This I wrote for WuW in September 2020 (for context: DMA not even tabled at that time).
Up to you to decide if anything went wrong.
"In an email dated 13.08.2020, Tim Sweeney, the founder and CEO of Epic Games, developer of popular entertainment software products that can be played across-platforms, wrote to Tim Cook and other Apple executives that if Apple chose to take punitive action against Epic’s decision to launch direct payments in the online game Fortnite in iOS, Epic would fight Apple “on a multitude of fronts – creative, technical, business, and legal – for so long as it takes to bring about change, if necessary for many years”. Following Fortnite’s removal from the App Store, a legal battle was swiftly engaged by Epic in the US antitrust arena, while a more creative attack took the form of an animated video parodying Apple’s iconic 1983/84 ad directed by Ridley Scott featuring the Macintosh as a rebellious upstart challenging the then-entrenched IBM (Big Blue), the whole accompanied by a carefully planned communication campaign comprising the first ever dedicated Twitter hashtag for a court filing under the Sherman Act (#FreeFortnite). Epic filed suit also against Google over similar allegations of antitrust violations after Fortnite was removed from the Play Store, seeking “injunctive relief that would deliver Google’s broken promise: an open, competitive Android ecosystem for all users and industry participants”.
Just recently, the strong control exercised by Apple and Google over the apps available in their respective app stores has attracted the attention of regulators. In spring 2019, the Netherlands Authority for Consumers & Markets published a comprehensive market study into mobile app stores, followed by competition enforcement proceedings specifically targeting Apple. Early summer 2020 was the critical time chosen by the European Commission, amidst the COVID-19 pandemic and the increasing importance of the digital sphere, to open its own investigation into the App Store, focusing on possible antitrust violations related to Apple’s proprietary in-app purchase system that appear much in line with Epic’s allegations in the context of the US antitrust proceedings. On 10 August 2020, the Russian competition authority ruled that Apple abused its dominant position in the mobile apps market through its App Store. Finally, the Australian Competition and Consumer Commission (ACCC) has announced that it plans to publish a report on app marketplaces in March 2021 as part of the already conspicuous Digital platform services Inquiry.
In the increasingly toilsome battle to protect competition processes in the digital age and to rein-in Big Tech, however, traditional antitrust enforcement is no longer the only game in town, at least in the EU. The looming new normal should in fact foresee a set of complementary competition/regulatory tools. On the horizon are already the ex-ante regulation of digital platforms and a new competition tool inspired by the UK market investigation regime, as well as national experiments with different regulatory approaches, such as the proposed new Section 19a of the German GWB targeting “undertakings with paramount significance for competition across markets”. Arguably, a critical challenge going forward will be the orchestration of these different tools in a coherent and effective way, and across jurisdictions, nurtured by an in-depth economic and technological understanding of the digital economy.
What has already become abundantly clear at this comparatively early stage is that the control of marketplaces can be a key source of lasting economic power. By digitally engineering the market mechanism to their benefit, as a sort of “social” technology that can be deftly mastered, Big Tech companies were able to establish unassailable dominance in their respective domains, including at the “Hayekian”knowledge-generation level. Apple, for instance, as a provider of mobile tools (iPhones, and, later, iPads, iWatches etc.), soon realised the importance of having recourse to external resources (e. g. ecosystems) to discover value-creating uses for its own tools. Apple, therefore, orchestrated the app marketplace in a way that was able to exploit the generative nature of markets and digital technologies, profiting from the variety of apps, services and products offered in the App Store. The “crowd” of game developers, for instance, can build their products on the App Store’s resources and interfaces, unveiling demand for games such as the surprisingly successful Candy Crush Saga app. In this way, Apple as well as other gatekeepers continuously and systematically benefit from dispersed and new knowledge, previously inaccessible on this scale.
The potential anticompetitive effects of self-preferencing as well as further platform practices by the gatekeepers to app and other marketplaces are increasingly on the radar of competition authorities, as noted earlier. A recent Paper published by the ACCC [available at http://hbfm.link/7901] offers an overview of the likely issues, some of which are poised to be substantially amplified by the often-exclusive access by the gatekeeper to platform data (e. g. transaction data). More broadly, complex regulatory questions posed by app marketplaces can relate to the maintenance of suitable innovation incentives within the ecosystem, to the fair share/allocation of the benefits (e. g. level of commission, access to data etc.) to which the orchestrator should be entitled as well as to the need to preserve the generative dimension of open markets and digital technologies. While digital marketplaces such as app stores will probably need to be regulated beyond what traditional antitrust can realistically deliver, the critical details of the new complementary approaches are only beginning to surface and will need to be thoroughly scrutinized"
