Authors John Bergmayer
License CC-BY-SA-4.0
Tending the Garden:
How to Ensure That App
Stores Put Users First
June 2020 John Bergmayer
Acknowledgements
The author would like to thank those that provided feedback during the drafting of this paper, including Blake Reid at the
University of Colorado Law School, Hal Singer, managing director at Econ One and an adjunct professor at Georgetown’s
McDonough School of Business, and Will Jennings, student at the Indiana University McKinney School of Law and intern at
Public Knowledge, for editing assistance. This paper, along with other work from Public Knowledge on platform competition,
was made possible by the support of the Omidyar Network.
The cover image is The Artist’s Garden at Eragny, by Camille Pissarro, oil on canvas, 1898. This public domain image was
sourced via the National Gallery of Art. The remainder of the paper is licensed under the Creative Commons Attribution-
ShareAlike 4.0 International (CC BY-SA 4.0) license, the terms of which may be found here:
https://creativecommons.org/licenses/by-sa/4.0.
Table of Contents
EXECUTIVE SUMMARY ................................................................................................................................. 1
INTRODUCTION ........................................................................................................................................... 2
EXAMPLES OF APP STORES ......................................................................................................................... 8
APP STORES VS SECURITY ARCHITECTURES ............................................................................................. 11
EXCLUSIVE SOURCE OF SOFTWARE ................................................................................................................ 12
CODE-SIGNING ......................................................................................................................................... 13
SANDBOXING AND PERMISSIONS .................................................................................................................. 14
API RESTRICTIONS....................................................................................................................................... 15
DRM ....................................................................................................................................................... 16
BENEFITS OF APP STORES .......................................................................................................................... 16
DRAWBACKS OF APP STORES .................................................................................................................. 19
IT IS HARD TO COMPETE WITH A PLATFORM ..................................................................................................... 19
APP STORES PLACE BUSINESS MODEL CONSTRAINTS ON DEVELOPERS ................................................................. 24
CENSORSHIP AND CURATION ....................................................................................................................... 34
CUSTOMER OWNERSHIP, RESALE, AND PRESERVATION ..................................................................................... 36
SINGLE TARGET FOR SCAMS ......................................................................................................................... 38
EXCLUSION OF CERTAIN MARKETS ................................................................................................................. 39
APP STORE TRADEOFFS MAY NOT BE THE BEST FOR ALL USERS ............................................................................. 39
CASE STUDIES ............................................................................................................................................. 40
DUPLICATING BUILT-IN FUNCTIONALITY AND DEFAULTS ..................................................................................... 40
SPOTIFY, AND THE REQUIRED USE OF IN-APP PURCHASE SYSTEM FOR NON-APP CONTENT ...................................... 42
FORTNITE AND THE GOOGLE PLAY STORE ...................................................................................................... 44
EXCLUSIVE ACCESS TO HARDWARE FEATURES ................................................................................................. 44
PREFERENTIAL TREATMENT OF IMPORTANT APPS ............................................................................................... 45
HKMAP.LIVE, AND GOVERNMENT PRESSURE TO CENSOR .................................................................................. 46
APPLE, AT&T, AND THE FCC ...................................................................................................................... 47
MORAL CENSORSHIP .................................................................................................................................. 48
LOCATION DATA IN IOS 13 ......................................................................................................................... 49
PARENTAL CONTROL APPS ........................................................................................................................... 50
SOLUTIONS ................................................................................................................................................. 52
SIDELOADING ............................................................................................................................................ 52
IN-APP PURCHASE REQUIREMENTS SHOULD BE LIMITED TO APP FUNCTIONALITY ..................................................... 56
DEVELOPERS SHOULD BE ABLE TO TRUTHFULLY COMMUNICATE WITH THEIR CUSTOMERS ......................................... 57
ALLOW USERS TO SET AND CHANGE DEFAULTS ................................................................................................ 57
LIMIT PREINSTALLED APPS TO ESSENTIALS ......................................................................................................... 58
APP STORE SEARCH TRANSPARENCY ............................................................................................................. 58
PLATFORMS SHOULD AVOID USING COMPETITORS’ PROPRIETARY DATA TO COMPETE WITH THEM ........................... 59
PROACTIVELY OFFER SECURE APIS TO FOR THIRD-PARTY DEVELOPERS FOR MAJOR NEW FEATURES ......................... 59
OBLIGATION TO ALLOW ARCHIVING / EMULATION OF OLDER SYSTEM VERSIONS .................................................. 61
ALLOW USERS TO TRANSFER AND MERGE ACCOUNTS....................................................................................... 62
DUE PROCESS FOR DEVELOPERS ................................................................................................................... 63
GREATER BUSINESS MODEL FLEXIBILITY ............................................................................................................ 63
CONCLUSION ............................................................................................................................................ 64
1
Tending the Garden
Executive Summary
App stores provide security, privacy, and trust for users, while giving platform
maintainers significant gatekeeper control over the software that users can access,
what that software can do, and how it can be monetized. This gatekeeper control
can be used to benefit platforms at the expense of independent software developers
as well as users. Switching costs, network effects, and other factors mean that
competition between platforms for users and developers cannot be enough to ensure
that app stores and their associated software platforms will be operated in a way
that promotes consumer rights, the public interest, and broader economic benefits.
This paper suggests specific measures that should be implemented by dominant app
stores to promote these interests—reducing the gatekeeper control that app stores
inherently have, but not eliminating it. These measures are suggested as baseline
structural remedies that would apply broadly, and do not fully displace the need for
a competition law framework, an individualized, complaint-driven procedure that
addresses matters these measures do not address, or other remedies.
Specifically, this paper recommends that platforms allow users and developers to
bypass the app store entirely through side-loading, but only subject to strict code-
signing requirements. Code-signing ensures that only software from known
developers can run on a device. At the same time, this paper suggests that code-
signing authorities themselves can be decentralized. It also recommends a few
measures that app stores can implement to reduce the advantage their first-party
apps have over competitors, such as allowing users to change defaults, and
proactively providing third-party application programming interfaces, or APIs, for
major new features at a more rapid cadence. This paper also calls for app stores to
allow greater business model flexibility to developers, such as allowing things like
paid upgrades and not requiring the use of in-app purchase systems for media
purchases and subscriptions. It calls for due process for developers to ensure
consistency in the application of rules. Finally, even older versions of dominant
platforms and software that run on them can be of historical and technological
interest. Platforms should, therefore, ensure that it remains possible to archive and
emulate software that may still be protected by copyright but is of limited
commercial significance.
These measures are not costless to implement. Dominant platform maintainers (the
companies that operate the app stores and their associated software platforms)
would have to spend time and money, hire extra staff, and add more internal
processes to carry them out. This give-and-take is how the nature of regulation of
private enterprises “of public consequence” necessarily works.1
1See Munn v. Illinois, 94 U.S. 113 (1876) (“Property does become clothed with a public interest when
used in a manner to make it of public consequence, and affect the community at large. When,
2
Tending the Garden
App stores that follow these practices can still be successful, self-funding business
endeavors—that is, not merely operated as a loss leader for hardware sales or
service upselling. Indeed, the broader positive economic effects promoted by these
measures may indirectly benefit the platforms as well. In this paper’s final analysis,
even the recommendations aimed at benefitting developers should be considered
consumer protection measures, as the aim of this paper is to advocate that users
have more control, more ability to access content, and access to a more competitive
software market than an unregulated, dominant software platform is likely to
provide absent intervention.
Introduction
App stores—along with broadband internet access, cloud services, and the like—are
part of the infrastructure of the internet and of the digital economy. Much of how
people now engage in commerce, look up information, communicate with family and
friends, find dates, work, and entertain themselves is mediated through apps. While
apps and app stores exist on various computing platforms—smart TVs, desktop
PCs, and game consoles, for instance—they are of central importance to
smartphones and tablets. Due to platform design decisions as well as technological
constraints, functions that could be done via a web browser on the relatively
uncontrolled open web on a desktop PC or a laptop, often must be mediated through
an app on mobile devices. This is not necessarily a bad thing—so-called “native”
apps can offer features, performance, and security unavailable to web apps—but it
brings into focus the power that app stores, the software platforms they run on, and
the companies that control them (platform maintainers), have over the lives and
activities of users, and the livelihoods of the developers who need access to app
stores to reach users. (This paper uses the term “platform maintainer” rather than
“platform owner” or some other term to avoid suggesting that the company that
develops the platform owns or should be credited with the economic and social value
of a platform. Users and third-party developers are equally, if not more responsible;
the world’s greatest operating system, app store, and devices are nothing without
them.)
therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants
to the public an interest in that use, and must submit to be controlled by the public for the common
good, to the extent of the interest he has thus created.”) To be as clear as possible: the regulation of
dominant platforms does not imply that platforms are somehow at “fault” for being dominant. It is
not punishment, it is not a question of “fairness,” and regulation of this kind does not have to be
justified in terms of antitrust or other forms of competition law. It is a response to their importance
to the public interest and the economy, an importance their smaller rivals may lack, which justifies
imposing extra regulatory requirements on dominant platforms and dominant platforms alone. One
consequence of this is that smaller rivals may be permitted to engage in activities that dominant
platforms cannot. If the consequence of this is that smaller rivals gain a relative advantage, then
this is a pro-competitive side effect of regulation, but not the intended consequence.
3
Tending the Garden
Broadly defined, the “app economy” has been variously estimated to be worth $950
billion (as of 2018, domestically),2 $6.3 trillion (globally, by 2021),3 and $568 billion.4
These different numbers include different things—direct app sales and in-app
purchases, purchases of physical and in-person goods and services through apps,
the value of advertising, the value of devices controlled through apps, the jobs
directly created by apps, and the economic ripple effects created by all these things.
For this paper, it is enough to say that the economic impact of app stores is large,
and their role in the economy is important.
The same features that make app stores compelling for users and (at times) the
developers of third-party apps also give the companies who run them an
unprecedented level of control over both what users can do with their devices, and
developer livelihoods. App stores are one component of software platforms,5
particularly mobile software platforms, that have become essential infrastructure
enabling commerce, communication, and culture. Dominant app stores and their
associated software platforms deserve scrutiny because decisions taken by platform
maintainers like Apple and Google can harm competition more broadly. Moreover,
absent some intervention, these platform maintainers may not have the incentive to
invest in areas of the platform that create positive externalities that ripple through
the economy, but that they cannot directly capture. Whatever the estimate of the
“app economy” you pick, platform maintainers shouldn’t capture that full value for
themselves. (Similarly, broadband providers shouldn’t try to capture the full value
of commerce their infrastructure enables, and the maintainers of toll roads do not
deserve a percentage of the profits or salary of the people who drive on their roads.)
This paper’s recommendations are meant to benefit users and independent
developers directly. Another way of looking at them, however, is as designed to
ensure that platform maintainers operate in a way that maximizes the overall
positive economic effects of app stores. This is why this paper is concerned with
“dominant” app stores—they are the ones that, due to their popularity or the
markets they serve, have wide-ranging economic effects, and affect the most users.
2 The App Association, State of the App Economy (6th Ed.), (2018), https://actonline.org/wp-
content/uploads/ACT_2018-State-of-the-App-Economy-Report_4.pdf.
3 App Annie, The State of Mobile 2020, (January 15, 2020), https://www.appannie.com/en/go/state-of-
mobile-2020; see also Sarah Perez, App Economy to Grow to $6.3 Trillion in 2021, TECHCRUNCH
(June 27, 2017), https://techcrunch.com/2017/06/27/app-economy-to-grow-to-6-3-trillion-in-2021-user-
base-to-nearly-double-to-6-3-billion.
4 Deloitte, The App Economy in the United States, (August 20, 2018),
https://www.ftc.gov/system/files/documents/public_comments/2018/08/ftc-2018-0048-d-0121-
155299.pdf.
5 Some of the recommendations of this paper directly concern app store policies, such as the kinds of
apps allowed in the store, what those apps can do, and how they can be sold. Others may require
changes to the underlying software platform itself as a prerequisite before such apps can be carried
in the store, or even relate to integration with specific hardware features.
4
Tending the Garden
The recommendations of this paper are not all costless for platform maintainers to
implement. Some may require hiring extra staff, taking more time to roll out
features, or even signaling to the marketplace planned changes. They may interfere
with monetization opportunities or make it more difficult for a platform maintainer
to enter new lines of business while opening opportunities for smaller competitors
who do. (They are, however, designed to preserve the main security benefits of
modern secure computing platforms.) Nevertheless, the broader social and economic
effects of following these recommendations for dominant platforms suggests they’re
worth it. The public benefits outweigh the private costs, without making app stores
unprofitable to operate.
While this paper does not dwell on whether platform maintainers should
voluntarily follow these practices or somehow be required to, Public Knowledge has
extensively argued for a digital platform regulator that would have the legal
authority to require that platforms adopt specific policies,6 as well as enact
structural changes to platform marketplaces as a whole. It is also worth briefly
mentioning the connection of these issues to antitrust, especially given heightened
attention to Apple’s highly restrictive policies around in-app purchases, which will
be discussed at length below. The EU has opened an investigation into Apple’s
practices in this area,7 and Representative Cicilline, Chairman of the House
Subcommittee on Antitrust, which is currently investigating tech industry practices
generally, has called Apple’s practices “highway robbery.”8 The question of antitrust
is therefore unavoidable, and in many areas, there seems to be a strong prima facie
antitrust case that specific actions by Apple or Google in terms of how they manage
their platforms are unlawful. Nevertheless, antitrust is unlikely to be the best tool
to bring about most of these paper’s recommendations. First, antitrust is often
narrowly focused on specific anticompetitive actions, as opposed to market structure
and incentives. In the case of private antitrust suits, any relief might be targeted
just to one company, and any policy changes that result might only affect that
company, or companies in an identical situation. Second, many of the harms this
paper seeks to address—for example, issues around free expression and cultural
archiving—are simply not competition harms that can be addressed by antitrust at
all. Still, antitrust investigations by public authorities are likely to bring to light
facts about the marketplace, differential treatment given to some developers, and
other matters that could be generally informative to regulatory and policy efforts of
all kinds. Further, need for a comprehensive, regulatory approach should not
dissuade litigants from bringing cases where the facts merit it.
6 Harold Feld, THE CASE FOR THE DIGITAL PLATFORM ACT, (May 2019),
https://www.publicknowledge.org/assets/uploads/documents/Case_for_the_Digital_Platform_Act_Har
old_Feld_2019.pdf
7 European Commission, Antitrust: Commission Opens Investigations Into Apple’s App Store Rules,
Press Release (June 16, 2020), https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1073.
8 Nilay Patel, Apple’s App Store Fees Are ‘Highway Robbery,’ Says House Antitrust Committee Chair,
THE VERGE (June 18, 2020), https://www.theverge.com/2020/6/18/21295778/apple-app-store-hey-
email-fees-policies-antitrust-wwdc-2020.
5
Tending the Garden
Thus, the best way to contextualize this paper’s recommendations is as the specific
requirements sector-specific platform regulator, applicable to platform maintainers
that operate dominant app stores. That said, smaller platforms should feel free to
follow them if they so choose—all of the recommendations, in the end, benefit users
(users, of course, are the ultimate beneficiaries even of pro-developer changes).
Additionally, it may be that specific recommendations are closer to baseline
consumer protection measures that every platform maintainer, however small,
should follow.9
While theoretical considerations of this kind motivate this paper, its purpose is not
to provide an economic, political, or legal theory of infrastructure, competition, or
dominance. Rather, it is to address some of the technical details of app stores that
platform maintainers—and potentially, regulators—may have to consider in this
area. Its fundamental thesis is that app stores and controlled software platforms
are in general beneficial, and that their benefits to user security and confidence
should not be thrown out in favor of a vision of “openness” that, in practice, puts
ordinary users at risk. Nevertheless, the loss of openness has downsides. The
challenge then is to manage the disadvantages of greater control by the platform
maintainer without creating problems for security or privacy (or even device
stability, battery life, and performance). After discussing some of the techniques
and policies that platform maintainers deploy to ensure control, this paper will
review some of the problems that app stores can create before suggesting ways to
address them.
* * *
App stores have empowered users by allowing them to confidently install software
from a trusted source with the knowledge they can just as easily uninstall it, and
that it won’t damage their device. This is a significant improvement from the days
when ordinary users had no way of knowing whether a given piece of software was a
legitimate application or a data-harvesting, spam-sending piece of malware. Those
experiences often resulted in users avoiding installing software on their computers
altogether, or leaving it to experts to decide what was safe.
App stores have benefitted many developers, too, providing them with a large
addressable market, a distribution and payments infrastructure, a community of
developers, tools and documentation, and other services. They have given rise to the
“app economy,” and many successful and sustainable small businesses, as well as
many headline-grabbing billion-dollar ones, would not have been possible without
the reach and services that app stores provide.
9While privacy rules are beyond the scope of this paper, they offer a good example of rules that
digital services of all kind should be required to follow regardless of whether they are “dominant” in
the marketplace. Rules against deceptive user interface techniques (“dark patterns”) may be in the
same category.
6
Tending the Garden
But app stores have well-known downsides. The very features that allow platform
owners to protect their users also enable them to restrict developers. The processes
designed to keep malicious apps off of the store can keep apps that pose a
competitive threat to the platform owner off the store, as well. The same policy
might protect user privacy and inhibit competition. It is not always clear at the
outset whether it is possible to protect user privacy in ways that do not have
competitive side-effects, or even how one is to compare harms to competition to
offsetting, but incommensurable benefits.
Criticism of app stores has been ardent, but often contradictory, and often centers
on whether the platform exercises too much control or not enough.
App stores have taken upon themselves the role of curating the material they carry.
As a result, people blame them when bad stuff slips through, or argue that Apple or
Google fails to adequately prevent harmful apps, or apps from businesses with
harmful business models, from being listed in its app store. For the Washington
Post, Geoffrey Fowler wrote, “You might assume you can count on Apple to sweat
all the privacy details. After all, it touted in a recent ad, ‘What happens on your
iPhone stays on your iPhone.’ My investigation suggests otherwise.” His
investigation showed that popular iOS apps, including “Microsoft OneDrive, Intuit’s
Mint, Nike, Spotify, The Washington Post and IBM’s the Weather Channel” were
sending personal data to the cloud. He called for Apple to do more to prevent apps
on its store from doing these things, though stated that “The result shouldn’t be to
increase Apple’s power.”10 Joanna Stern of the Wall Street Journal has also shown
how popular apps, including kid’s apps, have questionable privacy practices, writing
that “My app-tracking adventures show that more transparency and stronger
protections are needed.”11 Offering similar but more extensive criticisms, Ian Bogost
has observed,
Companies such as Google and Facebook get access to iPhone users by
offering their apps—Messenger, Gmail, Google Maps, and so on—for
download from the Apple App Store. Most cost consumers nothing, because
they exist to trade software services, such as email or mapping, for data. That
business model helped stimulate the data-privacy dystopia we now occupy.
10 Geoffrey A. Fowler, It’s the Middle of the Night. Do You Know Who Your iPhone is Talking To?,
WASHINGTON POST (May 28, 2019), https://www.washingtonpost.com/technology/2019/05/28/its-
middle-night-do-you-know-who-your-iphone-is-talking.
11 Joanna Stern, iPhone Privacy is Broken…and Apps Are to Blame, WALL STREET JOURNAL (May 31,
2019), https://www.wsj.com/articles/iphone-privacy-is-brokenand-apps-are-to-blame-1155931640.
7
Tending the Garden
Arguing that “Apple reaps huge profits selling the glass rectangles on which the
more invasive apps run,”12 he has called for Apple to do more to restrict these apps
from gathering user data. Indeed calls for Apple (or another platform maintainer) to
remove an app or category of apps from the app store are relatively common. Mark
Cuban even called for Apple to remove Twitter from its app store.13
App stores have also created an easy way for developers to reach users. Still, the
low barriers to entry lead to a saturated market, and downward pressure on prices,
which app stores fail to alleviate by offering features such as free trials and upgrade
pricing. Additionally, app store features like in-app purchasing may have been
introduced with the best of intentions but often used as part of addictive, casino-like
game mechanics, such as loot boxes14 and pay-to-win designs.
