By Lisa Rosenberg
A federal judge in California on Monday denied Apple’s request to delay a scheduled change to how it hosts applications in its App Store, a regulatory decision that could give developers more leverage to persuade the company to remove harmful or potentially anticompetitive terms from its contracts.
U.S. District Judge Ann Aiken’s decision echoes requests made earlier this year by Google and Amazon, although it provides the most comprehensive analysis to date of the iPhone maker’s contentions that the changes require an injunction.
The order is not binding on other tech companies that partner with Apple for commerce, such as Facebook, Spotify and Spotify. However, Aiken is not just a judge in this case: Apple’s disputes with Google and Amazon involve patent law, so the outcome in this lawsuit may help shape the approach taken by other companies in their patent disputes with Apple.
In her order, Aiken said Apple had “not demonstrated” that new changes it is making to its own platform would cause “irreparable harm,” or that a more gradual phase-in would not have the “required degree of rapidity” to remedy harm that can arise by quickly adding to the platform’s complexity.
The order follows a lawsuit filed last fall by Brian Kennish, a frequent app developer, who accused Apple of requiring app makers to approve every app Apple sells and punishing them when they were unsuccessful in that effort. The Verge reported that the order strikes down Apple’s contention that app makers could refuse to comply with the contract in question, which requires Apple to approve an app in 15 days after a developer submits it.
Kennish’s suit has been accompanied by submissions from a host of smaller app makers. Among them are the popular parenting app Parachute and bingo games maker Taggun Games.
Apple and the app developers contend that the changes announced last October threaten to confuse and frighten app users, among other problems. Those changes include an overhaul of the App Store’s front page that adds instructions on how to use the new features, including a warning about potential hacks.
Kennish also contends that Apple unfairly requires developers to promote its products by participating in certain push notifications, linking to Apple Stores and running ads in search results. However, Aiken disagreed, concluding that the changes “will not cause him irreparable harm.”
Nevertheless, Aiken’s order lets apps and publishers know that they still have a remedy if they were harmed by the changes. Kennish, along with a law firm representing the publishers, could still seek an injunction, possibly forcing Apple to slow the changes or even abandoning them.
Kennish could also try to increase his resources, said Keith Harvey, Kennish’s attorney at Aldea Freeman Wellman. He said that Kennish had spent some money on software that can run on iPhones without an app maker’s consent, which makes it unlikely that he would agree to Apple’s request to remove such software from the app store. Kennish may also push for a settlement before any trial, something Harvey said could be needed to get the case to the next stage.
The case has intensified legal stakes surrounding the level of autonomy app makers should have over how their programs are delivered to consumers. Both Google and Amazon have argued that they can quickly adjust to changes in the market and marketplaces, and that doing so is part of what allows them to create products customers enjoy and have other technology companies compete with them.
Amazon has sided with Kennish and app makers on several occasions by rewriting its contract language to read more like the ones Apple has proposed. Google updated its own language as part of a settlement with the app makers last week.