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Note to the people asking why this matters: Legally, if you take a position in federal court on X (i.e., that it's okay to ban external transactions by apps us

Note to the people asking why this matters: Legally, if you take a position in federal court on X (i.e., that it's okay to ban external transactions by apps using your app store), and you are found to be doing not-X in an analogous situation (i.e., setting up external transactions to avoid fees in your competitors' app store), the court can rule against you in the original case...and then sanction you and your lawyers for wasting the court's time proclaiming X...and then legally bar you from asserting X in those proceedings, or related proceedings. Courts are generally okay with some form of alternative arguments, (i.e., I didn't do Y, but if I did Y it was legal for me to do so), but they absolutely will not accept contradictory arguments by the same party (It's okay for me to do Z but I won't allow others to do Z in the same situation).

jessriedel 6y ago
Can you link to something that goes into more details about this principle, or give us some search terms? Stated as broadly as you have done, it doesn't sound right to me.
- jerf 6y ago
  Judicial estoppel: https://en.wikipedia.org/wiki/Judicial_estoppel https://en.wikipedia.org/wiki/Judicial_estoppel or the alternate name the article give, "estoppel by inconsistent positions". More generally, the thing known as "common law": https://en.wikipedia.org/wiki/Common_law https://en.wikipedia.org/wiki/Common_law Note that "common law" does not mean "law that is common", at least not on an international scale; it is a specific legal system. As the Wikipedia article says, there are several others. A super super high-level summary is that common law systems take more account of intent and precedent, whereas civil law systems tend to interpret the law exactly as written. A common law judge is more able to look at a litigant and take into account any sort of hypocrisy of their positions whereas I think a civil law judge in this situation would be more likely to simply take the case as is without such external considerations. But, let me again emphasize, that's a super-high level summary.
  - jessriedel 6y ago
    Thanks. I'm familiar with the distinction between common and civil law, but that does not seem sufficiently specific to my question to be very helpful. The link to judicial estoppel is helpful, but seems much less broad than the gamblor956's claim. Judicial estoppel involves a party presenting contradictory arguments in separate court cases, not just hypocritical behavior by the party. (gamblor956: "if you take a position in federal court on X... and you are found to be doing not-X in an analogous situation...").
    - gamblor956 6y ago
      Judicial estoppel is a lot broader than the 3 paragraph Wikipedia page. It applies to the same court case, to separate court cases, and to actions occurring outside of a courtroom that would affect a court case if such actions have the effect of contradicting a legal position a party is taking in court.
      - jerf 6y ago
        Yes; I was answering the "give me a google term" question (which is a good question I fully support; it sure as heck isn't obvious the answer is "estoppel" to an English speaker), not "here's a full explanation of the concept" not-asked question. I'm not competent to give the latter. Further edit: I was also showing this is a principle in common law. It seems to be pretty rare for a case to be resolved with an explicit resolution that cites the basic principle, and for every principle you can find any number of places where it seems to be violated. Instead, these general principles are just ambiently in the air at all times, so to speak. I wouldn't expect the court to explicitly rule "case dismissed because of judicial estoppel"; I would expect it is something that factors in to the general environment of the trial, rarely in the foreground but constantly in the background. You are going in with a weaker position arguing that entity X shouldn't be doing Y if you are yourself doing Y in a manner that a reasonable person would find comparable.
        jessriedel 6y ago
        I do appreciate it. Your comment definitely advanced the discussion.
fortran77 6y ago
Wouldn't it all depend on the contracts/agreements in place? If Google has a different agreement than Apple, why would the same terms apply?
- jklehm 6y ago
  Dueling monopolies share only fleeting similarity with the appealing properties of markets.
- lotsofpulp 6y ago
  They would not and do not apply.
- jonny_eh 6y ago
  It undercuts Apple's argument that they "need" to have this limitation in place, since clearly their largest competitor doesn't "need" to do it.
  - deleted 6y ago
    [deleted]
  - dwaite 6y ago
    Subscription media apps on iOS are allowed to use external payment processing. A hypocritical position would be having users do initial sign-up (including creation of an Apple ID with billing information) in-app on Android.
- gamblor956 6y ago
  It's not about the TOS, it's about Apple taking the position that Google's requirement is anticompetitive in the Play Store but that Apple doing the same thing (actually worse, since Google allows third-party stores to be installed) in its own App Store is not. That can be used against them in an antitrust proceeding...in US courts. I don't know how the EU handles judicial estoppel since AFAIK it's only a feature of the UK-originated common law system.
  - 6y ago
snowwrestler 6y ago
Obviously if Apple owns one platform, and Google owns the other platform, it is not actually the same situation. The law does not require that Google and Apple run their online stores the same way, or that Apple interact with Google's store the same way they choose to run their own store. In fact it's arguable that a free marketplace encourages and depends on different companies taking different approaches to meet customer demands.
- gamblor956 6y ago
