Author: Tech Law Forum NALSAR

App Stores and Abuse of Dominance: The Case Against Apple (Part I)

Posted on by Tech Law Forum NALSAR

[Ed Note: The following is the first part of a two-part post authored by Mohini Parghi, a third year student of NALSAR University of Law. This post has been authored as part of the TLF Editorial Board Test 2019-20. Part II can be found here.]

Introduction

Recent developments have seen a significant amount of discussion on the activities of tech giants such as Google and Apple and their anti-competitive effects. One of the focal points of these discussions has been the app store. Last month, Spotify’s allegations against Apple for, inter alia, imposing unfair conditions and giving preferential treatment to Spotify’s competitor Apple Music brought these issues into the limelight. In addition to this, the Dutch Competition Authority launched an investigation into app store related competition law concerns. Across the Atlantic, the US Supreme Court also ruled against Apple when it held that customers could sue Apple for the 30% commission it charges, even though it is paid by the app developers. Clearly, the case against Apple for using its App Store to stifle competition has gained traction. Such cases would prove to be instructive for future action against tech giants for using online platforms to abuse their dominance and the purpose of this post is to provide a brief idea of how such cases could proceed.

Read more

The Week That Was: 25/08/2017

Posted on by Tech Law Forum NALSAR

In this second edition of The Week That Was, we find…

  • The 9 Judge Bench of the Supreme Court of India unanimously held that Privacy is a Fundamental Right under Part III of the Constitution of India and gave hope to the LGBT+ community, and may have implications for SEBI’s move to link with Aadhaar, the Beef Ban, among other things In their recent Valut 7 Publication, WikiLeaks published secret documents from the ExpressLane project of the CIA. The Office of Technical Services, a branch within the CIA, has a biometric collection system that is provided to liaison services around the world — with the expectation for sharing of the biometric takes collected on the systems. The core components of the OTS system are based on products from Cross Match, a US company specializing in biometric software for law enforcement and the Intelligence Community. CrossMatch had received certification from STQC India for India’s UID Program (Aadhaar)
    • See more on: BusinessWire, GreatGameIndia News, FactorDaily, WikiLeaks. CrossMatch Aadhaar Kits are one Google Search Away The Director General of Civil Aviation (DGCA) plans to introduce a remote pilot licence for operating drones and is expected to release draft norms for regulating the use of automated aerial vehicles (AAVs). Ahead of Gurmeet Ram Rahim’s rape case verdict where he was subsequently held guilty Mobile Internet Services remained suspended in Haryana, Punjab and Chandigarh for around 72 hours. Following the verdict, it has been reported that (at the time of writing this post) at least 30 people have been killed and more than 250 injured. The Punjab and Haryana High Court reportedly stated that losses incurred due to violence should be recovered from selling the properties of Ram Rahim Singh. Section 144 CrPC has been imposed in 11 districts of Delhi including New Delhi. Meanwhile, Internet Services continue to be blocked in Darjeeling, West Bengal for more than two months. Services had been blocked in the town following deaths of party supporters in violent clashes between the Gorkha Janmukti Morcha and security forces . Cardiotrack, a startup which claims to use Artificial Intelligence (AI) for predicting and diagnosing cardiac diseases, disorders and ailments has tied up with Columbia Asia Hospitals in Bangalore to predict heart condition. The National Payments Corporation of India (NPCI) instructed its member banks to ensure that their applications be equipped to read both UPI QR as well as BharatQR by 15th September 2017. The Electronic Frontier Foundation released a 10+ Year brief history on Activists being silenced on the Internet and Internet Intermediaries’ Long History of Censorship.
      • See more on: EFF.
      Berlin’s Südkreuz station has been investigating how well surveillance cameras and computers can automatically recognize the faces of passersby. It is claimed that this could track terror suspects and help prevent future attacks. Germany seeks to draw up legal guidelines for the operation of driverless cars. The guidelines observe that the software that controls such cars must be programmed to avoid injury or death of people at all cost, that in cases of an unavoidable accident, the software must choose whichever action will hurt people the least, even if that means destroying property or hitting animals in the road. A Russian regulation which requires Russian operators of communication networks (mobile operators and internet providers) to record and store records of communications between all users for at least six months, and provide such data to the authorities at their request, could be in EU’s General Data Protection Regulation 2016/679. Internet overuse could lead to individuals becoming vulnerable to many neuropsychiatric dysfunctions such as irritation, anxiety, obsessive compulsion according to a report by research by Etiologically Elusive Disorders Research Network (EEDRN) which is an umbrella body of medical/research institutes of India including All India Institute of Medical Sciences, New Delhi, National Brain Research Centre, Haryana, and Ambedkar Centre for Biomedical Research, Delhi. FBI arrested a Chinese national who is facing charges related to the malware used in the 2015 data theft from the Office of Personnel Management computer systems — a breach that exposed the personal information of millions of people — according to US officials briefed on the investigation The Department of Justice used a Search Warrant to get data on all information available to DreamHost (a webshost) on all information available to it on an Anti-Trump Site, a website that organized participants of political protests against the current United States administration. The new warrant parameters exclude most visitor logs from the demand, set a temporal limit for records from July 1, 2016 to January 20, 2017, and also withdraw the demand for unpublished content, like draft blog posts and photos.
