Statement from the Developers Alliance on the House Judiciary, Subcommittee on Courts, Intellectual Property and the Internet Hearing on the TC Heartland Decision

Contact: Chris Grimm – cgrimm@appdevelopersalliance.org

Statement from the Developers Alliance on the House Judiciary, Subcommittee on Courts, Intellectual Property and the Internet Hearing on the TC Heartland Decision

Washington, D.C.  – Below is a statement from the Developers Alliance Senior Advisor Bruce Gustafson regarding the House Judiciary, Subcommittee on Courts, Intellectual Property and the Internet hearing on the Supreme Court's TC Heartland decision. 

"No one feels the impact of patent trolls more than the small companies that are the heart of US innovation. With limited resources and narrow market windows, the start-ups in the developer community are particularly vulnerable to the extortion of trolls wielding dubious patents in a legal system with a cost of entry beyond a small firm's means. Start-ups are shuttered, jobs are lost, and dreams die over and over, despite the fact that everyone agrees the claims these trolls make are unsupportable.

While we welcome the latest venue guidance handed down by the Supreme Court, it remains to be seen how much this change will improve things for our developer members. The cost of defending a dubious claim, and the ease with which these claims can be made, still creates incentives for shakedown settlements. On behalf of developers and entrepreneurs across the country, we ask Congress to closely monitor the impact of this ruling and to continue to work on relieving the burden of nuisance litigation on small innovators.”

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The Developers Alliance is the world’s leading advocate for software developers and the companies invested in their success. Alliance members include industry leaders in consumer, enterprise, industrial, and emerging software development, and a global network of more than 70,000 developers.

 

Statement from the Developers Alliance on the Council General Approach concerning the Proposal on the Directive on the supply of Digital Content

Contact: Michela Palladino - Michela@AppAlliance.org

Statement from the Developers Alliance on the Council General Approach concerning the Proposal on the Directive on the supply of Digital Content

BRUSSELS – Developers Alliance Director of European Policy and Government Relations, Michela Palladino, released the following statement regarding the adoption of a general approach by the Justice and Home Affairs (JHA) Ministers on the proposed Directive on the supply of Digital Content (the “Digital Content Directive” or DCD).

“Since the beginning of the debate on the DCD, the Developers Alliance has expressed its concerns over the proposal’s inconsistencies with legislation put forward under the European Digital Single Market Strategy and its potential to jeopardize innovation and European competitiveness”, said Ms Palladino.

“We believe that today’s JHA Council general approach represents a significant step forward in this negotiation. We welcome the improved regime of remedies and appreciate the Member States’ aim to make rules more effective and fit for the digital age. We also appreciate the efforts of the Council to ensure alignment with the General Data Protection Regulation.

“However, we are disappointed to note that the scope has not been further clarified and has been broadened to include additional services (e.g. Over-The-Top services). At the same time, we regret that the key problem in the proposal, the concept of ‘data as a counter-performance’, has only been addressed semantically.

“The proposal of ‘consumers paying with their personal data’ goes against the essence of data, the functioning of the data market and is likely to negatively impact premium and ads-funded services and content, which is particularly worrying for developers, SMEs and their business models.

“We urge co-legislators to focus on addressing this important issue during the trialogue negotiations and consider narrowing the scope in order to exclude any zero-priced digital content from the scope of the Directive. We also encourage policy-makers to keep in mind the need of consistency and harmonisation of legal instruments, to ensure a stable digital regulatory environment.”

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The Developers Alliance is the world’s leading advocate for software developers and the companies invested in their success. Alliance members include industry leaders in consumer, enterprise, industrial, and emerging software development, and a global network of more than 75,000 developers.

Developers Alliance Expands Policy Focus

FOR IMMEDIATE RELEASE

Contact: Chris Grimm – cgrimm@appdevelopersalliance.org

Developers Alliance Expands Policy Focus 

U.S. and E.U. Policy Staff Additions to Support Innovators Policy Council

Washington, D.C. and Brussels – The Developers Alliance (formerly Application Developers Alliance) today announced its plans to launch the Innovators Policy Council: a network of innovators and entrepreneurs from around the world including more than one hundred small and early stage companies. The Alliance also announced the appointment of Michela Palladino as the Director of European Policy and Government Relations and Rachel Emeis as the Director of the U.S. Innovators Policy Council.

