Apple will crush the DoJ in court if Garland sticks with outdated arguments

Posted:
in General Discussion edited March 21

The Department of Justice's massive antitrust lawsuit against Apple is based on old information. Merrick Garland and company are going to lose big if they rely on arguments where practically every point made is no longer true.

Tim Cook in front of a backdrop of a fiery explosion and the Department of Justice seal.
Tim Cook will win the DoJ suit, if the arguments remain terrible



When a lawsuit from the feds includes a ridiculous statement that is possibly the dumbest thing we've ever heard said about Apple, and we're about to share it with you, you know it's going to be a whopper, start to finish.

"To protect its smartphone monopoly -- and the extraordinary profits that monopoly generates -- Apple repeatedly chooses to make its products worse for consumers to prevent competition from emerging."



You'd think that since the Department of Justice's suit was years in the making, and its concerns were not a secret, that statement might have been edited out because somebody along the way spotted the sheer lunacy of it.

Anyway, through it all, and while the DoJ was crafting that literary brilliance, Apple has been having a back-and-forth with the DoJ for years about "extraordinary profits," and other antitrust matters. Clearly, Apple knew what they were being asked.

Upon retrospect, Apple has been acting specifically to counter the criticisms it knew was coming.

The result is that Apple has already addressed almost every point the DoJ made on Thursday.

Let's start by looking at Attorney General Merrick Garland's points about Messages. He clearly isn't up on the news, or who is responsible for the poor quality of messaging between Android users and iPhone owners because of SMS/MMS.

Messages, SMS, and RCS



One part that was perhaps simply incorrect even before any corrective action by Apple concerns messaging. The DOJ argues that Apple has forced people to buy iPhones in order to message people.

To be generous to the DOJ, it is probably thinking of Apple's own iMessage, and how that has been limited to Apple devices and Apple users. But Apple already announced -- in 2023 -- that it will add support for RCS message users to interoperate with iMessage ones.

The DOJ does not appear to be clear on this point. Instead, it blanketly criticizes messaging apps.

"Apple makes third-party messaging apps on the iPhone worse generally and relative to Apple Messages, Apple's own messaging app, by prohibiting third-party apps from sending or receiving carrier-based messages," says the suit. "By doing so, Apple is knowingly and deliberately degrading quality, privacy, and security for its users and others who do not have iPhones."

This is just nonsense. There are iPhone apps for just about every messaging service available, and none have a user base limited by Apple.

It's practically the reverse. The most popular messaging service globally is WhatsApp. It would not have the user base it does without Apple and the iPhone.

The WhatsApp icon on a smartphone



The poor quality of shared images and videos from Android to iPhone brought up in press conferences isn't related to anything Apple is doing. SMS/MMS is at the core of that and is relatively archaic.

Apple has nothing to do with the SMS standard. RCS adoption later in 2024 will cover absolutely every point that the DOJ made.

We await the DoJ suit against the carriers for allowing SMS to persist.

Apple's closed ecosystem



According to the DOJ, Apple is violating section two of the Sherman antitrust act by limiting third-party access to hardware and software features that only it exploits. The DOJ is referring specifically to the limitation of digital wallets and how Apple allegedly denies rival firms access to the iPhone's near-field communication (NFC) hardware.

However, Apple opened up the iPhone's NFC capabilities with the introduction of its Tap to Pay on iPhone feature.

Since its launch two years ago, firms around the world have been switching to it instead of maintaining their own separate hardware.

The DOJ claims that there is a similar issue with the Apple Watch having preferential treatment on the iPhone. According to the new suit, Rival smartwatches have limited access to software and hardware features.

Apple Watch Series 9
Apple Watch Series 9 back



This one is harder to follow because Android watches work best with Android phones, too. Plus, while it may not have been a success, Apple opened up its GymKit technology so that the Apple Watch's health features could work with Peloton exercise machines.

There is no legal requirement anywhere that Apple make applications to assist with third-party integrations of smartwatches. This is up to the integrators. The key integrators, Google and Samsung, have chosen not to do so for reasons only known to themselves.

Then, too, the DOJ's wording seems less factual and more biased to personal preferences.

"Apple has denied users access to high performing smartwatches with preferred styling, better user interfaces and services, or better batteries," it says.

