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The Antitrust Concerns Within the Apple Ecosystem

The Antitrust Concerns Within the Apple Ecosystem

By Kaitlin Carroll

The US Department of Justice, along with 16 states, has recently filed a lawsuit against Apple for violating antitrust laws. Previous antitrust cases against Apple have pointed fingers at the high commission Apple receives on in-app purchases, restrictions on other developers’ music streaming apps, and attempts to fix prices on e-books.[1] Instead of pointing to one practice in particular, this lawsuit focuses more on the overall integration of Apple’s software and services across devices, and its refusal to allow the same seamless integration with non-Apple products.[2] The DOJ’s complaint states this abuse of power has led to Apple’s monopoly on the smartphone industry within the US.[3] While announcing the lawsuit during a press conference, Deputy AG Lisa Monaco stated that Apple’s tactics have “smothered an entire industry,” alleging that Apple limits third-party digital wallets, suppresses mobile cloud streaming services, blocks cross-platform messaging apps, and limits how well non-Apple smartwatches work with Apple devices.[4]

Being a monopoly in and of itself is not illegal, the issue arises when the monopoly is maintained using exclusionary methods, thereby stifling innovation and limiting consumer choice.[5] In this case, where is the line between a smart business strategy and an exclusionary practice? U.S Attorney General Merrick Garland says that Apple has gained their monopoly power not by innovating and making its own products better, but through making other products worse.[6]

One of the allegations, that Apple blocks cross-platform messaging, is in part referring to the “green bubble stigma” that many non-Apple users have felt.[7] Aside from the color, texting a non-Apple user also limits certain functions that iMessage users have come to rely on including high-quality photo sharing, message encryption, read receipts, typing indicators, and more.[8] The mobile phone industry as a whole has begun transitioning from the typical SMS (short message service) to RCS (rich communication services) which allows for better group messaging, high-resolution photo and video sharing, and message encryption.[9] After facing pressure from US and European regulators, Apple finally agreed to begin supporting RCS features for Android users—but the green bubbles will stay.[10]

The DOJ’s complaint also contends that by refusing to integrate software with non-Apple devices, Apple increases the “switching cost” that users face when trying to switch smartphones.[11] For example, the complaint states that since Apple Watches are exclusively compatible with iPhones, a customer with both an iPhone and Apple Watch might think twice before switching to an Android.[12]

Many of the exclusionary practices Apple is being accused of are reminiscent of the DOJ’s 1990 case against Microsoft.[13] There, the court found that Microsoft had invested significant resources in quashing competitors, including Apple. The DOJ asserts that the Microsoft ruling was pivotal in creating a healthier competition within the PC market and may have assisted Apple in reaching the success it has today.[14]

This case is expected to take years to resolve but ultimately the DOJ and others are hoping that this case fundamentally changes the way Apple does business in the US, and similarly to the Microsoft case, leads to healthier competition within the smartphone market.[15] Even with a ruling against Apple, the company would be expected to bounce back like Microsoft did after its lawsuit over twenty years ago.[16] For a company as strong as Apple, forcing them to play by the rules should only lead to more innovation and growth not only within the company but throughout the industry, which will then lead to more choices for consumers.

 

 

 

Image Source: https://www.wsj.com/articles/why-apples-imessage-is-winning-teens-dread-the-green-text-bubble-11641618009

[1] See United States v. Apple, 791 F.3d 290 (2nd Cir. 2015); Arjun Kharpal, Apple hit with more than $1.95 billion EU antitrust fine over music streaming, CNBC (Mar. 4, 2024, 7:14 AM), https://www.cnbc.com/2024/03/04/apple-hit-with-more-than-1point95-billion-eu-antitrust-fine-over-music-streaming.html#:~:text=The%20European%20Commission%2C%20the%20European,distribution%20of%20music%20streaming%20apps.

[2] Ben Thompson, United States v. Apple, Stratechery (Mar. 25, 2024), https://stratechery.com/2024/united-states-v-apple/.

[3] Id.

[4] Victoria Song, US v. Apple: everything you need to know, The Verge (Apr. 2, 2024, 7:00 AM), https://www.theverge.com/24107581/doj-v-apple-antitrust-monoply-news-updates.