“The global software developer’s workforce is growing in size and importance every day, and we are proud to be their advocates around the world,” said Jake Ward, president and CEO of the Developers Alliance. “At a time when public policy issues from immigration and data flow to security and taxes are affecting millions of developers and small businesses, I am excited to add such great talent to our team. Their work and the formation of the Innovators Policy Council will enable the Alliance to more quickly and effectively deploy in Europe and North America on any number of issues essential to the future of the software driven economy.”

Michela Palladino will run the Developer Alliance’s Brussels office, focused on E.U. policy issues affecting developers across Europe. Michela brings more than eight years of E.U. Public Policy experience to the Alliance’s Brussels office. Before joining the Alliance, Michela worked for six years at the GSMA, the trade association that represents the worldwide mobile communications industry. Michela will be overseeing a series of policy roundtables this summer across the E.U., including meetings in Berlin, Paris and Brussels. The roundtables will bring mobile app developers together to participate in an open discussion on the role of government in the marketplace, the future of mobile app technology, and the state of competition and the mobile economy in Europe.

Rachel Emeis  will head the newly formed Innovators Policy Council. Rachel specializes in coalition management, crisis response, grassroots engagement, and external stakeholder relationships to achieve advocacy and public policy objectives.

The Innovators Policy Counsel is a global network of companies, startups, and innovators representing more than 35 countries that ensures companies of every size, interest, and industry have a voice in policy discussions and access to policymakers at every level of government.

“The policy goals of software powered companies large and small are closely aligned, but the disparity in resources often limits access and influence,” said Rachel Emeis, the new Director of the Innovators Policy Council. “Alliance members share a common interest in the software developer workforce and public policies that promote innovation and the Innovators Policy Council harnesses the energy and expertise of Alliance members to deliver unique insight, valuable content, and a strong voice on issues and topics affecting the industry.”

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The Developers Alliance is the world’s leading advocate for software developers and the companies invested in their success. Alliance members include industry leaders in consumer, enterprise, industrial, and emerging software development, and a global network of more than 70,000 developers.

Statement from the Developers Alliance on Revising Net Neutrality Rules

Contact: Chris Grimm -- cgrimm@appdevelopersalliance.org

Statement from the Developers Alliance on Revising Net Neutrality Rules

Washington, DC -- Developers Alliance President and CEO Jake Ward released the following statement regarding the Federal Communications Commission’s Net Neutrality revision.

 “The Developers Alliance supports a stable environment that promotes innovation and business growth. Developers need an Internet – wired and wireless – that is open, competitive, stable, fast, and fair to all who use it. As the FCC is set to once again rewrite the rules governing the internet, it is past time for Congress to enact legislation to finally put the issue of Net Neutrality to rest to give developers and entrepreneurs the certainty they need to support future investment and innovation.

 “We should encourage the FCC to make way for congressional action to once and for all set the rules for digital economy and legacy telecom cooperation. Both government bodies and both political parties should consider the stabilizing value of legislation. After more than a decade, developers would relish the certainty that narrowly and carefully crafted bipartisan legislation could bring to this issue. More years of litigation will simply create uncertainty that will undermine developers’ efforts to innovate and invest in our technology future.

"We, as an industry, should call on Congress to put rules in place that keep the Internet open, encourage investment in networks, and that stick. We welcome a legislative discussion that will provide the certainty that developers crave."

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The Developers Alliance is the world’s leading advocate for software developers and the companies invested in their success. Alliance members include industry leaders in consumer, enterprise, industrial, and emerging software development, and a global network of more than 70,000 developers.

Statement from the Developers Alliance on the European Commission’s Midterm Review of the Digital Single Market Strategy

FOR IMMEDIATE RELEASE

Contact: Michela Palladino - Michela@AppAlliance.org

BRUSSELS – Developers Alliance Director of European Policy and Government Relations, Michela Palladino, released the following statement regarding  the European Commission’s Midterm Review of the Digital Single Market Strategy. 

“The Developers Alliance (“Alliance”) believes in the creation of a European Digital Single Market that enables innovative business to grow. We would like to reaffirm our support for the original ambition of the European Commission’s Strategy. However, the proposals put on the table so far do not live up to expectations. 