Another line of criticism is uneasy with the idea of app stores themselves, and the
control they afford platform owners—the ability to privilege some apps over others,
the ability to impose cultural or moral norms on users, and the ability to extract
revenue from apps the platform maintainers did not themselves create. David
Weinberger once called the Apple app store, “the seductive angel of death for
computing. It enables Apple to keep quality up and, more important, to keep
support costs down. But a computer that can’t be programmed except by its
manufacturer (or with the permission of its manufacturer) isn’t a real computer.”15
Less poetically, but along the same lines, Jonathan Zittrain has argued that the iOS
app store is “much worse” than the anticompetitive behavior that Microsoft was
sued over in the 1990s, calling for users to abandon closed platforms for open ones
in a spirit of “hewing to the original spirit of the PC.”16
App stores are not wholly “good” or “bad,” but they can be operated well or poorly.
Some tradeoffs are inevitable: a fully “open” software platform for everyone is risky
from a privacy and security perspective, while a closed one would lack the third-
party energy and creativity that generates new ideas, drives the platform forward,
and benefits users. Rather, after discussing some of the issues that have arisen, the
paper will suggest specific ways that these tradeoffs can be managed in ways that
12 Ian Bogost, Apple’s Empty Grandstanding About Privacy, THE ATLANTIC (January 31, 2019),
https://www.theatlantic.com/technology/archive/2019/01/apples-hypocritical-defense-data-
privacy/581680.
13 Hope King, Mark Cuban Says Apple Should Ban Twitter, CNN (December 10, 2015),
https://money.cnn.com/2015/12/10/technology/mark-cuban-apple-twitter-criticism/index.html.
14 Responding to criticism, Apple now requires that games disclose the odds of obtaining particular
rewards. Chaim Gartenberg, Apple Now Requires Games with Loot Boxes to Disclose Odds, THE
VERGE (December 21, 2017), https://www.theverge.com/2017/12/21/16805674/apple-loot-box-app-
store-games-odds-probability-disclosure.
15 Jonathan Zittrain, Tales of Technolust: the appStoreless Droid, JoHo the Blog (October 18, 2019),
https://web.archive.org/web/20100415155852/https://www.hyperorg.com/blogger/2009/10/18/tales-of-
technolust-the-appstoreless-droid/.
16 Jonathan Zittrain, The Personal Computer is Dead, MIT Technology Review (November 30, 2011),
https://www.technologyreview.com/2011/11/30/189455/the-personal-computer-is-dead/.
8
Tending the Garden
maintain the benefits of both security and control, as well as competition and
dynamism.
It is undeniable that platform maintainers—and Apple will be the primary but not
sole focus of this paper17—have the incentive to manage these issues themselves,
since they benefit both from a platform that users trust and can rely on, and from a
vibrant ecosystem that includes many third-party developers. Still, a platform
maintainer can sometimes err on the side of self-preferencing, or even in favor of
making policy choices that are easier to administer or cheaper to implement. When
a platform such as iOS or Android achieves a certain amount of marketplace
dominance, the platform maintainer in its role as a gatekeeper may fail, at times, to
make the socially optimum tradeoff or one that benefits users. When switching from
one platform to another carries high costs due to a user’s software investment or
exclusive services, and when a platform’s value is enhanced via various forms of
network effect, normal market forces alone are not enough to discipline a platform’s
behavior.
Any software platform might raise questions of consumer protection, user rights, or
competition. However, dominant platforms in particular, if managed correctly, can
create positive externalities that ripple through the economy that the platform
maintainer might not (and should not) be able to capture for itself. While these
positive externalities are one of the chief benefits of well-maintained infrastructure,
platform maintainers may lack the incentives to maximize them. Again, while
various policy proposals exist that discuss precisely how to encourage or require a
platform owner to make various changes (e.g., through antitrust, or sector-specific
regulation), this paper will focus on what those changes should be.
Examples of App Stores
The app stores that this paper will primarily address are the dominant and default
ones on the two major mobile platforms: Apple’s App Store on iOS, and Google’s
Play Store on Android. They are the app stores that control access to mobile devices,
which are the most indispensable general-purpose computing devices in most
people’s lives, and the two platforms that most easily meet the standards of
“dominance.”
17Globally, the market share of iOS is much smaller than that of Android. iOS has greater market
share in the US overall, but is dominant in the premium segment of the smartphone market, and in
tablets. Additionally, Apple simply has a more controlling approach to its platform than other
platform maintainers like Google and Microsoft so it simply offers more fodder for discussion. Being
more “controlling” in this context is not necessarily a bad thing; this approach also means that in
many ways Apple protects user security and privacy better than the competition. But its policies are
stricter in many senses and thus deserve more consideration.
9
Tending the Garden
As Public Knowledge has discussed before, “dominance” is a complex question, but
determining whether or not a platform is dominant can be guided by looking at the
“cost of exclusion” from a platform—a measure of what costs a business,
organization, or individual would bear from being excluded from the platform.18 A
platform where being excluded carries a high cost would most likely be considered
dominant.
Additionally, dominance may correlate with but is not identical to “market power.”
By way of analogy, when the Financial Stability Oversight Council (FSOC), which
identifies risks and responds to emerging threats to financial stability, considers
whether a bank is “systematically important,” its inquiry is not limited to market
share, but its structural role.19 Market power itself must be considered both from
the perspective of users and developers. From the user’s perspective, what matters
is not just whether a consumer can choose an Android phone or an iPhone, but
whether, once invested in a particular platform, it is easy to switch. A user
switching from Android to iOS not only must purchase a new device but also might
lose access to a library of purchased software or full integration with Google
Assistant. Conversely, a user switching from iOS to Android would lose access to
iMessage and other Apple services as well as a library of software.
But even if users could seamlessly switch between numerous platforms at a
moment’s notice, developers still have no choice but to meet users where they are.
Other factors, such as the extent of bottleneck control, barriers to entry, the nature
of the user base, and industry structure, also contribute to a finding of dominance.
As with other aspects of proper implementation, the exact legal mechanisms by
which an app store (or any other platform) would be found to be dominant is beyond
the scope of this paper, which is more concerned with what the consequences of such
a finding should be.
Apple and Google stores have significant policy differences. For example, Apple is
more stringent in its app review standards, while iOS devices do not allow
“sideloading,” or the installation of apps from other sources than the official app
store; Android devices do. But, Android devices are not just controlled by Google—
while Google does have contractual relationships with phone manufacturers that
ship devices that can access the Google Play Store and other Google services,
manufacturers still have some leeway, and can include their own apps and even app
stores on devices in addition to Google apps, and this can raise competitive
concerns. There are also policy differences with respect to in-app purchase
requirements and other matters. That being said, the stores are broadly similar in
18 Harold Feld, THE CASE FOR THE DIGITAL PLATFORM ACT, (May 2019),
https://www.publicknowledge.org/assets/uploads/documents/Case_for_the_Digital_Platform_Act_Har
old_Feld_2019.pdf.
19 John Bergmayer, EVEN UNDER KIND MASTERS, (May 2018),
https://www.publicknowledge.org/assets/uploads/blog/Even_Under_Kind_Masters.pdf
10
Tending the Garden
most ways, and even though, unlike on iOS, the Play Store is not the only way for
most users to load software on their devices, as a practical matter being listed on
the Play Store is vital to most developers.
However, these two are not the only app stores. Apple also has an app store for the
Mac, for instance. Installing software on the Mac is still possible from other sources,
though through user interface choices, Apple is increasingly making it difficult for
users to install unsigned software—a technical point (discussed in more detail
below) that provides security benefits, but is not without its own potential pitfalls.
Similarly, Microsoft has an app store for the Windows platform, and Amazon has
one for its Fire tablets (and the ability to purchase “skills” for the Alexa voice
platform). While examples from these app stores may be illustrative to show what
different practices are possible, the Amazon Fire platform for tablets, and the Mac
and Windows app stores (which are lightly used, compared with traditional
software installation methods) are not likely to be found dominant.
Modern video game console platforms all include app stores. While it is (for now)
still possible to buy a video game on disc, or memory card, increasingly games are
distributed as digital downloads, and if anything the policies of video game consoles
are much stricter than found anywhere else. Console platforms have more rigorous
quality, content, and performance requirements than Apple or Google, and they also
approve all disc- and card-based software before it’s distributed. However, because
of the limited range of software that these app stores distribute, and because their
business model is consistent with the decades-old model for the distribution of
console games, they appear to be less controversial. From a computer science
perspective, a video game console is just a computer. But modern microwaves and
cars include powerful (by historical standards, at least) computers as well. Video
game consoles are different, of course, in that they are platforms that run third-
party software, and because video games are an important means of cultural
expression. Nevertheless, the existence of more open, general-purpose platforms
like the PC and modern mobile devices, and the competitive nature of the game
console market, slightly lessens the need for the same level of openness from
dedicated devices with a limited purposes, and factors into the “cost of exclusion”
factor in a dominance analysis. Thus, without disregarding that video game
consoles (as well as cars and microwaves) can carry with them competition and
consumer protection problems of their own, this paper will largely concern itself
with general-purpose devices.20
TV app stores pose a similar issue as video game consoles. Modern TVs (and TV-
connected devices such as the Apple TV or a Roku) are full-fledged computers,
integrated with various app stores. However, the predominant apps for TVs are for
20It is also the case that video game consoles are often sold at a subsidized price, or at cost, with the
expectation that software licensing fees will make up the difference. The same is not true of most
other devices, such as phones, where relatively few users pay for third-party apps at all.
11
Tending the Garden
streaming media, and to a lesser extent, games—the occasional productivity app
like James Thompson’s PCalc21 for Apple TV notwithstanding. There is likely a
stronger case for applying the recommendations of this paper to TV devices than to
game consoles but owning to their relatively narrow use cases, and because it is not
clear which, if any, TV platforms are dominant, this paper will not discuss them in-
depth.
On desktop platforms—which are typically the most open of all major consumer
computing platforms—several third-party app stores thrive. The most successful is
Steam, which has almost become the default way to distribute PC games. Users are
rarely forced to go through Steam to obtain games, and PCs can have multiple game
stores installed simultaneously, as well as supporting installing software directly
from a developer (what would be called “sideloading” on mobile devices). Yet
developers still choose to distribute through Steam, even though it takes a 30
percent cut of sales,22 because users demand it. This is a useful demonstration of
how, while it may be true that some app stores abuse their gatekeeper position,
many users still prefer to rely on them despite having alternatives, and that users
can benefit developers by generating and aggregating demand. (Other popular
third-party app stores on PC platforms include the Epic Games store and GOG
(“Good Old Games”), which offers titles free of DRM (digital rights management).)
For reasons similar to the issues with game consoles, and because these third-party
app stores, by definition, lack the same level of gatekeeper control as app stores
that are integrated and run by the platform vendor itself, these app stores are
beyond the scope of this paper’s recommendations, while serving as examples of how
the policies of the dominant mobile app stores are not set in stone.
App stores vs security architectures
App stores are typically associated with a series of security and control measures
that, strictly speaking, are conceptually separate. That is, it is possible to have an
app store without any security measures. And it is possible to implement most
security measures without an app store—that is, security measures are platform
features, or features of the operating system or device, more than “app store”
features. Much of this paper will be concerned with Apple’s iOS App Store and
platform for a number of reasons, as it presents an example of an app store and
platform that implement all of the security and control measures discussed here. In
discussions of Apple’s App Store, the distinction between what counts as a platform
restriction and an app store restriction may be overlooked. But, for clarity, this
section will briefly describe the various security and control measures that an app
21James Thomson, About PCalc for Apple TV, https://pcalc.com/tv/index.html.
22Tom Marks, Report: Steam’s 30% Cut Is Actually the Industry Standard, IGN (October 7, 2019,
updated January 13, 2020), https://www.ign.com/articles/2019/10/07/report-steams-30-cut-is-
actually-the-industry-standard.
12
Tending the Garden
store and platform may implement, and which Apple’s platform does implement,
before providing examples of app stores that implement only some or none of them.
Exclusive source of software
An app store may be, practically speaking, the only way to install software on a
platform, which gives it competitive importance and makes it a key gatekeeper—if a
developer can’t reach the app store, it can’t reach users, and users look exclusively
to the app store to install software.23
An app store doesn’t have to be completely airtight as a source of software for it to
have effective gatekeeper power.
For example, on iOS it is always possible to run web apps. In fact, after the iPhone
was announced, but before the App Store was, web apps were the only way to run
third-party software on the iPhone. Steve Jobs called this a “pretty sweet solution.”
Apple commentator John Gruber called it a “shit sandwich,” instead. This is
because web apps are widely viewed as inferior to “native” software, which is24
faster, more capable, and behaves in a more predictable manner due to using
system-standard controls and features. Since that time, web apps have become
significantly more capable. Apple has also been accused of slow-rolling the
implementation of the new web standards that allow its Safari browser, while not
allowing browsers with competing web rendering engines into its App Store.25
23 The app developer Rogue Amoeba has noted that this gatekeeper power makes it difficult for
developers to publicly air grievances with how app stores function. Rogue Amoeba,
https://twitter.com/RogueAmoeba/status/1273637152685985795 (June 18, 2020) (“Unfortunately,
shipping iOS software means being on the iOS App Store. Because of this, many developers are
scared to speak out.”)
24 Web apps are typically run in the browser, though they can be “installed” to a user’s home screen
as well, and newer “progressive web apps” can offer features previously restricted to native apps
(and can raise similar security and privacy considerations). Web apps can also be simply packaged
up as “native” apps and released into the app store. Mark Zuckerberg once called using web
technology rather than native code for its app Facebook’s “biggest mistake,” Christina Warren,
Zuckerberg’s Biggest Mistake? ‘Betting on HTML5’, (September 11, 2012),
https://mashable.com/2012/09/11/html5-biggest-mistake.
25 While third-party browsers are allowed in the app store, they must use Safari’s WebKit rendering
engine, which is available system-wide to apps that want to display web pages. So, while Firefox,
Chrome, and other browsers can compete on the basis of UI enhancements, and can sync with their
desktop counterparts, they cannot compete with Safari in terms of implementing new web standards
more quickly, or JavaScript performance. In fact, until iOS 8, third-party apps could not even use the
same JavaScript engine that Safari used, and were stuck with a slower version, due to apparent
security considerations that Apple proved able to work around. Finally, even with those caveats,
third-party browsers still cannot be set as system defaults, meaning that links from apps will still
default to opening in Safari instead of what a user’s preference might be.
13
Tending the Garden
Web apps aren’t the only alternative to the App Store. iOS developers, for instance,
can install their own apps on their devices after compiling them from source code.
In fact, an iOS developer can download, compile, and install any app for which the
source code is available, including apps in categories that Apple does not allow in
the iOS app store at all. While various tools try to automate this procedure for less
advanced users, it is in general a technically daunting process requiring detailed
knowledge of software development processes. And there are other reasons why this
is hardly a loophole that undermines Apple’s gatekeeper control: Without a paid
developer account (which costs $100 per year), apps installed in this way expire
after a few days and need to be re-compiled and re-installed. That might be fine for
a student or a hobbyist to test an in-progress app, but it is hardly a convenient
alternative to the app store.
Finally, it is possible to install software outside of the app store by using an
“enterprise certificate.” This is a capability offered to businesses that want to make
job-specific apps that don’t necessarily belong in a public app store—apps that
concern inventory management, reserving company resources, and internal
communications, for instance. Apple’s control over these certificates is not fool-
proof. Facebook and Google were found to be using them to distribute apps to the
public that would not be allowed in the Apple App Store, due to how they
intrusively monitored user activity; Apple subsequently temporarily revoked both
company’s certificates, not only disabling the customer-monitoring apps but also
internal iOS apps used by both companies. Various grey-market companies also use
enterprise certificates in an unauthorized way to sell users apps in categories not
allowed in the app store (e.g., BitTorrent clients and game emulators) as well as
pirated software.
Code-signing
Modern cryptography often uses a pair of keys, public and private. With this sort of
public-key cryptography, anyone can encrypt a message to a desired recipient using
the public key, which can be freely shared, but only that recipient can read it by
using the private key, which is not shared.
Code-signing is a variant of this design. It allows a sender to cryptographically
“sign” a message—that is, attach a sequence of characters and numbers to it—that
can only be generated with the private key, but that can be verified as having come
from a particular sender with the public key.26 The exact methods vary, but what
they have in common is that if even one character of the message is changed,
removed, or deleted, the signature verification will fail. Code-signing thus provides
26The “message” that is signed in the case of code-signing is simply the computer code of a given
software program instead of “Attack at dawn” but this makes no fundamental difference—computers
store everything as numbers and the same kinds of cryptographic techniques can be used on any
kind of data.
14
Tending the Garden
a way to verify that a given piece of computer code is exactly what a developer
shipped and hasn’t been changed or added to by malware or other sources.
By itself, code-signing doesn’t do anything besides provide a method of verification.
But if the platform also enforces rules related to code-signing—namely, that all code
must be signed, and that unsigned code will not be run or will be subject to greater
restrictions, then it can be quite powerful, both as a means to protect users and as a
method of establishing and strengthening the control of platform maintainers.27
Notably, code-signing not only allows a user’s device to verify the integrity of
computer code, but also enables the platform maintainer, which typically issues
developer certificates, to revoke software that has already shipped—meaning that
already-installed software on user devices will no longer launch.28 This can be
useful if a developer’s app is found to be harmful after it’s available to the public. It
is also another powerful tool in a platform maintainer’s arsenal that could
potentially be misused, or that the platform owner can be compelled to use at the
request of a government.
Sandboxing and permissions
Sandboxing refers to techniques at the operating system level that ensure apps only
have access to certain data and features— i.e., they have to “play in the sandbox.” It
might be implemented in many ways, and it might entirely prohibit apps from
certain behaviors and certain kinds of access, or grant them that access in a
controlled way (e.g., after user consent or via a trusted, system-provided
intermediary process known as a “powerbox”).29
Take the example of a user’s contact database. Early versions of iOS let any app
access this information, which follows the standard set by desktop operating
systems such as Mac OS and Windows. However, users began to see this capability
as a privacy violation, as some apps would access a user’s contacts database and
27 In the early 2000s Microsoft worked on a trusted computing platform “that could make PCs
resistant to tampering even by those who have physical access and control. The initiative would go
under a variety of names, including Palladium, TCPA, and the Next-Generation Secure Computing
Base.” See Timothy B. Lee, How four Microsoft engineers proved that the “darknet” would defeat
DRM, (November 24, 2017), https://arstechnica.com/tech-policy/2017/11/how-four-microsoft-
engineers-proved-copy-protection-would-fail/. These efforts provoked serious backlash, and were in
many ways ahead of their time. One difference between secure computing efforts like this and code-
signing is that code-signing is typically enforced by the operating system; more comprehensive
efforts are enforced at a hardware level, and in the case of PCs, could prevent the installation of
alternative operating systems (e.g., Linux instead of Microsoft Windows). Modern smartphones and
tablets do often implement security technologies of this kind. However, discussion of the extent to
which secure hardware platforms limit competition at the operating system level.
28 Apple’s implementation of this used to require that it revoke all of a developer’s apps at once, but
its newer implementation, which is called “app notarization,” allows it to revoke only specific apps.
29 C2 Wiki, “PowerBox”, http://wiki.c2.com/?PowerBox.
15
Tending the Garden
upload it to a server, for instance, to spam people with messages asking them to join
a new social network. Subsequently, Apple began requiring apps to ask for
permission to access contacts when they needed to do so (and preventing apps that
do not truly need access to contact information from refusing to run until such
consent is granted.)