[5]  Anticompetitive Practices, FTC (last visited Apr. 12, 2024), https://www.ftc.gov/enforcement/anticompetitive-practices.

[6] Cristiano Lima-Strong, Justice Department, states accuse Apple of holding a smartphone monopoly, The Washington Post, (Apr. 21, 2014, 4:57 PM), https://washingtonpost.com/technology/2024/03/21/apple-doj-antitrust-lawsuit-smartphone/.

[7] Bobby Allyn, ‘Green bubble shaming’ at play in DOJ suit against Apple, NPR (Mar. 28, 2024; 5:48 PM), https://www.npr.org/2024/03/28/1241443505/green-bubble-shaming-android-apple-iphone.

[8] Id.

[9] Id.

[10] Id.

[11] John Bergmayer, The DOJ Case Against Apple May Spur the Next Wave of Tech Innovation, Public Knowledge (Apr. 5, 2024), https://publicknowledge.org/the-doj-case-against-apple-may-spur-the-next-wave-of-tech-innovation/.

[12] Id.

[13] Anshel Sag, Apple’s DOJ Lawsuit Was Inevitable And Will Forever, Forbes (Apr. 5, 2024, 12:01 PM), https://www.forbes.com/sites/moorinsights/2024/04/05/apples-doj-lawsuit-was-inevitable-and-will-change-the-company-forever/?sh=5d9c84e616b7.

[14] Id.

[15] Id.

[16] Id.

Paper v. Paperless

Paper v. Paperless

By: Ashlyn Hilburn

The development of the internet has affected nearly every aspect of life. In the medical field, evolving technology not only led to an explosion of revolutionary treatments, but it also resulted in a change to how all medical records are kept. Electronic health records have received pushback from not only practitioners, but legal scholars as well.

Warning! The First Amendment Gives us a Right to Cause Addiction in Teens

Warning! The First Amendment Gives us a Right to Cause Addiction in Teens

By Garrett Handegan

On May 25, 2019, the World Health Organization (“WHO”) officially voted to include video game addiction, otherwise known as “gaming disorder,” as a behavioral addiction.[1] While the American Psychiatric Association says that the issue of video games being addictive is still being debated, they admit that early evidence shows not only are they addictive, but that they are potentially one of the most addicting technologies around.[2] Not only are they addictive, they are intentionally designed to be so.[3] The worry about children being addicted to video games is not unique to America, China’s growing concern over the issue has led them to limit the amount of time that children are allowed to play video games.[4]

Beyond Name, Image, Likeness: Voice Protection

Beyond Name, Image, Likeness: Voice Protection

By Jack Sherwood

Artificial Intelligence has been used in the music industry for decades. As early as 2004, AI audio modulation was introduced by Yamaha to synthesize melodic vocals.[1] Even in the 2010s, AI was used to enhance the audio of voice actors who no longer had the same vocal delivery, such as the likes of James Earl Jones.[2] 20 years later, AI has evolved from simply integrating and enhancing vocal audio to composing and producing an entire Drake song from a 250-word instruction text, one that Drake himself never touched.[3] While Drake’s label, UMG, immediately issued a copyright takedown of the AI track “Heart on My Sleeve”, the damage had already been done, with streams exceeding 7 million on Twitter alone. [4] In a world where an artist can be entirely mimicked by AI in a matter of minutes, how do we provide protection?

AI Attorneys – Why Bother Going to Law School?

AI Attorneys – Why Bother Going to Law School?

By: L. Michelle Ugalde

 

With the rapid advancement and integration of Artificial Intelligence (“AI”) across all career fields, the fear of virtual replacement is becoming all the more omnipresent. But is this fear justified? For attorneys, the consensus is split. While all recognize that AI is undoubtedly entering the legal field, the divide is between those who are embracing this new incorporation, and those who reject it. It seems that as time progresses, the feelings of the latter are becoming stronger.