“Developers support the Commission’s Better Regulation agenda - which aims to reduce regulation, to the benefit especially of small industry players, and are particularly concerned about potential conflicts between the new proposals and existing legislation. 

“Online platforms flourished under the framework created by the Electronic Commerce Directive (ECD). The limited liability regime, introduced by the Directive, is the cornerstone of a successful European Digital Single Market, as it shapes platforms as enablers and facilitators. The changes introduced by potential horizontal regulation or by sectoral legislation, such as the Audio-Visual Media Services Directive (AVMS), the Proposal for a Directive on copyright in the Digital Single Market, and the Directive on Contract rules for the supply of Digital Content (DCD), would be extremely disruptive of the existing balance. Certain measures proposed or envisaged at EU level would not only limit the development of online intermediaries, but would also conscript platform owners to police the internet and entitle them to enforce government rules against private citizens. 

“The Alliance and its members also fear that the proposed ePrivacy Regulation could put established principles, such as consent, tracking, profiling, transparency and security standards, that are already effectively covered by the General Data Protection Regulation, in jeopardy. This situation will definitely not result into better consumer satisfaction or protection. 

“Finally, we would like to flag the importance of a cross-border free flow of data for software developers: it decreases costs of data storage and increases competition. At the same time, data localisation is fundamentally incompatible with the overall DSM strategy. We call on the European Commission to concretely follow up on its commitments and put forward ambitious and clear measures aimed at freeing up the movement of data across the continent. 

“Overall, we encourage policy makers to set innovation as their ultimate priority. The digital industry keeps developing and innovating. Technologies such as the Internet of Things and Artificial Intelligence will benefit everyone, from businesses to consumers and software developers. Those technologies are at the core of the digital revolution. But in order to continue growing, digital businesses need to be given space to explore. Overbearing and risk-averse legislation will hamper innovation, create barriers to entry and eventually reduce consumer benefit. 

“The Alliance welcomes the mid-term DSM review as an opportunity to revamp the Commission’s commitments to building a strong digital single market and is keen to collaborate with the European Institutions by bringing the voice of software developers into the debate. Policy makers and industry need to work together to achieve a consistent and stable environment for the digital industry to thrive in.” 

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The Developers Alliance is the world’s leading advocate for software developers and the companies invested in their success. Alliance members include industry leaders in consumer, enterprise, industrial, and emerging software development, and a global network of more than 70,000 developers. 

Statement from the Developers Alliance on Congressional Consideration of Open Internet Rules

FOR IMMEDIATE RELEASE

Contact: Chris Grimm - Chris@appappliance.org

Washington, DC -- Developers Alliance President and CEO Jake Ward released the following statement regarding Congressional consideration of open Internet rules.

“The Developers Alliance supports a stable environment that promotes innovation and business growth. Developers need an Internet – wired and wireless – that is open, competitive, stable, fast, and fair to all who use it. A set of rules, established by Congress, will finally put the issue of Net Neutrality to rest, and support future investment and innovation.

“The torturing of the 1934 Communications Act to force it to accommodate the Internet has been painful to watch. Rather than viewing the FCC as abandoning the field, we should encourage them to make way for congressional action to once and for all set the rules for digital economy and legacy telecom cooperation. Both government bodies and both political parties should consider the stabilizing value of legislation. After more than a decade, developers would relish the certainty that narrowly and carefully crafted bipartisan legislation could bring to this issue. More years of litigation will simply create uncertainty that will undermine developers’ efforts to innovate and invest in our technology future.

"We, as an industry, should call on Congress to put rules in place that keep the Internet open, encourage investment in networks, and that stick. We welcome a legislative discussion that will provide the certainty that developers crave."

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Statement of the Developers Alliance to the EDPS Opinion 4/2017 and to the Commission Proposal on the  Digital Content Directive  

For immediate release

Contact: Claudia Trivilino -- claudia@appdevelopersalliance.org

 

The Developers Alliance (“Alliance”) represents software developers and the companies invested in their success. Alliance members include businesses, of different sizes, leaders in consumer, enterprise, industrial emerging software development along with a global network of more than 75.000 developers. We advocate on their behalf for innovation and job growth.

