403 lines
17 KiB
HTML
403 lines
17 KiB
HTML
<?xml version="1.0" encoding="UTF-8" ?>
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<html>
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<version>1</version>
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<head>
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<title>Digital Markets Act</title>
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</head>
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<body class="article">
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<h1>Digital Markets Act</h1>
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<div>
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<div id="introduction">
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<p>
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Device Neutrality is the policy concept to regulate monopoly over
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devices and re-establish end-user control over their digital equipment.
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The Digital Markets Act (DMA) regulates the economic activity of large
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digital platforms and introduces Device Neutrality into EU
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legislation, fostering access to Free Software in devices.
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</p>
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</div>
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<!-- @TRANSLATORS: the banner's source file you find here:
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https://download.fsfe.org/device-neutrality/device-neutrality-logo-banner.odp -->
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<figure class="max-width-100 no-border">
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<img
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src="https://pics.fsfe.org/uploads/big/de9a14dc3122b5c304d8644d584abb6c.png"
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alt="Device neutrality: safeguarding free software in devices" />
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</figure>
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<div class="toc">
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<p>Table of contents</p>
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<ol>
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<li>
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<a href="#dma-monopolisation-end-user-rights">Market monopolisation and end-users' rights</a>
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</li>
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<li>
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<a href="#dma-overview">Digital Markets Act: an overview</a>
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<ol>
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<li><a href="#dma-gatekeepers">Who are the gatekeepers</a></li>
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<li><a href="#dma-device-neutrality-rules">Device Neutrality rules in the DMA</a></li>
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<li><a href="#dma-enforcement-mechanisms">Enforcement mechanisms</a></li>
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</ol>
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</li>
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<li>
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<a href="#dma-concerns-fs">DMA and concerns for Free Software</a>
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<ol>
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<li><a href="#dma-open-standards-missing">Open Standards are missing</a></li>
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<li><a href="#dma-security-vs-commercial">Security concerns vs commercial interests</a></li>
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<li><a href="#dma-complex-enforcement">Complex enforcement</a></li>
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</ol>
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</li>
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<li>
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<a href="#dma-your-help">Help making Device Neutrality a Reality!</a>
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</li>
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</ol>
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</div>
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<h2 id="dma-monopolisation-end-user-rights">Market monopolisation and end-users' rights</h2>
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<p>
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The monopolistic power of large tech corporations causes distortions in
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digital markets. This negatively affects end-users’ rights and control over
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devices. Users' freedoms relating to Free Software depend on a political
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and economic environment in which they can exercise their free choice
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when using their devices without being stuck in closed environments under
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control of gatekeepers.
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</p>
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<p>
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<a href="/activities/deviceneutrality/#device-neutrality-free-software">Device Neutrality</a> is
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a policy concept aimed to deal with unbalanced power over digital devices.
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Free Software has a central role to re-establish fair competition
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and market dynamics that are more favourable to end-users. In this page we
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will learn how digital markets can benefit from strict rules for
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regulating the economic activity of companies with such power. The Digital Markets
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Act (DMA) is an example of such regulation. With proper enforcement, the law has
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the potential to facilitate access to Free Software in devices.
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</p>
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<figure class="no-border">
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<img
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src="https://pics.fsfe.org/uploads/medium/9582a72c2875f67c324db79ffe35ec66.jpg"
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alt="Smartphone being hold by hand." />
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<figcaption>
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Monopolies in digital markets affect directly end-users' rights over devices.
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</figcaption>
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</figure>
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<p>
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Device Neutrality translates in the DMA as stricter consent rules for
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pre-installed apps, safeguards against vendor lock-in, and data interoperability.
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Such regulatory elements represent powerful mechanisms to safeguard better
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access and usage of Free Sofware in devices by end-users. Nevertheless, the enforcement
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of these rules holds challenges for the practical implementation of Device Neutrality principles, and
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ultimate attainment of Device Neutrality.
