3 ms·

"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...

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...