Another example is document storage. Again, historically, desktop operating
systems allowed all apps to read and write files from common storage areas in
folders named things like “My Documents” or the Desktop. But in today’s era of
increased security consciousness, even this can cause problems. For example, if an
app that has access to sensitive-use data stores it in such a location, other apps
might access it without user consent. Platforms can design around this by denying
apps access to such common storage areas, requiring explicit user permission before
being granted such access, or by having such access being granted only during
explicit user interaction and mediated by a “system-provided dialog.” In other
words, users can choose to open a file in an app, but that does not give the app
unrestricted background access to the folder it was stored in).
Other features that may be “sandboxed” include camera and location access, the
ability to view connected Bluetooth devices or Wi-Fi networks, other device sensors,
and microphones, calendars, and photo library access.
Sandboxing can be incompatible with many kinds of apps—for example, an app that
makes a complete backup of a user’s computer or device may need unrestricted
levels of system access. It can also cause competitive issues if first-party apps from
a platform owner are not sandboxed, and thus have greater or more seamless
capabilities than third-party apps, which are.
API restrictions
Software platforms offer “application programming interfaces” (APIs) which provide
common functionality, preventing developers from having to write their own code to
handle solved problems, or for apps to include third-party libraries. APIs can also
offer functionality that can only be accessed through the API—for example, access
to device sensors, personal data, or location information. Additionally, some APIs
are “private” which means that third-party applications cannot use them.
Undoubtedly restricting access to certain potentially sensitive functions can be good
for security.30 However, as with other points of control, the way that access to
certain APIs is gated can raise competitive concerns, as first-party applications
30For instance, Uber was calling private APIs to access device serial numbers, so that it could track
users even after they had uninstalled and reinstalled its app. The API that allowed this was not
intended to be accessed by third-party developers and Apple required that Uber stop the practice.
See Thomas Claburn, Apple Frees a Few Private APIs, Makes Them Public, THE REGISTER (June 13,
2017), https://www.theregister.co.uk/2017/06/13/apple_inches_toward_openness.
16
Tending the Garden
might have access to a functionality that third-party apps cannot replicate. For
example, until iOS 8, only Apple’s own apps could use the superior Nitro JavaScript
engine, meaning that web views, and third-party browsers on iOS, were at a
performance disadvantage relative to Apple’s own Safari. On other computing
platforms, developers were always free to use private APIs at their own risk.
However, because they were not officially supported and documented, the platform
might change how they work at any time without notice, breaking apps that rely on
them. Whatever the merits of this caveat emptor approach, the app store review
process adds yet another way to discourage the use of private APIs: namely,
scanning submitted applications to see if they make calls to these APIs, and
rejecting them if they do.
DRM
While code-signing ensures that a particular app is the actual code released by a
particular developer, DRM ties a copy of an app to a particular user. Short for
“Digital Rights Management,” DRM can be controversial (for example, when it locks
ebooks to particular services and devices like the Amazon Kindle, creating an
obstacle to users switching devices or even shopping around for a new source to
access ebooks). Even so, many developers approve of DRM as they view it as a way
to reduce piracy. In the context of modern devices with app stores and other
methods of control, DRM is just one piece of the puzzle, but it serves critical
technical functions, such as preventing apps without proper DRM from running on
a device, and preventing users from moving even a fully code-signed app from one
device to another.
Benefits of App Stores
App stores have benefits and drawbacks, and a primary purpose of this paper is to
propose remedies for those drawbacks. But it is important to review the ways that
app stores have been good for developers and for users—a narrow focus only on the
drawbacks of app stores could lead one to reasonably ask why we should have them
at all. But even with their various drawbacks, app stores have likely done more
good than harm, and the recommendations of this paper are not only designed to
promote the interests of users and independent developers, but to ensure that app
stores continue to be a net benefit.
Perhaps the most vital feature that app stores provide users is trust.31 Before home
internet use was ubiquitous, and for some time thereafter, those relatively few
31F. Cuadrado and J. C. Dueñas, Mobile Application Stores: Success Factors, Existing Approaches, and Future
Developments, IEEE COMMUNICATIONS MAGAZINE, vol. 50, no. 11, pp. 160-167, (November 2012) (“We
believe that consumer trust towards the individual applications from the platform is influenced by
17
Tending the Garden
homes that had PCs would (apart from the technically adept few who used bulletin
board systems and the like) typically buy a PC in a box from a reputable retailer.
Retailers served a number of important functions, such as curating and selecting
software of reasonable quality. This reduced a user’s search costs—consumers could
just look through the software on the shelf, rather than researching every offering
on the market—and perhaps ask store clerks and other experts what they
recommended. And the buyers could be reasonably sure that the software they
purchased from such retail establishments worked, more or less, and would not
damage their machines or be malicious in other ways. This trust between
consumers and home-PC retailers enabled the widespread adoption of one of the
most important communication devices we’ve ever seen.
The advent of ubiquitous home internet access combined with the ability to install
software directly from the web would seem to be another boon for both developers
and users. No more gatekeepers! No more price markups! But the reality was far
more mixed, since without the architecture of trust and selection that retailers
provided, most users were at a loss as to what software was actually worth
installing. Only enthusiasts would have the inclination to do the necessary research
to figure out what software to install and what to avoid. It was worse than that,
even, since nefarious users took advantage of the situation to release actively
harmful software. Our ability to disseminate computer code far outpaced security
practices that keep people, data, and computers safe.
The result of this wasn’t just that people were confused as to what software to
install, but that one group of ordinary users was often too afraid to install software
at all, while another group would install software willy-nilly. (This latter group
being inflated, perhaps, by the poor browser security architectures prevalent at the
time, whereby simply visiting a web page and clicking a dialog box could result in
the installation of fraudulent “antivirus” software, harmful browser toolbars, and so
on.)
Web apps offered one solution to this problem by enabling people to use different
software and services without “installing” anything at all—their computers became,
in effect, terminals interacting with distant servers, along the lines of old time-
sharing systems. (The ability to “install” a web app so that it can work offline and
even interact with local data came later.)
App stores offered the other solution. By the time Apple launched the iOS App
Store, app stores (and related ideas, like package managers in open source
the approval process, and consequently the willingness of users to pay.”),
https://eecs.qmul.ac.uk/~fcuadrado/papers/commag12-appstore.pdf; see also S. Hyrynsalmi, M.
Seppänen, & A. Suominen, Sources of Value in Application Ecosystems, JOURNAL OF SYSTEMS AND
SOFTWARE, 96, 61-72, (2014),
http://tutcris.tut.fi/portal/files/3591220/hyrynsalmi_sources_of_value_in_application_ecosystems.pdf.
18
Tending the Garden
operating systems) had been around for a number of years, and commercial app
stores, like Valve’s Steam, a very popular game store, had already achieved some
success. And while even app stores on mobile platforms had pre-Apple precursors, it
was Apple’s App Store that gave the model for mainstream success, with ordinary
users installing general-purpose software on a popular platform.
Apple’s App Store became popular, in part, because there was no other way to
install software on iPhones or distribute software to them. The iPhone was a
popular platform and the App Store was popular because of that. But the success of
optional, third-party app stores like Steam does show that the model has some
inherent benefits, and that given the choice between buying software from an app
store, and buying it directly from a developer, many users prefer the intermediation
of the app store. The various benefits that app stores provide can help explain this.
Like traditional retail stores, app stores perform a curation and trust function.
Because shelf space is not limited with digital app stores, curation becomes more a
matter of editorial promotion, top-selling lists, user reviews, and recommendations,
but the basic function is the same. App stores also provide trust—apps must be
approved before being listed in the store, in most app stores by a human reviewer,
and on all of them software is subject to batteries of tests to ensure compatibility,
security, functionality, accessibility, and other issues.
App stores give users a place to search for software to install that is more
structured than just searching the web. Because there is typically just one major
app store for a platform (though not always), it gives users just one place to
search—not great for competition, to be sure, but it does at least mean that if a
developer is listed in that app store, a user is likely to encounter its app. This reach
can benefit developers—if you’re listed in the app store, you can be sure that you
can reach the entire addressable market.
App stores also provide various services to developers and users. App stores install
updates to software, ensuring that users have the latest features and security
patches. They provide payment services, both for paid apps and in-app purchases.
Deloitte categorizes some of the benefits of app stores as follows:
• ubiquity in user interface/user experience features,
• a secure platform to promote their products,
• storage systems for hosting apps and managing downloads,
• billing service,
• a payment management system (micropayments) which makes it easy for
mobile app developers to recover sales revenue.32
32Deloitte, THE APP ECONOMY IN THE UNITED STATES, (August 20, 2018), Pg. 8,
https://www.ftc.gov/system/files/documents/public_comments/2018/08/ftc-2018-0048-d-0121-
155299.pdf.
19
Tending the Garden
It points out that these features generally reduce transaction costs—that is, they
make it easier for developers to connect to users. This function—along with security
and curation, and the concomitant increase in user trust—can be viewed as the
primary benefits of app stores.
There are a few other benefits of app stores as well. Apps distributed via app stores
may also have access to system APIs that might not otherwise be available; for
instance, for a time iCloud synchronization services were only available to Mac apps
distributed through the Mac app store.33 (This paper will argue later that one
solution to competition issues created by app stores without compromising security
is to extend this idea of differential access to certain system features.) Finally, it
should not be overlooked that app stores prevent piracy. While DRM can cause as
many or more problems than it solves (particularly in the area of media), and while
it is not foolproof, developers that choose to sell software on a commercial basis
appreciate that platform enforcement of copy protection technology reduces
unauthorized copying.
Drawbacks of App Stores
The same control and curation that make app stores an appealing method of
software distribution, given the nature of computer security, privacy concerns, and
other matters, also give the companies that control app stores and their associated
platforms a tremendous degree of control over how users can interact with their
devices, and whether and how developers can reach users. This control can be
abused, and even if not abused, can lead to negative consequences. The most salient
of these are harms to competition (and relatedly, constraint of developer business
models), and harms to free expression. This section will discuss these in broad
terms, and this paper will later detail a few specific instances that could be
remedied with app store or platform policy changes.
It is hard to compete with a platform
One fundamental competitive concern is that it is very difficult to compete with a
platform’s own first-party apps. This manifests in a number of ways.
The power of defaults
The “power of defaults,” or the default effect,34 is a well-known phenomenon where
default choices, options, and software settings will be what the majority of users
33 While certain Android APIs are only available on Google-approved devices that carry the Play
Store, sideloaded Android apps on official devices are not restricted in the APIs they can access.
34 Wikipedia, “Default effect”, https://en.wikipedia.org/wiki/Default_effect.
20
Tending the Garden
stick with, even if they can freely change them or choose a competitive alternative.
Awareness of the power of defaults underlies many policy debates in the technology
space; e.g., whether particular privacy regimes should be opt-in or opt-out. It also
explains why a platform maintainer (or, in some cases on Android, a phone
manufacturer) has such power—it sets the defaults, and can structure them in ways
it finds advantageous. This plays out a number of ways. First, a platform’s own
apps may be preinstalled on user devices, and thus bypass the app store entirely.
Users may not even bother to look for alternatives, or even be aware that they can.
Even if first-party apps are downloaded through an app store, they may have other
advantages: the user may be prompted to download them, they may get priority
promotion within the store, or they may rank higher in app store search results. For
example, the Wall Street Journal found that Apple’s own apps routinely rank above
those in app store search results.35 While many developers attribute this to poor
design rather than anticompetitive intent, the result can be the same.36
An extreme example of this is known as “Sherlocking”—when a platform
maintainer takes a concept from a third-party app and creates its own similar app,
or incorporates the functionality into the system itself. (The term derives from an
instance where version 3 of Apple’s Sherlock program replicated the functionality of
a third-party app called Holmes.37) In economic terms, it has been “suggested that
platform owners can bundle their own complementary application with their
platforms to foreclose competitors’ access to their customers and profitably capture
the whole of their markets.”38 Even when a platform buys third-party software, the
effect can be the same on competitors—for example, when Apple bought SoundJam
and turned it into iTunes, the popular app Audion was driven out of the market.39
Particularly when a platform maintainer bundles its own application, or uses data
it has access through platform or app store metrics to decide which products or
features to copy, this can be anticompetitive. Indeed, some developers have
complained that Apple uses them for “market research”—using its visibility into
what third-party apps are popular on its platforms to help decide what features it
should introduce itself.40
35 Tripp Mickle, Apple Dominates App Store Search Results, Thwarting Competitors, WALL STREET
JOURNAL (July 23, 2019), https://www.wsj.com/articles/apple-dominates-app-store-search-results-
thwarting-competitors-11563897221.
36 John Gruber, Malice or Incompetence: On the Rankings of Apple’s Own Apps in App Store Results,
DARING FIREBALL (September 12, 2019),
https://daringfireball.net/2019/09/on_the_rankings_of_apples_own_apps_in_app_store_results
37 You’ve Been Sherlocked, THE ECONOMIST (July 13, 2012),
https://www.economist.com/babbage/2012/07/13/youve-been-sherlocked.
38 Fung Zhu, Friends or Foes? Examining Platform Owners’ Entry into Complementors’ Spaces, J. Econ.
Manag. Strat. 23, 24 (Spring 2019).
39 Cabel Sasser, The True Story of Audion, (November 11, 2004), http://panic.com/extras/audionstory.
40 William Gallagher, Developers Talk About Being ‘Sherlocked’ as Apple Uses Them ‘For Market
Research’, APPLE INSIDER (June 6, 2019), https://appleinsider.com/articles/19/06/06/developers-talk-
about-being-sherlocked-as-apple-uses-them-for-market-research.
21
Tending the Garden
At the same time, “ideas” are not protectable by intellectual property rights
(copyrights protect specific expression and patents protect specific implementations;
neither protect general concepts) and it is beneficial when good ideas are copied
widely. Platforms even copy good ideas from each other—for example, the
Macintosh operating system was heavily inspired by the Xerox Alto, and in turn
influenced Microsoft Windows—to, in turn, copy Windows features such as
Command-Tab app switching (Alt-Tab on Windows)41 and contextual “right click”
menus. Additionally it makes sense to distinguish between a platform maintainer
entering an adjacent or complementary market (such as an operating system
vendor creating media streaming services and bundling them), versus a platform
maintainer improving the platform itself, even in instances where the idea for the
improvement was first implemented by a third party.
For example, hundreds of app developers hit on the idea of “flashlight apps” before
iOS or Android included a feature that activated a phone’s camera flash for that
purpose. But it is difficult to see flashlight apps as a true independent market
worthy of public policy concern. This applies broadly to “system utility” apps and,
more generally, implies that when analyzing competition in platforms, it is
important to distinguish a platform leveraging its position to capture an adjacent
market from a platform improving its core product. Even when certain ideas are
first introduced by third parties, the history of technology, and consumer products
more generally, shows that some features should be included in the core product
itself.42
Thus, while this paper argues that dominant platform maintainers should institute
guardrails to protect independent developers, particularly when it comes to a
platform maintainer selling or bundling standalone apps and giving its own apps
and services technical or business model advantages not available to third parties,
it does not recommend a complete ban on platform maintainers integrating new
features into their system. Promoting competition does not requiring freezing
technology products in time.
To be sure, distinguishing a bundled app from a feature of the system itself may be
difficult, and is necessarily imprecise endeavor that requires knowledge of broader
market and technological trends as well as user expectations. The analysis may
41 Prior to Apple directly incorporating this feature, it was available from a third-party application
called LiteSwitch X. See Ammon Skidmore’s Old Apps, https://sysbeep.com.
42 Another example is how a third-party utility, Growl, first introduced a system-wide standard
notification system for the Mac. Notifications are now seen as a basic feature of computing platforms.
Further examples are almost endless. Cars did not initially ship with radios, now they do. Modems
used to be aftermarket add-ons to computers, then were bundled, with their successors eventually
integrated directly into a computer’s motherboard. On mobile devices, taking panoramic photos used
to require a third-party app, now this is a build-in camera mode. Image search used to be performed
by specialized search engines, and now major search engines all have an image tab. It would not
benefit users to prohibit these kinds of developments.
22
Tending the Garden
even change over time. Microsoft bundling its Internet Explorer browser with
Windows as widely seen as anticompetitive in the 1990s. Now, a computing device
that does not include a browser would be considered broken, since web browsing is a
primary purpose of computing devices, and the web may be the only way to install
software onto a desktop computer. (The changes that have occurred since the 1990s
may be most profoundly illustrated by the fact that while Microsoft still bundles a
browser with Windows, Google’s Chrome, which has to be installed by users,
nevertheless has much higher usage share, showing that user preference can still
overcome the power of defaults.)
The advantage that first-party apps may have on a system can even be as mundane
as the platform reserving basic, generic terms to itself, naming its music app
“Music,” its notes app “Notes,” or its browser, “Internet” (the name for Samsung’s
browser)—words that, among other things, users are more likely to search for and
associate with their basic function.
First-party apps may also be set as defaults, even when third-party apps are
installed, with no way to change this setting. Thus, even if a user would prefer to
use Outlook or Gmail as their email client, on iOS, “mailto” links open in Apple
Mail, and even if a user would prefer to use Firefox or Brave, web links open in
Safari.
First-party apps exempt from platform rules and given special privileges
Similarly, first-party apps may simply play by different rules and have different
access to technical features of the system than third-party apps available on the app
store. Apple’s own apps can take advantage of private system APIs that third-party
apps cannot.43 There are good reasons for third-party developers not to use private
APIs; namely, they can change without notice, rendering an app non-functional.
Public, documented APIs are typically only changed with ample notice to developers
who depend on them.44 Private APIs may also have access to information that may
be kept from third-party apps for privacy reasons, such as a device’s serial number.
At the same time, when key, useful functionality is only available through a private
API, or not at all, third-party developers can be put at a disadvantage—the
fundamental disparity is not the restriction on the use of private APIs but that
certain functionality is only available through them.
First-party apps may even have default access to information that, for third-party
apps, must be affirmatively granted. As discussed more at length below, Apple’s
43 Michael Mimoso, Apple to Remove 256 iOS Apps Using Private API’s, Collecting Personal Data,
THREATPOST (October 19, 2015), https://threatpost.com/apple-to-remove-256-ios-apps-using-private-
apis-collecting-personal-data/115098.
44 See John Gruber, Private, DARING FIREBALL (December 22, 2018),
https://daringfireball.net/2008/12/private.
23
Tending the Garden
first-party apps and services have access to system-level location information that
third-party apps must ask for.
First-party apps may also be able to access certain sensors or data without first
asking for permission, or may be the only apps that can access certain things at all.
For example, until Apple released iOS 13, only Apple apps could use an iPhone’s
near-field communication (NFC) chip, which is used for such functions as
contactless payments.45 A similar scenario is currently playing out with the
iPhone’s new ultra-wideband chip, which only Apple apps can access.46
A platform maintainer can better plan for platform changes
Additionally, when system features change from one OS version to the next, third-
party apps may suddenly become incompatible or exhibit new bugs, putting them at
a major disadvantage until developers update them to address the changes. In the
meantime, platform-provided apps tend to be updated along with the OS itself, and
the platform company’s own developers have access to the future platform roadmap
in ways that outside developers do not.
One extreme example of the difficulty third-party apps can have when competing
with first-party apps is from early in the iOS App Store history, when Apple forbade
third-party apps from “duplicating the functionality” of first-party apps.47 While
Apple eventually eased off this policy, it shows the power and control that app
stores have.
45 Blue Bite, iPhone NFC Compatibility, (April 16, 2020), https://www.bluebite.com/nfc/iphone-nfc-
compatibility.
46 Nick Statt, Airdrop on the iPhone 11 Will Let You Point at People to Share Photos, THE VERGE
(September 10, 2019), https://www.theverge.com/2019/9/10/20859550/apple-iphone-11-pro-airdrop-
u1-locator-chip-tag-tile-bluetooth-tracking. Among other things, UWB allows devices to more
accurately gauge the position and distance of other UWB devices, and is harder to spoof. While
macOS is not the specific topic of this paper, it is notable that on the Mac App Store, Apple has
exempted its own apps from sandboxing rules that third-party apps were required to follow. For
some time, its own iWork apps were available on the Mac App Store, but not sandboxed. See Michael
Tsai, iLife, iWork, and the Sandbox, MICHAEL TSAI BLOG (October 30, 2013),
https://mjtsai.com/blog/2013/10/30/ilife-iwork-and-the-sandbox/. XCode, Apple’s development
environment for iOS and Mac apps, is distributed through the Mac App Store and is not sandboxed
to this day.