Joan Is Awful: A Petition for Federal Personality Rights Legislation

Joan Is Awful: A Petition for Federal Personality Rights Legislation

By Kathryn Threatt

Background:

In June of 2023, Netflix premiered season 6 of the beloved and haunting series, Black Mirror.[1] The star-filled first episode entitled, Joan Is Awful, is the tale of an everyday woman, Joan, whose life will soon be streamed by millions of viewers on the fictionalized version of Netflix, Streamberry. So, you might be wondering how such a thing happens. Well Joan, unbeknownst to her, signs away her personality rights.[2]

Personality rights are loosely defined as “the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity.”[3] When Joan accepted Streamberry’s terms and conditions buried in the pages of legalese was a clause that gave the platform the right to commercially exploit the most intimate and unflattering details of Joan’s life for television.[4] To further complicate things, Streamberry employed a quantum computer that via multiple versions of reality or a multiverse created the show and generated AI versions of the famous actors playing out Joan’s life.[5] A quantum computer is essentially a mega supercomputer that creates the potential for significant data privacy concerns.[6] IBM describes quantum computing as “a specialized technology–including computer hardware and algorithms that take advantage of quantum mechanics–to solve complex problems that classical computers or supercomputers can’t solve, or can’t solve quickly enough…the real world runs on quantum physics[, therefore c]omputers that make calculations by using quantum states of quantum bits should in many situations be our best tools for understanding it.”[7] Why is a quantum computer a potential threat? Well, a quantum computer has the potential to employ Shor’s algorithm, “one of the most important quantum computing algorithms…[which] would allow a large-scale quantum computer to quickly break essentially all of the encryption systems that are currently used to secure internet traffic against interception.”[8]

The Issue: Contracting Away Your Identity

Although in September Edward Parker stated in his Lawfare article that quantum computers do not pose an imminent threat… yet,[9] the implications of the advancements in quantum technologies and recent case law make Joan Is Awful more of a real possibility.[10] In recent years, the United States has experienced a rise in conversations around the personality rights of athletes and celebrities as a result of NFT lawsuits,[11] the 2023 SAG-AFTRA negotiations,[12] and most recently the Hayley Paige vs. JLM appeal.[13] These in varying degrees dealt with whether corporate entities or the individuals themselves had exclusive ownership in their “name, image or likeness”.[14] While celebrities’ personality rights have been the focus of conversation around protections, Joan Is Awful envisions a world where the non-famous could just as easily be harmed by this type of commercial exploitation.[15] With companies like Google[16] and IBM[17] making claims of being on the cusp of employing quantum computing technology that would leave every day humans susceptible to data breaches, and the improvement of deep fake technology, the ownership of one’s identity could easily be snatched away.

A Possible Solution: A Federal Framework

Technologies from streaming services to smart devices and AI are essential assets in the operation of our daily lives. For better or worse, to use these necessities signing the laboriously long terms and conditions is a requirement. Therefore, consideration around whether contracting away one’s personality rights via the terms and conditions of use should be at the forefront of federal regulation conversations.

Federal protection of personality rights needs to be a key issue in the increasing conversations around the need for comprehensive U.S. federal data privacy and AI legislation and regulations.[18] Currently, states control how personality rights are protected just as states control how data privacy laws are handled.[19] While states should maintain some autonomy in how to protect personality rights,[20] federal protection is a must. The solution does not need to be complicated but simply put: no public or private entities should be allowed to obtain the personality rights of an individual via inconspicuous terms and conditions of use.[21] While the methods of consenting to the exploitation of these rights are debatable, this consent must be explicit and clear. One’s personality rights are foundational to one’s identity and personhood, something that a corporation should not be able to exploit without clear and explicit consent.

Before this level of technology infiltrates our lives, legislators and corporations must consider the dire consequences of allowing consumers to contract away their identities with a simple click of the “Accept” button.

 

 

 

 

Image Source: Black Mirror: “Joan Is Awful” Recap and Analysis | TV Obsessive

[1] Joan Is Awful, IMDB: Black Mirror (last visited Mar. 25, 2024), https://www.imdb.com/title/tt20247352/.