  Analogous != same. It means its very similar factually. The law does not require that Google and Apple run their online stores the same way, or that Apple interact with Google's store the same way they choose to run their own store. That's correct. But the law does require them to run the stores in a way that does not violate antitrust laws. Apple is violating antitrust laws by forcing companies to use Apple Pay as a condition of using the App Store (i.e., leveraging dominant/monopolistic market position in one market in a non-competitive manner over another market). Apple cannot then do the same thing it prohibits in its own app store in the Google Play Store, which has similar rules, because both of these actions have the effect of taking legal positions. In fact it's arguable that a free marketplace encourages and depends on different companies taking different approaches to meet customer demands. Which Apple does not permit. It's literally Apple's way, plus a 30% cut for doing nothing, or you're not even allowed to play. And that's exactly what antitrust laws were intended to prevent.
  - Despegar 6y ago
    >That's correct. But the law does require them to run the stores in a way that does not violate antitrust laws. Apple is violating antitrust laws by forcing companies to use Apple Pay as a condition of using the App Store (i.e., leveraging dominant/monopolistic market position in one market in a non-competitive manner over another market). The reason why everyone has to narrowly define the market to "Apple has monopoly power in the iOS market" is because they don't actually have monopoly power in smartphones and are mad about that fact. Defining markets are a major part of antitrust cases and just because a prosecutor or regulator is willing to do it doesn't mean it will actually work in court.
cma 6y ago
The law doesn't have a hypocrisy clause like that.
- criddell 6y ago
  The court of public opinion does though.
SkyBelow 6y ago
This doesn't sound right, so let me try to form an example to get at what is the issue I'm seeing. Let X be "It is okay for me to ban my customers from using discounts." Let not X be "It is okay for me to use discounts offered by another restaurant." This doesn't feel like a particularly contradictory situation. Maybe the issue is that we skipped a few too many steps, because there isn't anything particularly illegal about Apple only letting apps doing certain things (like not bypassing their store) onto their store. The issue is that this is occurring in a larger situation where there are concerns about being a monopoly. I wonder if we build out exactly why what Apple is doing might be wrong (basically the argument they are having to defend against by claiming X is okay) we can see it isn't an issue. But at face value it feels to be taking a very broad view of what constitutes hypocritical behavior to the point it renders the notion useless.
- nahtnam 6y ago
  I think its more "It is legal for me to ban coupons at my store" and then suing another company for not letting you use coupons at their store. I'm not 100% sure though
  - objektif 6y ago
    Isnt it more like I am banning all my customers to use coupons on my platform. Then circumventing this ban and using coupons on another platform anyways.
  - cortesoft 6y ago
    Has Apple sued Google for this, though? I haven’t heard of any lawsuits over this between the companies.
    - seccess 6y ago
      I think in this case, the hypothetical lawsuits would be between companies that make iOS apps and Apple. The companies that make iOS apps want to have their own payment system where Apple doesn't take a cut.
spullara 6y ago
In this case they are following the rules on the other platform. Just like they expect their own rules to be followed on their platform.
deleted 6y ago
[deleted]
dwaite 6y ago
I fail to understand this position. Apple Music is in the same position as say Spotify on Google's platform as a third party media service. Is the implication that they should operate differently or be held to a different standard than Spotify? I don't believe Apple has argued that collecting alternate payments in-app would be an undesirable for third party developers on the App Store - just that they don't wish to support it (for multiple reasons). This also comes from Apple and Google having different starting points in their mobile platform - Apple already had a huge account and micropayment billing base for the iPhone by basing the App Store on the iTunes Store.
- TAForObvReasons 6y ago
  Apple is both the developer of Apple Music and the operator of the iOS App Store. Apple's Apple Music app is using a tactic on the Google App Store, while Apple's iOS App Store is blocking certain third parties from doing the same. The implication isn't "Apple Music should be barred" but rather "If Apple is working around the 30% cut in other companies' walled gardens, maybe they shouldn't be blocking apps that try to do the same to Apple's 30% cut in Apple's iOS store" This is showing up today because of Hey's rejection (https://twitter.com/dhh/status/1272968382329942017 https://twitter.com/dhh/status/1272968382329942017 more context)
  - munk-a 6y ago
    Is Apple actually technically the owner of both or are they using some "partially controlled former subsidiary" related BS to try and duck out of responsibility?
    - TAForObvReasons 6y ago
      It's worth checking before blindly downvoting: The seller of Apple Music on the google play store is Apple Inc https://play.google.com/store/apps/details?id=com.apple.android.music https://play.google.com/store/apps/details?id=com.apple.andr... The developer of the iOS app store is also Apple Inc: https://www.apple.com/ios/app-store/ https://www.apple.com/ios/app-store/ (check the copyright at the bottom)
jungletime 6y ago
"Youtube" Lawyer (Viva Frey) was making the same argument this week of such a contradiction. Google banning Federalist from its ad network for having racist comments on its articles. Google having plenty of racist comments on its own youtube, but still running ads on those videos.
gnicholas 6y ago
This does not fit with my understanding of estoppel (I am a lawyer). There are specific rules that apply to the different types of estoppel, and they would not be met where Apple is dealing with app developers pursuant to the App Store dev agreement in one case and dealing with Google under the Google Play TOS in the other case. It might be relevant if Apple claimed that Google is acting as a monopolist by engaging in XYZ behavior, but Apple’s lawyers are smart enough not to make such an argument.

