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Unless the judge actually specified the type of language to be used, this seems completely compliant. Are they supposed to say "Please use our competitor. You'

by hajile 1y ago

Unless the judge actually specified the type of language to be used, this seems completely compliant. Are they supposed to say "Please use our competitor. You'll find your experience with them far superior to what we provide" or something similar?

jkirsteins 1y ago
Malicious compliance is a thing. They're supposed to use neutral language.
- hajile 1y ago
  Malicious compliance is only illegal if it doesn't actually comply.
  - DannyBee 1y ago
    This is also wrong. Good faith is a requirement. Act in bad faith, and you can still be sanctioned. Do you have any background in this, or are you just asserting what you want reality to be? Because you are just spouting wrong information that, even for a non-lawyer, would take you 10 minutes to go find and read right information.
    - Wobbles42 1y ago
      Non-lawyer here. This information is surprising to me (to be clear, I believe you, I just would have guessed otherwise). Is some degree of malicious compliance not extremely common when companies deal with the courts? From the outside it seems like the incentive would be to comply with a court order to the minimum degree required to avoid further legal consequences, but no more. Is compliance more enthusiastic that that in practice? Again, I have zero experience, but the idea of a company losing a lawsuit and then actually acting in good faith is a strange one to me. An individual might be intimidated to act in actual good faith to avoid serious consequences, but Apple as an entity can't be tossed in jail for contempt of court, right? So it would seem that it is incentivized to push it's employees to take risks like this, with the understand that they can be replaced by employees who will if they refuse.
      - DannyBee 1y ago
        Again, once you lose, the adversarial part is over. Malicious compliance is exactly why good faith is a requirement but not a defense. Bad faith will get you contempt, good faith will not save you from contempt if you didn't do enough. Do companies try to skirt this anyway - sure. But they run the risk of a judge finding they didn't do enough, and sanctioning them anyway, even if they didn't have obvious bad faith, or heck, even if they have objectively good faith. There are plenty of cases where judges sanctioned good faith actors who didn't do enough. I quoted McComb in another comment (so don't want to paste it again here), but see https://supreme.justia.com/cases/federal/us/336/187/ https://supreme.justia.com/cases/federal/us/336/187/ and friends. In the end, once you lose, if you play stupid games, you will usually win stupid prizes. That doesn't mean people don't play, but it's almost always against their lawyers strong advice. As for jail - you have to distinguish civil and criminal contempt. Criminal contempt can get you thrown in jail, and has different requirements.
      - vkou 1y ago
        > Is compliance more enthusiastic that that in practice? Once a company gets burned by scary litigation, it is often very reticent about pushing the line again.
    - hajile 1y ago
      I know the current interpretation, but I also know that it's not logically sustainable. The key here is "reasonableness", but you can't read a judge's mind, so reasonable only means what a reasonable person would infer. That is completely subjective based on an individual's implicit biases and knowledge of all surrounding circumstances. For example, the dev team tasked with implementing this may not be familiar with the entire case, so what they consider reasonable will be different based on that. They also know much more about technology and likely have strong feelings about what is acceptable, but the judge is NOT a subject matter expert (SME) in that area. Likewise, the judge is NOT a SME on UI/UX, so the judge's interpretation of "reasonable" may well be at odds. There is also an argument that directing to these third-party sites opens 1.4B people to exploitation, so it would be reasonable to allow them access, but also to protect those users (who also aren't SMEs and often have essentially zero understanding) from potential issues by framing things appropriately. I could go on with many other qualifiers about what would be reasonable. The judge is qualified to make rulings based on the law, but utterly unqualified to decide what the details of a reasonable implementation would be. If she were a qualified SME, she could and should have written her reasoned decision and removed the need for interpretation. If the ruling were itself reasonable and clear, there wouldn't be meaningful room for debate about reasonableness which would in turn effectively render reasonableness a mute point. As such, you can see that "reasonableness" in these kinds of cases is a crutch to protect unqualified judges making rulings they should not be making which is ironically a very unreasonable approach. As to "good faith", who is she to dictate that you must do what she says and be happily compliant or else? After all, unhappiness will almost certainly taint all actions to a greater or lesser degree, so anything less than perfect contentment would be "bad faith" to a greater or lesser degree. Who is the judge to single-handedly decide these people's state of mind? Has all her study of law made her an expert on what happens in other people's minds and privy to their thoughts and experiences while ridding herself of her own biases? Such a task is impossibly hard for a jury even in broad terms with lots of facts and even less possible for a single person judging the actions of many people based only on a few chat messages. How does she ensure that every single one of those hundreds to thousands of people involved is "acting in good faith" is an impossible task and you can be assured that at least one of them at any given time isn't acting in good faith about ANYTHING. This would imply that you must ALWAYS assume that bad faith was involved. How do you determine how much bad faith is too much? Based on outcome is the only logical answer, but in that case, you could have been explicit about the outcome in the first place and skipped all the trouble and possible excuses of misunderstanding once again rendering "bad faith" as a crutch to protect the judge from their incompetence. She passed judgement based on the law. As long as that judgement is fulfilled to the degree specified, the state of mind of the hundreds to thousands of people involved in carrying out that judgement should not matter. "Good faith" and "reasonableness" is a faulty and fickle metric at its best when applied to a single person by a group of peers. It is a broken and unusable metric when applied to a group or corporate entity by a single judge not an expert in the matters at hand.
