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Genuine question, and I’m not trying to sealion: Can the EU compel two companies to do business with each other under the DMA? Like let’s forget about this pr

by dagmx 3y ago

Genuine question, and I’m not trying to sealion: Can the EU compel two companies to do business with each other under the DMA? Like let’s forget about this preemptive block, and say that hypothetically either: 1. An app from a third party store does something malicious 2. A third party store does something against the system terms of use Does the DMA compel the gatekeeper to continue enabling them? Or does it have some provisions for blocking them and under what terms those might be? Edit to clarify: Put another way, Does the DMA allow for terms of service in the first place? If it doesn’t explicitly allow for it, does it explicitly disallow it. And please, I am not asking for opinions on this, of which there are many I could have just read. I am legitimately asking for what the law says with regards to this specific point. I can’t find it myself so I asked here.

KptMarchewa 3y ago
"Malicious" is debatable, "against the terms" is meaningless since laws > TOSes.
- dagmx 3y ago
  You’re not really answering the question I’m asking though. I am not asking whether TOS <> Laws or not. That is perhaps one step beyond what I’m asking. I’m asking whether the Laws under the DMA have any mention in either direction on whether the gatekeepers have the ability to set (reasonable) terms and act against violation of those terms. Or is that undefined?
  - marcosdumay 3y ago
    The GP is answering your question. It seems that you don't like the answer. I guess the malicious part will have to be decided by judges. The TOS are absolutely irrelevant. If Apple goes to a government body saying "we have to remove consumer choice, those people are breaking our terms!" they will be laughed out of room.
    - dagmx 3y ago
      No they are not answering my question, and I very clearly explained why. Yes, terms of service can’t go against the law. That is NOT what I’m asking. I’m asking if the DMA allows for terms of service in the first place and what the bounds of those are. These are different questions.
      - lupire 3y ago
        TOS are allowed, as long as they don't illegally stifle competition and consumer choice.
  - arlcode 3y ago
    I am NOT a lawyer or a court. but I would read Article 6 (7) and (12) as such. "7. The gatekeeper shall allow providers of services and providers of hardware, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same hardware and software features accessed or controlled via the operating system or virtual assistant listed in the designation decision pursuant to Article 3(9) as are available to services or hardware provided by the gatekeeper. Furthermore, the gatekeeper shall allow business users and alternative providers of services provided together with, or in support of, core platform services, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same operating system, hardware or software features, regardless of whether those features are part of the operating system, as are available to, or used by, that gatekeeper when providing such services. The gatekeeper shall not be prevented from taking strictly necessary and proportionate measures to ensure that interoperability does not compromise the integrity of the operating system, virtual assistant, hardware or software features provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper. " "12. The gatekeeper shall apply fair, reasonable, and non-discriminatory general conditions of access for business users to its software application stores, online search engines and online social networking services listed in the designation decision pursuant to Article 3(9)." "They insulted us", "we have a (now unenforcable) contract" or "we have a US judgment" does probably not count as a justifiable exception. It doesnt seem fair or reasonable at all given that the underlying "violations" of their TOS are now explicitely legal under the DMA. If you feel that the DMA primarily binds Apple instead of Epic in this case that is because it does. It was written to limit the control gatekeepers have over "their" plattform. Courts will decide in the end. Source: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32022R1925&qid=1709907370045#d1e1021-1-1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...
    - dagmx 3y ago
      Thank you so much, this was the kind of answer I was looking for.
      - arlcode 3y ago
        You are welcome. I think your question was reasonable although it sometimes can be difficult for us laypeople to correctly interpret laws and the context in which they apply. NB: I would also recommend everyone read the recitals (aka explenations and justifications) preceding the actual articles. While they are not law directly they also are (it's difficult). https://berthub.eu/articles/posts/eu-cra-recitals-comments-compiler-judge/ https://berthub.eu/articles/posts/eu-cra-recitals-comments-c...
pquki4 3y ago
If Apple's reason to refuse to do business with Epic is explicitly and specifically forbbiden by DMA, why not? Otherwise what is DMA for?
lukeschlather 3y ago
If Apple doesn't want to do business with Epic, they don't have to. Epic doesn't have to do business with Microsoft to provide a Windows installer. Apple is the one who is insisting that Epic is required to do business with them if they want to provide an iOS installer.
- jonhohle 3y ago
  Is Windows documentation unencumbered by copyright? Certainly you have to agree to Microsoft’s license for their documentation.
johnnyanmac 3y ago
>I can’t find it myself so I asked here. Here you go: https://digital-markets-act.ec.europa.eu/about-dma_en https://digital-markets-act.ec.europa.eu/about-dma_en
pas 3y ago
It's a general principle that the ToS has to conform to the law. (In other works the rules of DMA preempt whatever rules are in the ToS. If the law explicitly says that parties can agree to opt-out of specific rules, then the ToS can say - in those specific questions - something different. More/less strict, better for one or the other party, etc.) As linked by `johnnyanmac`, the DMA summary site explicitly says that gatekeepers have to allow 3rd parties to inter-operate with their services.
fennecbutt 3y ago
There are already existing laws to compel one company to do business with another, in America and in the EU, even before DMA... I think in the US it's refusal to deal. And the EU can make companies do _anything_ they want to, within the jurisdiction of the EU. If they want to ban phones that are coloured green then they bloody well could, with the repercussions being fines, legal action and bans from the market.