The app economy is estimated to employ up to 2.8 million developers in 2018, and contributing EUR63bn to the EU economy by 2018. In order to unleash its full potential, we need to find the right balance between creating a regulatory framework that enhances consumer trust and safety online, while allowing small businesses to innovate and grow.

We are concerned that the Proposal for a Directive on the supply of Digital Content (hereinafter referred to as “DCD” or “Proposal”) is inconsistent with existing and future legislation which aims to establish a European Digital Single Market and it jeopardizes innovation and European competitiveness.

In particular, we are concerned about the negative impact the DCD has on premium and ads-funded services and content, which are of crucial importance for the app economy and enable access to technology for consumers.

The major weaknesses of the Commission proposal lie in the following aspects:

  • the very broad and unclear scope,
  • the definition of data as a contractual “counter-performance”, and
  • the contradiction and inconsistency between the DCD and the recently adopted General Data Protection Regulation.

Therefore, we welcome the much-needed clarification provided by the European Data Protection Supervisor (“EDPS”) in his recent Opinion 4/2017 on the DCD, as it addresses the many problematic parts of the Proposal. Particularly, the overall EDPS recommendation, aimed to preserve the carefully negotiated balance between innovation and the fundamental right to privacy as enshrined in the GDPR, deserves support. The DCD should not introduce any new obligations or conditions regarding the processing of consumer data.

However, we wish to stress that we do fundamentally disagree with the EDPS Opinion to include free digital content and services in the scope of the DCD, as we believe that free content and services should not be regulated in the same way that paid-for content and services are. A recent study[1], carried out by Deloitte, demonstrates that a majority of consumers do not expect the same degree of protection, in return for not paying for valuable content or services.

This paper aims to highlight some of the most important points of the EDPS Opinion and outline the Alliance’s position. The paper addresses key points of the EDPS Opinion that the Alliance views as most important. Recommendations are presented as a conclusion.

 

Definition of data as a counter-performance:

In its Opinion[2],  the EDPS expressed serious doubts about the proposed concept of data as a counter-performance in lieu of money. The EDPS takes issue with the notion of exchanging personal data -- a fundamental right -- in return for goods and services. The value of personal data cannot be likened to money, can therefore not be used to purchase goods or services and should in turn not be subject to a regulation as such.

The EDPS maintains also that the language used in the DCD to insert such purchasing-with-data into legislation -- “data as counter-performance” -- should be avoided.

The Alliance agrees with the EDPS Opinion: personal data should be respected as the fundamental right of an individual and should not be used as currency.  Providing data to a service provider is only justified when it is needed for the provision of the service, or is required by law. In our view, the provision of data can be required simply because the performance of the service is not possible otherwise (e.g. need to provide location when booking a hotel room on a reservation website).

In his opinion, the EDPS questions whether the proposal is clear enough on stipulating what is meant by a “counter-performance” and also if such a use is appropriate[3]. We fully agree with this EDPS assessment: data cannot be likened to money since it lackseconomic value and does not exhaust with use, as money would. The Alliance also agrees with the EDPS view that the term ‘counter-performance’ oversimplifies the many varieties of business models and models of data use[4]. The Alliance further supports the EDPS assessment[5] concerning the elaboration of the possibility to “pay with data”, and regarding the “value of data”.

 

Consistency with GDPR:

The EDPS Opinion clearly calls for a coherent legal framework when discussing fundamental rights. EU institutions have been encouraged by the EDPS to avoid any new proposals that “upset the careful balance negotiated by the legislators on data protection rules”, as adopting overlapping initiatives could put at risk the coherence of the whole digital single market. We therefore support this view and draw attention in particular to Points 21, 22, 23 and 42 of the EDPS Opinion, where he addresses the issue of consistency with existing and future legislation.

 

Data retrieval and data restitution:

The EDPS Opinion recommends not to undermine GDPR provisions relating to the “right to access” (Art 15) and “data portability” (Art 20). The EDPSpoints outthat Art. 13 and 16 of the DCD[6] not only overlaps with Art. 15 and 20 of the GDPR (right to access and data portability) but also introduce a different scope and application than the GDPR. The Alliance emphasises the need to adopt a coherent data protection framework that does not lead to conflict in the future. We therefore highly recommend, much like the EDPS, to refer to the articles in the GDPR, in particular Art. 20 on data portability, when granting the consumer the right to retrieve his or her personal data, upon termination of the contract (based on non-conformity on the side of the supplier).

