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Op-Ed: Democrats want to silence Mr. Smith
in Washington
[The Center Square] Patrick Hedger |
Taxpayers Protection Alliance
In the present political
climate, there are certain issues where it can be difficult to spot the
difference between a “conservative” and a “liberal.” The strange
synthesis between left and right can be seen in antitrust policy, where
Republicans such as former President Donald Trump and U.S. Sen. Josh
Hawley, R-Mo., have called for onerous federal regulations to limit
allegedly “anticompetitive” business policies. Reminder, Donald Trump
wanted to “drain the swamp,” and Sen. Hawley has been skeptical of big
government. |
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 Conservative
lawmakers and groups are taking this unfounded phobia of large companies to new
heights by supporting the “Open App Markets Act,” (OAMA) which would impose a
slew of conditions on app stores hosting their own apps alongside third-party
apps. In addition to imposing a version of net neutrality on mobile software,
the legislation erodes the intellectual property (IP) protections that have been
so pivotal to thriving digital markets. Before conservatives hop on this latest
antitrust crusade, they should closely examine the many anti-IP provisions
hiding in this deeply flawed legislation.
From vaccinations that fight COVID-19 to ultra-fast and uber-accurate
search platforms, America is home to all sorts of cutting-edge advancements. But
this incubation of innovation (digital and otherwise) could come to a screeching
halt if OAMA becomes the law of the land. One key concept behind the legislation
is mandated interoperability, which is when companies and their platforms are
forced to open house to other businesses on “fair” (read: arbitrary and
capricious) terms. The inclusion of language forcing large app ecosystems to
allow third-party apps regardless of cost or consequence is not surprising, and
other, similar pieces of legislation such as the “American Innovation and Choice
Online” (AICO) Act also feature this side-loading mandate.
But, unlike other digital antitrust bills, OAMA is conspicuously missing
language clarifying that companies will not be forced to give up IP via
compulsory licensing. Lawmakers likely realized that including boilerplate
pro-IP language was folly because mandated interoperability will inevitably
weaken IP protections. When regulations preclude companies from using and
developing operating systems on their own terms, in-house entrepreneurs are
naturally left with little incentive to tinker with and improve their creations.
Running a sprawling mobile software marketplace means having to
constantly address security flaws, sync issues for developers, and shady payment
schemes promoted by unscrupulous third parties. In addition, plenty of IP
battles go on within app marketplaces requiring a robust response from large
companies such as Apple. When fly-by-night app developers are trying to flood
app stores with copies of popular games such as “Wordle” and “Unpacking,” it
takes a combination of active corporate monitoring and sophisticated algorithms
to protect the IP of the games’ rightful owners.
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This constant policing and upgrading of app stores
do not come cheap, and this is reflected in app developers’ gripes
about Apple and Google’s pricing structures and rules about app
approval. Congressionally imposed limits on the payment systems and
non-public information that app stores can use would make it more
difficult for tech companies to recoup these investments and hinder
the ability to research ways to improve their marketplaces.
Strangely, supporters of the legislation have been using pro-IP
rhetoric to advocate for limits on the use of developers’ nonpublic
information. They argue that Apple and Google are copying
developers’ apps and then rigging the game in favor of their own
versions.
What they fail to mention is that courts across the
country have a well-developed standard for rooting out copied
software. The well-known “abstraction-filtration-comparison” legal
test identifies commonalities between original and copycat software,
distinguishing between necessary shared software features (e.g.,
basic programming language) and blatant rip-offs. OAMA’s sponsors
have failed to explain the need to supplant this perfectly workable
standard which has been in place for decades.
The fact is that courts and app stores have done a commendable job
in ensuring that IP flourishes in the digital domain. Clumsy federal
interference will only undermine property rights and set the stage
for compulsory licensing. Conservatives should see OAMA for what it
is: a federal push against property rights.
Patrick Hedger is the Executive Director of the
Taxpayers Protection Alliance.
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