The Price of Free in EU Digital Law

Apple’s new business terms for apps in the European Union took effect on October 1, 2026. A developer that sends a user out of its app to buy something on its own website now pays Apple 15% of any sale concluded within seven days of the tap, and 5% of sales made in apps distributed outside the App Store. The Digital Markets Act, in Article 5(4), says that a gatekeeper “shall allow business users, free of charge, to communicate and promote offers” to their users “and to conclude contracts with those end users”. Seventeen months earlier the Commission had fined Apple EUR 500 million for restricting steering and charging a commission on the sales that followed. In August 2026, a Commission spokesperson said the Commission welcomed the new terms. Apple describes its commissions as reflecting “the extensive value Apple provides developers”. Epic Games, in press reports, calls them junk fees. This piece takes no side in that dispute, and no position on whether gratuity is a good regulatory instrument. It measures what the texts say.

Marcel Mauss, the French sociologist, published an essay on the gift in 1925. He had read the ethnographies of the Pacific and the American Northwest and found the same pattern in each. A gift is presented as free and voluntary, and it is neither. It obliges the receiver to accept and to return, and the return is where the value changes hands. Mary Douglas, introducing the English edition in 1990, put the finding in three words, no free gifts.

EU digital law is full of gifts. I wanted to know what they oblige. So I coded every provision in the 34 binding instruments of the EU digital rulebook that fixes what a regulated party may charge a beneficiary for data, access, a service, a switch or a procedure, 244 pricing rules in all. Two thirds of them, 161, set the price at zero.

Read the full piece here.

The right to sue is only valuable if you can afford to exercise it.

For much of American history, lawmakers, courts, and the legal profession have recognized that access to justice requires more than constitutional guarantees – it requires practical ways for individuals and small businesses to protect their rights against far better-funded opponents.

Congress now risks undermining that principle.

Read the full piece here.

Britain is looking for the effects of artificial intelligence in all the obvious places: redundancies, vacancies and unemployment numbers.

So far, there is little evidence of dramatic change in overall headcount. The Office for National Statistics reports that most British businesses using AI have not changed the size of their workforce, even as AI adoption has risen rapidly.

But perhaps we are looking in the wrong place.

Read the full piece here.

On Dec. 1, the Supreme Court is scheduled to hear oral argument in Jouppi v. Alaska, a case stemming from the seizure of an airplane valued at $95,000 as punishment for the misdemeanor offense of transporting a small quantity of beer to a “dry village.” Expected to be “one of the most significant criminal law decisions in the coming term,” Jouppi will shed light on the constitutional permissibility of the myriad of criminal forfeiture actions that generate massive revenue each year for federal, state, and local government. Jouppi also promises to be a milestone in the constitutional doctrine relating to civil forfeiture, which is even more lucrative for government than its criminal counterpart. That is because the Eighth Amendment’s excessive fines clause, which in the opinion of the plane’s owner prohibits Alaska from permanently depriving him of his property, applies to civil forfeitures as well as criminal ones, provided that the civil forfeiture at issue is (at least in part) “punitive.”

Read the full piece here.

In five years, computational antitrust has gone from a proposition to a field. More than eighty agencies now use computational tools, a literature has formed around them, a scattered set of researchers and enforcers has come to recognize itself as one. The next five years will decide what kind of field it becomes.

Read the full piece here.

The right to sue is only valuable if you can afford to exercise it.

For much of American history, lawmakers, courts, and the legal profession have recognized that access to justice requires more than constitutional guarantees — it requires practical ways for individuals and small businesses to protect their rights against far better-funded opponents.

Congress now risks undermining that principle.

Read the full piece here.

On 17 August 2026, the Official Journal published notice of an action brought before the General Court by Creditell GmbH against the European Commission (T-397/26). The case concerns two apparently distinct matters: the Commission’s refusal to grant access to selected documents from the file of the Trucks cartel (AT.39824) and its failure, almost nine years after adopting the 2017 Scania decision, to publish a definitive non-confidential version of that decision.

Neither issue is new. Both access to competition authority files and the publication of Commission antitrust decisions have generated a substantial body of EU case law. Yet their combination in this case brings into focus a broader question that extends well beyond Regulation 1049/2001 or the publication of a single cartel decision: how is information generated through public enforcement supposed to circulate into private enforcement? More specifically, what happens when the information made publicly available by the Commission is insufficient to enable claimants and national courts to make effective use of the disclosure mechanisms established by the Damages Directive (2014/104/EU)?

Read the full piece here.

America’s electric grid is in trouble. Demand is surging for the first time in a generation, driven by data centers and the electrification of everything from cars to home heating. Costs are rising. New power plants and transmission lines can’t get built fast enough. And the utilities responsible for the grid have largely responded by asking to be shielded from competition.

Rather than proposing solutions to the grid’s actual problems, many utilities are using this moment to roll back the reforms that forced them to compete in the first place.

Read the full piece here.

Congress frequently seeks advice from experts in a wide variety of industries. In theory, this expert testimony helps lawmakers craft better, more nuanced legislation.

Sometimes these “expert” witnesses aren’t especially knowledgeable. Even worse, sometimes they mislead lawmakers in the hope of advancing legislation that benefits their own companies, even if it hurts the country.

That’s precisely what happened in June, when the House Judiciary Committee held a hearing to investigate whether patenting practices in the pharmaceutical industry are driving up drug prices.

Read the full piece here.