[2] JOAN IS AWFUL NETFLIX 27:14

[3] Copyright & Personality Rights, Schwegman lunberg & woessner, P.A., https://www.slwip.com/resources/copyright-personality-rights/ (Apr. 8, 2019).

[4] Joan Is Awful, supra note 2.

[5] Stephan Lee, Let’s Try and Explain the Mind-Melting ‘Black Mirror’ Episode ‘Joan Is Awful’, Tudum by Netflix: Explainer, https://www.netflix.com/tudum/articles/black-mirror-joan-is-awful-ending-explained (June 20, 2023).

[6] What is quantum computing?, IBM (last visited Mar. 25, 2024), https://www.ibm.com/topics/quantum-computing; Interesting Engineering, Was Black Mirror Right About Quantum Computing, LinkedIn: Interesting Engineering, https://www.linkedin.com/posts/interestingengineering_was-black-mirror-right-about-quantum-computers-activity-7086056831420121088-wDaA/ (June 2023).

[7] What is quantum computing?, supra note 6.

[8] Edward Parker, When a Quantum Computer Is Able to Break our Encryption, It Won’t Be a Secret, Lawfare, https://www.lawfaremedia.org/article/when-a-quantum-computer-is-able-to-break-our-encryption-it-won-t-be-a-secret (Sep. 13, 2023, 10:06 AM).

[9] Id.

[10] See e.g.,Interesting Engineering, supra note 6.

[11] Your Face is My Case: Personality Rights, Ogden Glazer + Schaefer, https://ogs.law/intellectual-property/your-face-is-my-case-personality-rights/ (Nov. 9, 2021) (highlighting the cases that led to student athletes protecting control over their personality rights); Faegre Drinker Biddle & Reath LLP, Name, Image and Likeness Scouting Report, Week 2: How Did We Get Here? From the Hope Diamond to NCAA v. Alston, JDSUPRA, k https://www.jdsupra.com/legalnews/name-image-and-likeness-scouting-report-3907106/ (Sep. 20, 2021) (arguing the impact of the NCAA v. Alston case over student athlete’s NIL control). 

[12] Stuart Heritage, Joan Is Awful: Black Mirror episode is every striking actor’s worst nightmare, The Guardian, https://www.theguardian.com/tv-and-radio/2023/jul/13/joan-is-awful-black-mirror-striking-actors-nightmare (July 13, 2023, 9:45) (arguing that the plot of the show was nightmarishly similar to what actors were fighting to protect against during the Strike); Gili Malinsky, Hollywood’s actors are back to work –here’s what they actually got in SAG-AFTRA’s new contract, CNBC: Make it, https://www.cnbc.com/2023/11/17/sag-aftras-new-deal-whats-in-it-and-what-experts-say.html#:~:text=SAG’s%20new%20contract%20covers%20numerous,another%203.5%25%20effective%20July%202025. (Nov. 17, 2024, 4:53 PM).

[13] See, e.g., Blake Brittain, Hayley Paige wedding-dress dispute again sent back to federal court, Reuters (updated Jan. 17, 2024 5:00 PM), https://www.reuters.com/legal/litigation/hayley-paige-wedding-dress-dispute-again-sent-back-federal-court-2024-01-17/; Blake Brittain, Dressmaker can block designer Hayley Paige from using her own name trademark, court says, Reuters (updated Jan. 26, 2022 12:47 PM), https://www.reuters.com/legal/transactional/dressmaker-can-block-designer-hayley-paige-using-her-own-name-trademark-court-2022-01-25/.

[14] Copyright & Personality Rights, supra note 3.

[15] Joan Is Awful, supra note 2.

[16] Parker, supra note 8.

[17] What is quantum computing?, supra note 6.