47 Charles Arthur, DIGITAL WARS 186 (Kogan Page 2012) (“Apple began behaving in odd ways: it
would ban apps for seemingly random reasons, such as ‘duplicating the functionality of existing
iPhone apps’. Mail programs, browsers, podcast downloaders – those would be rejected. Developers
howled, and howled even more loudly at being told they couldn’t howl publicly because of Apple’s
non-disclosure agreement on rejections.” See, e.g., Angelo DiNardi, MailWrangler and the Apple App
Store (September 20, 2008) https://angelo.dinardi.name/2008/09/20/mailwrangler-and-the-apple-app-
store.
24
Tending the Garden
A platform maintainer doesn’t need to make money on apps or services
Finally, platforms don’t need to make money on any of their apps at all, at least not
their basic apps. Apple, for instance, makes money selling iPhones, not licenses to
its Notes app. The purpose of the Notes app is simply to enhance the value of the
iPhone. This paper does not suggest that it is anticompetitive for platforms to
provide basic apps of this kind for free, as devices should have basic out-of-the-box
functionality. But competing with free is obviously a challenge for any developer.
App stores place business model constraints on developers
App store requirements and policies can also place competitive constraints on
developer business models.
The sales commission reduces developer revenue
The most straightforward of these is the often mandatory commission that app
stores charge developers for paid apps, which reduces developer revenue. Most app
stores—Apple’s, Google’s, and Steam, for instance—take around 30% of the list
price.48 Although this is a lower rate than what physical retailers typically charge
for boxed software, it’s still much higher than the rates charged by pure payment
processors and pure storage providers. App stores do provide value beyond those
simple services, of course, but in many cases, developers do not have the choice of
whether to avail themselves of that value. On the Mac, for instance, developers can
choose whether the distribution, exposure, update mechanisms, subscription
systems, and promotion that come with distributing on the Mac App Store is worth
it or not. Many apps find that it is. Many do not. In this instance, this has forced
Apple to improve the Mac app store while also ensuring that apps distributed
outside of it have some measure of security and are not locked out of platform
features like iCloud sync. However, iOS provides no alternative. On Android, the
other major mobile platform, it is possible to distribute apps outside of the app
store, but it is a somewhat complex process that most users will only undertake for
the most compelling of apps (e.g. the popular game, Fortnite).
Restrictions on free software prevent users from accessing some apps
“Free software” is released under a license such as the GNU General Public License
(GPL) that allows software to be redistributed and modified freely, but only on the
condition that the application’s source code be made publicly available.49 (As the
48 Tom Marks, Report: Steam’s 30% Cut Is Actually the Industry Standard, IGN (October 7, 2019,
updated January 13, 2020), https://www.ign.com/articles/2019/10/07/report-steams-30-cut-is-
actually-the-industry-standard.
49 “Free software” is a more restrictive category than software that is merely “open source,” which
may not face the same difficulties with app store distribution.
25
Tending the Garden
saying goes, it is free as in speech, not free as in beer, though it is often both.) Of
course, the sole author or rightsholder of a piece of free software can release that
software on any app store, since a rightsholder is not bound by the terms of a
license it issues to others. But a developer that incorporates a piece of free software
into its own app, or even a person that wants to distribute an existing free software
project on an app store, may find that doing so would violate the terms of the license
for any number of reasons. The problem can be particularly complex with free
software projects where individual volunteer developers retain the rights to their
individual contributions.50 The DRM that app stores may require may itself violate
the terms of a free software license that requires the software to be redistributable,
for instance, or it may not be possible to distribute or make source code available
using app store tools.
A lack of paid upgrades removes a traditional source of recurring revenue
Another example is paid upgrades—or the lack thereof. A standard software
business model has historically been to sell customers an initial license at one price
and future licenses at a discounted rate. This rewards loyal customers and gives
developers a recurring source of revenue and the ability to make a living from a
fixed customer base instead of continually needing to reach new customers. It
allows users to decide whether particular upgrades are worth paying for—some
users might choose to skip a version or two. At the same time, from the developer’s
perspective, this model makes customers more likely to continue using the
developer’s software instead of shopping around for a better deal.
None of the major mobile app stores have a paid upgrade mechanism, however. This
has several consequences. It might mean that a developer sells a license to its
software once and continues to provide updates for free, indefinitely.51 This may
seem to be the most customer-friendly option. However, almost all software requires
50 This was the issue that popular free video player VLC faced. After being pulled from the app store
because of complaints from individual contributors / rightsholders, see Marco Tabini, Licensing
Dispute Could Drive VLC Out of the App Store, MACWORLD (November 1, 2010),
https://www.macworld.com/article/1155338/vlc_licensing.html, its returned after a substantial
rewrite. See Felix Paul Kühne, Press Release, VLC for iOS 2.0, VideoLAN (July 18, 2013),
https://www.videolan.org/press/ios2out.html.
51 Certain updates—such as security patches, and compatibility updates that require minimal
developer effort (for example, a recompile with some settings adjusted)—perhaps should be provided
for free. But developers of commercial software often depend on recurring revenue from upgrades,
and the alternatives (subscription models, selling new versions as new apps) can fall short in a
number of ways. This issue has been often discussed in the Apple community. See Nat Swanner,
Apple’s Refusal to Allow Paid Upgrades in the Mac App Store Hurts Developers and Users, THE NEXT WEB
(August 16, 2015), https://thenextweb.com/insider/2015/08/16/apples-refusal-to-allow-paid-upgrades-
in-the-app-store-hurts-developers-and-users/, also Kirk McElhearn, App Store upgrades: It’s not that
Apple can’t do it, but they won’t do it, Macworld (May 12, 2017),
https://www.macworld.com/article/3196016/app-store-upgrades-it-s-not-that-apple-can-t-do-it-but-
they-won-t-do-it.html.
26
Tending the Garden
ongoing maintenance to add new features, patch security flaws, and keep up with
platform changes. A business with one-time income but recurring costs is simply not
sustainable. It may work if the initial payment is high enough or the velocity of new
customers is great enough—but it rarely is, and many applications soon reach a
saturation point. In the initial growth phase of mobile platforms, perhaps these
problems were masked. But now, the lack of upgrade pricing causes many
developers to abandon apps after release or to seek out an alternative business
model where possible.
One alternative to upgrades is to list major app updates on the app store as a new
app, rather than an update to the existing app. Under this model, an existing app
may get basic security and compatibility updates for a time, but a user would have
to buy the new app—or rather, the new listing for the updated version of the same
app—to get major updates. But this approach has costs. Users who are accustomed
to free updates, or discounted upgrades, may feel they are getting ripped off—even
if the cost of the new app, up front, is simply what the cost of an upgrade would
have been to begin with.52 Upgrade pricing feels like a perk for loyal customers, and
this model lacks that. More saliently to developers, the lack of a lower-cost upgrade
path for existing users makes it more likely they will just buy an entirely different
app rather than upgrading. While arguably good for competition, this leads to less
predictability for existing developers.
It is possible to work around these shortcomings—for example, the iOS App Store
has a “bundle” feature that enables consumers to buy apps together at a discount,
which is pro-rated if a user has already purchased an app in the bundle. By creating
a bundle containing both the old app and the new app, some developers have
created what amounts to a discount on the new app for people who have already
purchased the old app. While this does somewhat replicate upgrade pricing, it has
downsides as well; namely complexity, and the fact that it requires that the old app
continue to be listed on the store, which can lead to inadvertent purchases of the
old, rather than the new, app.
The increased ease of creating and distributing software that platform maintainers
have created, as well as forcing all sales into a single channel, has created a
downward pressure on app pricing—it is difficult for a developer to charge an up-
front price for an app at all (or at least not a significant one) which to an extent
makes problems around paid upgrades beside the point—the problem is getting
paid at all. As early as 2009 observers were noting that the pricing of apps was
headed close zero,53 and according to Business of Apps, “In May 2019, the average
52 Selling all copies of a new app at the price of an upgrade could lead to lower developer revenue, or
lead to more due to increased sales. The lack of flexibility for developers means it is hard to run
natural experiments.
53 John Herrman, The App Store Effect: Are iPhone Apps Headed for Oblivion?, GIZMODO (October 16,
2009), https://gizmodo.com/the-app-store-effect-are-iphone-apps-headed-for-oblivi-5378390.
27
Tending the Garden
cost of apps on the Apple App Store came to a $1.01. Games (in which the freemium
revenue model is particularly prevalent) average $0.49. Collectively the average
price for all apps is $0.88.”54 While niche software developers have found ways to
charge up-front prices for apps,55 the lack of paid upgrades as well as the general
downward pressure has led to various other business models.
Arbitrary rule enforcement discourages developer innovation
Arbitrary and inconsistent application of app store rules can also prevent
developers from creating certain kinds of apps, even if they do not violate any
written rule. When Apple first introduced a “widget” function, for instance, it at
first disallowed complex widgets like calculators,56 before changing course.57
Independent app developer Rogue Amoeba has observed, “Apple first approved,
then removed, a major v3 update, seemingly because it competed with an Apple
HARDWARE product. A huge feature, which violated no written rule, had to be
pulled. Months of work were lost,”58 and “After an incident-free v1.0 launch, v1.0.1
bug fixes were held up for 3+ months, due to Apple’s total misunderstanding of how
IP law works at a basic level. After much public fighting, our updates were
eventually allowed.”59
Typically, app stores provide little in the way of explanation as to why an app might
have been rejected beyond a reference to a general rule, without individualized
guidance or feedback, or an explanation of why similar apps might have been
accepted, but not the one in question.60 Developers have no formal due process
rights, and platform maintainers appear free to apply “rules” that don’t really exist,
or develop new interpretations of existing rules on the fly, with little recourse other
than the court of public opinion.
54 Mansoor Iqbal, App Download and Usage Statistics (2019), BUSINESS OF APPS (April 24, 2020),
https://www.businessofapps.com/data/app-statistics/.
55 For example, Tot for iOS, a new app, costs $20. Federico Viticci, Tot Review: Collect and Edit Bits
of Text, MACSTORIES (February 27, 2020), https://www.macstories.net/reviews/tot-review-collect-and-
edit-bits-of-text.
56 Jordan Kahn, Apple Making iOS 8 Notification Center a Bit Less Useful by Banning Calculator
Widgets (October 29, 2014), https://9to5mac.com/2014/10/29/apple-making-ios-8-notification-center-a-
bit-less-useful-by-banning-calculator-widgets.
57 See PCalc, About PCalc for iPad, iPhone, and Apple Watch, https://www.pcalc.com/ios.
58 Rogue Amoeba, https://twitter.com/RogueAmoeba/status/1273635569617305601?s=20 (June 18,
2020).
59 Rogue Amoeba, https://twitter.com/RogueAmoeba/status/1273634800751050753?s=20 (June 18,
2010).
60 While most developers do not publicly document their app store rejection stories, there are
numerous examples. This story provides an overview of some of them: Ryan Christoffel, 10 Years of
App Store Controversies, MACSTORIES (July 18, 2018), https://www.macstories.net/stories/10-years-
of-app-store-controversies. See also TJ Addams, My Apple App Store Rejection and Approval Story
(August 13, 2019), https://medium.com/swlh/my-apple-app-store-rejection-and-approval-story-
cc692a6cb7e3;
28
Tending the Garden
Incentivizing ad-supported apps is problematic in a number of ways
Advertisements are one common business model that developers adopt in response
to the business model constraints of the app store. An ad-supported app does not
have to pay 30% of its sale price, or of an ongoing subscription or of continuing in-
app purchases, to the app store. It does not have to worry about the lack of
recurring revenue that the lack of a paid upgrade model creates. It does not have to
worry about “race to the bottom” pricing.
That said, advertisements are hardly an ideal outcome as a means to support
software development. Ads are necessarily intrusive, and on smaller devices, may
take up valuable space that would otherwise be devoted to application functions or
content. Downloading and displaying ads may degrade the performance or battery
life of a user’s device. Ads may present a risk to user privacy, and depend on or
incentivize intrusive data-collection and the user of personal information in other
ways.
These considerations concerning advertisements raise concerns and questions
beyond the scope of this paper, but it is at least relevant to observe that plentiful
ad-supported “free” apps for users is not necessarily the best market outcome given
the externalities that ad-supported business models create, even if users tend to
gravitate toward apps with the lowest up-front cost. (One example where this can
go wrong is with “free” weather apps. Because weather apps, by their nature, are
more likely to gather granular user location data, they are more likely to carry
unacceptable privacy tradeoffs that users may not even be aware of.61)
To the extent that platform maintainers value user privacy and promoting quality
experiences, they should not actively promote and favor ad-supported apps over
other business models. Instead, ads should be one option among many, instead of
the path of least resistance for developers looking to develop a sustainable business
model.
App stores encourage subscriptions, which don’t always make sense
Some developers have adopted subscriptions as another business alternative.
Subscriptions are, of course, the logical and predominant business model for video
and music streaming services. The subscription model is ideal for software in some
ways, as it creates ongoing revenue that offsets ongoing costs—both development
and maintenance costs, as well as infrastructure costs for back-end services that
may be associated with software.
61Jason Koebler, Stop Using Third-Party Weather Apps, MOTHERBOARD (January 4, 2019),
https://www.vice.com/en_us/article/gy77wy/stop-using-third-party-weather-apps.
29
Tending the Garden
But this model has its downsides as well. First, in-app subscriptions are treated as
in-app purchases, which means that the developer pays the 30% of the subscription
price (less, after a time) to Apple or Google up front. Subscriptions also add
complexity to how developers design and monetize their apps. As developer Brent
Simmons wrote,
The best part of the App Store, years ago, from this developer’s point of view,
was that it was easy to charge money for an app. No need to set up a system
— just choose the price, and Apple takes care of everything. So easy!
But these days, in almost all cases, you’d be ill-advised to charge up front for
your app. You need a trial version and in-app purchasing (IAP) and maybe a
subscription.
Here’s the thing: this is a massive pain in the ass to implement, test, and
support — Apple does not make it easy.62
Additionally, customers may object to paying for subscriptions for services that are
not immediately visible to them. Subscriptions are traditionally seen as a
subscription to something—in the digital context, perhaps some cloud service or
media library. Subscribing to a podcast player or a calendar app is another matter.
In general, subscriptions might make the most sense for major app developers like
Adobe or Microsoft, not smaller developers, or for software that is more typically
sold to businesses.
Increasingly, subscriptions are more like a patronage model that provides ongoing
support for a developer to continue work on her project rather than a fee that offsets
a specific marginal cost. Patronage models have many benefits and can work well
for some kinds of creators, as the success of services like Patreon shows. At the
same time, users have little insight to whether their payments truly are going to
fund further development and maintenance of the app. In any event, patronage is
not how the software industry has traditionally worked, and the terminology and
tools that developers have access to are not well-suited to the task.
There are further drawbacks to a subscription approach, as well. Subscriptions to
various apps and services can add up and are harder to mentally keep track of than
one-time purchases, leading to “subscription fatigue,”63 or even people paying for
subscriptions to things they no longer use. Subscriptions can be abused, as well:
App stores have faced a problem with scam apps that prey on unwary users by
62 Brent Simmons, One Advantage of the App Store That’s Gone, INESSENTIAL (June 20, 2020),
https://inessential.com/2020/06/20/one_advantage_of_the_app_store_thats_gon.
63 See ‘Subscription Fatigue’: Nearly Half of U.S. Consumers Frustrated by Streaming Explosion,
Study Finds, VARIETY (March 18, 2019), https://variety.com/2019/digital/news/streaming-
subscription-fatigue-us-consumers-deloitte-study-1203166046.
30
Tending the Garden
offering a “free trial” for a basic app (say, a weather app, or a voice memo recorder),
but that auto-renews at an absurd rate, such as $50/week. Subscription abuse of
this kind is an unintended consequence of app store design decisions, and one that,
due to the cut off the top that the platform takes, platforms actually profit from.
In-app purchase requirements can limit developer flexibility and revenue
Yet another business model that is enabled by app stores—and also, to an extent,
forced on developers, given pricing constraints—is the use of in-app purchases to
unlock new features. Under this approach, the basic app can be free or low-cost, and
advanced functionality can be unlocked with further payments. This allows for a
degree of beneficial price discrimination—only “pro” users need pay for pro features
that only they would use—and allows for new features to be presented as new in-
app purchases. However, this approach also has many limitations and drawbacks.
Software applications sometimes need to be rewritten or rearchitected to make
them more expansible, to increase performance or as the result of major platform
technology transitions. Such a rewritten app may make sense as a paid upgrade,
even if it has no new customer-facing features, but it’s not feasible to offer
“rewritten app” as an in-app purchase. Determining which, if any, features can even
be logically separated out as an in-app purchase may be difficult or impossible, and
it is likely not possible to keep selling new in-app purchases to a single customer
indefinitely, even if that same customer would happily pay an upgrade every 18
months or so for an important tool.
In-app purchases have also led, unfortunately, to the rise of abusive business
models—games with addictive casino-like mechanics like loot boxes, for example,
take advantage of human psychology and prey on children to encourage users to
continually spend to keep playing. And while in-app purchases may be a good way
for players to unlock additional game content that doesn’t affect the fundamental
nature of the game (such as cosmetic features like new outfits or more levels of
play), far too many games employ “play-to-win” mechanisms where they cannot
reasonably be completed unless users purchase in-app “gems” or weapons or other
content—a fact which is usually not apparent to users before they invest time in
playing a game. The abuse of in-app purchases, which unscrupulous developers and
platforms alike both profit from, shows that the design and policies of app stores
can not only encourage some business models while discouraging others, but can
also negatively impact users directly.
In-app purchases are also at the heart of one of the main ways that app stores
constrain developer business models—platforms, to varying extents, require that
developers use platform-provided payment systems in order to conduct sales, from
which they (at least, both Apple and Google) take the same 30% cut as they do from
paid apps.
31
Tending the Garden
At a high level, this is not necessarily objectionable: If app stores take a 30% cut
from the sale of paid software, but allow in-app purchases to be provided by any
means, then many apps that are not paid might simply switch to a “free” (to
download) model, with most app functionality locked behind a credit card purchase.
At the outset, this could annoy customers, as platform-provided in-app purchases
use a customers’ saved payment information and do not require the inconvenient,
and potentially risky from a privacy and fraud standpoint, entry of payment
information. Also, while it is fair to argue about the exact rates, it is reasonable for
an app store to earn a return, or at least cover costs, instead of simply being a file
host for developers. The question then is not the existence of in-app payment rules,
but what those rules apply to.
Here, the differences between the leading mobile app stores, Google Play and the
iOS App Store, are salient. Both require that developers use the platform payment
system for app features such as game levels, additional tools and features, and so
forth. Neither of them requires that the in-app purchase system be used for
payment for physical goods and services. But Apple, and not Google, does require
that the in-app payment system be used for media purchases and subscriptions.
Apple views these as more akin to app features than physical goods. Thus, while
Amazon can sell you a paper book via its app without giving Apple a 30% cut, it
cannot sell you a Kindle book the same way. To buy a Kindle book, you must go to a
web browser or some other device without such a restriction. Similarly, Netflix or
Hulu cannot sign customers up for new subscriptions in their apps using their own
payment systems—they either must pay Apple the commission, or simply allow
users with existing accounts that they have created elsewhere (e.g., on the web) to
sign in, and hope that new users don’t find this confusing.
These rules can seem arbitrary, even confusing, to developers. According to one
developer:
If we wanted to launch, we had to disable a part of the app that allowed Tech
Top 10 users to preview The Information articles and subscribe to read them.