      • The D.C. Superior Court stated that the government must disclose to the court who will search the material and what process they will use, That information seized by prosecutors not be shared with other federal agencies, and that data not related to the investigation be put under seal with the court and not accessible to the government without additional permission. Free Speech activists however believe some concerns remain
      • See more on: Politico, SCMedia,Popehat, DreamHost, WashingtonPost, PeopleForTheAmericanWay, EFF, Reuters, BuzzFeedNews
      A computer programmer at the Multi-State Lottery Association, secretly installed software that allowed him to pick winning numbers and was collecting money from jackpots in multiple states and now faces up to 25 years in prison.
      • See more on: CNBC.
      The Temer Administration in Brazil signed an order to open a public consultation to alter the “composition, election process and the powers” of Brazil’s Internet Steering Committee. Daily Stormer, a white supremacist website was blacklisted by Google’s domain service, GoDaddy, Cloudfare, SquareSpace, Zoho, Sengrid, NameCheap among other service providers. The Russian Network Information Center (RU-CENTER) registered the domain Dailystormer.ru, however, it was later blocked when Roskomnadzor, the Russian media watchdog asked for it to be taken down because of extremist content. A supposedly new version of the notorious neo-Nazi and white supremacist site Daily Stormer hosted by DreamHost was later DDoS’ed. Alphabet Inc.’s Google lost a bid to overturn a magistrate judge’s order forcing the company to turn over Gmail data stored abroad in response to a federal warrant.
      • See more on: Bloomberg BNA. An activist in Thailand was jailed for sharing an article on Facebook which was found to violate Thailand’s strict lese majeste laws against insulting, defaming, or threatening the monarchy.
        • See more on: EFF.
        A hacker under the pseudonym ‘xerub’ published what they claim to be the decryption key for Apple iOS’ Secure Enclave Processor (SEP) firmware.The secure ​enclave handles the processing of fingerprint ​data from ​the ​​touch​​ID ​​sensor ​​and determines ​​if ​​it ​​is ​​a ​​match​​ or​​ not​​ while ​​it ​​also enables ​​access ​​for ​​purchases ​​for​​ the ​​user. While ‘xerub’ and Apple state that ​ user data would not be at risk from this leak. Apple has reportedly yet to confirm the validity of the key. In the West Bank, the Palestinian authorities have arrested six journalists in August so far, shut down 29 websites and introduced a controversial Electronic Crimes Law imposing tight controls on media freedom and banning online expression and dissent In a case similar to Cross v Facebook reported on the earlier edition of The Week That Was, Facebook defeated another case over not removing user comments. The plaintiff, Paree La’Tiejira, who has been an adult entertainer, was apparently questioned of her birth gender in the past and a Facebook user posted a comment on her Facebook page accusing her of having been born male among other things. Facebook won the anti-SLAPP motion having qualified under Section 230 Communications Decency Act protection. In a lawsuit alleging price fixing against Uber and its former CEO Travis Kalanick. Uber (and Kalanick) moved to compel arbitration on the basis of the arbitration clause in Uber’s terms of service. The district court found that Uber’s sign-up process failed to effectively form an agreement, The Second Circuit reversed the order. In another case, the plaintiff allegeed that Ticketmaster violates the ADA for admission ticket and parking sales for Levi’s Stadium, Ticketmaster sought to send the case to arbitration. The Court ruled in favour of Ticketmaster In a case on White-on-White text Trademark usage, Agdia claimed that the defendant, in 2007, put the Agdia trademark in white-on-white text on over 200 pages. Even though Google had long configured its algorithms to ignore white-on-white text. Agdia claimed that the defendant’s website was still showing up for its branded organic searches as late as 2015. The defendants moved for summary judgment, their motion was denied. hiQ Labs, a talent management algorithm scraped LinkedIn public profiles and offered two products, entirely predicated on LinkedIn-scraped data: (1) a prediction to employers which employees were mostly likely to be recruited away, and (2) a summary of employee skills. LinkedIn sent a cease and desist letter telling hiQ to stop scraping or face litigation. The parties tried to resolve the dispute but were unable to. hiQ then filed a preemptive lawsuit seeking declaratory relief, and sought a preliminary injunction allowing it to access public LinkedIn profiles pending resolution of the dispute. However, Goldman notes that it would be shocking if “this