There are reasons that the Apple Watch is the most successful smartwatch, and they have nothing to do with Apple denying users anything. In 2022, the iPhone had about half of the US smartphone market, and about 62% today. It might even have Garland's spurious "70% of the performance smartphone market," whatever market that means.

Apple tried to make Apple Watch compatible with Android, and chose not to, as is its right. AppleInsider has confirmed that the company tried for years to make it work, but didn't want to compromise the product in doing so.

Garland's incredibly specific statement about the smartphone industry, like Epic's definition before his, is to fulfill the general legal standard of about 70% and up meaning monopoly. If you use a sane market definition of all smartphone users, that means there are nearly exactly as many Android users who can enjoy their "better user interfaces."

Apps and games



"Cloud streaming games... can improve smartphone competition by decreasing the importance of expensive hardware for accomplishing high compute tasks on a smartphone," says the DOJ. "Suppressing cloud streaming games harms users by denying them the ability to play high-compute games, and it harms developers by preventing them from selling such games to users."

The DOJ makes an excellent point here, except it presumably researched this section some time ago. Apple refused to allow cloud streaming, but whether that's as crucial as the DOJ says or not, it's no longer the case.

Just a month ago, Apple said it was changing how it handled game streaming apps. Before, it allowed them, but Apple needed to review every piece of content streamed.

In the revision two months ago, game streaming services can have a single app, the way it should have been.

So, it's not clear what data the DoJ was operating from here in its filing complaining about it -- but it's certainly not current.

Super Apps



Of the DOJ's main criticisms of Apple, just one might still warrant a debate. It's whether Apple bans super apps, which the DOJ defines as apps that "provide a user with broad functionality in a single app."

The best-known example of a super app is China's WeChat. It is the dominant app in that country, and it's a wildly popular combination of social media, payment, sales, and messaging services.

Only, one reason it's the best-known example is that as well as many other platforms, it's on the iPhone. And rather than trying to block it in some way, Apple actually has a store of its own on WeChat.

Facebook/Meta's presence on the iPhone is also very clearly a super app. It also has social media, payment, sales, and messaging services, all in one spot.

This one baffles us. There's no ban on "super apps," and it's a vague enough term that it means nothing at all.

This is only the start, there is so much more to come



The same as it took years to get to this point, it is going to take years to develop and come to a conclusion. And, it may die on the vine.

This didn't start under the Biden administration, it started in the ending years of the Trump one. It is, however, a tent-pole of what the Biden administration promised to do in the beginning to big tech.

And, this is all going to take years where political winds may change. It may not survive a Trump administration, and could easily outlast a second Biden term too.

Beyond political concerns, we've already had some conversations with antitrust lawyers in DC. They all told us two things.

First, they'll have to prove that there's consumer harm, and that is going to be very difficult. Other smartphone vendors have had similar price increases in hardware and services, because of supply chain issues, and the events of the last four years -- so there's no real basis there.

It will be impossible to prove consumer harm from a $1600 iPhone when Android vendors have devices that cost far more than that.

And second, the DoJ will have to change its tack on how it seems to feel that developers have a right to be on Apple platforms, unfettered. They do not, any more than Target products have a right to be on WalMart shelves, or Tesla has a right to be in Ford dealerships, and the like.

The US Supreme Court has said, time and again, that companies and businesses are free to choose who they deal with -- as well as the prices, terms, and conditions of any dealing. Presumably, the DoJ is aware of this.

The forthcoming trial



It is likely that the threat of the DOJ's investigations is what has made Apple improve what it's improved, or change what it has changed. In that case, the investigation was worthwhile.

The suit itself, as it stands, simply is not. Bringing up an email, and leading the suit filing, with an email exchange from a dead CEO from well over a decade ago, when Apple wasn't even close to dominant and was fighting against larger and more established competitors lacks context, and has no bearing on 2024 Apple.

Rather than combat Apple's alleged practice of somehow choosing "to make its products worse for consumers to prevent competition from emerging," like we lead with, the suit has nothing left to do.

"The Court's role is not to analyze, indefinitely, the quality of algorithms that Apple develops for use by each individual third-party developer in order to ensure that the quality never degrades for any purpose," the court said in AliveCor vs. Apple. "Such an order could restrain competition by discouraging companies from making product improvements that benefit consumers as a whole to the detriment of certain parties who prefer the status quo."