jessriedel 6y ago

Can you link to something that goes into more details about this principle, or give us some search terms? Stated as broadly as you have done, it doesn't sound right to me.

jerf 6y ago
Judicial estoppel: https://en.wikipedia.org/wiki/Judicial_estoppel https://en.wikipedia.org/wiki/Judicial_estoppel or the alternate name the article give, "estoppel by inconsistent positions". More generally, the thing known as "common law": https://en.wikipedia.org/wiki/Common_law https://en.wikipedia.org/wiki/Common_law Note that "common law" does not mean "law that is common", at least not on an international scale; it is a specific legal system. As the Wikipedia article says, there are several others. A super super high-level summary is that common law systems take more account of intent and precedent, whereas civil law systems tend to interpret the law exactly as written. A common law judge is more able to look at a litigant and take into account any sort of hypocrisy of their positions whereas I think a civil law judge in this situation would be more likely to simply take the case as is without such external considerations. But, let me again emphasize, that's a super-high level summary.
- jessriedel 6y ago
  Thanks. I'm familiar with the distinction between common and civil law, but that does not seem sufficiently specific to my question to be very helpful. The link to judicial estoppel is helpful, but seems much less broad than the gamblor956's claim. Judicial estoppel involves a party presenting contradictory arguments in separate court cases, not just hypocritical behavior by the party. (gamblor956: "if you take a position in federal court on X... and you are found to be doing not-X in an analogous situation...").
  - gamblor956 6y ago
    Judicial estoppel is a lot broader than the 3 paragraph Wikipedia page. It applies to the same court case, to separate court cases, and to actions occurring outside of a courtroom that would affect a court case if such actions have the effect of contradicting a legal position a party is taking in court.
    - jerf 6y ago
      Yes; I was answering the "give me a google term" question (which is a good question I fully support; it sure as heck isn't obvious the answer is "estoppel" to an English speaker), not "here's a full explanation of the concept" not-asked question. I'm not competent to give the latter. Further edit: I was also showing this is a principle in common law. It seems to be pretty rare for a case to be resolved with an explicit resolution that cites the basic principle, and for every principle you can find any number of places where it seems to be violated. Instead, these general principles are just ambiently in the air at all times, so to speak. I wouldn't expect the court to explicitly rule "case dismissed because of judicial estoppel"; I would expect it is something that factors in to the general environment of the trial, rarely in the foreground but constantly in the background. You are going in with a weaker position arguing that entity X shouldn't be doing Y if you are yourself doing Y in a manner that a reasonable person would find comparable.
      - jessriedel 6y ago
        I do appreciate it. Your comment definitely advanced the discussion.