[18] Bloomberg, Consumer Data Privacy Laws, Bloomberg Law (last visited Mar. 25, 2024), https://pro.bloomberglaw.com/insights/privacy/consumer-data-privacy-laws/#privacy-laws-by-country; see, e.g., Gopal Ratnam, Push for federal data privacy law grows as rights vary by state, Roll call (Jan. 17, 2024, 7:00 AM), https://rollcall.com/2024/01/17/push-for-federal-data-privacy-law-grows-as-rights-vary-by-state/ (highlighting the Congressional push for Data privacy legislation especially in response to the potential privacy concerns in advent of AI systems); see, e.g., Zach Warren, Legalweek 2024: Current US AI regulation means adopting a strategic – and communicative – approach, Thomas reuters: AI & Future Technologies (Feb. 11, 2024), https://www.thomsonreuters.com/en-us/posts/legal/legalweek-2024-ai-regulation/ (emphasizing the key role the FTC will play in AI regulation as a response to President Biden’s 2023 Executive Order on AI and the shifts that might occur in the aftermath of 2024 Elections).

[19] Id.; see, e.g., Judge Ben C. Green Law Library, What are Personality Rights, Case Western Reserve University School of Law: Intellectual Property Law Research Guide (last visited Mar. 25, 2024), https://lawresearchguides.cwru.edu/IP/personality-rights (providing the example of Ohio); J. Faber, Right of Publicity Statutes & Interactive Map, Right of Publicity (last visited Mar. 25, 2024), https://rightofpublicity.com/statutes.

[20] Jeff Williams, What Are Image and Personality Rights?, Law Office of Jeff Williams PLLC: Intellectual Property Firm (last visited Mar. 25, 2024), https://www.txpatentattorney.com/blog/what-are-image-and-personality-rights/#:~:text=In%20fact%2C%20there%20is%20no,protect%20a%20person’s%20image%20rights. (arguing that state protection has its benefits and can be “actually quite effective”).

[21] But see, Cari Rincker, Name, Image, and Likeness: How to Protect Your Right to You, Rincker Law PLLC, https://rinckerlaw.com/name-image-and-likeness-how-to-protect-your-right-to-you/ (Mar. 12, 2023) (Highlighting that licensing arguments are the way that one can contract away their rights but lacking understanding in the terms of the license can cause issues). Again this blog though helpful focuses more on celebrities and athletes or other individuals that might consider having an “attorney…review licensing agreements before you sign them.” Id. The average individual would not have an attorney review every terms and conditions of use agreement the technologies of our lives require which is why a more comprehensive set of legislation is needed.

AI Benefits When Fashion Lacks Copyright Protections

AI Benefits When Fashion Lacks Copyright Protections

By Kaitlyn Dobbins

Generally, copyright protections do not protect much in the fashion industry.[1] Fashion designers can find copyright protections only for those elements of their work that are a separable pictorial, image, or graphic.[2] Essentially, if the work of art can be conceptually separable (independently recognized) from the piece of clothing, it can be protected.[3] Consequently, design elements like common patterns, common colors, or cuts of fabric will not be protected by copyright law.[4]

You Can’t Spell Agriculture Without AI

You Can’t Spell “Agriculture” Without “AI”

By Avery S. Younis

In a world of rapidly advancing technology, it is no surprise that Artificial Intelligence (AI) has made a home for itself in the agriculture industry. While technology may be at the forefront of our minds, food still has a monopoly on our stomachs. The population has doubled since 1974—there are over 8 billion humans to feed on this planet.[1] With growing numbers of people and rising concerns about resources, we are faced with an efficiency dilemma: how do we increase agricultural production without straining our environment?

The Sony Defense, Grokster Limitation, and a (Nintendo) Switch-Up?

The Sony Defense, Grokster Limitation, and a (Nintendo) Switch-Up?

By Eleni Paraskevopoulos

If you’re a fan of video games, you may be familiar with the concept of emulators.  An emulator is a computer program or device that enables a computer system to function like another device.[1] Imagine you suddenly have the urge to relive the experience of playing “Mario Kart: Double Dash!!” on the GameCube, but you don’t have access to a working GameCube. With an emulator, that wouldn’t be a problem. Emulators are not exclusive to video game consoles.[2] Software developers often use emulators to test how an app would function on various devices with varying operating systems.[3] In addition to its ability to allow users to play classic video games on modern devices[4], emulation also has a purpose and use in developing technology and refining it to work across various software systems.[5] Because of its multi-purpose use, the technology exists in a sort of legal grey area.[6] Although, that may all change.

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