by dagmx 3y ago

KptMarchewa 3y ago

"Malicious" is debatable, "against the terms" is meaningless since laws > TOSes.

dagmx 3y ago
You’re not really answering the question I’m asking though. I am not asking whether TOS <> Laws or not. That is perhaps one step beyond what I’m asking. I’m asking whether the Laws under the DMA have any mention in either direction on whether the gatekeepers have the ability to set (reasonable) terms and act against violation of those terms. Or is that undefined?
- marcosdumay 3y ago
  The GP is answering your question. It seems that you don't like the answer. I guess the malicious part will have to be decided by judges. The TOS are absolutely irrelevant. If Apple goes to a government body saying "we have to remove consumer choice, those people are breaking our terms!" they will be laughed out of room.
  - dagmx 3y ago
    No they are not answering my question, and I very clearly explained why. Yes, terms of service can’t go against the law. That is NOT what I’m asking. I’m asking if the DMA allows for terms of service in the first place and what the bounds of those are. These are different questions.
    - lupire 3y ago
      TOS are allowed, as long as they don't illegally stifle competition and consumer choice.
- arlcode 3y ago
  I am NOT a lawyer or a court. but I would read Article 6 (7) and (12) as such. "7. The gatekeeper shall allow providers of services and providers of hardware, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same hardware and software features accessed or controlled via the operating system or virtual assistant listed in the designation decision pursuant to Article 3(9) as are available to services or hardware provided by the gatekeeper. Furthermore, the gatekeeper shall allow business users and alternative providers of services provided together with, or in support of, core platform services, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same operating system, hardware or software features, regardless of whether those features are part of the operating system, as are available to, or used by, that gatekeeper when providing such services. The gatekeeper shall not be prevented from taking strictly necessary and proportionate measures to ensure that interoperability does not compromise the integrity of the operating system, virtual assistant, hardware or software features provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper. " "12. The gatekeeper shall apply fair, reasonable, and non-discriminatory general conditions of access for business users to its software application stores, online search engines and online social networking services listed in the designation decision pursuant to Article 3(9)." "They insulted us", "we have a (now unenforcable) contract" or "we have a US judgment" does probably not count as a justifiable exception. It doesnt seem fair or reasonable at all given that the underlying "violations" of their TOS are now explicitely legal under the DMA. If you feel that the DMA primarily binds Apple instead of Epic in this case that is because it does. It was written to limit the control gatekeepers have over "their" plattform. Courts will decide in the end. Source: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32022R1925&qid=1709907370045#d1e1021-1-1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...
  - dagmx 3y ago
    Thank you so much, this was the kind of answer I was looking for.
    - arlcode 3y ago
      You are welcome. I think your question was reasonable although it sometimes can be difficult for us laypeople to correctly interpret laws and the context in which they apply. NB: I would also recommend everyone read the recitals (aka explenations and justifications) preceding the actual articles. While they are not law directly they also are (it's difficult). https://berthub.eu/articles/posts/eu-cra-recitals-comments-compiler-judge/ https://berthub.eu/articles/posts/eu-cra-recitals-comments-c...

pquki4 3y ago

If Apple's reason to refuse to do business with Epic is explicitly and specifically forbbiden by DMA, why not? Otherwise what is DMA for?

lukeschlather 3y ago

If Apple doesn't want to do business with Epic, they don't have to. Epic doesn't have to do business with Microsoft to provide a Windows installer. Apple is the one who is insisting that Epic is required to do business with them if they want to provide an iOS installer.

jonhohle 3y ago
Is Windows documentation unencumbered by copyright? Certainly you have to agree to Microsoft’s license for their documentation.

johnnyanmac 3y ago

>I can’t find it myself so I asked here. Here you go: https://digital-markets-act.ec.europa.eu/about-dma_en https://digital-markets-act.ec.europa.eu/about-dma_en

pas 3y ago

It's a general principle that the ToS has to conform to the law. (In other works the rules of DMA preempt whatever rules are in the ToS. If the law explicitly says that parties can agree to opt-out of specific rules, then the ToS can say - in those specific questions - something different. More/less strict, better for one or the other party, etc.) As linked by `johnnyanmac`, the DMA summary site explicitly says that gatekeepers have to allow 3rd parties to inter-operate with their services.

fennecbutt 3y ago

There are already existing laws to compel one company to do business with another, in America and in the EU, even before DMA... I think in the US it's refusal to deal. And the EU can make companies do _anything_ they want to, within the jurisdiction of the EU. If they want to ban phones that are coloured green then they bloody well could, with the repercussions being fines, legal action and bans from the market.