    - ycombinatrix 1y ago
      we're arguing semantics - "malicious compliance" is by definition compliant, meaning (in this case) it is in good faith.
larsnystrom 1y ago
Why are they using any language at all? Why not just let the app maker open the payment screen directly?
- scarface_74 1y ago
  Because users will then blame Apple when they get scammed. There are a lot of websites that give you a warning when you click on a link outside of their control.
  - larsnystrom 1y ago
    But this is from a non-Apple app. You’re already on a page outside of Apples control.
    - lotsofpulp 1y ago
      I have my parents use iOS because they couldn’t help themselves from downloading malware on Android. It wasn’t from Google, but it didn’t matter, because the whole Android system’s reputation was reduced because of it.
      - larsnystrom 1y ago
        Allowing third party payment systems does not mean they have to be less strict in the rest of their app vetting process.
    - scarface_74 1y ago
      It doesn’t matter. The app came from the App Store.
- sokoloff 1y ago
  Same (perceived) reason my bank and brokerages (and I think even my kid's school website does this) pop up a warning every time I click on a link that will take them outside their website. I think there's a valid reason to think "if it's OK and common for banks and brokers to do it, it's OK for me to do it" and also to think "this will help protect users from being scammed by other apps who might pop open random links without any notices".
DannyBee 1y ago
Lawyer here - that's not how these things work. This is definitely non-compliant. Injunctions are, intentionally, required only to "describe in reasonable detail the act or acts restrained or required". The key being "reasonable". They are not required to specify every detail, or every wrong or right thing, especially when the party being enjoined knows more of the details of how things work than the court does. You seem to believe the court must specify language, etc, and they are absolutely not required to do so. It is your job to figure it out, and if you need more information, shockingly, you can ask the judge for the information, or whether your proposed approach would be compliant. You are also required to make good faith attempts to comply with a court order. The evidence here is overwhelming bad faith - they were not trying to figure out how to actually ensure the court's goals were carried out, they are instead trying to figure out how to thwart them. That is pretty much the definiton of bad faith. The injunction has reasonable detail. This is neither good faith, nor did they ask. You seem to think this is game of try to find legal loopholes. That is a good way to get thrown in a jail by a judge. It's not. Once you are found guilty and injunction entered, the adversarial process is done. You lost. Your job is to do what the court requires of you, in good faith, as best you can. Even if you appeal it, unless it is stayed, you are still required to do it.
- Wobbles42 1y ago
  Would this still be clear bad faith had these chat logs not been created? In other words, could Apple have done these exact same actions and successfully argued that the language ("external website") was in fact neutral, if not for the direct written record that established their intent to do otherwise? Everything you just said makes sense, but the details of how the courts manage to enforce orders like this are interesting, and it seems like enforcing notions of good faith must be extremely difficult. Thanks for writing this though, this is a window into a space I have never played in. The legal system is very mysterious to me.
  - DannyBee 1y ago
    "Would this still be clear bad faith had these chat logs not been created?" Yes, almost certainly. The party claiming non-compliance has to prove your non-compliance, but they do not have to prove your bad faith. Instead, the burden falls to the enjoined party to prove good faith. Affirmative good faith usually comes up more in trying to dissolve injunctions, etc (where the enjoined party has to prove good faith) than civil contempt of an order. This is because in the case of civil contempt, Judges still have discretion to find you in contempt even if you acted in good faith. IE bad faith will definitely get you contempt, but good faith alone will not save you from it. You can act in good faith, not do enough, and still be found in contempt for not doing enough. This helps dissuade malicious compliance as well. See, generally, mccomb and friends: https://supreme.justia.com/cases/federal/us/336/187/ https://supreme.justia.com/cases/federal/us/336/187/ "The absence of willfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance . . . . Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act . . . . An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions. And the grant or withholding of remedial relief is not wholly discretionary with the judge. . . . The private or public rights that the decree sought to protect are an important measure of the remedy."
Osiris 1y ago
The 180-page injunction outline the reason for it and the goals of the injunction. They knew the court ruled against them for specific reasons but came up with a solution that didn't take into account any of the stated goals into account. Their solution didn't address any of the goals of the injunction. IANAL.

