SUPREME COURT COULD AL­LOW SUIT OVER AP­PLE iPHONE APPS’ SALES

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The Supreme Court seemed ready to al­low an an­titrust law­suit to go for­ward that claims Ap­ple has un­fairly mo­nop­o­lized the mar­ket for the sale of iPhone apps.

Ap­ple faced skep­ti­cal ques­tions from jus­tices who seemed con­cerned about the con­trol the Cu­per­tino, Cal­i­for­nia-based com­pany ex­erts over iPhone users who must pur­chase soft­ware for their smart­phones ex­clu­sively through its App Store.

The ar­gu­ments dealt with the fruits of tech­nol­ogy that, over the past 10 years, have made more than 2 mil­lion apps avail­able to iPhone users, but in the court­room there were also ref­er­ences to older an­titrust cases in­volv­ing con­crete, alu­minum, nat­u­ral gas and shoes.

The suit by iPhone users could force Ap­ple to cut the 30 per­cent com­mis­sion it charges soft­ware de­vel­op­ers whose apps are sold through the App Store. A judge could triple the com­pen­sa­tion to con­sumers un­der an­titrust law if Ap­ple ul­ti­mately loses the suit.

But the is­sue be­fore the high court at this early stage of the suit is whether the case can pro­ceed at all. Jus­tice Stephen Breyer, who used to teach an­titrust law at Har­vard Law School, said the con­sumers’ case seemed straight­for­ward and in line with a cen­tury of an­titrust law.

Ap­ple ar­gues it’s merely a pipe­line be­tween app de­vel­op­ers and con­sumers, and that iPhone users have no claims against Ap­ple un­der fed­eral laws that pro­hibit un­fair con­trol of a mar­ket.

Tens of thou­sands of soft­ware de­vel­op­ers set the prices and agree to pay Ap­ple a 30 per­cent com­mis­sion on what­ever they sell, the lawyer rep­re­sent­ing Ap­ple said in the court­room.

If any­one should be able to sue Ap­ple, it’s a de­vel­oper, Daniel Wall said. “There have been plenty of dis­putes, but none has ever gone to lit­i­ga­tion,” he said.

Chief Jus­tice John Roberts was alone among the nine jus­tices who seemed pre­pared to agree with Ap­ple.

Among the jus­tices who ap­peared to be on the other side, Jus­tice Elena Ka­gan said con­sumers ap­pear to have a di­rect re­la­tion­ship with Ap­ple. “I pick up my iPhone. I go to Ap­ple’s App Store. I pay Ap­ple di­rectly with credit card in­for­ma­tion that I’ve sup­plied to Ap­ple. From my per­spec­tive, I’ve just en­gaged in a one-step trans­ac­tion with Ap­ple,” Ka­gan said.

Jus­tice Brett Ka­vanaugh said if con­sumers are pay­ing more than they should, then per­haps they should be able to sue. The rel­e­vant fed­eral an­titrust law says “any per­son in­jured” can sue, Ka­vanaugh said.

His com­ments could align him with jus­tices who would al­low the suit to pro­ceed. In other cases, the

court has ruled there must be a di­rect re­la­tion­ship be­tween the seller and a party com­plain­ing about un­fair, anti-com­pet­i­tive pric­ing.

Con­sumers can choose from among more than 2 mil­lion apps, com­pared with the 500 apps that were avail­able when Ap­ple cre­ated the App Store in 2008. “The phrase ‘there’s an app for that’ is now part of the pop­u­lar lex­i­con,” Roberts noted in a 2014 de­ci­sion lim­it­ing war­rant­less searches of cell­phones by po­lice. Ap­ple has trade­marked the phrase.

But the com­pany says the pop­u­lar­ity of soft­ware for iPhones and its App Store shouldn’t ob­scure that con­sumers buys apps from de­vel­op­ers, not Ap­ple. De­vel­op­ers set the prices, though Ap­ple re­quires prices to end in .99, Wall said. The Trump ad­min­is­tra­tion is back­ing Ap­ple at the high court.

Rep­re­sent­ing con­sumers, lawyer David Fred­er­ick said the monopoly Ap­ple has over iPhone apps is unique in the dig­i­tal age. “Ap­ple can’t point to an­other e-com­merce dis­trib­u­tor that does what it does,” Fred­er­ick said. Even Ap­ple al­lows third par­ties to sell com­puter soft­ware di­rectly to pur­chasers of its lap­top and desk­top com­put­ers, he said.