As it stands today, based on the arguments in the filing, the Department of Justice is going to lose and lose big. The real consumer loss that will be obvious and clear will be the massive taxpayer expenditure that will be lit on fire and fed to lawyers by this case.

And when it loses face as well as the case, the DoJ will, of course, appeal and pointlessly cost the taxpayer yet more money. If the DoJ wants to have a prayer of winning the suit, it needs to have folks better versed on technology file complaints and do the lawyering at trial.

And maybe, keep up with the news.



Read on AppleInsider

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Comments

  • Reply 1 of 158
    jas99jas99 Posts: 156member
    Thank you for this analysis. 
    NYC362hecalderstevenozlesterkrimbaughwilliamlondonteejay2012JobsFanBart Ywatto_cobrajony0
  • Reply 2 of 158
    MadbumMadbum Posts: 536member
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    hecalderhmurchisonwilliamlondonKumingaJobsFankelliemrstep40domiwatto_cobraJanNL
  • Reply 3 of 158
    Mike WuertheleMike Wuerthele Posts: 6,869administrator
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    This started two years into the Trump administration.
    NYC362hecaldernubusVictorMortimerOferking editor the grateroundaboutnowstevenozlordjohnwhorfinlesterkrimbaugh
  • Reply 4 of 158
    lotoneslotones Posts: 62member
    "There is no legal requirement, anywhere, that Apple needs to make applications to assist with third-party integrations of smartwatches. This is up to the integrators. And, the key integrators, Google and Samsung, have chosen to not do so for reasons only known to themselves."

    This is the thing. Why should Apple be forced to make an inferior, less secure product just so it's compatible with Android, or any other app or OS? They shouldn't.

    As the article says this whole case against Apple seems poorly thought out, and not based on facts nor law, but jealously and envy. It appears to me the DOJ has seen the EU dubiously scrape a couple billion off of Apple, and it wants some of those sweet. sweet Apple profits too.

    What a waste of time, resources, and tax payer money.
    hecalderlesterkrimbaughwilliamlondon9secondkox2MisterKitBart Ydanox40domiqwerty52watto_cobra
  • Reply 5 of 158
    NYC362NYC362 Posts: 86member
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    As already said, but it will be need to be said about 100 trillion times, this insanity started during the Trump years. 
    Oferroundaboutnowlesterkrimbaughzoetmbwilliamlondon9secondkox2tmayradarthekatkiowawapulseimages
  • Reply 6 of 158
    MadbumMadbum Posts: 536member
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    This started two years into the Trump administration.
    And it was dead when San Jose court decided for Apple but brought back when Biden appointed the socialist Kanter . Did you even read the article above?
    ibillKierkegaardenwilliamlondonSpitbathmrstep40domiJanNL
  • Reply 7 of 158
    MadbumMadbum Posts: 536member
    NYC362 said:
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    As already said, but it will be need to be said about 100 trillion times, this insanity started during the Trump years. 
    Yes but it was dead when Judge Ko decided the case for Apple . Only to be brought back by Biden socialist  Jon Kanter 
    ibillKierkegaardenwilliamlondonMuons-R-UsSpitbathJanNL
  • Reply 8 of 158
    Mike WuertheleMike Wuerthele Posts: 6,869administrator
    Madbum said:
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    This started two years into the Trump administration.
    And it was dead when San Jose court decided for Apple but brought back when Biden appointed the socialist Kanter . Did you even read the article above?
    Considering that I wrote it, yes, I did. The DoJ didn't stop after the trial. It may have slowed, but didn't stop.

    Epic v. Apple was ruled on in September 2021. Kanter was appointed on November 2021.

    You say that you're not usually political, but your comment history belies that somewhat. Turn down the rhetoric a bit. This is very clearly an issue on both sides of the aisle.
    edited March 21 OferroundaboutnowthtzoetmbwilliamlondontmayfastasleepapplebynatureSpitbathnubus
  • Reply 9 of 158
    MadbumMadbum Posts: 536member
    Madbum said:
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    This started two years into the Trump administration.
    And it was dead when San Jose court decided for Apple but brought back when Biden appointed the socialist Kanter . Did you even read the article above?
    Considering that I wrote it, yes, I did. The DoJ didn't stop after the trial. It may have slowed, but didn't stop.

