By: Damien Geradin (The Platform Law Blog)
It is no secret that Microsoft has charted a rather different course compared to Apple and Google when it comes to ex ante regulation – a course aiming to embrace, rather than fight, regulation (see for example, this May 2021 blog post where Microsoft in principle voiced its support for the EU Digital Markets Act). It is also no secret that Microsoft is at odds with Apple’s (and, to a lesser extent, Google’s) app store policies, with the Seattle-based software company recently filing an amicus brief in support of Epic Games’ appeal before the Ninth Circuit against the ruling of Judge Yvonne Gonzalez Rogers. As discussed below, to some extent this reflects the starkly different approaches of Microsoft and Apple to cloud gaming, with Microsoft heavily investing in cloud gaming with its Xbox Cloud Gaming, and Apple “block[ing] the emergence of cloud gaming on iOS”, as the CMA found (see the excellent post of our colleague Stijn Huijts on this issue).
It is thus with great interest that I saw yesterday Microsoft’s Brad Smith announce a set of “Open App Store Principles” in what he describes as a proactive move to adapt ahead of regulation. Specifically:
- Grounded in existing or forthcoming legislation: The Open App Store Principles are said to be grounded in app store legislation currently being considered across the world, including the US (this is presumably a reference to the Open App Markets Act, recently voted by the US Senate Judiciary Committee), the EU (the DMA), the Republic of Korea (see here), and the Netherlands (presumably this refers to the Dutch Competition Authority’s decision mandating Apple to allow dating app developers to use alternative in-app payment systems; as I explained earlier this week, Apple refuses to comply, begging the question of whether it is a threat to the rule of law).
- Scope: According to the blog post, the Open App Store Principles shall apply to “the Microsoft Store on Windows and to the next-generation marketplaces [Microsoft] will build for games”. Some of the principles will also immediately apply to the Xbox console store, with Microsoft committing to close the gap on the remaining principles over time (more on this later).
- Content: The announced principles are said to reflect Microsoft’s commitments in four areas:
– Quality, safety, security, and privacy (principles 1-3): Microsoft commits to continue protecting user security and privacy, and allow developers to access its app store as long as they meet reasonable quality and safety standards.
– Accountability (principles 4-5): Microsoft commits to hold its own apps at the same standard it holds rival apps, and not to use non-public information from the app store to compete against rivals (this reminds me of Article 6.1(a) of the DMA)).
– Fairness and transparency (principles 6-7): Microsoft commits not to unreasonably self-preference its own apps and to be transparent about rules for promotion in its app store.
– Developer choice (principles 8-11): In what I consider to be the most interesting part, Microsoft commits to, among others, (i) allow developers to use their own in-app payment processing system, and not disadvantage them if they do so; and (ii) allow developers to communicate directly with their users inside the app on, inter alia, pricing terms.
– Operating systems: Finally, Microsoft commits to (i) continue allowing developers for Windows to make their apps available through alternative app stores or sideloading; (ii) continue providing such developers with timely access to interoperability information; and (iii) enable Windows users to use third party app stores and apps, including by changing defaults…