The Steering Problem: Differing Legal Approaches to Addressing Large Tech Companies’ Use of Antisteering Provisions by the United States and South Korea
ABSTRACT
Apple and Google are cast more and more as the robber barons of the modern tech market. Whether that reputation is deserved from the perspective of the everyday consumer, for an app developer Apple and Google represent both a necessary tool for distribution and a cruel corporate master. One of the biggest concessions that both Apple and Google force on app developers who hope to draw revenue from online transactions is the contractual promise that apps will not offer a payment option aside from an app store. As the only two controllers of this market, Apple and Google can force developers to deal on their terms.
As a part of the growing concern over the market dominance of these two firms in the app space, there have been multiple proposals to create a new law to address this perceived inadequacy in antitrust law. One of the most extreme, an outright ban on antisteering provisions, was passed as a part of the “Anti-Google Law” by the South Korean Assembly and went into effect in September 2021. The law gained international attention, garnering praise from United States lawmakers and inspiring efforts to pass a similar ban in the United States.
However, such an extreme measure is not needed in the United States, as evidenced by Apple and Google’s increasingly vulnerable bargaining position in the face of ongoing litigation and public pressure. Although federal antitrust claims have largely failed, Apple was temporarily bound by an injunction to offer third-party payment options, accomplishing the exact goal of the Anti-Google Law. Therefore, state law litigation targeting antisteering arguably already created a legal solution to the problem that the Anti-Google Law seeks to solve. Pending further litigation on the issue, state law can address antisteering as an interim solution.