The reason: our The Information subscription—which is a separate
subscription from the Tech Top 10 —doesn’t go through the App Store. I
knew that to sell the Tech Top 10 app through the App Store, we had to use
the App Store payment method. But I didn’t realize how far Apple’s grip on
commerce went. 64
The enforcement of this requirement can seem quite severe, as not only are
developers required to use in-app purchases if they offer any in-app payment
system at all, they are also forbidden from informing customers of alternatives (e.g.,
subscribing on a website).
64Jessica E. Lessin, Inside Our App Store Ordeal, (December 9, 2019),
https://www.linkedin.com/pulse/inside-our-apple-app-store-ordeal-jessica-e-lessin.
32
Tending the Garden
This developer limitation carries profound competitive implications, as Apple itself
competes in many media and digital services markets. It sells music and music
subscriptions; TV and movies as well as a video subscription service; ebooks; and
even cloud storage. In all of these markets, Apple can offer in-app payments without
paying 30% to some third party, and none of its competitors can. (In fact, Apple
prevents apps from even directing users to a web browser to purchase a
subscription. If they don’t offer an in-app purchase, they simply have to be silent on
how a user might sign up.) This allows Apple to give its own media apps and digital
services an advantage in the marketplace and enables it to achieve success for
reasons other than their merits.
Analyst Ben Thompson offered the following analysis of this issue:
To put it another way, Apple profits handsomely from having a monopoly on
iOS: if you want the Apple software experience, you have no choice but to buy
Apple hardware. That is perfectly legitimate. The company, though, is
leveraging that monopoly into an adjacent market — the digital content
market — and rent-seeking. Apple does nothing to increase the value of
Netflix shows or Spotify music or Amazon books or any number of digital
services from any number of app providers; they simply skim off 30% because
they can.
To be clear, Apple absolutely did create the modern app marketplace, and, as
the company loves to brag, an entire new economy full of new types of jobs.
That, though, is precisely the problem: the App Store is not a fun side
diversion; it is one of the largest platforms we have ever seen, on which
hundreds of thousands of people are seeking to build real businesses, and
that carries different types of responsibilities — and legal limitations — than
an OS feature. It is bad for society generally and, I strongly believe, illegal for
Apple to have crafted App Store rules such that it can leverage its
smartphone share into monopoly profits on digital goods and services that are
on iOS not because iOS is anything special, but because that is the only
possible way to reach nearly 50% of the U.S. population.65
Compounding this issue, Apple has recently begun interpreting its rules even more
strictly—instead of just requiring that, if there is an in-app purchase functionality
at all, that it use Apple’s system, but requiring that some kinds of apps offer in-app
purchase functionality, when they would otherwise prefer not to. While this policy
65Ben Thompson, Antitrust, the App Store, and Apple, STRATECHERY (November 27, 2018),
https://stratechery.com/2018/antitrust-the-app-store-and-apple. From the perspective of this paper
whether or not Apple’s behavior is “illegal” is irrelevant; the question is whether it would be broadly
beneficial if it changed its practices.
33
Tending the Garden
change has been in place for some time, it recently has received more attention due
to a dispute regarding Hey, a premium email service from Basecamp.66
Rule 3.1.3(a) of the App Store review guidelines state:
Apps may allow a user to access previously purchased content or content
subscriptions (specifically: magazines, newspapers, books, audio, music,
video, access to professional databases, VoIP, cloud storage, and approved
services such as classroom management apps), provided that you agree not to
directly or indirectly target iOS users to use a purchasing method other than
in-app purchase, and your general communications about other purchasing
methods are not designed to discourage use of in-app purchase.67
Apple has begun to interpret that rule as only applying to the app categories that
are specifically listed, and disallowing other categories of app from offering “reader”
functionality. Thus, while Amazon is free to allow Kindle users to access Kindle
books purchased on the Amazon website inside the Kindle app, Apple has told the
developers of Hey that if Hey can only function with a paid subscription, that it
must offer iOS users the ability to purchase one from within the app, paying Apple
30%.68 (When pressed on how inconsistently it appears to apply this rule—for
example, it is not applied to the Gmail app, even though GSuite, like Hey, is a paid
email service, Apple claims to be applying a “business vs. consumer” distinction
which is not found anywhere in its app review guidelines.69) It goes further than
even taking a cut of transactions that happen on a platform to require that
transactions take place that otherwise would not, or to require apps to offer new
features or functionality in order to be listed on an app store. (Hey has since
changed its iOS app to offer a free option, meaning that Apple no longer requires it
to offer an in-app purchase for subscription plans.70)
Putting aside the fact that the app store may be the sole way to get software onto a
device, it does not seem unreasonable for Apple or Google to require that apps use
their billing systems for in-app purchases of genuine app functionality, such as
66 Nick Statt, Apple Doubles Down on Controversial Decision to Reject Email App Hey, THE VERGE
(June 18, 2020), https://www.theverge.com/2020/6/18/21296180/apple-hey-email-app-basecamp-
rejection-response-controversy-antitrust-regulation.
67 Apple, App Store Review Guidelines, https://developer.apple.com/app-store/review/guidelines.
68 David Heinemeier Hansson, https://twitter.com/dhh/status/1272976901762478080?s=21 (June 16,
2020).
69 John Gruber, The Flimsiness of ‘Business vs. Consumer’ as a Justification for Apple’s Rejection of
Hey from the App Store for Not Using In-App Purchases, DARING FIREBALL (June 16, 2020),
https://daringfireball.net/2020/06/hey_app_store_rejection_flimsiness. There may be a broad
difference between software and services that are usually purchased in bulk by employers for their
employees, and ones that are usually purchased by individuals for their own use, but there is likely
so much overlap between those two categories that attempting to embody this in app store rules
would lead to unintended outcomes.
70 Jason Fried, Apple, Hey, and the Path Forward (June 22, 2020), https://hey.com/apple/path.
34
Tending the Garden
application features, game levels, or feature unlocks of various kinds. That is, if a
feature could have been offered via a single up-front purchase, but the app instead
is a free download with premium features locked behind an in-app purchase,
requiring that those features use the app store’s payment system seems like a
reasonable way to avoid a form of arbitrage, where apps are “free” but unusable
until a user pays using a third-party billing system. Instead, requiring that
software features be available via a platform’s in-app purchase system allows for
apps to provide basic functionality for free, or work analogously to free trials,
depending only on consumer demand, instead of a desire of developers to avoid
paying a 30% cut of sales.
But this does not mean that digital content purchases in an app, or subscriptions
associated with an app, should require a 30% payment to the platform maintainer.
In-app purchase rules around software functions simply preserve the integrity of
the app store as a retail store, but retail stores do not typically take a percentage of
later purchases or subscriptions relating to a product they sell. For example, if Best
Buy sells a Kindle, it doesn’t require that Amazon pay it 30% of the proceeds of
books purchased on that device, or if it sells a Nintendo Switch, it doesn’t require
that Nintendo use a Best Buy-provided payment system for subscriptions to
Nintendo Switch Online.71
As mentioned above, Apple’s practices in this area are under investigation by both
the European Commission, as well as the House Subcommittee on Antitrust. This
issue will be discussed further as it relates to Spotify’s specific complaint, as well as
in the section on policy recommendations.
Censorship and curation
App stores have effectively unlimited “shelf space,” but for various reasons, they are
selective about what apps they will actually carry. As discussed above, one of the
most useful functions that app stores provide is preventing (or trying to prevent)
harmful software from being distributed. This can include software that is harmful
to a user’s device, violates privacy, or is simply fraudulent. However, app store
curation can go far beyond that.
One kind of curation is moral. App stores typically do not want to carry apps whose
primary purpose is to access or display explicit sexual content and may restrict
71In part, app stores being far more restrictive than traditional retail stores may relate to customers,
and sellers, have other options. To be sure, alternatives to the app store such as sideloading could be
one way of ensuring that the cut taken by the store owner is not excessive. However, even in a world
where all the major platforms supported sideloading, competition and consumer protection issues are
still at play, since sideloading, even on platforms that support it, is inevitably more difficult for users
than just relying on the default app store.
35
Tending the Garden
violent and even “controversial” subjects, as well. This is unsurprising; mainstream
brick-and-mortar retail stores also typically exclude such content. Even so, this kind
of restriction raises some issues. First, of course, much of the content that app
stores want to exclude for moral or taste reasons is, in fact, lawful content that
adults have a constitutional right to produce and access. This doesn’t just mean
pornography—app store policies will generally exclude content (at least of a sexual
nature, or content touching on controversial subjects) that is commonly found in R-
rated films or in literary novels. But Best Buy or Target refusing to stock something
doesn’t mean that no one can get it elsewhere. These retailers are merely serving as
curators, and consumers have other choices. But when an app store that is the only
possible way to access certain kinds of content (say, a game) refuses to carry
something, it can look more like censorship than curation. That being said, few
people complain that app stores have policies designed to exclude hateful or
harassing content, even though such content is generally lawful and protected by
the First Amendment. The question for most people is not whether there should be
some sort of curation, but where to draw the line.
There are practical difficulties, as well. The same platforms that operate app stores
often also operate services that sell or stream music, movies, and books. They are
typically far less prudish with respect to what media of this kind they will carry
than with apps. Why the difference? It could be that a publisher, a record label, or
movie studio will be the entity seen as directly responsible for the content — in
other words, not the retailer — but nevertheless, the inconsistency in the kinds of
material that creators can produce in one medium and not another seems
unsustainable.
Additionally, apps that access online content are sometimes held to be responsible
for that content, but the basis for this is somewhat confusing, and it is hard to
fashion a one-size-fits-all rule. For example, the maker of a dictionary app was
rejected from the app store because it could access databases that provided
definitions for “urban slang,”72 which seemed questionable, but it is hard to argue
with Apple taking down the Tumblr app from the app store for that service’s failure
to remove child pornography.73 Apple requires Reddit clients to block adult content
by default, unless users opt into that account in their Reddit account settings, on
the Reddit website (apps themselves are not allowed to offer such a setting).74 At
the same time, Apple’s own Safari web browser can access any material that is
posted online and does not block it by default. There may be no completely
straightforward way for a platform maintainer to both preserve a family-friendly
72 Rik Myslewski, Apple Denies Censoring App Store Swear Words, THE REGISTER (August 6, 2009),
https://www.theregister.co.uk/2009/08/06/apple_denies_dictionary_censorship.
73 Jon Porter, Tumblr was Removed from Apple’s App Store Over Child Pornography Issues, THE
VERGE (November 20, 2018), https://www.theverge.com/2018/11/20/18104366/tumblr-ios-app-child-
pornography-removed-from-app-store.
74 Nicolas Deleon, Apple is Cracking Down on NSFW Content Inside Reddit Apps, MOTHERBOARD
(April 12, 2016), https://www.vice.com/en_us/article/78k8yb/reddit-ios-apps-disappear-nsfw-content.
36
Tending the Garden
app store while allowing apps that can access internet and user-generated content,
but it does not seem unreasonable to ask app stores to be transparent as to their
reasoning and to treat similar apps similarly.
Restrictions on apps that touch on “controversial” topics are, in many ways, more
troubling than app restrictions on salacious or sexual content. A few examples will
be discussed below.
App stores may also refuse to carry entire app categories. Apple will not carry apps
that it feels are used to facilitate copyright infringement, for instance, such as
BitTorrent clients and retro game emulators, even though both of those app
categories are capable of, in the Supreme Court’s phrase, “substantial noninfringing
uses.”75 Apps that download and install executable code are also prohibited by
Apple. In fact, Apple’s rules used to be much stricter, prohibiting even interpreted
code—a prohibition which made many categories of apps difficult or impossible to
implement, such as educational and programming apps, and which severely limited
the functionality of advanced apps that use scripting to enhance and automate their
functionality. Apple has since relaxed these rules, which now state that:
[A]n Application may not download or install executable code. Interpreted
code may be downloaded to an Application but only so long as such code: (a)
does not change the primary purpose of the Application by providing features
or functionality that are inconsistent with the intended and advertised
purpose of the Application as submitted to the App Store, (b) does not create
a store or storefront for other code or applications, and (c) does not bypass
signing, sandbox, or other security features of the OS.76
However, it is worth considering exactly why Apple would ever put so much effort
into what may seem to the outsider like a seemingly arbitrary retraction. It is
because, having put certain restrictions on what it carries in the app store, and
instituting a process for approving apps, it then had to think of ways its policies
might be circumvented. Allowing apps to change their functionality via downloaded
code is one such way. But if, as discussed below, the app store was not the only way
to distribute apps to iOS devices, the incentive for developers to attempt to skirt the
rules may be lessened.
Customer ownership, resale, and preservation
One drawback of app stores and related platform rules is a feature of DRM
generally: It interferes with basic consumer rights, including the right to resell or
transfer property.
75Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 428 (1984).
76 This user comment from Hacker News gives the history of this. DerekL (July 20, 2017),
https://news.ycombinator.com/item?id=14809096.
37
Tending the Garden
In the first place, despite what app store terms and conditions (and confused judges)
might say, customers purchase copies of apps—not mere “licenses.” This is because
customers usually own the devices where the apps are saved. Copyright law defines
a “copy” as a “material object,”77 meaning that whoever owns the material object,
owns a copy of whatever copyrighted work is embodied on that material object. A
person who owns an iPhone owns a copy of iOS, and a copy of the various apps
installed on the phone, in the same sense that a person who owns a vinyl record
owns a copy of an album, or a person who owns a video game cartridge or disc owns
a copy of the game. This ownership is, of course, distinct from ownership of
intellectual property rights, and many of the uses that a copy owner can put a copy
to do not require permission of the underlying rightsholder. While software industry
lawyers attempt to confuse this issue, no flurry of EULAs, terms of service, licenses,
and contracts can rewrite the basic terms of the Copyright Act.
When customers purchase a copy of an app, they also receive a license—that is,
permission to use the app and make new copies of it in certain circumstances.
However, customers do not need permission to run software they own a copy of, just
as a reader doesn’t need a license to read a book.78 Additionally, under the first sale
doctrine, users do not need permission to transfer copies of software they lawfully
own (in the case of mobile devices, the copies are typically stored in the device’s
memory). However, there are caveats to this. While a license is properly defined as
permission, not a contract,79 some of the terms of something styled as a “license”
may function as contract conditions. While a contract cannot redefine legal realities
(e.g., transfer a sale into a “license”), people can give up legal rights they would
otherwise have via contract. Additionally, apps being tied to specific user accounts
via DRM, the anti-circumvention provisions of the DMCA, as well as the fact that a
customer’s right to transfer a copy of software refers to just that—the right to
transfer a copy, not to make a new copy and then delete the old one—puts practical
and legal difficulties in the way of any consumers who might want to avail
77 17 U.S.C. § 101.
78 Courts have (probably wrongly) held that executing a software program, which copies portions of
the program into a computer’s RAM from its permanent storage, implicates the reproduction right in
copyright. However, 17 U.S.C. § 117, though initially designed to cover the installation of software on
a device, not its use, also applies these “RAM copies” and states that any “new cop[ies]…created as
an essential step in the utilization of the computer program in conjunction with a machine” are
noninfringing provided the user owns a copy of the computer program. By attempting to assert that
customers do not actually own material objects (copies of software) that they plainly do own,
software industry legalese attempts to render 17 U.S.C. § 117 inapplicable, meaning that customers
need a license to make RAM copies—to actually use software they paid for—and provides the
opportunity to place conditions on that license. Strongly asserting that users do in fact own material
objects such as phones thus carries the implication that they don’t need a license to merely use
software, or to transfer copies, but only to do things that actually would otherwise infringe on the
exclusive rights of a copyright owner.
79 Lawyers and even judges are not generally very clear about this. A contract that grants a user a
license may simply be called a “license” or a “license agreement.”
38
Tending the Garden
themselves of the resale and transfer rights (codified in the first sale doctrine) that
are traditional with most forms of media and software. That said, customers do at
least retain the basic right to sell or give away their devices—thanks to the first
sale doctrine, the fact that those devices embed copies of software does not by itself
interfere with this.
None of this changes the fact, though, that customers effectively cannot resell
individual apps. Nor can they even transfer entire accounts. It’s not even possible to
meaningfully leave a digital account to your children or spouse after you die—while
it is possible to give them your user name and password, platforms typically provide
no way to merge an existing account and its various purchases with another
account, meaning that perhaps thousands of dollars of purchased apps (as well as
music, movies, books, and other media) simply vanish at the time of one’s passing.
Imagine if a person’s library of books just vanished into a puff of smoke when they
died, and couldn’t enrich and educate future generations. This is the reality of app
stores.
Similar issues stand in the way of software preservation. Software, unlike most
other forms of media, is tied to particular platforms (both hardware and software)
and these platforms change, become obsolete, and are even forgotten. App store
terms, legal restrictions, and practical challenges stand as obstacles in the way of
archivists, librarians, avid fans, and historians who might want to preserve apps as
cultural and historical artifacts.
Single target for scams
Any time you make a single source the only place where a user can access apps—or
anything else—you set up that source as a target for bad actors. This has happened
on app stores, as persistent bad actors are able to get harmful apps past app review,
or even to change the nature of their app after it has been approved.
One common scam involves apps that use deceptive user interface patterns to trick
users into “agreeing” to expensive subscriptions that offer no useful functionality.80
Even when it comes to apps that are not, strictly speaking, scams, it is common for
top-grossing apps to offer functionality that is already built-in to the phone or
80See John Gruber, Gaming the App Store, DARING FIREBALL (December 3, 2018),
https://daringfireball.net/linked/2018/12/03/barnard-game-app-store,
https://www.forbes.com/sites/johnkoetsier/2018/10/04/app-scams-cheap-utility-apps-are-stealing-260-
2500-or-even-4700-each-year-per-user/#5d5f91ee162a.
39
Tending the Garden
available for free elsewhere.81 Platform maintainers are aware of these problems
and seek to curb them,82even though it is true that they profit from them, as well.
Apart from the financial harm caused by scam in-app purchases or subscriptions,
and even though apps are limited in the damage they can cause by sandboxing and
other protections, they can still attempt to exfiltrate user data (e.g., by tricking
users into enabling location tracking, or entering passwords that they then capture)
in ways that are hard to solve through purely technical means. While these
problems are not unique to app stores, the lack of user options means that problems
on the app store are all the more serious, and a lack of competition between
different sources of apps may limit the incentives of the platform owner to improve
matters.
Exclusion of certain markets
For any number of reasons, a platform might not offer services, or only a subset of
services, in a given country. When app stores are the sole way to install software on
a device, this leaves people with nowhere else to turn for what may be basic
categories of apps.83 While the details of national content laws, trade sanctions, and
other matters are beyond the scope of this paper, people in the United States and
other developed countries sometimes do not appreciate the extent to which the
availability of digital services—including app stores—varies globally.84
App store tradeoffs may not be the best for all users
App store policies can constrain what apps can and can’t do. Even if you assume
that the policies that app stores adopt correctly balance security, convenience, and
functionality for most users, there will always be a category of user who is willing to
make different tradeoffs. For example, it might make sense to prevent apps from
over-aggressively tracking a user’s location, as this could both be bad for privacy or
the device’s battery life. But there may be situations where an informed user is
aware of these tradeoffs but is still willing to take them. The one-size-fits-all
approach of app stores that are the sole source of software on a platform can limit a
device’s usefulness for some category of user, with switching costs, network effects,
and other factors making it difficult or impossible for a user to just switch to
81 Sarah Perez, Sneaky Subscriptions are Plaguing the App Store, TECHCRUNCH (October 15, 2018),
https://techcrunch.com/2018/10/15/sneaky-subscriptions-are-plaguing-the-app-store/.
82 Dami Lee, Apple Adds Extra Step to App Store Subscriptions to Prevent Scams and Accidental
Purchases, THE VERGE (April 12, 2019), https://www.theverge.com/2019/4/12/18307785/apple-ios-
subscription-confirmation-scam-accidental-purchases.
83 Bryan Pon, WINNERS & LOSERS IN THE GLOBAL APP ECONOMY, Farnham, Surrey, United Kingdom:
Caribou Digital Publishing (2016).