fortran77 6y ago

Wouldn't it all depend on the contracts/agreements in place? If Google has a different agreement than Apple, why would the same terms apply?

jklehm 6y ago
Dueling monopolies share only fleeting similarity with the appealing properties of markets.
lotsofpulp 6y ago
They would not and do not apply.
jonny_eh 6y ago
It undercuts Apple's argument that they "need" to have this limitation in place, since clearly their largest competitor doesn't "need" to do it.
- deleted 6y ago
  [deleted]
- dwaite 6y ago
  Subscription media apps on iOS are allowed to use external payment processing. A hypocritical position would be having users do initial sign-up (including creation of an Apple ID with billing information) in-app on Android.
gamblor956 6y ago
It's not about the TOS, it's about Apple taking the position that Google's requirement is anticompetitive in the Play Store but that Apple doing the same thing (actually worse, since Google allows third-party stores to be installed) in its own App Store is not. That can be used against them in an antitrust proceeding...in US courts. I don't know how the EU handles judicial estoppel since AFAIK it's only a feature of the UK-originated common law system.
- 6y ago

snowwrestler 6y ago

Obviously if Apple owns one platform, and Google owns the other platform, it is not actually the same situation. The law does not require that Google and Apple run their online stores the same way, or that Apple interact with Google's store the same way they choose to run their own store. In fact it's arguable that a free marketplace encourages and depends on different companies taking different approaches to meet customer demands.

gamblor956 6y ago
Analogous != same. It means its very similar factually. The law does not require that Google and Apple run their online stores the same way, or that Apple interact with Google's store the same way they choose to run their own store. That's correct. But the law does require them to run the stores in a way that does not violate antitrust laws. Apple is violating antitrust laws by forcing companies to use Apple Pay as a condition of using the App Store (i.e., leveraging dominant/monopolistic market position in one market in a non-competitive manner over another market). Apple cannot then do the same thing it prohibits in its own app store in the Google Play Store, which has similar rules, because both of these actions have the effect of taking legal positions. In fact it's arguable that a free marketplace encourages and depends on different companies taking different approaches to meet customer demands. Which Apple does not permit. It's literally Apple's way, plus a 30% cut for doing nothing, or you're not even allowed to play. And that's exactly what antitrust laws were intended to prevent.
- Despegar 6y ago
  >That's correct. But the law does require them to run the stores in a way that does not violate antitrust laws. Apple is violating antitrust laws by forcing companies to use Apple Pay as a condition of using the App Store (i.e., leveraging dominant/monopolistic market position in one market in a non-competitive manner over another market). The reason why everyone has to narrowly define the market to "Apple has monopoly power in the iOS market" is because they don't actually have monopoly power in smartphones and are mad about that fact. Defining markets are a major part of antitrust cases and just because a prosecutor or regulator is willing to do it doesn't mean it will actually work in court.

cma 6y ago

The law doesn't have a hypocrisy clause like that.

criddell 6y ago
The court of public opinion does though.