    Epic v. Apple was ruled on in September 2021. Kanter was appointed on November 2021.
    I read up on Kanter after seeing  your article here. This is 100 percent Kanter, the guy  is a communist socialist if you read what he has wrote in past.

    Anyways, you can defend Biden if you want to but I have a right to my position as well . Or do I?
    ibillwilliamlondonSpitbath40domiJanNL
  • Reply 10 of 158
    Mike WuertheleMike Wuerthele Posts: 6,869administrator
    Madbum said:
    Madbum said:
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    This started two years into the Trump administration.
    And it was dead when San Jose court decided for Apple but brought back when Biden appointed the socialist Kanter . Did you even read the article above?
    Considering that I wrote it, yes, I did. The DoJ didn't stop after the trial. It may have slowed, but didn't stop.

    Epic v. Apple was ruled on in September 2021. Kanter was appointed on November 2021.
    I read up on Kanter after seeing  your article here. This is 100 percent Kanter, the guy  is a communist socialist if you read what he has wrote in past.

    Anyways, you can defend Biden if you want to but I have a right to my position as well . Or do I?
    Where do you get that I'm defending Biden? Neither the article nor my comment says that.

    For somebody who says that they're not political, you're sure making this a political partisan issue, unnecessarily. Knock it off.
    edited March 21 Ofermuthuk_vanalingamking editor the grateroundaboutnowthtRonnyDaddywilliamlondonMuons-R-Ustmayfastasleep
  • Reply 11 of 158
    I'm looking forward to the DoJ crushing Apple in court.

    Not buying this nonsense.  Apple has been breaking the law in a big way for years, it's time for them to pay.
    williamlondonSpitbathlarrya
  • Reply 12 of 158
    quote: “Let's start simply, by looking at Attorney General Merrick Garland's…” 


    The big question about this trial is… What is AG Garland going to earn?
    No the case in itself… but… Will he get a judicisry promotion? A political stance?

    Everything else are… just details to get there. A big win over the biggest company… What a promotion!
    watto_cobra
  • Reply 13 of 158
    OferOfer Posts: 247unconfirmed, member
    Madbum said:
    Madbum said:
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    This started two years into the Trump administration.
    And it was dead when San Jose court decided for Apple but brought back when Biden appointed the socialist Kanter . Did you even read the article above?
    Considering that I wrote it, yes, I did. The DoJ didn't stop after the trial. It may have slowed, but didn't stop.

    Epic v. Apple was ruled on in September 2021. Kanter was appointed on November 2021.
    I read up on Kanter after seeing  your article here. This is 100 percent Kanter, the guy  is a communist socialist if you read what he has wrote in past.

    Anyways, you can defend Biden if you want to but I have a right to my position as well . Or do I?
    As someone who claims to have read up on things, you sure appear to be throwing a lot of terms around that are absolutely incorrect. Like saying Kanter is a communist socialist. 
    muthuk_vanalingamroundaboutnowwilliamlondonfastasleepapplebynatureradarthekattophatnosocksStrangeDaysBart Ymdw
  • Reply 14 of 158
    twolf2919twolf2919 Posts: 114member
    Well written analysis of this ridiculous DoJ action.  But I think in one of your rebuttals to the DoJ claim regarding iPhone preventing 3rd-party apps  in messaging, you ignore a key phrase you even include yourself:  "from sending or receiving carrier-based messages,"  None of the apps you say have no problems being on iPhone - you point to WhatsApp - have the ability to send/receive *carrier-based message* - i.e. SMS/MMS.  At least as far as I know.

    roundaboutnowwilliamlondonmuthuk_vanalingamwatto_cobra
  • Reply 15 of 158
    twolf2919twolf2919 Posts: 114member

    Well written analysis.

    Anti-trust laws clearly demand the government show the defendant to be a 'monopoly'.    US AG Merrit Garland himself defines monopoly as "the ability to set prices and exclude competition."    But clearly, before you can decide whether a company has these abilities, you have to define the market in which it supposedly has that ability - and that's where Garland is all over the map trying to obfuscate that in the only real market - that of smartphones - Apple clearly does NOT have a monopoly: worldwide it has only 20% of the market.  In the US, it's a bit over 50%.  And whether it's in the US or the rest of the world, Apple clearly doesn't have the ability to dictate prices - there are devices from $100 to $2000+ available in the market of smartphones.  And there are lots of companies selling them, so clearly Apple hasn't been able to exclude competitors!