84 See Apple Support, Availability of Apple Media Services, https://support.apple.com/en-
us/HT204411#latam-car.
40
Tending the Garden
another platform. Here, as in many situations, the problem isn’t the choices the app
store makes per se, but the lack of alternatives to the app store, that can create
consumer harm. Even if the app store allows for some flexibility, the power of
defaults selected by a dominant app store will have outsized influence.
Case Studies
Specific instances of behavior where app store policies have harmed competition, or
reduced user choices, can be more instructive than generalizations. This section will
list a few illustrative examples. They are not intended to be exhaustive or present
the most extreme or egregious cases of app store practices gone wrong. Some of the
issues discussed may have even been resolved. These examples, instead, are
intended just to provide context and to show that the proposals given here are
intended to solve real-world problems.
Duplicating built-in functionality and defaults
Early in the life of its App Store, Apple didn’t allow third-party apps that competed
with its built-in apps at all. Apple rejected the apps for “duplicat[ing] built-in
functionality” of the phone. Thus, third-party email and podcast apps85 weren’t
allowed on the store at all. They couldn’t compete on the app market, much less
compete on an even playing field. Eventually, this restriction was lifted, but other
restrictions remain.
For instance, third-party browsers cannot use their own rendering engine—the part
of a web browser that actually decodes and displays HTML, CSS, and JavaScript.
Instead, they are mere user interface wrappers to iOS’s built-in rendering engine.
Apple cites security and performance reasons for this, and there likely are concerns
in these areas. Nevertheless, the restrictions prevent third-party browsers from
competing with Apple’s built-in Safari browser through greater compatibility with
sites or higher performance, limiting them to offering different user interface
choices, different syncing options, and other more superficial features.86
85 Chris Foresman, Apple Rejects Another App For “Duplicating Functionality,” ARS TECHNICA (September
22, 2018), https://arstechnica.com/gadgets/2008/09/apple-rejects-another-app-for-duplicating-
functionality; Robert Palmer, App Disqualified From App Store Because It ‘Duplicates Itunes Functionality,’
ENGADGET (September 12, 2008), https://www.engadget.com/2008/09/12/app-disqualified-from-app-
store-because-it-duplicates-itunes-fu.
86 Additionally, even in its browser, Apple makes some choices it justifies in the name of security and
privacy, that some developers see as impeding competition and user functionality—for example, the
ability of web pages to create persistent local storage can be seen as an attempt to unfairly privilege
native apps over web apps. See Aral Balkin, Apple Just Killed Offline Web Apps While Purporting To Protect
Your Privacy: Why That’s A Bad Thing And Why You Should Care, ARAL BALKIN BLOG (March 25, 2020),
https://ar.al/2020/03/25/apple-just-killed-offline-web-apps-while-purporting-to-protect-your-privacy-
why-thats-a-bad-thing-and-why-you-should-care. Browser competition would allow different
41
Tending the Garden
Further, while Apple is reported to be considering changing its policy here, it is not
possible to set third-party apps as defaults. This means at least three things: First,
third-party apps cannot be set as the defaults for certain kinds of URLs. Web URLs
(that begin with http:// or https://) open in Safari. Mail URLs (mailto://) open in
Apple Mail or, if that app has been uninstalled, nowhere.87 (According to Phillip
Shoemaker, who oversaw the Apple’s app store approvals from 2009 to 2016, this is
because Apple is worried that companies like Google or Facebook would promote
apps to replace core iPhone functions like calling and messaging.88)
Second, iOS provides certain functionality of its built-in apps to third-party apps as
an API: For instance, a user might be able to send an email via an Apple Mail
compose sheet. It is not possible to replace this functionality systematically. Third,
Siri—which itself cannot be replaced with a third-party voice assistant, unlike
Google Assistant on Android—uses certain apps as its default. For example, if a
user says, “Make a note that says, ‘Buy some milk,’” the note will be created in
Apple’s Notes app. If a user says, “Play music by Bob Dylan,” Siri will try to use
Apple Music. It is possible to use third-party apps but only if you specify the app’s
name for each command (“Play music by Bob Dylan in Spotify”), which may seem
like a small inconvenience but is enough to discourage users from using the feature
at all.
Finally, there is the simple issue that Apple preinstalls its own apps and
increasingly advertises them to users in various parts of its software—particularly
those apps that generate subscription revenue. It is hard, especially for mass
market apps, to compete with built-in offerings. It is probably going too far to
suggest that there should not be built-in apps at all. Devices should have certain
built-in capabilities over time, and user expectations about what those should be
might expand over time. But it’s one thing to say that a phone should come with a
built-in browser, calculator, or email app, and quite another thing to say that there
should be a built-in, highly preferenced music streaming app or video service.
Where to draw the line (and how to draw it) may be a hard question, but this
doesn’t mean there shouldn’t be a line.
browsers to make different choices, with Apple able to make the privacy choices it does without being
under a cloud of suspicion of anticompetitive motives.
87 Apple allows users to “uninstall” certain default apps, and “redownload them” from the app store,
but in reality, the code for the apps in question is always on-device, just hidden. So “uninstalling”
these apps does not actually free up any storage space.
88 James Vincent, Apple’s Former App Approval Chief Says He’s ‘Really Worried’ About Company’s
Anticompetitive Behavior, THE VERGE (May 29, 2019),
https://www.theverge.com/2019/5/29/18643868/apple-app-store-approval-process-antitrust-phillip-
shoemaker-interview.
42
Tending the Garden
Spotify, and the required use of in-app purchase system for non-app
content
As touched on above, one of the most significant controversies over in-app purchases
in app stores is Apple’s requirement that they be used not just for application
functionality (such as extra game levels, additional processing tools in graphics
apps, and so on), but for media purchases and digital subscriptions89 as well. To be
sure, these things fall somewhere between real-life goods and services and app
features. Calling an Uber or buying batteries on Amazon seem like clear examples
of real-life services, and with these, Apple and Google both allow developers to
provide their own payment processing.90 However, Apple categorizes things like
music streaming subscriptions as more like app features, while Google categorizes
them as more like services like ordering an Uber.91 But if developers can sell users a
music CD without paying the platform 30%, they should be able to sell music
downloads the same way—Google’s policy seems more developer-friendly and
straightforward.
Spotify, in particular, has drawn attention to the ways that Apple’s app store
policies preference its service, Apple Music, at the expense of consumer choice.
Spotify’s Daniel Ek has laid out the changes he believes Apple should make:
• First, apps should be able to compete fairly on the merits, and not based on
who owns the App Store. We should all be subject to the same fair set of rules
and restrictions—including Apple Music.
• Second, consumers should have a real choice of payment systems, and not be
“locked in” or forced to use systems with discriminatory tariffs such as
Apple’s.
89 Apple requires that apps and services like Dropbox, Microsoft Office 365, and Adobe Creative
Cloud use its in-app purchase system for subscriptions. It may not be straightforward to determine
whether a service is closer to unlocking actual app functionality or not, but a company in Apple’s
position should likely err on the side of permissiveness and treat digital services such as cloud
storage (or, for example, domain name registration) as not requiring use of its IAP system, since they
offer functionality which is useful outside of the app itself. A harder question is whether games that
require or allow some form of continuing payment that could not have been offered via a single, up-
front purchase should be required to use the in-app purchases system.
90 Apple does now allow Apple Pay to be used for these kinds of purchases, though it is not required.
Apple Pay is just a normal payment service like PayPal or Venmo that can be used in apps and in
the Safari browser, or in real-life stores, and is distinct from the in-app purchase system, which uses
the billing infrastructure originally designed for iTunes.
91 Google, Developer Policy Center, Monetization and Ads,
https://play.google.com/about/monetization-ads.
43
Tending the Garden
• Finally, app stores should not be allowed to control the communications
between services and users, including placing unfair restrictions on marketing
and promotions that benefit consumers.92
The first request would be mostly realized by implementing the other two, which
are more concrete. Specifically, he argues that Spotify should be able to provide its
own payment processing for in-app subscriptions, rather than having to use Apple’s
own. This practice would bring Apple in line with Google’s policies, which allow
media apps like Spotify’s to bypass the in-app purchase system. He also believes
that Apple should not be able to prevent apps from telling users where they can go
to sign up for subscriptions.
Spotify’s problem is magnified by the business it is in. Music subscription services
pay out most of their revenue to rightsholders. They simply cannot afford to lose
30% of their revenue to Apple, and if they simply up their subscription rates to
make up the difference, they risk becoming uncompetitive with Apple, whose own
music service does not have to pay 30% to a third party.
This conflict of interest applies in other areas, as well. Customers cannot buy
ebooks in the Kindle app on iOS, for instance, but they can in Apple’s own Books
app. Nor can Amazon direct users to the web, where they can purchase books which
then appear in the app. The popularity of the Kindle store relative to Apple’s ebook
store shows that many consumers are aware of how to get around Apple’s
restrictions, but certainly many are not. And Apple does not even compete in some
of the categories where its policies make it difficult to sell media purchases or
subscriptions, such as digital comics—even though it is increasingly entering new
categories, such as video streaming subscriptions. But even viewed from a consumer
protection rather than a competition perspective, Apple’s policies, at best,
inconvenience users for reasons that are less than compelling. It doesn’t even seem
likely that they even generate much revenue for Apple, at least not directly, since
many apps appear to simply lack in-app purchase functionality altogether rather
than paying Apple 30%.93
Apple adds to this issue by not even allowing Spotify, Amazon, or any other app
developer to provide a link to a web page for sign-up, or even explanatory text
describing how to do so. Apps that require some sort of subscription to work, but
that don’t use Apple’s in-app purchase system, are required to be black boxes: They
don’t work, and developers are not allowed to communicate to customers how to get
92 Daniel Ek, Consumers and Innovators Win on a Level Playing Field, SPOTIFY NEWSROOM (March
13, 2019), https://newsroom.spotify.com/2019-03-13/consumers-and-innovators-win-on-a-level-
playing-field.
93 Netflix used to have in-app purchases through Apple, but it stopped offering them to new
customers, though existing subscriptions continue to work. YouTube TV recently decided to cancel
all in-app iOS subscriptions, requiring users to re-subscribe through alternate means.
44
Tending the Garden
them to work. If the app even links to a web page for unrelated reasons (for
example, a privacy policy, or a password recovery form), and it is possible to tap on
a logo and be taken to the developer’s home page, where there is a sign-up form,
Apple, will reject the app. Customers might be able to figure out how to go to
Spotify’s website, or Netflix.com to sign up for a subscription, but it is easy to see
how this policy disadvantages smaller apps without the same level of brand
recognition.
Fortnite and the Google Play Store
Fortnite by Epic Games shows that it is difficult, even for popular apps, to
successfully bypass an app store, even when the platform makes it possible.
Specifically, on Android, to install Fortnite users used to be required to sideload—
download the app from a web page an install it—rather than installing it from the
Google Play Store.94 Epic Games did this because Fortnite’s entire business model is
charging users for optional in-app items, such as costumes for their characters,95
and it did not want to give Google 30% of each transaction. But the difficulty that
ordinary users had in sideloading software meant that Epic Games eventually had
to start offering the game in the Play Store regardless.96 These events show that
while sideloading remains an important way for certain kinds of apps to bypass app
stores, and can be extremely valuable in some cases, by itself it does not provide a
reason to avoid other scrutiny of app store policies.
Exclusive access to hardware features
A similar issue to a platform maintainer giving its own apps preferential treatment
is when it gives its own hardware accessories access to platform features
unavailable to other companies. For example, Apple’s AirPods and Beats
Headphones can not only set up and pair with Apple devices much more easily than
third-party headphones can, but they can be immediately used with any of a user’s
other Apple devices without cumbersome unpairing/repairing steps. As Nilay Patel
of The Verge has written, “There is literally no way for another headphone company
to compete with the advantages Apple gives itself[.]”97
94 John Callaham, Here’s How to Install Fortnite for Android, ANDROID AUTHORITY (April 17, 2020),
https://www.androidauthority.com/how-to-install-fortnite-for-android-894001.
95 Akhilesh Ganti, How Does Fortnite Make Money?, INVESTOPEDIA (March 27, 2020),
https://www.investopedia.com/tech/how-does-fortnite-make-money.
96 Nick Statt, Epic gives in to Google and Releases Fortnite on the Play Store, THE VERGE (April 21,
2020), https://www.theverge.com/2020/4/21/21229943/epic-games-fortnite-google-play-store-
available-third-party-software.
97 Nilay Patel, https://twitter.com/reckless/status/1188964589553143809?lang=en (October 28, 2019).
45
Tending the Garden
Tile, a company that makes hardware tracking tags, has similarly sounded the
alarm about Apple’s rumored competing product, which is likely to have access to
iPhone features that Tile cannot match.98
Preferential treatment of important apps
At times it can appear that preferred or important developers get treatment from
app stores not available to average developers.
For example, when Uber was caught not only violating Apple’s privacy policies, but
attempting to use location access to hide this behavior from Apple’s app reviewers,
instead of being kicked out of the App Store, Apple CEO Tim Cook called Uber CEO
Travis Kalanick and told him to change it.99 It is hard to believe that an app less
important to Apple’s platform would have gotten away with Uber’s behavior with a
scolding.
Some developers have noticed that the enforcement of rules against major
companies and app developers is less exacting than against smaller companies. For
example, The Information noted that “the rule that we couldn’t require users to
enter their email” applied to them, but not to Disney and the New York Times.100
A more recent example is Apple exempting Amazon for its in-app purchase rules for
some video content because it is a “premium subscription video entertainment
provider”—a category of provider that seems only previously to have included cable
services.101 This appears motivated by Apple’s desire for video services to support
Apple platform features like its video-aggregating TV app and AirPlay—but it
remains to be seen whether smaller video service providers will win the same
exemption from App Store rules as the major providers thus far covered.
Businesses cut special deals with preferred partners all the time, and certain apps
(such as Uber, Netflix, Facebook, or YouTube) may be so important to a platform
that they get more leeway than others, or at least more time to comply with rules
and more flexibility in their interpretation. It is even rumored that some of them
pay less than the 30% or 15% that Apple typically requires, though this has not
98 Adi Robertson, Sonos and Tile Execs Warn Congress that Amazon, Google, and Apple are Killing
Competition, THE VERGE (January 21, 2020), https://www.theverge.com/2020/1/21/21070812/sonos-
tile-basecamp-popsocket-congressional-hearing-amazon-google-apple-competition.
99 Andrew Liptak, Uber Tried to Fool Apple and Got Caught, The Verge (April 23, 2017),
https://www.theverge.com/2017/4/23/15399438/apple-uber-app-store-fingerprint-program-tim-cook-
travis-kalanick.
100 Jessica E. Lessin, Inside our Apple App Store Ordeal, (December 9, 2019),
https://www.linkedin.com/pulse/inside-our-apple-app-store-ordeal-jessica-e-lessin/.
101 John Gruber, Amazon and Apple Strike Deal for Prime Video In-App Purchases and
Subscriptions, DARING FIREBALL (April 2, 2020),
https://daringfireball.net/2020/04/amazon_apple_prime_video.
46
Tending the Garden
been publicly substantiated. If developers that did not get such treatment were able
to reach customers without having to go through the App Store, e.g. through
sideloading, this would be less of a competitive and fairness concern.
HKmap.live, and government pressure to censor
Last year, Apple removed an app called HKmap.live from the App Store in Hong
Kong. This app allowed people to track the location of police during the civil unrest
in Hong Kong. Apple attempted to argue that the app violated its policies, and
violated local law, but neither claim could withstand the barest of scrutiny.102 Yaqiu
Wang from Human Rights Watch stated that this app removal “is just the latest
incident of Apple caving to the Chinese government’s political pressure.”103
An even more recent incident involved Apple removing Pocket Casts and Castro,
third-party podcast clients, from its App Store in China.104 Podcast apps, like web
browsers, simply access content that is available on the open web. They do,
however, typically provide a directory of available podcasts. The makers of podcast
apps, like browser developers, are likely to resist efforts to require that they restrict
what content their users can access,105 either by blacklisting URLs of certain
podcasts or removing listings from their directory. But while independent app
developers may be willing to simply forgo the Chinese market rather than comply
with local laws they object to, large multinational companies like Apple are not
likely to make that decision.106 Indeed, instead of removing its own podcast app
from the App Store in China, Apple simply removes “objectionable” podcasts from
its directory in that country.
102 Maciej Ceglowski’s Twitter thread explains why. Maciej Ceglowski,
https://twitter.com/Pinboard/status/1182348757360234497 (October 10, 2019).
103 David Crawshaw and Reed Albergotti, Apple Pulls Police-Tracking App Used by Hong Kong
Protesters, WASHINGTON POST (October 10, 2019),
https://www.washingtonpost.com/world/asia_pacific/apple-pulls-police-tracking-app-used-by-hong-
kong-protesters/2019/10/10/4aad5ebe-eb14-11e9-a329-7378fbfa1b63_story.html.
104 Sam Byford, Apple Pulls Podcast Apps in China After Government Pressure, THE VERGE (June 11,
2010), https://www.theverge.com/2020/6/11/21287436/pocket-casts-castro-china-apple-government-
pressure. China is able to block the functionality of another major independent podcast app,
Overcast, without having the app removed from the store. Overcast,
https://twitter.com/OvercastFM/status/1271122252868784140 (June 11, 2020) (“Overcast’s servers
have been blocked in China for years, so it already didn’t work.”) Apple also has removed other
categories of app from its store in China, such as Virtual Private Network (VPN) apps that allow
users to bypass government internet restrictions.
105 While most podcast clients, including Apple’s, do not host podcasts themselves, some “podcast”
clients, such as Spotify, do not actually offer access to podcasts on the open internet, but host audio
files themselves in a proprietary system. Apps that choose to forgo the open internet in this way may
be required to make decisions about what content to actually host, and where to make it available.
106 Google did leave the Chinese market in 2010. That said, its business in China at the time was
marginal, and it has since explored ways to reenter the Chinese market in ways that are consistent
with the requirements of the Chinese authorities, via its now-terminated “Project Dragonfly.”
Wikipedia, “Project Dragonfly”, https://en.wikipedia.org/wiki/Dragonfly_(search_engine).
47
Tending the Garden
Again, there are solutions to this. It is not necessary to look to companies to disobey
what they view as unjust local laws, to ignore political pressure from local
governments or, except in extreme instances, to simply decline to do business in
certain countries at all. (Apple’s position in China of course is more precarious since
it not only sells billions of dollars of devices into the Chinese market, but depends
on Chinese manufacturing and supply chains for its global operations.) Rather, a
better approach is for companies to avoid putting themselves in a situation where
they even can prevent customers from installing an app if they choose. One
approach would be for Apple to outsource the operation of its services in countries
where it might be subject to local pressure or laws that may be objectionable from
its standpoint. But this is merely passing the buck. A better approach, to be
discussed below, will be the often-mentioned sideloading, which would allow users
to install apps without going through a centralized app store.
Apple, AT&T, and the FCC
When the iPhone was first released, it was available only on AT&T, in the United
States. Voice-calling apps were not, at first, permitted to use an iPhones mobile
connection—just WiFi. While the FCC generally has jurisdiction over phone carriers
like AT&T,107 it does not have direct authority over information services like the
iOS app store. However, it came out that Apple only had this restriction in place
under the terms of a secret agreement with AT&T,108 and AT&T released Apple
from this agreement after the FCC signaled its intention to subject wireless
networks to some form of net neutrality rules.109 This early app store controversy
shows how the gatekeeper control that app stores enable can be used in ways that
are contrary to the public interest, and even due to outside pressure on the platform
maintainer itself. Clear rules of the road can not only protect users from platform
maintainers but also from pressure put on platform maintainers from their
business partners.
107 Leaving aside how the FCC under Chairman Ajit Pai decided to abdicate authority over
broadband. See Lindsay Stern, Two Years Later, Broadband Providers Are Still Taking Advantage of
An Internet Without Net Neutrality Protections, PUBLIC KNOWLEDGE (December 20, 2019),
https://www.publicknowledge.org/blog/two-years-later-broadband-providers-are-still-taking-
advantage-of-an-internet-without-net-neutrality-protections.
