Will Apple face the type of antitrust issues Microsoft had to contend with in the 90's? Possibly, but not with the same magnitude. Apple is by no means locking up its market the way Microsoft controlled the personal computer field with Windows. Still, the question arises for the iTunes Store, the App Store and their tightly controlled transaction and subscription systems.

Today, we'll take a look at the issue from a news business perspective.

The fact that scores of publishers are flocking to the iTunes system doesn't mean they are happy with it. For any publisher willing to access the burgeoning tablet market currently dominated by the iPad, a presence in the App Store is mandatory. But I never met a publisher happy with his relationship with Apple. For most, what started as an enthralling partnership is slowly morphing into a feeling of servitude.

That perception is tinged with schizophrenia. Media people are usually fond of Apple products. From top bosses to tech reporters, they cherish their iPads and their iPhones. Then, each time Apple introduces a well-polished new device, it gets glowing coverage worth hundreds of million dollars if converted in media space.

Enjoying great products and admiring Apple for its many achievements does not prevent anyone from taking a stern look at the way the Cupertino folks do business. In a nutshell, publishers feel increasingly locked-in, and sometimes abused by Apple's tight ecosystem.

As always, there are excesses on both sides. Difficult as it might be, let's try and take a balanced view of three majors issues:

#1 The application ecosystem

#2 The validity of a business model build on a 30% commission

#3 The issue of the customer data.

(We'll start with #1 today, and address #2 and 3 next week)

The following is based on my ongoing contacts with publishers and conversations I had with lawyers specialised in antitrust and intellectual property. They spoke anonymously as they are quietly loading their guns for a possible legal action before the European Commission.

#1 The application ecosystem

The context. Apple set up a huge technical and human infrastructure to provide tools to anyone, large or small, willing to build an application and yearning to make it available to any market. Amazingly, from the outset, Apple decided to provide all this machinery (software development kit, tracking system, testing) for free (let alone the symbolic cost of a $99 developer account).

Entrepreneurs voted with their keyboards and mice: there are 500,000 applications in the App Store today, and counting. It created a huge new business. As Apple gives back 70% of the revenue for paid-for applications, by June 2011, the company had paid more than $2.5bn to developers, many of them individuals or very small companies.

Well, is there really a matter to complain about here? Surely not for the developer working from a high rise in Seoul or a barge in Amsterdam. But for the large publishing company, it's another story. Once it enters the system, two keywords begin flashing: "discretionary power" and "locked in".

Let's face it, Apple has life and death power over the apps it harbours in its store. Its approval system it completely opaque, left at the discretion of an elusive army of people working at "undisclosed locations". Welcome to the kingdom of the arbitrary. The same set of features that once raised a red flag triggering a rejection will be accepted the next time around – without explanation. Approval delays vary widely, making it difficult to plan the roll-out of a critical product. What is acceptable for a mom and pop operation becomes anxiogenic for large organizations.

The question of "choice". To those who criticised its "black box" system, Apple's retorts we evolve in a free market: if a publisher is not happy with its App Store it can: (a) go to the Android market, or (b) build its own web app – ie, an app that will live and function independently of the iTunes Store.

Antitrust lawyers don't see things that way. Their argument: for someone controlling 75% of the tablet market, invoking such a marginal alternative isn't relevant. A publisher willing to join the tablet business has no choice but being available on the iPad. In practical terms, this means investing serious money to join a platform operated in a discretionary and opaque way, with unclear and changing rules.

As for the web app, antitrust attorneys suggest they represent a degraded and dangerously uncertain alternative to the iTunes Store. Degraded because a web app such as the Financial Times' – the poster child of the "resistance" to Apple – doesn't work as well as a native app. And this notion of "slightly less good" is absolutely critical.

Given the state of HTML5 (the programming language used for independent apps) and whatever the skills of its developers, a web app will never be as fast, as fluid, as features-rich as a native application. As for the uncertainty, it lies in the fact that a web app depends on features Apple can change without warning, such as the ability to use its browser (no choice here, it's Safari) to store content. Put another way, web apps are likely to work – no more than OK – until Apple decides otherwise. Again, it's difficult to build a sound business upon such quick sand.

Evidently, Apple is entitled to defend the integrity of its operating system by not giving independent applications access to critical layers of its iOS. This precaution provides better security against rogue code such as viruses and other malware; it is an indisputable justification for tight control.

Agreed, said the antitrust lawyers, but: (a) for the native apps, rules could be more transparent and stable, (b) as for web apps, such rules should evolve within a framework of well-documented Application Programming Interfaces (APIs), a set of coding conventions used by programs to communicate with each other and with the underlying operating system. These APIs would be controlled by Apple on the sole basis of technical concern in order to protect the integrity its OS while creating a clear and well-defined framework for publishers.

Evidently, these suggestions sound a bit naïve. Apple has no business interest whatsoever in easing its allowance for independent web apps. Most likely, it will carefully adjust the cursor to appear reasonably open while, at the same time, protecting its own ecosystem.

Things are likely to get worse before they get better: Apple is likely to unleash features that will benefit only applications and services of its choice in order to preserve its position. The best example is its Newsstand's background downloading for publications (your iPad automatically wakes up to download the publications you subscribed to in the Newsstand, see a previous Monday Note on the matter). Lawyers says this is the perfect example of a feature that creates an unfair advantage favouring Apple's own distribution channel.

Apple's attitude towards competition epitomises a often-seen scenario of the technological evolution: a company acquires a dominant position in a given market (in today's case, several ones) thanks to superior products and services. As the company further gains ground over its competitors, the admiration for its quick success morphs into growing suspicion.

Features that once were lauded as innovative market boosters begin to be seen as instruments of a market lockdown. At the same time, competition tries to imitate the leader as fast as it can. As it feels both unfairly copied and threatened, the market leader reacts by further tightening its grip on its business, using whatever it takes to buy time. In doing so, it triggers more hostility, etc. A vicious spiral begins.

Next week, considering market domination, we'll see why Apple takes a different approach from the one Microsoft once used. Unless it becomes completely intoxicated by its own success, a clever "cursor adjustment" could preserve Apple's lead and, at the same time, favour healthy competition.

frederic.filloux@mondaynote.com