I’m seeing more articles these days that pose questions along the lines of “Why hasn’t anyone sued Apple yet?” or “Why isn’t the Department of Justice investigating Apple?” These are both valid and fair questions — whenever any business reaches a hegemony using questionable business practices, these questions should absolutely be posed (c.f. Microsoft in the 1990s). Apple’s intentions aren’t patently antitrust in nature, but there are some serious transgressions for which Apple needs to atone.
I think the root cause of these concerns is the disparity over applications of unwritten App Store policies. There are two major contentions here: 1) that Apple doesn’t apply the policies to themselves, creating an unfair competitive advantage; and 2) that Apple’s reviewers don’t apply the policies equally across all submitted applications. Both issues put Apple in a precarious position, but I think the former poses a greater antitrust risk than the latter.
Apple ships many apps for the iPhone, including both installed utility apps and downloadable App Store apps. The utility apps are installed by default and are uninstallable — these are similar to any system app on a computer that is necessary for the OS to operate: clock, date, sound, battery life, etc. These are immune to antitrust speculation because of this requirement and aren’t the primary focus here.
However, the App Store apps Apple ships — such as iBooks, Apple Store and Nike+1 — are a real concern because they don’t have to abide by the rules. For example, iBooks provides a slider UI element to control the brightness level. This puts Apple in an unfair competitive position because other apps — such as the Kindle or even non-competing apps such as Instapaper2 — can’t offer this functionality to their users. This is a real concern: when I’m reading, I don’t want the brightness at the same level as my normal use, especially when I’m reading for extended periods. I’d have to exit the app, go to the settings, change the brightness and then reenter the app. And when I’m done, I have to repeat this process — this is unacceptable.
Another example is the Nike+ app, which, among other things, takes over the lock screen. It’s a fantastic app for runners. These features make it a no-brainer and give it a clear advantage over other apps, such as RunKeeper — hardware sensor notwithstanding. Now, RunKeeper has other competitive advantages (cost being one of them), but that’s not the issue here. Apple’s flagrant use of private APIs is.
To be clear: I’m not arguing against Apple banning the use of private APIs. It makes sense on a lot of levels. Private APIs aren’t finished and therefore poorly documented, prone to bugs and likely to change at any point in the future. This makes for a poor overall user experience. Imagine an app that after an OS update suddenly broke, taking any functionality you rely on or data you’ve created with it. Scary, huh? Apple is all about the user experience. It’s why their products are among the best in the world.
Apple’s unbridled access to these APIs is what gives them an unfair advantage. It’s one thing to discourage the use of these unfinished APIs by not documenting or publishing them. It’s another thing entirely for Apple to use them and then ban third party apps that do.
The second issue at play here is the patent disparity in the App Store review process. It’s clear that Apple’s reviewers operate with a certain level of autonomy. And really they should: the reviewers are the appliers of the policies and, therefore, the interpreters. The problem here is that there is no accountability. If your app is rejected for a violation, you have to resubmit the app and go to the end of the queue where your app is reviewed, likely by a different reviewer.
Developers have no way of knowing if their app will be accepted precisely because of the capricious nature of the review process and the undocumented policies. John Gruber has argued on many occasions that Apple should clearly document their policies. This is a great solution because it provides accountability — the exact element that is missing from the App Store. Developers fully understand what they can and cannot do before they submit to the review process and Apple agrees to criteria outlining the violations for which it can and can’t reject. Moreover, there should be a type of appeal system. If an app is rejected on grounds that aren’t documented, then an appeal can be made and a secondary or tertiary reviewer can step in to remedy the situation.
Of course, this is hoping for democracy in a system that doesn’t yet require such freedom. Apple controls the App Store and can do with it whatever they please. However, this can all change with one ruling. If they DOJ files an antitrust suit, Apple could be in serious trouble, incurring fines, and ordered to open the App Store to a degree it does not want. The latter is scarier to Apple than the former: they want as much control as possible — and, mostly, for good reason. Therefore, it’s not only likely but inevitable that Apple will implement such changes, if only to stay an antitrust suit that forces their hand.
I don’t think that it’s Apple’s primary intention to crush all opposition a la Microsoft. Instead, I think Apple has implemented an imperfect system in order to create a perfect environment in which its device can flourish and please users. Apple’s methodology has a few basic pillars: perfection and synergy of hardware and software; effective advertising and marketing; and a polished user experience. This is paramount to the Apple way and what makes them very successful. However, a DOJ or civilian suit is not only likely but inevitable. The only reason it hasn’t happened yet is because Apple is able to placate developers with money — developers don’t want to bite the hand that feeds.
Summary: Apple’s App Store is a target for an antitrust or civilian lawsuit because of the policies thereof. The two major issues here are: 1) Apple’s use of private APIs in App Store apps; 2) disparity on the part of App Store reviewers in application of unwritten policies.