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</p>
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<h2 id="dma-overview">Digital Markets Act: an overview</h2>
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<p>
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The <a
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href="https://eur-lex.europa.eu/eli/reg/2022/1925">Digital
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Markets Act (DMA)</a> - Regulation (EU) 2022/1925 - regulates the
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economic activity of large digital platforms that act as "gatekeepers" in
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an attempt to create a fairer and more competitive market for online
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platforms in the EU. The DMA is an important advance, setting up
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several anti-monopoly obligations that impact software freedom,
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interoperability, and control over personal data. The three principal
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elements of the DMA are the designation of gatekeepers, the list of
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dos and don'ts, and the enforcement mechanisms.
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</p>
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<h3 id="dma-gatekeepers">Who are the gatekeepers</h3>
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<p>
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The scope of the DMA does not cover all digital services in the markets,
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but only those qualifying as "core platform services" (CPSs) listed in
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Art. 2(2). These include online intermediation services, search engines,
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social networks, video sharing platforms, messaging apps, operating
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systems, web browsers, virtual assistants, cloud computing services, and
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online advertising.
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</p>
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<figure class="no-border">
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<img
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src="https://pics.fsfe.org/uploads/medium/bd189c869dba6146ebd88f81e616c8eb.png"
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alt="Alt: Alt: Illustration of a computer, a tablet and a smartphone." />
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<figcaption>
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Gatekeepers can be device manufacturers, vendors or internet platforms
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that meet the criteria defined by the DMA.
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</figcaption>
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</figure>
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<p>
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The DMA constitutes asymmetric regulation. Its obligations do not apply to
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all tech companies, but only to those providers which have been designated
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as <i>gatekeepers</i>. Such designation is done by the European
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Commission based on a cumulative "three criteria test" listed in Art.3(1):
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Gatekeepers are those companies with "significant impact on the EU
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internal market", which "control an important gateway for business users
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to reach end-users", and enjoy an "entrenched and durable position in the
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market". The DMA presumes the criteria are met when the company is extremely
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large with an average market capitalisation of ≥ EUR 75 billion and more than
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45 million monthly active end-users.
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</p>
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<module id="banner-subscribe" />
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<h3 id="dma-device-neutrality-rules">Device Neutrality rules in the DMA</h3>
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<p>
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DMA is an economic regulatory tool, not consumer protection legislation.
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But many of its rules directly and indirectly affect end-users. The DMA
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seeks to balance the power of gatekeepers in digital markets by protecting
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end-users from monopolistic practices and promoting fair competition
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among market players. For Device Neutrality, this means that
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end-users should be able to bypass gatekeepers and have the right to access
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alternative routes to the markets, so they can enjoy products and services
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not dominated by gatekeepers (e.g. installing Free Software on their devices).
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In other words, gatekeepers should not restrict business and individual end-users from
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accessing rival routes to market for content, software, and other
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digital services.
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</p>
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<figure class="no-border">
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<img
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src="https://pics.fsfe.org/uploads/medium/d2484017914fd8dc06a6ba9621d5e8ff.png"
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alt="Alt: Illustration of a smartphone and a sad person." />
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<figcaption>
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End-users should be able to bypass gatekeepers in order to access rival content,
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software and other digital services on the markets.
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</figcaption>
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</figure>
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<p>
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The DMA presents a list of "hard" and "soft" obligations for each of
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the gatekeeper’s core platform services that are designated by the
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Commission in Arts. 5-7, coupled with corrective mechanisms
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in Arts. 8-13. These include <a
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href="https://download.fsfe.org/device-neutrality/art-dma-dn.pdf">
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several provisions related to Device Neutrality</a>.
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</p>
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<p>
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In relation to <strong>software freedom</strong>, gatekeepers
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are required to allow end-users to uninstall any pre-installed
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software in devices (Art. 6(3)), as well as to enable the installation
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and use of third-party apps or apps stores on devices (Art. 6 (4)).