108 Free Press, Press Release, AT&T-Apple Deny and Confirm Blocking VoIP, (August 21, 2009),
https://www.freepress.net/news/press-releases/att-apple-deny-and-confirm-blocking-voip.
109 Ryan Singel, AT&T Relents, Opens iPhone to Skype, VOIP, WIRED (October 6, 2019),
https://www.wired.com/2009/10/iphone-att-skype/. Any reasonable legal regime would not
distinguish between AT&T blocking a category of app at the network level, and it directing a third
party to block a category of app from being installed on a phone to begin with.
48
Tending the Garden
Moral censorship
Apple is frequently subject to charges of censorship, including moral censorship,
and it does apply strict standards to the App Store that are not applicable to its
other content stores, where it sells movies, books, and music that touch on or
feature the same subject matter that will get an app removed.110 In an earlier
version of its app store guidelines, Apple was forthright about this:
We view Apps different than books or songs, which we do not curate. If you
want to criticize a religion, write a book. If you want to describe sex, write a
book or a song, or create a medical app.111
Some examples of this kind of content-based censorship (sometimes reversed, with
the app put back after the developer makes some changes) include the removal of
an app that featured the political cartoons of a Pulitzer Prize-winning artist,112 a
game about dealing with the government in a dystopian society,113 an app that
provides news about U.S. drone strikes,114 and a strategy game about the Afghan
war.115 More recently, Apple removed all vaping apps from its store,116 including
apps that perform functions not possible on iOS without native iOS apps. As John
Gruber wrote:
The stuff about selling cartridges and sharing news — it’s fine for that stuff to
be out of the App Store because you can get it on the web. But Bluetooth stuff
where apps were used as the interface for controlling hardware — web apps
can’t do that (nor should they be able to). There is no alternative to a native
app, and native apps are only available on the App Store. This would be an
110 Jess Bolluyt, Why Does Apple Censor its App Store but not iTunes?, CHEATSHEET (April 26, 2016),
https://www.cheatsheet.com/gear-style/why-does-apple-censor-its-app-store-but-not-itunes.html/.
111 Leander Kahney, Here’s the Full Text of Apple’s New App Store Guidelines, CULT OF MAC
(September 9, 2010), https://www.cultofmac.com/58590/heres-the-full-text-of-apples-new-app-store-
guidelines/.
112 Ian Paul, Apple Rejects Pulitzer Prize Winner’s App, PC WORLD (April 16, 2010),
https://www.pcworld.com/article/194387/apple_rejects_pulitzer_prize_winners_app.html.
113 Kyle Orland, Apple Reverse Decisions, Allows Unedited Papers, Please on iPad, ARS TECHNICA
(December 12, 2014), https://arstechnica.com/gaming/2014/12/apple-forces-nude-immigrants-to-
cover-up-in-ipad-version-of-papers-please/.
114 Louise Matsakis, Apple’s Long History of Rejecting ‘Objectionable Content’ From the App Store,
MOTHERBOARD (July 17, 2017), https://www.vice.com/en_us/article/a3dwq8/apples-long-history-of-
rejecting-objectionable-content-from-the-app-store.
115 Charlie Hall, Afghanistan ‘11, Featuring US and Taliban forces, Removed from App Store,
POLYGON (December 6, 2018), https://www.polygon.com/2018/12/6/18128924/afghanistan-11-taliban-
app-store-removed.
116 Ina Fried, Mike Allen, Exclusive: Apple to Remove Vaping Apps from Store, AXIOS (November 15,
2019), https://www.axios.com/exclusive-apple-to-remove-vaping-apps-from-store-8669fd94-e92a-4ce4-
a9e2-ce5afa598b67.html.
49
Tending the Garden
easy call to make (and would have been made from the get-go by Apple) if
vaping were illegal. But it’s not illegal.117
There may be good reasons for consumers to criticize where Apple draws the line
when it comes to content decisions, and the apparent double standard between apps
and other media. At the same time, its decision to not host apps that feature
genuine hate speech or pornography raises fewer objections. But, as with politically-
motivated removals such as that of HKmap.live, sideloading is an escape valve.
Location data in iOS 13
Another example of where the privacy and security needs of users can come into
tension with free and open competition relates to how apps can access location
information on current versions of iOS. Previously any app could ask for permission
to access this information, and users would be presented with a dialog box where
users could allow the app to access location just once, while using the app, not to
allow it—or to always allow it.
However, it has become apparent that allowing apps to track users in the
background can have serious privacy implications,118 and that many apps that ask
for such access do not truly need it. Thus, Apple has changed iOS to make it more
difficult for apps to track users. Developers have complained—in open letters and to
Congress—that this, by itself, is anti-competitive. Some of the implementation
details—specifically that Apple does not subject itself to the same rules it applies to
outside developers—do have competitive effects that must be considered. But the
privacy of users is also a legitimate concern, and the interests of developers as a
whole should not take precedence over this, either.
Specifically, Apple has changed iOS so that apps cannot directly ask for always-on
tracking. Users can activate it on a per-app basis in system settings, but apps
themselves present a dialog box asking for location access for just one use, or while
the app is in the foreground. The system also periodically prompts users to confirm
their choice.
A number of app developers complained about this change, arguing that the new
feature would confuse users, who would not be able to figure out how to enable
location tracking, or understand why apps that require this functionality weren’t
working properly without it. Tile has argued that Apple requires users to re-confirm
their choice too often, and that Apple has promised to bring back some form of an
117 John Gruber, Apple is Removing All Vaping Apps from Its Store, DARING FIREBALL (November 18,
2019), https://daringfireball.net/linked/2019/11/18/app-store-vaping.
118 Jennifer Valentino-Devries, Natasha Singer, Michael H. Keller and Aaron Krolik, Your Apps
Know Where You Were Last Night, and They’re Not Keeping It Secret, NEW YORK TIMES (December
18, 2018), https://www.nytimes.com/interactive/2018/12/10/business/location-data-privacy-apps.html.
50
Tending the Garden
“Always Allow” prompt.119 One coalition of developers added, “The changes also
have the added effect of removing critical geolocation functionality while
simultaneously not applying to Apple’s own apps, some of which compete with the
products we develop.”120 This is because when built-in iPhone functionality requires
always-on tracking, Apple bypasses the app-based system of permissions entirely,
and gives users instead buttons in a system settings area, which are by default set
to allow tracking. For instance, Apple Maps does not even have an “always” option
for location services—the most that users can give it is “While Using the App.”
Nevertheless, Apple tracks users at all times and gathers location information in
the background on iPhones to improve Maps other services whether or not users
actually use Apple Maps, or an alternative like Waze. Thus, Apple gains telemetry
about traffic conditions—which improves Apple Maps—even from users who use a
competing app, or who are not using a mapping app at all. The setting that controls
this is found in the Settings app, under Privacy, then Location Services, then
System Services (which is at the bottom of a very long list, which is otherwise
alphabetical) and then, at the bottom of another long page of options, there is an
“Improve Maps” button which is by default set to “on.”
Certainly, some services require location access—such as “Emergency Calls and
SOS,” “Cell Network Search,” and “Setting Time Zone” that do not raise any
competitive implications, and having these services have access to location
information by default is beneficial. Even so, this thin wedge should probably not be
used as a justification for Apple to privilege any or all of its apps and services over
those of competitors, or to rule out ways to limit the competitive harm that
legitimate measures to improve user privacy and enhance device performance may
cause.
Parental control apps
It is possible to install something called “profiles” on iOS devices that add features
or functions not available to normal apps or that apply certain settings. One kind of
profile for “Mobile Device Management” was designed for companies that issue their
employees phones or otherwise need to have more centralized control over devices
than iPhones and iPads allow off-the-shelf. As Apple describes it, “MDM includes
updating software and device settings, monitoring compliance with organizational
policies, and remotely wiping or locking devices.”121
119 Diane Bartz, Tile Says Apple’s Behavior Is Anticompetitive And Has ‘Gotten Worse, Not Better,’
REUTERS (April 1, 2020), https://www.reuters.com/article/us-tech-antitrust-apple-tile/tile-says-
apples-behavior-is-anticompetitive-and-has-gotten-worse-not-better-idUSKBN21J72V?.
120 Juli Clover, App Developers Claim Apple’s iOS 13 Location Tracking Changes Are Anti-
Competitive, MACRUMORS (August 16, 2019), https://www.macrumors.com/2019/08/16/app-
developers-tracking-restrictions-ios-13.
121 Apple, Support: Mobile Device Management Settings, https://support.apple.com/guide/mdm/mdm-
overview-mdmbf9e668/web.
51
Tending the Garden
Third-party developers, however, realized that by using MDM profiles, they could
offer parents a similar level of control over their children’s devices. (As a technical
matter, the app developer would become the manager of the child’s phone and
would then provide tools for the parent to access and control it.) For example, using
such software, a parent might restrict whether and to whom a child can send
messages.
Apple, however, claimed that it felt that this was a misuse of MDM. It stated:
Over the last year, we became aware that several of these parental control
apps were using a highly invasive technology called Mobile Device
Management, or MDM. MDM gives a third party control and access over a
device and its most sensitive information including user location, app use,
email accounts, camera permissions, and browsing history. We started
exploring this use of MDM by non-enterprise developers back in early 2017
and updated our guidelines based on that work in mid-2017.122
However Apple’s timing raised eyebrows, as after seemingly tacitly tolerating apps
that make these kinds of uses of MDM profiles on the App Store for some time, it
began cracking down on them only after it rolled out its “Screen Time” feature,
which offers similar functionality to many parental control apps.123 Developers of
such apps banded together to ask Apple to reverse course,124 which Apple
eventually did.125
These profile features raise several very nuanced issues. The fact is that MDM
profiles can be a privacy and security risk if misused. MDM profiles are sometimes
used by malicious actors to spy on people, and even by “stalkerware,” which is
software that is like parental control apps but that is used, for instance, by abusive
spouses to track their partner’s whereabouts and read their communications.126
122 Andrew Liptak, Apple Explains Why It’s Cracking Down on Third-Party Screen Time and
Parental Control Apps, THE VERGE (April 28, 2019),
https://www.theverge.com/2019/4/27/18519888/apple-screen-time-app-tracking-parental-controls-
report.
123 Jack Nicas, Apple Cracks Down on Apps That Fight iPhone Addiction, NEW YORK TIMES (April 27,
2019), https://www.nytimes.com/2019/04/27/technology/apple-screen-time-trackers.html.
124 Dieter Bohn, Parental Control App Developers Band Together to Demand an API from Apple, THE
VERGE (May 30, 2019), https://www.theverge.com/2019/5/30/18646601/parental-control-app-
developers-band-together-to-demand-an-api-from-apple.
125 Sean Hollister, After Outcry, Apple Carves Out Room for Rival Parental Control Apps to Exist,
THE VERGE (June 4, 2019), https://www.theverge.com/2019/6/4/18653142/apple-mdm-parental-
control-screen-time-app-store-guidelines-update.
126 Charles Osborne, Apple Reveals Why App Store Parental Control App Crackdown Took Place,
ZDNET (April 29, 2019), https://www.zdnet.com/article/apple-refutes-anti-competitive-parent-control-
app-claims-says-removal-was-for-security-user-privacy.
52
Tending the Garden
Additionally, Apple’s competitive motives are not as straightforward as it might
appear, because Apple does not actually sell Screen Time—it’s included for free with
iOS.127 Rather, it seems like Apple chose to allow apps that may have technically
violated the terms of the App Store until it was able to offer alternatives—a bait
and switch that puts developer’s livelihoods at risk, even if it did not have a
straightforward financial motivation in terms of generating new sales of its own
apps.
Apple’s approach was essentially to continue to allow third-party MDM use for
settings such as parental control apps, but to pledge to monitor them carefully. This
solution though expedient at the time is not ideal, and there may be better
solutions, as discussed below.
Solutions
This paper does not argue against the existence of app stores or controlled software
platforms in service of some vision of openness, freedom and creativity. The benefits
that app stores and controlled platforms create in terms of user trust, security, and
privacy mean that the risks from gatekeeper controls they give to platform
maintainers are worth tolerating. However, in the case of dominant platforms,
certain policy changes can reduce those risks and benefit users and developers,
without significantly undermining either the security and integrity of the platform,
or the app store, nor a platform maintainer’s incentive to invest in and maintain the
store. Many of the solutions discussed here have already been hinted at above or
follow straightforwardly from the descriptions of the problems they are intended to
address.128
Sideloading
It is possible to preserve the benefits of a controlled app store without making it the
only way to install software on devices. Alternate ways of installing software on
devices would allow users to access software that is not available on an app store
127 You could say that Apple was attempting to entice people with older phones to upgrade to iPhones
that support the version of iOS that includes Screen Time, rather than continuing to use older
phones that may work with third-party parental control apps. This motivation cannot be discounted
but is likely not what drove Apple’s decision.
128 As this paper was being finalized, Astropad, a company that sells software that allows iPads to be
used as an external display on Macs, a feature which Apple itself now offers, published a blog post
with recommendations that in some ways mirror the ones in this section. It calls for users to be able
to set default app preferences, to open up alternate in-app payment options, to allow sideloading, to
give third-party developers better equal access to APIs, and to “stop sherlocking third-party
developers.” Savanah Reising, Dear Apple: Here’s How to Stop the Antitrust Investigations (June 16,
2020), ASTRO BLOG, https://astropad.com/dear-apple. However, as mentioned earlier, while being
Sherlocked is not a pleasant experience for developers, this paper calls for guardrails to ensure fair
competition, not an outright ban on platforms integrating new features into their core system.
53
Tending the Garden
due to content reasons, government censorship (e.g., podcast and VPN apps in
China), or simply because the developer’s business model is not a good fit with the
app store.
Before the advent of app stores, “sideloading” is how all software was installed on
computing devices—through installation disks, web downloads, and the like. On
many platforms like Windows and macOS, it remains the predominant method of
installing native software. However, for devices where the primary way of installing
software is through app stores, these “old-fashioned” ways of installing software go
by the name of “sideloading,” coined by analogy to “uploading” and
“downloading.”129 Sideloaded software may be installed any number of ways—via
physical media, an internet download, “package managers” of the sort that are
popular on Linux, like RPM and APT, or from another device (e.g., a phone
connected to a PC via USB). The question isn’t whether sideloading is possible or
the best way to do it—it’s how to preserve the security and curation benefits of app
stores, and to preserve the incentives of platform owners to invest in their app
stores, while still giving users and developers more freedom than a fully locked-
down platform allows. A few real-world examples of how sideloading works on
existing platforms will provide context for the recommendations to follow:
• Windows. Windows is a typical “open” platform where the distribution and
installation of software was completely decentralized. In recent years, app
store models have been introduced to varying degrees of success, however.
Interestingly, third-party game stores, such as Steam, have been much more
successful than Microsoft’s own app store (which is simply called “Microsoft
Store”). There are many reasons for this, including the kinds of apps that
Microsoft allowed in the store in the first place Though the driving reason for
the slow uptake of the Microsoft Store is probably (1) user habits, and (2)
developers being unwilling to give Microsoft a cut of the sales of paid apps
unless there was a truly compelling reason to do so, which the Microsoft Store
does not provide.
• macOS. On the Mac, whose operating system has been variously named
System Software, then Mac OS, then Mac OS X, and now macOS, has a
similar historical situation as Windows. Users traditionally installed
software from discs and internet downloads, and user and developer habits
are hard to change. Apple, after its experience with iOS Apple also rolled out
its own Mac App Store, and introduced new security features that apply for
apps installed from outside the store, as well. Its “Gatekeeper” feature
encourages apps to be code-signed, and certain features that at first were
restricted to Mac App Store apps (such as iCloud connectivity) are now
available to all signed apps. At the same time, the Mac still allows users to
129Wikipedia, Sideloading, https://en.wikipedia.org/wiki/Sideloading#Historical. “Sideloading” is a
form of “retronym,” like “acoustic guitar” or “dumbphone”—a new term needed to specify what used
to be the default.
54
Tending the Garden
run unsigned apps—though they may have to click a checkbox in System
Preferences, or right/two-finger click on an unsigned app and select “Open”
the first time it is launched.130
• Android. Android has allowed sideloaded apps from the beginning, and it has
received some usage, as the Fortnite situation discussed above demonstrates.
However, sideloaded apps have no code-signing requirements, which is a
potential security problem.
This paper has had to provide a lot of context and detail to get to specific, fairly
straightforward suggestions, which are discussed below.
All general-purpose consumer computing devices should allow sideloading.
Many of the problems that app stores create become problems worthy of a policy
response only because of their gatekeeper status—there is no way to install
software onto a device except through the app store. While perhaps it may make
sense to limit any actual legal or regulatory requirements in this regard to
dominant platforms, giving users and developers the flexibility to make the most of
their devices is sensible across the board.
This is not to say that all “computers” should have this capacity. While a few
enthusiasts may desire exactly that, there is no pressing general user or developer
need to allow people to install “apps” on their smart thermostats or alarm clocks.
While limited-purpose devices such as these, or even gaming-specific devices, may
improve by being more open, they do not rise to the level of public concern as
dominant, general-purpose computing platforms.131
Allowing sideloading is not the only change that dominant platforms should make,
nor—as we’ve seen with Android—does sideloading necessarily reduce the
importance and potential abuse of a platform’s default app store. Additionally, code-
signing, automated malware checks, and even placing more stringent sandboxing
restrictions on sideloading will still likely not provide the same security guarantees
as app store reviews and will do not replicate the other curatorial functions that app
130 Several years ago, there was an interesting exchange between James Grimmelman and Jonathan
Zittrain. Zittrain has been a critic of locked-down computing models and characterized the Mac App
Store and its sandboxing requirements as the beginning of the end for the openness of the Mac
platform. However, this model—where a single device has both a “safe” way to install software and a
more open space—was called for a few years before by Zittrain himself. James Grimmelmann,
Zittrain vs. Zittrain, THE LABORATORIUM (November 9, 2011),
http://laboratorium.net/archive/2011/11/09/zittrain_vs_zittrain.
131 Though there may even be good reason for game console platforms to allow certain sideloaded
apps at a minimum, such as student or hobbyist programming projects. Additionally, consumer
devices should not use software locks or contractual restrictions to limit repairs or resale, so even in
that context, some level of openness is desirable.
55
Tending the Garden
stores perform, such as ensuring that software is useful, accessible, or even non-
deceptive.
With these caveats, one can at least think of sideloading as an escape valve—
available on an opt-in basis to users, for apps and situations where distribution
through the app store or more formal channels is impossible or impractical. Finally,
it is worth noting that a dominant platform itself can benefit from sideloading. Not
only is a platform more valuable when users and developers are free to use the apps
of their choice, the slight lessening of gatekeeper control that sideloading affords
takes away some of the impetus to either use antitrust or common carrier-type
regulation of app stores as a means of preserving user choice and developer access.
Mainstream devices should require code-signing of sideloaded apps
Many of the security benefits of app stores come from code-signing, the security
technique that allows users to be sure that an app is from whom it purports to be
from and has not been modified. (A more exacting form of code-signing is app
notarization, where apps are first scanned by the platform provider before they can
be signed.) As discussed above, Macs and Windows PCs traditionally do not require
code-signing, though Macs encourage it. Android does not require it for sideloaded
apps. However, requiring132 code-signing is not just a good idea for platforms in
general, it precisely addresses the specific potential shortcomings of allowing
software to bypass an app store.
There should be multiple code-signing authorities
Code-signing does, however, reinforce the power of the platform in the sense that
certificates still must be issued by some central authority—typically, the platform.