A trial court ini­tially dis­missed the suit. The 9th U.S. Cir­cuit Court of Ap­peals re­vived it.

A vic­tory for Ap­ple could se­verely re­strict con­sumers’ abil­ity to sue over an­titrust vi­o­la­tions even though Congress en­vi­sioned such suits “would form a cen­tral com­po­nent of en­force­ment of the an­titrust laws,” warned 18 schol­ars of an­titrust law in a Supreme Court fil­ing.

A de­ci­sion in Ap­ple Inc. v Pep­per, 17-204, is ex­pected by late spring.

THE MISS­ING LINK IN WELL­BE­ING DATA

When you’re awake, there are var­i­ous ap­pli­ca­tions within your iPhone or Ap­ple Watch that can tell you how your day is go­ing. From calo­ries burned to stairs climbed, and how steady your heart rate has been through­out; from wak­ing in the morn­ing to hit­ting the hay again at night, you can ac­cess it all. But what about that long, peace­ful stretch be­tween the two, when you’re asleep?

The Bed­time app on the iPhone pro­vides sleep anal­y­sis, but doesn’t re­port how much you’ve slept or moved, or how long you spent in bed. Sim­i­larly, the Ap­ple Watch also doesn’t track sleep or time spent un­der the du­vet. With one third of our lives spent sleep­ing (if all goes to plan), that’s a vast stretch of time that we never re­ally un­der­stand be­yond how peace­fully we feel we’ve slept.

With Ap­ple renowned for of­fer­ing well­ness fea­tures to those who want them, it’s there­fore no sur­prise that ru­mors of spe­cial­ist sleep­mon­i­tor­ing hard­ware have be­gun to cir­cu­late. It’s nearly 18 months since Ap­ple ac­quired Fin­nish com­pany Bed­dit, which makes sleep­track­ing de­vices that work with both iOS and Ap­ple Watch to an­a­lyze sleep.

On No­vem­ber 22, Ap­ple’s patent ap­pli­ca­tion for a “multi-el­e­ment piezo sen­sor for in-bed phys­i­o­log­i­cal mea­sure­ments” was pub­lished, hav­ing been orig­i­nally filed six months be­fore. This sug­gests that Ap­ple are tak­ing the Bed­dit con­cept much fur­ther, and fully re­al­iz­ing new hard­ware that will mon­i­tor users’ sleep at a level pre­vi­ously unavail­able be­yond spe­cial­ist, med­i­cal-grade de­vices. So, how will this work?

BED­TIME, BED­DIT, AND BE­YOND

The new patent of­fers two ideas for how sleep will be mon­i­tored ef­fec­tively. The ‘piezo sen­sor’ will take one of two dis­tinct shapes. One is a thin strip of film, po­si­tioned ap­prox­i­mately where the chest of the user will be overnight. The other idea in­volves mul­ti­ple sen­sors, cov­er­ing the en­tire space of the bed and send­ing var­i­ous sig­nals si­mul­ta­ne­ously through­out the night. This idea would pro­vide more data on move­ment of the en­tire body dur­ing sleep, while the first would fo­cus on the chest, po­ten­tially de­tect­ing ab­nor­mal or ir­reg­u­lar heart rhythms.

The chest-height sen­sor ap­pears to be a more ad­vanced ver­sion of the Bed­dit 3 sys­tem, which it­self uses a sen­sor strip, po­si­tioned at chest height. Ap­ple’s piezo film sen­sor, how­ever, is a no­table in­no­va­tion to this kind of de­sign. In­ter­est­ingly, users have been un­able to reg­is­ter for the Bed­dit cloud since mid-Septem­ber – per­haps the ear­li­est, clear­est in­di­ca­tion that Ap­ple was about to make a move into its own be­spoke sleep-mon­i­tor­ing hard­ware.

What Ap­ple’s piezo film de­sign will pro­vide is cur­rently un­clear, but it’s likely that con­di­tions such as sleep ap­nea and hy­per­ten­sion could be de­tected dur­ing the night. These are con­di­tions that have been de­tectable via tech­nol­ogy in the Ap­ple Watch for some time, but the piezo film will most likely also al­low iPhone and iPad users the same, per­haps even more pre­cise re­sults. With Ap­ple Watch users also reg­u­larly charg­ing their de­vice overnight, they are of­ten forced to miss out on the ben­e­fits of this tech­nol­ogy while they sleep.

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