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</p>
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<p>
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The DMA includes several provisions to enhance the <strong>protection
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against vendor lock-in</strong>. Gatekeepers cannot prohibit app developers
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to set different prices and conditions for their apps in alternative stores
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(e.g. F-Droid) (Art. 5(3)). Gatekeepers cannot make software developers
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and end-users register or sign in for a service or app as a condition for access to
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their or another gatekeeper's service or app (Art. 5(7)). Besides,
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they should allow end-users to access and use third-party apps, content,
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subscriptions, features, or other functionalities (Art. 5(5)). Finally,
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Gatekeepers cannot restrict the ability of end-users to switch between and
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subscribe to different apps and services that are accessed via the operating system
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or apps store (Art. 6(6)).
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</p>
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<p>
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<strong>Interoperability and control over data</strong> is also contemplated
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as an important factor against lock-in. Gatekeepers should provide the same
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hardware and software features accessed or controlled via the operating system
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to third-party developers (Art. 6(7). This includes data interoperability
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(also called real-time data portability (Art. 6(9) and
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interoperability among messaging apps (Art. 7).
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</p>
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<h3 id="dma-enforcement-mechanisms">Enforcement mechanisms</h3>
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<p>
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The DMA represents a new attitude towards platform regulation. It is a
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hybrid form of competition and telecommunications law, whereby a
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designated authority identifies who will fall under the scope of
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the regulation. However, unlike telecom law, which requires action by national
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regulatory authorities, enforcement is centralized in the European
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Commission. The Commission can investigate (Art. 16) whether a company
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should be designated as a gatekeeper and its compliance, as well as update
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the list of obligations. The Commission can also impose fines up to 10% of
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the gatekeeper's yearly turnover or periodic penalty payments up to 5% of
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the average daily worldwide turnover (Arts. 30-31).
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</p>
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<p>
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End-users, competitors and other organisations can collaborate in the enforcement
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of the DMA by informing national regulatory authorities about illegal practices
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by gatekeepers. The regulators can communicate to the Commission to start proceedings.
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</p>
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<figure class="no-border">
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<img
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src="https://pics.fsfe.org/uploads/medium/6b5043bde262be066db2e6e8f24e7814.png"
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alt="Illustration of two persons with a smartphone, a pc and a tablet." />
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<figcaption>
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Proper implementation and enforcement can facilitate broader usage
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of Free Software in devices.
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</figcaption>
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</figure>
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<h2 id="dma-concerns-fs">DMA's implementation and Free Software</h2>
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<p>
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Users' freedoms relating to Free Software depend on a political
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and economic environment in which they can exercise their free choice
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when using their devices without being stuck in closed environments under
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control of gatekeepers. Digital markets can benefit with the DMA regulating
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the commercial practices of large platforms, forcing them to facilitate
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access to Free Software in devices. Nevertheless, the DMA still falls short
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in some aspects involving Open Standards, the pressure gatekeepers can exercise
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over decision makers, and complex digital enviroments.
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</p>
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<figure class="no-border">
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<img
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src="https://pics.fsfe.org/uploads/medium/5a906d4e08c44965b4f14cc18bd9f8be.png"
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alt="Illustration of smartphoe, tablet and interface." />
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<figcaption>
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Although DMA represents a step forward in terms of gatekeeper regulation,
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there are be challenges for effective implementation.
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</figcaption>
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</figure>
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<h3 id="dma-open-standards-missing">Open Standards are missing</h3>
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<p>
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In the legislative process, the FSFE urged the inclusion of clear
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language mandating the adoption of Open Standards for the interoperability
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obligations, which was not done in the final version of the law.
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Instead, the DMA mentions "free and effective interoperability"
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(Art. 6(7)) regarding hardware and software features that can be
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accessed/controlled via an operating system by third parties, as well as
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"fair, reasonable and non-discriminatory access conditions" to apps
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stores, search engines, and operating systems. The solution adopted may
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allow gatekeepers to implement proprietary standards and restrictive
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access to APIs that are incompatible with Free Software. This was a lost
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chance to leverage competition with accessible and non-discriminatory
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technical specifications. Open Standards remain an important element for
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innovation by allowing market actors to innovate on top of technical
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standards.