by hajile 1y ago

jkirsteins 1y ago

Malicious compliance is a thing. They're supposed to use neutral language.

hajile 1y ago
Malicious compliance is only illegal if it doesn't actually comply.
- DannyBee 1y ago
  This is also wrong. Good faith is a requirement. Act in bad faith, and you can still be sanctioned. Do you have any background in this, or are you just asserting what you want reality to be? Because you are just spouting wrong information that, even for a non-lawyer, would take you 10 minutes to go find and read right information.
  - Wobbles42 1y ago
    Non-lawyer here. This information is surprising to me (to be clear, I believe you, I just would have guessed otherwise). Is some degree of malicious compliance not extremely common when companies deal with the courts? From the outside it seems like the incentive would be to comply with a court order to the minimum degree required to avoid further legal consequences, but no more. Is compliance more enthusiastic that that in practice? Again, I have zero experience, but the idea of a company losing a lawsuit and then actually acting in good faith is a strange one to me. An individual might be intimidated to act in actual good faith to avoid serious consequences, but Apple as an entity can't be tossed in jail for contempt of court, right? So it would seem that it is incentivized to push it's employees to take risks like this, with the understand that they can be replaced by employees who will if they refuse.
    - DannyBee 1y ago
      Again, once you lose, the adversarial part is over. Malicious compliance is exactly why good faith is a requirement but not a defense. Bad faith will get you contempt, good faith will not save you from contempt if you didn't do enough. Do companies try to skirt this anyway - sure. But they run the risk of a judge finding they didn't do enough, and sanctioning them anyway, even if they didn't have obvious bad faith, or heck, even if they have objectively good faith. There are plenty of cases where judges sanctioned good faith actors who didn't do enough. I quoted McComb in another comment (so don't want to paste it again here), but see https://supreme.justia.com/cases/federal/us/336/187/ https://supreme.justia.com/cases/federal/us/336/187/ and friends. In the end, once you lose, if you play stupid games, you will usually win stupid prizes. That doesn't mean people don't play, but it's almost always against their lawyers strong advice. As for jail - you have to distinguish civil and criminal contempt. Criminal contempt can get you thrown in jail, and has different requirements.
    - vkou 1y ago
      > Is compliance more enthusiastic that that in practice? Once a company gets burned by scary litigation, it is often very reticent about pushing the line again.
  - hajile 1y ago
    I know the current interpretation, but I also know that it's not logically sustainable. The key here is "reasonableness", but you can't read a judge's mind, so reasonable only means what a reasonable person would infer. That is completely subjective based on an individual's implicit biases and knowledge of all surrounding circumstances. For example, the dev team tasked with implementing this may not be familiar with the entire case, so what they consider reasonable will be different based on that. They also know much more about technology and likely have strong feelings about what is acceptable, but the judge is NOT a subject matter expert (SME) in that area. Likewise, the judge is NOT a SME on UI/UX, so the judge's interpretation of "reasonable" may well be at odds. There is also an argument that directing to these third-party sites opens 1.4B people to exploitation, so it would be reasonable to allow them access, but also to protect those users (who also aren't SMEs and often have essentially zero understanding) from potential issues by framing things appropriately. I could go on with many other qualifiers about what would be reasonable. The judge is qualified to make rulings based on the law, but utterly unqualified to decide what the details of a reasonable implementation would be. If she were a qualified SME, she could and should have written her reasoned decision and removed the need for interpretation. If the ruling were itself reasonable and clear, there wouldn't be meaningful room for debate about reasonableness which would in turn effectively render reasonableness a mute point. As such, you can see that "reasonableness" in these kinds of cases is a crutch to protect unqualified judges making rulings they should not be making which is ironically a very unreasonable approach. As to "good faith", who is she to dictate that you must do what she says and be happily compliant or else? After all, unhappiness will almost certainly taint all actions to a greater or lesser degree, so anything less than perfect contentment would be "bad faith" to a greater or lesser degree. Who is the judge to single-handedly decide these people's state of mind? Has all her study of law made her an expert on what happens in other people's minds and privy to their thoughts and experiences while ridding herself of her own biases? Such a task is impossibly hard for a jury even in broad terms with lots of facts and even less possible for a single person judging the actions of many people based only on a few chat messages. How does she ensure that every single one of those hundreds to thousands of people involved is "acting in good faith" is an impossible task and you can be assured that at least one of them at any given time isn't acting in good faith about ANYTHING. This would imply that you must ALWAYS assume that bad faith was involved. How do you determine how much bad faith is too much? Based on outcome is the only logical answer, but in that case, you could have been explicit about the outcome in the first place and skipped all the trouble and possible excuses of misunderstanding once again rendering "bad faith" as a crutch to protect the judge from their incompetence. She passed judgement based on the law. As long as that judgement is fulfilled to the degree specified, the state of mind of the hundreds to thousands of people involved in carrying out that judgement should not matter. "Good faith" and "reasonableness" is a faulty and fickle metric at its best when applied to a single person by a group of peers. It is a broken and unusable metric when applied to a group or corporate entity by a single judge not an expert in the matters at hand.
  - ycombinatrix 1y ago
    we're arguing semantics - "malicious compliance" is by definition compliant, meaning (in this case) it is in good faith.