To sign an app, a developer must be a registered Apple developer, and pay an
annual fee. However, it doesn’t have be this way. For example, on the web, multiple
certificate authorities can provide the necessary authentication for encrypted
websites.133 A platform vendor does not have to be the only central authority
allowing users to install apps and developers to sign them. Apple, for instance,
could work with different organizations in the United States and around the world
and design its devices to allow apps signed by them, as well. For example, a
nonprofit organization like Mozilla might be able to issue certificates to some
developers allowing them to sign apps,134 or a government might allow its own apps
to be signed under its own authority. Each one of these authorities could become a
132 At least by default. Devices could have a “developer” mode that allows self-signed or unsigned
apps, provided it is not something that unscrupulous malware developers could somehow trick users
into enabling.
133 Wikipedia, Certificate Authority, https://en.wikipedia.org/wiki/Certificate_authority.
134 The suggestion is not that Mozilla or some other organization allows apps to be signed with its
credentials, but rather that it has the same power to issue new credentials as Apple.
56
Tending the Garden
chokepoint, and ultimately the platform vendor retains the power to decide which
different code-signing authorities to recognize, and under what terms. However,
diffusing power in this way can curtail abuse and, while not perfect, may be
preferable to a system where a single entity decides what apps can be installed on
user devices worldwide.
In-app purchase requirements should be limited to app functionality
The competitive issues with certain in-app payment rules have been discussed at
length above. Provided sideloading is available as an option to allow developers
with good reason to bypass the platform’s default app store entirely, it is not
objectionable for platform maintainers to require that developers use an in-app
purchase system for legitimate app functionality—that is, application features that
could have been offered as a single up-front purchase, but are made available via in-
app purchase instead. In-app purchases of this kind can be a means of facilitating
free trials or tiered functionality, and do not raise the same competitive concerns,
and requiring the use of an in-app payment system in this narrow case may prevent
app stores from simply hosting “free” apps that require that users enter a credit
card to begin using.
However, extending the requirement beyond that to other kinds of purchases, like
those of ebooks, media subscriptions, in-game items, or cloud services crosses the
line from ensuring the sustainability of the app store to taking a cut of someone
else’s business merely because it is possible. (And from a customer perspective, it
makes no sense that ebooks and physical books should be treated differently.)
In-app purchases policies also can result in “reader” apps that offer no in-app
purchase functionality at all, which benefits no one. How does Apple benefit from
Amazon being unable to sell Kindle books directly in the Kindle app? More recently,
Apple has started to require that some apps offer in-app functionality when the app
developer has made the business decision not to—not even permitting them to
function as “reader” apps. This is analogous to a broadband provider deciding to
block access to an app store unless it gets a cut of the store’s total revenue. In short,
it is rent-seeking behavior, not a means of ensuring the viability of the app store or
protecting consumers.
With dominant platforms, there can be broad anticompetitive and anti-consumer
effects from policies like this. Platform maintainers should therefore limit their in-
app purchase rules to application features and functions that could otherwise have
been offered via an up-front purchase, not to digital media, in-game items,
57
Tending the Garden
subscriptions, or cloud services more broadly, and should never require that in-app
purchases be used.135
Developers should be able to truthfully communicate with their customers
App developers should be able, in their app, to provide truthful and accurate
information to their users. The main reason that developers currently find
themselves prevented from communicating with their users—telling them how to
make purchases outside the app—may perhaps be obviated if the other
recommendations in this paper are followed. Nevertheless, there are times when a
developer may want to inform customers about features available on other
platforms, for example, or deals available if cloud subscriptions or other products
and services are purchased elsewhere. As a general matter, developers should be
free to inform their customers of these options.
It is a good thing, of course, when platform maintainers seek to protect their users’
privacy. For example, by preventing apps from requiring that users turn over
unnecessary personal information before using an app, or by requiring that apps
offer privacy-protecting login options where feasible.136 At the same time,
developers should not be restricted from establishing a direct customer relationship
with their users through the app. And, when developers do so, platform maintainers
should not be in a position to tell developers exactly what they can say through
those relationships.
Allow users to set and change defaults
Consumers expect devices to come with a certain number of pre-installed apps. A
device without a web browser is broken. A device without a camera app, or an email
client, similarly so. However, there is no reason for users to be locked into system
default apps. Just as on desktop operating systems, users should be able to change
their default browser, email client, camera app, and so on. Changing defaults does
not just entail changing the apps that respond to certain URL schemes, such as
mailto:// for email and http:// for the web. It also includes all the ways that an
operating system may default to certain apps—notes and music in a voice assistant,
and other touchpoints for an app throughout the system, such as embedded music
players, web views, mail sheets, and so on. Changing defaults does not eliminate
the advantage of being a default or the privilege that a platform’s first-party apps
get, but it does offer some breathing room for developers while enabling a greater
degree of user customization.
135 This applies to cloud subscriptions such as Office 365 or Dropbox storage, to digital media
subscriptions like Netflix and Spotify, and to digital purchases such as music from Bandcamp, or in-
game items. It should also apply to apps that use a subscription model merely as a form of optional
patronage, or to access app features, or to remove ads, on an ongoing basis, as recurring payments of
this kind could not have been initially offered as a single, up-front purchase.
136 E.g., Sign in with Apple, https://support.apple.com/en-us/HT210318.
58
Tending the Garden
Limit preinstalled apps to essentials
While devices need to have some set of preinstalled apps, this does not mean that a
dominant platform maintainer should be free to integrate just any of its apps and
services into a device. As discussed above, default and preinstalled apps have a
significant advantage over competing alternatives, even if an interested user can
find and install third-party alternatives from the app store. There is no reasonable
way to avoid this when it comes to apps that offer basic system functionality, such
as taking photos or sending text messages. Additionally, as discussed above,
platforms should not be prevented from improving their core product or expanding
its functionality in reasonable ways, which is why this paper does not call for a
complete ban on “sherlocking.”
That said, it should not be fair game for a dominant platform maintainer to bundle
any and every app it chooses or to merely assert that a first-party app is part of the
“system.” At a minimum, services that require an additional subscription, such as
cloud storage or music or video streaming services, should not be given any specific
preference over alternatives, including being preinstalled on a device.
It may be a judgment call as to exactly which apps a consumer expects to be a basic
function of a device, and which should not. It may even change over time. But
merely allowing consumers the ability to change defaults and install alternatives
should not give a platform vendor free reign to engage in other forms of self-
preferencing.
App store search transparency
Preinstalling apps on devices is not the only way that platform maintainers can give
their own apps an advantage. The search feature of app stores—searching for app
names, or for categories of app—is one of the primary ways that users discover
apps. While the curatorial functions of an app store are inherently subjective, users
have a reasonable expectation that search results are based on objective criteria.
But without knowing what those criteria are, it is difficult to know whether poor
app store results are the result of poor design, unscrupulous developers finding
ways to game the system, or deliberate preferencing of apps from particular
developers, including the platform itself. App stores should therefore make the
ranking criteria for the app store search engine public, as well as provide a means
for developers to register problems with search results (such as searches for the
59
Tending the Garden
exact name of an app not yielding results137) or when search results of particular
terms are overwhelmed by apps manipulating keywords.138
Platforms should avoid using competitors’ proprietary data to compete
with them
As discussed above, platforms often introduce apps or features that compete with,
or replace, offerings from third parties. In some cases, this can be anticompetitive.
As a general rule, however, platforms should refrain from using the data that they
have privileged access to for competitive purposes. App stores necessarily know how
many times an app is downloaded and by whom. Operating systems often report
usage metrics, which can be important for security and performance reasons. (For
example, if an operating system bug is causing certain apps to crash more
frequently, it is good if the platform maintainer is made aware of this so that it can
fix the problem.)
However, to the extent that platform maintainers have access to proprietary, non-
public information about third-party apps, they should generally avoid using this
data in making their own choices about what products to develop, or what features
to implement. Restrictions on the use of data of this kind (along with restrictions on
bundling) can help limit unfair competition without altogether preventing platforms
from competing in general. It can also allow platforms to continue improving core
features without making it too risky for outside developers to deliver their own
system improvements.139
Proactively offer secure APIs to for third-party developers for major new
features
Platform owners have found that it is possible to give third-party developers greater
power and access to more device features and user data in secure ways when it is in
their interest to do so. To give an example: Android has allowed third-party
replacements for the system software keyboard since version 1.5, in 2009.140 This
permits device manufacturers or users to have a different software keyboard appear
whenever text entry is needed. Different keyboards can offer custom layouts and
137 Complaints of this kind are numerous among developers. See discussion at the Apple Developer
forums, “App Store search of exact app and company name returns no results,”
https://forums.developer.apple.com/thread/94204.
138 See David Bernard, https://twitter.com/drbarnard/status/1171382087670280192 (September 10,
2019), for one example of this.
139 Public Knowledge has broader recommendations on these points in Harold Feld, THE CASE FOR
THE DIGITAL PLATFORM ACT, (May 2019),
https://www.publicknowledge.org/assets/uploads/documents/Case_for_the_Digital_Platform_Act_Har
old_Feld_2019.pdf.
140 Wikipedia, Android Version History, https://en.wikipedia.org/wiki/Android_version_history.
60
Tending the Garden
autocorrect systems, and ultimately were the first to introduce features like swipe
typing. By contrast, Apple did not introduce third-party keyboard support until iOS
version 8.
There are several issues to consider regarding this feature, which shed light on
ways that platforms can offer developers enhanced functionality in other contexts.
The details will always be different, though common themes emerge.
First, keyboards are not regular apps. A user does not switch from Twitter to Google
Maps to a keyboard. Instead, keyboards are a system-level feature and, once
installed, are invoked in any number of apps. Platform maintainers need to develop
the functionality to allow apps that work this way to be installed and managed.
Keyboards also raise security and privacy concerns—and here, Apple has
introduced privacy features that Android has not. For instance, any time that iOS
recognizes that a user is entering a password, it defaults to the system keyboard.
This removes the possibility entirely of a third-party keyboard recording a user’s
password and perhaps sending it over the internet for some unscrupulous use.
Additionally, third-party keyboards by default do not have what Apple calls “full
access,” which means they cannot connect to the network at all. Users can override
this default, and may want to in the case of keyboards that rely on machine
learning in the cloud to provide users with smart autocorrect or suggestions, or
simply to update their dictionaries with new words without the need for a full app
update. But in the case of a keyboard that offers only, for example, a better
interface for selecting emoji, there may be no reason at all for a user to allow the
app to communicate with some remote servers. In short, although it took Apple
much longer to offer a feature than Google, when it did offer it, it baked in
protections that either Google did not think were necessary or did not think of at
all.
Similar considerations could allow a platform to continue offering third-party
developers the ability to reach consumers with their products, and even compete
with the platform maintainer itself, while still protecting user security. For
instance, as discussed earlier, Apple continually gathers location information to
improve its services by default. This policy makes its decision to make it more
difficult for users to grant similar permissions to third-party apps potentially
anticompetitive in effect, if not intent. Apple claims that the data it collects “to
improve navigation, such as routes and search terms, is not associated with your
identity. Instead, that information is based on random identifiers that are
constantly changing,”141 and has even claimed that “your route from A to B is
fragmented into scrambled sections on Apple servers because nobody else should
know your entire route. Not even us. In fact, we don’t even know who requests a
141 Apple, Privacy, https://www.apple.com/uk/privacy.
61
Tending the Garden
route.”142 If this is true, then Apple should share this private data that only it can
easily collect with other apps on a user’s phone. This data might not entirely replace
the kinds of location tracking that developers might want to engage in, but, by
offering, at a minimum, the data that it collects would offset competitive harm
without threatening user privacy.
Similarly, Apple should allow third-party headphone manufacturers to access the
same ability to sync their pairing status across devices,143 so that users can use the
same headphones with multiple devices without tedious pairing/unpairing/repairing
steps, and allow third-parties to access the iPhone’s new ultra-wideband chip and
features to ensure that things like Apple’s rumored item-tracking tiles do not have
an insuperable advantage over market leaders like Tile.144
This approach—engineering APIs and solutions to ensure that third parties can
offer functionality either not permitted by or that simply does not fit in the
standard model of an app used, and then quit, requires work from the platform
maintainer. However, dominant platforms have special obligations to ensure they
do not unreasonably interfere with competition.
Obligation to allow archiving / emulation of older system versions
Fundamentally, problems of software preservation and research should be solved
through changes to copyright law that recognizes copying, modifying, and
distributing copies of software, as well as circumventing copy and access control
techniques, as lawful when done for lawful purposes, such as research,
preservation, and in some cases public access. However, changes such as these are
out of the scope of this paper. Platform maintainers can help the effort, though, by
providing technical data and source code for operating system versions, apps, and
even device information145 for products that are no longer commercially viable, but
remain of interest to professionals, archivists, and even enthusiasts. With older
projects, the same security and privacy measures that can, as an unintended
142 Christian Zebrig, How Apple Maps Protects Your Privacy When Navigating, IDOWNLOADBLOG
(March 13, 2019), https://www.idownloadblog.com/2019/03/13/apple-maps-navigation-privacy.
143 As Nilay Patel of The Verge has noted, “There is literally no way for another headphone company
to compete with the advantages Apple gives itself.” Nilay Patel,
https://twitter.com/reckless/status/1188970777917448192 (October 28, 2019).
144 Chance Miller, Everything We Know So Far About Apple’s Tile-Like ‘AirTag’ Item Trackers,
9TO5MAC (February 22, 2020), https://9to5mac.com/2020/02/22/apple-airtags-features-release.
145 In the long term, the only way to continue to access older software is through software emulation
or through specialized devices like field-programmable gate array (FGPA), e.g. the MIST 1.4 MIDI
FGPA computer, AMIGAstore.eu, https://amigastore.eu/en/358-mist-midi-fpga-computer-with-midi-
add-on.html, not continuing to maintain older devices. This requires that developers be able to
accurately and completely implement device features in software, an effort greatly assisted by first-
party technical information.
62
Tending the Garden
consequence, restrict worthy efforts like these have simply outlived their usefulness
and should be possible to disable.
Allow users to transfer and merge accounts
The restrictions on software resale and transfer that app stores have brought about
are a consumer rights problem that may require some fundamental changes to
copyright law, as most media is no longer distributed via unique physical copies to
which traditional notions of ownership (which is distinct from the ownership of
intellectual property itself) apply to.
However, app stores can make it easier for consumers to exercise rights similar to
those they traditionally enjoyed with physical property by 1) expressly allowing
users to transfer the ownership of user accounts (with all their associated
purchases, data, and subscriptions), and 2) allowing users to merge accounts, so
that the digital assets of one account can be easily added to another.
The first issue may be less of a practical problem today than it may seem, because
while the terms of service of typically forbid account transfer, all it takes in
practical terms is handing over a username and password. While doing this may be
helpful at times—for example, a person can leave their user name and password in
a will to allow their children to access and download their photos and documents
after they pass away—there is generally no clean way to add purchased content
from one account to another. Since it is typically not possible, or at best extremely
cumbersome, to use more than one account with a device at a time, this makes it all
but impossible for a person to transfer, bequeath, or sell digital purchases. A parent
can leave a library of books, records, and even software (that is on physical media)
to their children-—there is no reason why these basic rights of alienability and
ownership should cease to exist in practical terms merely because of technological
changes.
Thus, while full “digital first sale” consumer rights may be a matter for legislation,
dominant app stores can at least more easily facilitate digital transfers through
formally allowing account transfers and create account merger capabilities. This
does not mean that they have to allow piecemeal digital first sale of individual apps
or media purchases or even acknowledge that consumers do in fact “own” what they
have purchased. It simply means that, whatever rights consumers do have with
respect to a particular user account, should be transferrable in a practical,
authorized way.146 This will help users regain some of the traditional ownership
rights they enjoyed, by default, with physical media.
Jason Mazzone has argued for a similar policy. COPYFRAUD AND OTHER ABUSES OF INTELLECTUAL
146
PROPERTY LAW 135 (2011).
63
Tending the Garden
Due process for developers
Public Knowledge has elsewhere argued that dominant platforms, in general,
should offer their users due process.147 This well-developed legal principle can
ensure that rules are being applied fairly, and that mistakes—which are
inevitable—can be corrected. In the case of a dominant app store, the right to due
process would rest with developers who need to access the store to reach customers
or an audience. Due process can ensure that small developers are treated as fairly
as large ones, that outcomes are predictable, that precedent is followed, and that
different people handling disputes within an organization do not come to arbitrarily
different conclusions.
Among other things, due process includes notice of a proposed action and grounds
asserted for it, the right to be heard by an unbiased decision-maker, an opportunity
to present reasons for the proposed action not to be taken, the right to present
evidence, the right to know the opposing evidence, the right to a decision based only
on the evidence presented, and the right to written findings of fact including the
basis for a decision. While platform maintainers typically have minimal appeal
processes (and Apple has recently introduced a mechanism for developers to
challenge rules themselves, and not just their application), they generally fall short
of the full array of procedural safeguards that full due process rights provide.148
Due process can appear different in different situations, and platforms must build
in safeguards against abuse, and ways to dispense with trivial disputes.
Establishing procedures of this kind can help developers dealing with platforms feel
less like they’re talking to a black box and can help create both the reality and sense
of fairer outcomes.
Greater business model flexibility
The structure of app stores (and retailers in general) always places constraints on
how sellers can do business.149 In many ways, app stores offer more flexibility than
traditional retailers do. For example, Apple currently allows app bundles, and both
Apple and Google permit sharing of purchases within families, as well as offering
in-app purchases and upgrades, as well as subscription plans.
147 John Bergmayer, EVEN UNDER KIND MASTERS (2018),
https://www.publicknowledge.org/assets/uploads/blog/Even_Under_Kind_Masters.pdf.
148 Apple, Press Release, Apple Reveals New Developer Technologies To Foster The Next Generation
of Apps (June 22, 2020), https://www.apple.com/newsroom/2020/06/apple-reveals-new-developer-
technologies-to-foster-the-next-generation-of-apps (“[D]evelopers will not only be able to appeal
decisions about whether an app violates a given guideline of the App Store Review Guidelines, but
will also have a mechanism to challenge the guideline itself.”).
149 One example is how Apple’s app store requires that apps be listed at certain prices—$29.99, for
example, not $30. Jessica E. Lessin, Inside Our App Store Ordeal, (December 9, 2019),
https://www.linkedin.com/pulse/inside-our-apple-app-store-ordeal-jessica-e-lessin.
64
Tending the Garden
A simple pricing model for app stores may have made sense early on. However,
these examples show that app stores have already moved beyond the approach of
just having apps be free, or available with a single up-front purchase. Innovation is
fine—subscriptions and in-app purchases have enabled business models and
categories of apps that did not exist before and have made some apps more
accessible to users. (For example, an Office 365 or Adobe Creative Cloud
subscription, that can be cancelled at any time, can be more accessible to ordinary
users than an upfront purchase of hundreds of dollars.) But some tried-and-true
software pricing models are tried-and-true for a reason. Upgrade pricing benefits
developers by giving them a recurring source of revenue (and keeping customers
loyal, if upgrade pricing is cheaper than switching to a competing app), and users,
by giving them a discount compared with buying a license up front, and by
presenting them with the option, not the requirement, of paying to upgrade. (Many
users happily continue using old versions of software for as long as they work or
skip a few cycles of upgrades. This is not possible with subscriptions, or with
software that automatically upgrades without user choice.). Free trials allow users
to see if they really want software before paying for it, without necessitating
convoluted in-app purchases schemes. This gives developers the opportunity to
prove to customers why apps with a higher price might nevertheless be worthwhile.
Mature app stores should add them as options.
Conclusion
App stores do not signal the end of the open, competitive world of computing that
has brought users so much, and created so many benefits for developers, since
personal computing first took off in the late 1970s and eventually supercharged by
the advent of smartphones. Instead, app stores and related platform technologies
help address many of the problems that have accompanied the rise of these
fantastically capable devices, guarding consumers against viruses and malware,
and protecting their security and privacy. But, the immense power these
technologies give platform maintainers can be used to enhance and fortify the
platform maintainers’ market power and its bottom line, in addition to protecting
users. This paper’s recommendations are designed to ensure that app stores
continue to serve their pro-user purpose, and can continue to be sustainable
businesses for platform maintainers, by creating more flexibility and safeguards for
users and independent developers without giving up important security protections.