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Apple’s EU legal shenanigans

Well, I flipping told you to expect EU legal wrangling as Apple tries to avoid the EU’s Digital Markets Act, which comes into force in May 2024.

This week, I’ve had the pleasure to read the post-modernist triumph that is CASES DMA.100013 Apple – online intermediation services – app stores, DMA.100025 Apple – operating systems and DMA.100027 Apple – web browsers (PDF), which details some of Apple’s attempts to avoid being regulated. I call it a “post-modernist triumph” because its prose is almost as incomprehensible as James Joyce’s Finnegans Wake, and it is so full of preposterous lies and contradictions that it can only be sanely read as a metatextual joke like the Illuminatus! Trilogy.

In order to avoid having Safari being deemed a Core Platform Service (and thus falling under the remit of DMA), Apple argues “Look, those Safaris on iOS, iPadOS, MacOS, TvOS, WatchOS are TOTALLY DIFFERENT PRODUCTS and none of them have enough users in the EU for you to even think about regulating us, alright? We’re a tiny start-up! Will nobody think of the children?!?”. (I paraphrase somewhat).

This is despite the DMA stating

An undertaking providing core platform services shall not segment, divide, subdivide, fragment or split those services through contractual, commercial, technical or any other means in order to circumvent the quantitative thresholds laid down in Article 3(2). No such practice of an undertaking shall prevent the Commission from designating it as a gatekeeper pursuant to Article 3(4).

The commission counters this claim (page 25, paragraph 115) rather deliciously. It notes that the argument put forward by the celebrated law partnership of Messrs Wriggle, Squirm and Weasel Esq. contradicts Apple’s own claims in 64px type: “Same Safari. Different device”.

Same Safari.Different device. Safari works seamlessly and syncs your passwords, bookmarks, history, tabs, and more across Mac, iPad, iPhone, and Apple Watch. And when your Mac, iOS, or iPadOS devices are near each other, they can automatically pass what you’re doing in Safari from one device to another using Handoff. You can even copy images, video, or text from Safari on your iPhone or iPad, then paste into another app on your nearby Mac — or vice versa.

Stay tuned for more exciting fun, brought to you by Apple’s billion dollar legal fiction fund.

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