The plaintiffs say the arrangement leaves them no competing tap-to-pay wallet on the iPhone, and that Apple charges card issuers a fee on purchases made through it. I would ask first what the fee rests upon. It is not the cost of the service alone that sets it; it is the restraint of competition. As I have written, "The exclusive privileges of corporations... necessarily restrain the competition" to those who are free of the trade, and such restrictions "are a sort of enlarged monopolies" that can "keep up the market price of particular commodities above the natural price." Where the number who may offer the service is fixed, the price is not the price of free dealing.
The article reports that on Android, where the chip is open to competing wallets, those wallets charge card issuers no transaction fee. This is the comparison I would press. The difference between the two systems is not the technology but the terms of admission to the trade. Where "the monopoly is more or less strict according as the terms of admission are more or less difficult," the fee is a monopoly price rather than a competitive one. I would not conclude from the fee alone that the fee is unjust; I would ask whether entry was open.
The recent opening of the chip to third-party developers does not, by itself, settle the account of fees already paid. The plaintiffs' attorneys say as much. A restraint that has "last as long as the regulations of police which give occasion to them" may be lifted, and yet the charges made under it remain to be reckoned. Whether those charges are lawful is for the court, not for me. My part is only to observe that where competition is restrained, the price tells us less about cost than about the restraint.