    What the DOJ is  really objecting to is Apple's ability to design its hardware and software and its ability to dictate to  companies that it lets onto its devices how much access they get to the underlying capabilities.  But in a capitalist society, it should not be the government's business to make business or technology decisions.  Apple has been very successful  with its decision to sell their products as simple-to-use, secure, elegant, and performant devices that integrate seamlessly.  As its success indicates, Apple customers have wholeheartedly bought into this combination - why is the government siding with the supposed "competitors" - which are actually just software and accessory companies Apple allowed onto their platform in the first place?

    I am not suggesting Apple is perfect.  For instance, Apple did create an "app" market on its platform.  Its built-in apps should not get more access to the underlying platform than other apps attempting to provide the same features!  E.g. Apple's own Safari browser currently has access to Apple Pay, but I don't think Chrome or other browsers do (although I didn't actually check that).  The problem with the DOJ suing Apple on these grounds, is that it quickly becomes murky whether something is an "app" or a built-in operating system feature.   Using the same example of "Apple Pay", is that itself an app or a payment feature built into iOS?

    I agree with the author that the DoJ doesn't have a legal leg to stand on. The only thing the DOJ has going for it is the fact that judges - especially on the Supreme Court - are elderly folks (just like the politicians in Washington) with not a flimsy grip on the technologies they need to adjudicate over.

    teejay2012aderutterradarthekatBart Y40domiwatto_cobra
  • Reply 16 of 158
    Apple has made its products worse for so long, I bought so many I feel like I’m living in a company town. 
    williamlondonSpitbathwatto_cobra
  • Reply 17 of 158
    nubusnubus Posts: 418member
    Apple can't win. Microsoft spent 8 years on US antitrust cases before making a settlement. Gates left the company he founded and Microsoft management lost focus.

    Apple+EU has been a disaster for years. Apple spent 10 years on promising before finally being forced to USB-C. Now EU has had enough with politicians hitting Apple in several ways causing disruptions to hardware and software. Apple is taking a beating every week.

    And now this... a case started under Trump that moved forward for 5-6 years. At a time when Car just failed, AVP is in need of full focus, competitors are all AI, and the last 4 iPhone generations are looking and behaving much like iPhone 12 (design, MagSafe, 5G)...   a legal battle into the next decade is not what the doctor ordered.

    We need Apple to get out of these battles and focus on the future.
    blitz1williamlondonlewval
  • Reply 18 of 158
    This action appears misguided. It would appear the DOJ intends to re-write well-estimated antitrust law. Apple does not have monopoly power in any market if you define the market correctly. The EU laws are different than in the US. If congress wants th change antitrust laws it can but despite Senator Klubachar’s best efforts, the congress was not interested in broadening government control, probably because of the recognition that is stifles innovation, changes the rules in the middle of the game for successful companies like Apple, and weakens an American company that has to globally compete with Chinese and South Korean companies. Truly misguided. 
    thtwilliamlondon9secondkox2MadbumBart Y40domiwatto_cobra
  • Reply 19 of 158
    Madbum said:
    Joe Biden needs to go. I am sorry but I am not usually political but this guy is ridiculous 
    Unlike under the traitor’s administration, the DOJ does NOT report to Biden and does not do his bidding.
    mortarman81mmcoolfactorking editor the gratewilliamlondon9secondkox2fastasleepapplebynatureSpitbathradarthekattophatnosocks
  • Reply 20 of 158
    As much as the world is a better place for Apple having existing, I feel that Apple has to be taken down a notch - forced obsolescence in operating systems, software, hardware, and online services; morality police in passwords and data; over the top DEI initiatives; endless 'highly exclusive' proprietary wireless, chips, and online services; etc., etc. Apple hasn't done much really, really wrong as they have horribly neglected to do much 'politically' and socially right. This means they should win the suit but lose much money, customer loyalty, and developer/vendor attention/ service. Maybe a 30% drop in stock prices can deride the Arrogance. Hopefully, Apple will be a bit more like Tesla with absurdly open protocols and standardization - benefitting the industry more and the bottom line less.
    williamlondon9secondkox2Spitbathnubus
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