The two legal factors discussed during the first round of reporting were:
- The explicit carve-out of reverse engineering for the purpose of interoperability in the DMCA
- The European Digital Markets Act, which will require chat networks to provide interoperability
What's not clear to me is how relevant the DMCA is here, and/or if a ToS can supersede these laws.
> I can’t imagine any company being okay with another company reverse-engineering their product and then charging for it
There is a whole ecosystem of products built on this premise. Quicken, for example, relies on a library of reverse engineered banking interfaces to automate interaction and data aggregation of one's accounts.
Search and LLM products are also built on the consumption of other people's data and then charging for it.
I'm not arguing that Apple is ok with this, but that as a model, it's not uncommon.
> The European Digital Markets Act, which will require chat networks to provide interoperability
I think this would be _fan-tas-tic_. But beeper is not a chat network. It is a company that simply wants to be be the iMessage for Android client, using Apple's network.
Their case would be stronger if they did have their own network and used this reverse engineered iMessage connection to provider interop between the two networks.
They do have their own network because they integrate more than just iMessage. It's "Apple's network" because Apple won't allow anyone else to run a server. Adversarial interoperability might ruffle some feathers, but we wouldn't have Venmo or any financial apps without it.
They advertise Beeper Mini (the iMessage component) separately from Beeper Cloud at the moment. Probably because of the gray area they're operating in. Completely agree with Beeper's approach though. Defaulting iPhones to SMS whenever an Android device is in the chat makes the network less secure for everyone. I would personally prefer being able to use iMessage with my friends that have Android devices so I wouldn't need a couple of different apps with varying degrees of privacy and security.
> The explicit carve-out of reverse engineering for the purpose of interoperability in the DMCA
Explicit prohibitions against reverse engineering in ToS and licenses, as is the case here, supersede the DMCA exception as per Bowers v. Baystate Technologies, 320 F.3d 1317 (Fed. Cir. 2003)[0]
> The European Digital Markets Act, which will require chat networks to provide interoperability
Only for ones that are big enough to meet a threshold, which iMessage does not. If it did it would only be enforceable in the EU, so that wouldn’t affect US users.
> There is a whole ecosystem of products built on this premise. Quicken, for example, relies on a library of reverse engineered banking interfaces to automate interaction and data aggregation of one's accounts.
The big difference with your example and this case is that in your example it leads to a new product that is sold, whereas in this case it’s the repackaging of someone else’s product, which is then subsequently sold and relies on someone else’s infrastructure.
Note that Apple hasn’t sued Beeper (yet) for reselling/sub-licensing iMessage, instead they’ve tightened access of their infrastructure.
It goes without saying that even if you’d believe that the DMCA reverse engineering exception allows for repackaging and resale of the reverse engineered product (which it doesn’t), it certainly doesn’t come with entitlement to the resources of owner of the reverse engineered product.
> Search and LLM products are also built on the consumption of other people's data and then charging for it.
Ignoring the fact that the adjudication on the legality of this has yet to be resolved for a second, this is still not analogous to the situation at hand.
Consumption of other people’s data to produce, generally, new data in new forms and context is not the same as repackaging and reselling.
It’d be different if Beeper used their reverse engineering to setup their own competing chat network, although then you get into the territory of clean rooms etc.
> Only for ones that are big enough to meet a threshold, which iMessage does not.
Has that actually been decided? I know Apple pushed some weird arguments about their size, but AFAIK they're still counted as a gatekeeper.
> If it did it would only be enforceable in the EU
Kinda. The Brussels effect is very real and multiple EU changes got effectively implemented worldwide. For example you can get a full data checkout from lots of online companies, regardless of your EU connection. (Including Apple https://www.mobileworldlive.com/featured-content/top-three/a... )
> Has that actually been decided? I know Apple pushed some weird arguments about their size, but AFAIK they're still counted as a gatekeeper.
Only in a tentative sense[0], but based on the facts it’s inevitable.
What you call “weird arguments”, I call simply the logical conclusion based on facts.
For Apple to be deemed a gatekeeper under the DMA w/r/t iMessage, Apple needs to pass a couple of thresholds. Nobody is arguing the revenue and market cap thresholds, so I’ll skip those.
That leaves either 45m monthly active users or 10k monthly active business users.
Apple’s claim is that they don’t meet those thresholds. Apple could of course lie, but companies of this size typically don’t commit fraud that could easily be disproven by a basic criminal investigation that could be triggered when fraud is suspected.
When you take into account the lower market penetration of iPhones and other Apple devices in the EU and then take into account the abysmal market penetration of iMessage in the EU it’s very plausible that Apple doesn’t have 45m monthly active users.
