UK:

https://www.gov.uk/government/news/cma-wins-appeal-in-apple-case

And now, famously, the US Department of Justice is coming for Apple, with a bold antitrust complaint that strikes at the heart of Apple exceptionalism, the idea that monopoly is safer for users than technological self-determination:

https://www.justice.gov/opa/media/1344546/dl?inline

There's passages in the complaint that read like I wrote them:

Apple wraps itself in a cloak of privacy, security, and consumer preferences to justify its anticompetitive conduct. Indeed, it spends billions on marketing and branding to promote the self-serving premise that only Apple can safeguard consumers’ privacy and security interests. Apple selectively compromises privacy and security interests when doing so is in Apple’s own financial interest—such as degrading the security of text messages, offering governments and certain companies the chance to access more private and secure versions of app stores, or accepting billions of dollars each year for choosing Google as its default search engine when more private options are available. In the end, Apple deploys privacy and security justifications as an elastic shield that can stretch or contract to serve Apple’s financial and business interests.

After all, Apple punishes its customers for communicating with Android users by forcing them to do so without any encryption. When Beeper Mini rolled out an Imessage-compatible Android app that fixed this, giving Iphone owners the privacy Apple says they deserve but denies to them, Apple destroyed Beeper Mini:

https://blog.beeper.com/p/beeper-moving-forward

Tim Cook is on record about this: if you want to securely communicate with an Android user, you must "buy them an Iphone":

https://www.theverge.com/2022/9/7/23342243/tim-cook-apple-rcs-imessage-android-iphone-compatibility

If your friend, family member or customer declines to change mobile operating systems, Tim Cook insists that you must communicate without any privacy or security.

Even where Apple tries for security, it sometimes fails ("security is a process, not a product" -B. Schneier). To be secure in a benevolent dictatorship, it must also be an infallible dictatorship. Apple's far from infallible: Eight generations of Iphones have unpatchable hardware defects:

https://checkm8.info/

And Apple's latest custom chips have secret-leaking, unpatchable vulnerabilities:

https://arstechnica.com/security/2024/03/hackers-can-extract-secret-encryption-keys-from-apples-mac-chips/

Apple's far from infallible – but they're also far from benevolent. Despite Apple's claims, its hardware, operating system and apps are riddled with deliberate privacy defects, introduce to protect Apple's shareholders at the expense of its customers:

https://proton.me/blog/iphone-privacy

Now, antitrust suits are notoriously hard to make, especially after 40 years of bad-precedent-setting, monopoly-friendly antitrust malpractice. Much of the time, these suits fail because they can't prove that tech bosses intentionally built their monopolies. However, tech is a written culture, one that leaves abundant, indelible records of corporate deliberations. What's more, tech bosses are notoriously prone to bragging about their nefarious intentions, committing them to writing:

https://pluralistic.net/2023/09/03/big-tech-cant-stop-telling-on-itself/

Apple is no exception – there's an abundance of written records that establish that Apple deliberately, illegally set out to create and maintain a monopoly:

https://www.wired.com/story/4-internal-apple-emails-helped-doj-build-antitrust-case/

Apple claims that its monopoly is beneficent, used to protect its users, making its products more "elegant" and safe. But when Apple's interests conflict with its customers' safety and privacy – and pocketbooks – Apple always puts itself first, just like every other corporation. In other words: Apple is unexceptional.

The Cult of Mac denies this. They say that no one wants to use a third-party app store, no one wants third-party payments, no one wants third-party repair. This is obviously wrong and trivially disproved: if no Apple customer wanted these things, Apple wouldn't have to go to enormous lengths to prevent them. The only phones that an independent Iphone repair shop fixes are Iphones: which means Iphone owners want independent repair.

The rejoinder from the Cult of Mac is that those Iphone owners shouldn't own Iphones: if they wanted to exercise property rights over their phones, they shouldn't have bought a phone from Apple. This is the "No True Scotsman" fallacy for distraction-rectangles, and moreover, it's impossible to square with Tim Cook's insistence that if you want private communications, you must buy an Iphone.

Apple is unexceptional. It's just another Big Tech monopolist. Rounded corners don't preserve virtue any better than square ones. Any company that is freed from constraints – of competition, regulation and interoperability – will always enshittify. Apple – being unexceptional – is no exception.

Name your price for 18 of my DRM-free ebooks and support the Electronic Frontier Foundation with the Humble Cory Doctorow Bundle.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/03/22/reality-distortion-field/#three-trillion-here-three-trillion-there-pretty-soon-youre-talking-real-money

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