 

Recommendations:

In pursuit of the EDPS Opinion, the Alliance recommends:

●      To horizontally delete the notion of “data as a counter-performance”, in order to align the proposed DCD with the General Data Protection Regulation and to enable future technological developments;

●      That the legal consumer data framework is made consistently and coherently: Innovators, primarily smaller companies, need to have certainty in the legal rules. Consistency, simplicity and clarity are key, and will enable developers to comply with regulation, and continue innovating and providing better services and products that benefit consumers;

●      That the scope of remedies available in the DCD (in Arts 13, 16) is limited to personal data provided by the consumer only in order to ensure alignment with already existing provisions on data portability in the GDPR;

●      That the notion of “any other data” in the DCD, a term ill-conceived, ill-defined, and unnecessary, be deleted; and

●      That the DCD clearly acknowledges the difference between paid-for and free digital content and services; recognising that consumers have different expectations, which merits different kind of protection for these services and content.

 

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The Developers Alliance is the world’s leading advocate for software developers and the companies invested in their success. Alliance members include industry leaders in consumer, enterprise, industrial, and emerging software development, and a global network of more than 75,000 developers.


[1] Deloitte Study, Impact of the European Commission’s Draft Directive on Contract Rules for the Supply of Digital Content, August 2016: http://static.ow.ly/docs/EC%20Digital%20Content_5nY9.pdf

[2] Point 28 of the EDPS Opinion

[3] see Point 25 of the EDPS Opinion

[4] see ditto: [“...Considering the various business models and different uses of personal data in the context of a commercial transaction, the use of the term counter-performance is not appropriate to address the business models at stake and could appear to oversimplify in one single term a variety of business models and data usages...:”]

[5] See Points 26 and 27 of the EDPS Opinion

[6] see Point 76, 77 and 78 of the EDPS Opinion

Statement From the Developers Alliance on recent developments in the negotiations of the Digital Contracts Directive

FOR IMMEDIATE RELEASE

Contact: Claudia Trivilino -- claudia@appdevelopersalliance.org

 

Statement From the Developers Alliance on recent developments in the negotiations of the Digital Contracts Directive

In light of the upcoming debate about the Digital Content Directive at the Justice & Home Ministers Council meeting on 8-9 December, the Applications Developers Alliance wants to re-emphasise our concerns:

The Developers Alliance is the world's leading association representing more than 75.000 developers, many of them contributing to the great success of Europe's booming app economy which has created more than 1.6million jobs in Europe already.

The question on the scope of the proposal needs to be assessed really carefully as it will have tremendous impact on the future success of Europe's app economy. We believe that the proposal fails to understand the huge technical difficulties arising from the requirement to make non-personal data retrievable to consumers. It would require smaller developers to completely restructure their data management systems. We also fear that such a requirement would be in conflict with the General Data Protection Regulation and seriously inhibit the way developers can create data-driven innovations in Europe. All this, while the non-personal data (such as meta data) has practically no added economic value for consumers.

Ian Rumac, lead Android Developer at SuperPopCorn says that "The concept of data as counter-performance ignores the fact that a lot of small and medium businesses use data to optimize and improve user experience and their products. From bringing new features, optimising old ones and fixing faulty content, anonymised data is a vital part of digital products." In order to comply with the rules, developers should abandon anonymisation for pseudonymisation, which is " creates more risks to users privacy and incurs costs in both development time and money to businesses"

Lukas Konior, COO at All In Mobile concludes that "Those regulations are an enormous step back. They'll influence the competitiveness of the UE market and the app developers in a very negative way. Consistency of the rules is very important but the way the regulations are proposed will do more harm than good."

 

We therefore urge the Council to carefully consider limiting the scope to personal data. This would ensure that the law is in line with the General Data Protection Regulation while practically not limiting the consumer benefit arising from the Digital Content Directive.

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The Developers Alliance is the world’s leading advocate for software developers and the companies invested in their success. Alliance members include industry leaders in consumer, enterprise, industrial, and emerging software development, and a global network of more than 70,000 developers.