SkyBelow 6y ago

This doesn't sound right, so let me try to form an example to get at what is the issue I'm seeing. Let X be "It is okay for me to ban my customers from using discounts." Let not X be "It is okay for me to use discounts offered by another restaurant." This doesn't feel like a particularly contradictory situation. Maybe the issue is that we skipped a few too many steps, because there isn't anything particularly illegal about Apple only letting apps doing certain things (like not bypassing their store) onto their store. The issue is that this is occurring in a larger situation where there are concerns about being a monopoly. I wonder if we build out exactly why what Apple is doing might be wrong (basically the argument they are having to defend against by claiming X is okay) we can see it isn't an issue. But at face value it feels to be taking a very broad view of what constitutes hypocritical behavior to the point it renders the notion useless.

nahtnam 6y ago
I think its more "It is legal for me to ban coupons at my store" and then suing another company for not letting you use coupons at their store. I'm not 100% sure though
- objektif 6y ago
  Isnt it more like I am banning all my customers to use coupons on my platform. Then circumventing this ban and using coupons on another platform anyways.
- cortesoft 6y ago
  Has Apple sued Google for this, though? I haven’t heard of any lawsuits over this between the companies.
  - seccess 6y ago
    I think in this case, the hypothetical lawsuits would be between companies that make iOS apps and Apple. The companies that make iOS apps want to have their own payment system where Apple doesn't take a cut.

spullara 6y ago

In this case they are following the rules on the other platform. Just like they expect their own rules to be followed on their platform.

deleted 6y ago

[deleted]

dwaite 6y ago

I fail to understand this position. Apple Music is in the same position as say Spotify on Google's platform as a third party media service. Is the implication that they should operate differently or be held to a different standard than Spotify? I don't believe Apple has argued that collecting alternate payments in-app would be an undesirable for third party developers on the App Store - just that they don't wish to support it (for multiple reasons). This also comes from Apple and Google having different starting points in their mobile platform - Apple already had a huge account and micropayment billing base for the iPhone by basing the App Store on the iTunes Store.

TAForObvReasons 6y ago
Apple is both the developer of Apple Music and the operator of the iOS App Store. Apple's Apple Music app is using a tactic on the Google App Store, while Apple's iOS App Store is blocking certain third parties from doing the same. The implication isn't "Apple Music should be barred" but rather "If Apple is working around the 30% cut in other companies' walled gardens, maybe they shouldn't be blocking apps that try to do the same to Apple's 30% cut in Apple's iOS store" This is showing up today because of Hey's rejection (https://twitter.com/dhh/status/1272968382329942017 https://twitter.com/dhh/status/1272968382329942017 more context)
- munk-a 6y ago
  Is Apple actually technically the owner of both or are they using some "partially controlled former subsidiary" related BS to try and duck out of responsibility?
  - TAForObvReasons 6y ago
    It's worth checking before blindly downvoting: The seller of Apple Music on the google play store is Apple Inc https://play.google.com/store/apps/details?id=com.apple.android.music https://play.google.com/store/apps/details?id=com.apple.andr... The developer of the iOS app store is also Apple Inc: https://www.apple.com/ios/app-store/ https://www.apple.com/ios/app-store/ (check the copyright at the bottom)

jungletime 6y ago

"Youtube" Lawyer (Viva Frey) was making the same argument this week of such a contradiction. Google banning Federalist from its ad network for having racist comments on its articles. Google having plenty of racist comments on its own youtube, but still running ads on those videos.

gnicholas 6y ago

This does not fit with my understanding of estoppel (I am a lawyer). There are specific rules that apply to the different types of estoppel, and they would not be met where Apple is dealing with app developers pursuant to the App Store dev agreement in one case and dealing with Google under the Google Play TOS in the other case. It might be relevant if Apple claimed that Google is acting as a monopolist by engaging in XYZ behavior, but Apple’s lawyers are smart enough not to make such an argument.