The rules (payment per install) differ for apps installed from the app store to those not installed from there.

That gives preference to apples own app (the app store) which they can only do because they are still Gatekeeping.

So you're arguing that they aren't following the DMA? That's not malicious compliance, that's non-compliance.

No they don't:

> Core Technology Fee — iOS apps distributed from the App Store and/or an alternative app marketplace will pay €0.50 for each first annual install per year over a 1 million threshold.

The new business terms including the Core Technology Fee are only required for developers who will want to be able to upload their apps to alternative app stores like f-droid:

https://developer.apple.com/support/dma-and-apps-in-the-eu/#...

Pretty clear malicious compliance. "Oh, you want to be able to distribute your popular free apps on other app stores? You gotta start paying us massively then."

I wonder how they should comply with the law in your eyes. What is a fair way for Apple to recoup the investment they make into their developer programs?

Selling devices and App Store revenue. To charge free/open-source apps for your OS is absurd.

Apples has several revenue streams:

- They sell hardware and licensed software to consumers. Within the law they may ask for money for feature updates.

- They also charge developers for access to their tools and access to their store front and payment handling.

That's all legit and if they want to hike prices or put parts of that information behind paywalls, the market will sort it out.

But if a consumer and a third party developer want to do business without all that, then it's my (and the DMAs) stance that apple has no right to a share of that. They EU is increasingly of the opinion that, in general, a device has to serve its owner and not the original manufacturer.

When they want to protect consumers by scanning for known malware that's fine but "Apple loses revenue" is not a threat at all.

Selling phones? How does msft recoup the resources theyve put into windows developer programs?

Oh, that's sneaky. So if someone wants to also distribute their app on something else, they pay the fee on their existing installs?

Or take advantage of some of the new capabilities, such as NFC access or alternative browser engines.

So I’ve got to ask, is malicious compliance a real actionable legal theory or is it just something that has been written about but never prosecuted?

It reads like one of those buzzwords that doesn’t actually mean anything useful in a the context of a court of law, at least as a prosecutable offense, but gets talked about like it does, because the statement itself reads like an oxymoron. You’re either compliant with the law or you’re not, and malicious is subjective. Am I off base by saying that? What am I missing?

Whether "malicious compliance" is a legal term or not, the intent of the law does count and transparent workarounds are not appreciated.

It depends on the area of law, traditions, common sense etc how much that ia true, but in general, disregarding transparent workarounds is a thing.

Yeah, except the text matters a whole lot more than the intent because that’s what you’re going to read and reference when determining how to comply. If the intent is just for Apple to roll over and show their belly, they’re not really obligated to do that. A legislative body can always rewrite laws passed by the same legislative body if the first set of laws isn’t working out the way they hoped, and the EU is a supranational entity formed by treaty between peoples with few in the way of what can be called shared legal traditions or sensibilities so you have to think the text has to really matter here.

So if it comes down to whether Apple is compliant, wouldn’t you just stack up their measures against the law as written? Which would then mean compliance is compliance, and the onus then falls on whatever prosecutorial authority is empowered here to show that it is not.