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</p>
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<h3 id="dma-security-vs-commercial">Security concerns vs commercial interests</h3>
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<p>
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Another source of concern relates to how the law allows gatekeepers to
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limit interoperability for the sake of integrity and security of the
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gatekeepers' services or devices (Art. 6 (3) and (7)). Our experience
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demonstrates that companies have been claiming security concerns to limit
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users' rights and software freedom even in the absence of empirical
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evidence of such risks for the integrity of the devices. Instead,
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commercial interests are the main drive to pursue such restrictive
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practices. This provision in the DMA has the potential to hinder
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compliance or even, in a worse case, strength or consolidate the
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gatekeepers' entrenched position in the market.
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</p>
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<h3 id="dma-complex-enforcement">Complex enforcement</h3>
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<p>
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The procedural enforcement efforts also raise questions regarding
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achieving real and effective Device Neutrality. The DMA encompasses the
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regulation of several complex layers of devices, as operating systems,
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browsers, and apps stores, as well as interoperability and data portability.
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Similarly to telecommunications law, such measures would require further
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specification and further regulatory efforts for practical
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implementation. As our experience has shown with Router Freedom in the EU,
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although the related telecom rules were much simpler to implement, even so
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they have been taking years to be properly applied by national regulators.
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Therefore, not only the lobbying power of such platforms, the
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allowances the law makes towards "security and integrity", and the absence of
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clear language mandating Open Standards, but also market pressure can
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relativize the enforcement priorities of the Commission and other
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policymaking bodies.
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</p>
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<h2 id="dma-your-help">Help making Device Neutrality a reality!</h2>
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<p>
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The FSFE has extensive experience in monitoring compliance with
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telecommunications and internet legislation, working together with the
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commission in antitrust cases, as well as with national regulatory bodies.
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We will continue to dedicate efforts in the process of enforcing the DMA
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and making Device Neutrality a reality in the EU. For that, we count on
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your support for our work with a donation. Get active and help us
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empower you to regain control over your devices!
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</p>
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<p class="text-center">
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<fsfe-cd-donate-link class="btn btn-lg btn-primary">
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I want to donate for Device Neutrality!
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</fsfe-cd-donate-link>
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</p>
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<figure class="max-width-100 no-border">
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<a
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href="https://pics.fsfe.org/uploads/big/a9669e241527f1769e2fe67418a77f0d.jpg">
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<img
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src="https://pics.fsfe.org/uploads/big/a9669e241527f1769e2fe67418a77f0d.jpg"
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alt="Screenshot from the Core Values video: software freedom." />
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</a>
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<figcaption>
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Monitoring and compliance efforts require substantial efforts, human and
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material ressources. We need your help to make Device Neutrality a reality!
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</figcaption>
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</figure>
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</div>
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<related-feed tag="deviceneutrality" />
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</body>
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<sidebar promo="our-work">
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<h2>Regaining control over devices</h2>
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<ul>
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<li>
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<a href="/activities/deviceneutrality/index">Device
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Neutrality and Free Software</a>
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</li>
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</ul>
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<h2>Related activities</h2>
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<ul>
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<li><a href="/activities/routers/routers.html">Router Freedom</a></li>
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<li><a href="/activities/upcyclingandroid/">Upcycling Android</a></li>
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<li><a href="/activities/radiodirective/radiodirective.html">EU Radio Lockdown</a></li>
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</ul>
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<h2>Support the FSFE</h2>
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<p>
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As a non-profit, non-governmental organisation, Free Software Foundation
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Europe works to create general understanding and support for Free Software
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and Open Standards in politics, business, law and society at large.
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By becoming a supporter of the FSFE you empower our work and help to assure our financial independence.
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</p>
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<fsfe-cd-donate-link class="big-donate">Become a supporter</fsfe-cd-donate-link>
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||
</sidebar>
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||
</html>
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