larsnystrom 1y ago

Why are they using any language at all? Why not just let the app maker open the payment screen directly?

scarface_74 1y ago
Because users will then blame Apple when they get scammed. There are a lot of websites that give you a warning when you click on a link outside of their control.
- larsnystrom 1y ago
  But this is from a non-Apple app. You’re already on a page outside of Apples control.
  - lotsofpulp 1y ago
    I have my parents use iOS because they couldn’t help themselves from downloading malware on Android. It wasn’t from Google, but it didn’t matter, because the whole Android system’s reputation was reduced because of it.
    - larsnystrom 1y ago
      Allowing third party payment systems does not mean they have to be less strict in the rest of their app vetting process.
  - scarface_74 1y ago
    It doesn’t matter. The app came from the App Store.
sokoloff 1y ago
Same (perceived) reason my bank and brokerages (and I think even my kid's school website does this) pop up a warning every time I click on a link that will take them outside their website. I think there's a valid reason to think "if it's OK and common for banks and brokers to do it, it's OK for me to do it" and also to think "this will help protect users from being scammed by other apps who might pop open random links without any notices".

DannyBee 1y ago

Lawyer here - that's not how these things work. This is definitely non-compliant. Injunctions are, intentionally, required only to "describe in reasonable detail the act or acts restrained or required". The key being "reasonable". They are not required to specify every detail, or every wrong or right thing, especially when the party being enjoined knows more of the details of how things work than the court does. You seem to believe the court must specify language, etc, and they are absolutely not required to do so. It is your job to figure it out, and if you need more information, shockingly, you can ask the judge for the information, or whether your proposed approach would be compliant. You are also required to make good faith attempts to comply with a court order. The evidence here is overwhelming bad faith - they were not trying to figure out how to actually ensure the court's goals were carried out, they are instead trying to figure out how to thwart them. That is pretty much the definiton of bad faith. The injunction has reasonable detail. This is neither good faith, nor did they ask. You seem to think this is game of try to find legal loopholes. That is a good way to get thrown in a jail by a judge. It's not. Once you are found guilty and injunction entered, the adversarial process is done. You lost. Your job is to do what the court requires of you, in good faith, as best you can. Even if you appeal it, unless it is stayed, you are still required to do it.

Wobbles42 1y ago
Would this still be clear bad faith had these chat logs not been created? In other words, could Apple have done these exact same actions and successfully argued that the language ("external website") was in fact neutral, if not for the direct written record that established their intent to do otherwise? Everything you just said makes sense, but the details of how the courts manage to enforce orders like this are interesting, and it seems like enforcing notions of good faith must be extremely difficult. Thanks for writing this though, this is a window into a space I have never played in. The legal system is very mysterious to me.
- DannyBee 1y ago
  "Would this still be clear bad faith had these chat logs not been created?" Yes, almost certainly. The party claiming non-compliance has to prove your non-compliance, but they do not have to prove your bad faith. Instead, the burden falls to the enjoined party to prove good faith. Affirmative good faith usually comes up more in trying to dissolve injunctions, etc (where the enjoined party has to prove good faith) than civil contempt of an order. This is because in the case of civil contempt, Judges still have discretion to find you in contempt even if you acted in good faith. IE bad faith will definitely get you contempt, but good faith alone will not save you from it. You can act in good faith, not do enough, and still be found in contempt for not doing enough. This helps dissuade malicious compliance as well. See, generally, mccomb and friends: https://supreme.justia.com/cases/federal/us/336/187/ https://supreme.justia.com/cases/federal/us/336/187/ "The absence of willfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance . . . . Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act . . . . An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions. And the grant or withholding of remedial relief is not wholly discretionary with the judge. . . . The private or public rights that the decree sought to protect are an important measure of the remedy."

Osiris 1y ago

The 180-page injunction outline the reason for it and the goals of the injunction. They knew the court ruled against them for specific reasons but came up with a solution that didn't take into account any of the stated goals into account. Their solution didn't address any of the goals of the injunction. IANAL.