And frankly nobody is seriously disputing the 45m number. Instead people, including Google et al., were mainly focusing on the 10k monthly active business users, because they hoped that lower threshold was easier to prove.
Not only is the EU’s tentative conclusion that Apple doesn’t even have 10k monthly active business users, but this too is very plausible.
If you look at the US, where iMessage is most successful compared to other countries, you can’t even find 10,000 companies that support iMessage Business Chat.
I can tell you from personal experience that in the EU the amount of companies that have adopted it is in the single digits, mainly airlines that have adopted it to serve their international (often American) passengers.
Now one could argue that regular non-Business Chat iMessage should be included in that count, which is a minor debate that part of the greater debate, but even if that premise would be accepted, you’d then circle back to low adoption rates of iMessage amongst EU consumers and the question of how many companies will bother to send iMessages to their customers when SMS provides a near guarantee that the message will be received by the customer.
In my personal experience, I’ve never received an iMessage from a business in all my 30+ years of living in the EU. Businesses big and small will instead insist on sending messages via WhatsApp, if they insist on reaching out by non-traditional means at all (i.e., SMS, email, call).
None of my anecdotes are authoritative of course, purely a speck of data in an already plausible claim that Apple makes about their monthly active users.
As it stands, all signs, including the ones produced by the EU themselves, point to Apple not meeting the thresholds.
> Kinda. The Brussels effect is very real and multiple EU changes got effectively implemented worldwide. For example you can get a full data checkout from lots of online companies, regardless of your EU connection. (Including Apple https://www.mobileworldlive.com/featured-content/top-three/a... )
That only goes so far. In particular when it comes to pet peeves that Apple has, like iMessage and side-loading.
We already know that when it comes to the latter Apple intends to only enable that in the EU, going as far as developing a special “countryd” daemon to ensure that it’ll only be activated in the EU[1].
TOS can and do override DMCA’s general protection for reverse engineering. Look up the Warcraft battle.net case (I think the service was called bnetd?)
The second owner issue doesn’t exist here because the prohibition on reverse engineering is both part of the OS license as well as the Apple Media Services ToS, i.e. the device and the Apple ID account.
Both of which regularly require renewed agreement after updates which would trigger an explicit agreement, but there’s at the very least multiple instances of derived agreement.
1) Beeper runs multiple Mac minis for their Beeper Cloud service, those don’t run without agreeing to the terms. That agreement, which is a license to use macOS, applies to any subsequent uses of macOS on any other device. In fact, all it takes is for a single Apple computer to be used in any capacity within the company, because again, you’re agreeing to a license to use the OS, not to use the device, you own the device outright after all.
2) The EULAs and ToS are self-executing (“By using this software you agree”) in addition to requiring a click, trying to circumvent it by introducing a “second owner” isn’t going to change much
3) Claiming you didn’t agree to the EULA or ToS doesn’t do you any good, because then you’re admitting to using Apple’s software without a license i.e. piracy and the DMCA reverse engineering exception doesn’t magically grant you the right to pirate software (would be fun though, I could download whatever I want under the guise of “reverse engineering”).
> Both Microsoft and Apple have reportedly argued that Bing and iMessage aren’t popular enough in Europe to warrant being covered by the DMA, despite the commission claiming they meet the required thresholds.
> A report from Bloomberg on Wednesday suggests that the EU will rule in Apple's favor. Sources familiar with the matter cited by the report claim that officials are "leaning toward the reprieve" for iMessage, given its relative lack of popularity in the EU marketplace.
I don't dispute that at all, but may I ask why you're replying to me?
I'm sure you remember my name, as we were having a discussion on the same topic just a day or two ago. You called me immature, didn't know what I was talking about, claimed I was arguing in bad faith, and that I had a chip on my solider, and then ended by giving yourself a reminder not to reply to me again in the future.
I think we would both prefer it if we avoided each other, so I'm just curious why you would instigate a conversation with me after apparently having such a negative experience and claiming you wouldn't do so in the future.
- The explicit carve-out of reverse engineering for the purpose of interoperability in the DMCA
- The European Digital Markets Act, which will require chat networks to provide interoperability
What's not clear to me is how relevant the DMCA is here, and/or if a ToS can supersede these laws.
> I can’t imagine any company being okay with another company reverse-engineering their product and then charging for it
There is a whole ecosystem of products built on this premise. Quicken, for example, relies on a library of reverse engineered banking interfaces to automate interaction and data aggregation of one's accounts.
Search and LLM products are also built on the consumption of other people's data and then charging for it.
I'm not arguing that Apple is ok with this, but that as a model, it's not uncommon.