ruling survives any appeal intact…” Bankers Life, a company that sells insurance and financial products, sued one of its ex-employees (and his new employer, ASB) alleging among other things that the ex-employee violated his non-solicitation covenant through his communications on social media. It was argued that LinkedIn requests sent by Gelineau violated his non-solicitation clause. It was held that the connection request didn’t violate the non-solicitation clause. Bankers Life’s request for additional discovery was also denied SunFrog, a Print-on-Demand website prints user-uploaded designs on T-shirts and other merchandise. Users uploaded Harley-Davidson logos to produce what Harley considered counterfeit T-shirts. The Court issued a Trademark Injunction against the website. Craiglist won a $31 Million in a case against Instamotor an online and app-based used car listing service, over claims that Instamotor scraped craigslist content to create listings on its own service and sent unsolicited emails to craigslist users for promotional purposes. Delaware’s Governor John Carney Jr. signed SB 69 into law. This would explicitly authorize the use of distributed ledger technology (“blockchain”) in the administration of Delaware corporate records, including stock ledgers. This opens the door for such companies to issue, execute, settle, redeem and trade stock in such a way as to harness the benefits of the blockchain. Plaintiff Matt Hosseinzadeh published a video skit featuring the “Bold Guy” character, “Bold Guy vs. Parkour Girl” video. Ethan and Hila Klein created a “reaction video” to it. In addition to a copyright claim, Hosseinzadeh sued over the Kleins’ allegedly misleading DMCA counter-notice and their statement about the lawsuit. The Kleins won a summary judgment on grounds of fair use. A two Judge Bench of the Supreme Court of India held that the live feed received by Prasar Bharati from content rights owners or holders is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH networks.
        • See more on: SCC Online Blog.
        • Find the case Union of India v. Board of Control for Cricket in India, 2017 SCC OnLine SC 991, decided on 22.08.2017 here.
        Elon Musk’s OpenAI software has become the first AI to beat one of the world greatest eSports athletes Danil “Dendi” Ishutin in Dota2 A U.S. appeals court on Monday upheld the conviction of a former New Jersey-based high-speed trader who was found guilty in the first U.S. criminal trial involving the manipulative trading practice known as spoofing.
        • See more on: Reuters.
        • Find the case U.S. v. Coscia, 7th U.S. Circuit Court of Appeals, No. 16-3017 here.
        Maryland’s Personal Information Protection Act has been amended to expand the definition of personal information, modify the definition of breach of the security of the system, provide a 45-day timeframe for notification, allow alternative notice for breaches that enable an individual’s email to be accessed, and expand the class of information subject to Maryland’s destruction of records laws. A law has been proposed which is designed to protect private information and regulate who has legal access to it, as well as lay out penalties for those found abusing information in Oman. The Ninth Circuit determined on Tuesday that a plaintiff’s claim that the Fair Credit Reporting Act (FCRA) had been violated was sufficient “injury” for the case to proceed. The Court of Appeal for Ontario held that a utility sharing residents’ energy consumption data with police, which led to a search and criminal charges, violated their reasonable expectation of privacy. Ola and Uber have entered into an alliance with the Airport Authority of India (AAI) to set up designated cab zones at five AAI-run airports including Kolkata, Chennai, Pune, Bhubaneshwar, and Lucknow. Sharp, a Japanese electronics manufacturer, has filed a lawsuit challenging a foreign gag order that company lawyers say prevents Sharp from talking about its own brand. OkCupid made the unusual move of announcing that it had given a single member a “lifetime” ban on Thursday—and naming him—in order to make a point, asking its users to be vigilant about any other active members of hate groups found on the site and to report them. UC Web, the browser owned by Chinese internet giant Alibaba, has come under the scrutiny of the government as part of investigations against Chinese companies over data theft. If found guilty of stealing data of Indian users, the company may be banned in the country. Telecom regulator TRAI has issued recommendations which addressed issues like governance and legal framework for cloud services in India, data protection, moving government data to cloud, among other things. Facebook’s The People You May Know feature connected an individual to someone who turned out to be her great aunt by marriage (she had no Facebook friends in common). Raising privacy concerns as to how Facebook made that connection in the first place. The Delhi High Court sought the response of Facebook, Google and Yahoo on a plea to direct them to take down the links of Blue Whale challenge, an internet-based suicide game that has been allegedly linked to several deaths of children worldwide. Notice was also issued to the Centre and the Delhi Police asking them to inform about the steps they have taken in this regard. The ‘game’ has been banned in Uttar Pradesh. Odisha’s DGP KB Singh told all SPs in the state to keep a watch on various social media outlets and ensure that the suicide game was not available to the users in the state. An AI reportedly used bitcoin trail to find and help sex-trafficking victims.

Read more