Apple’s intellectual property evaluation appears to have been a sham; that doesn’t mean that its intellectual property isn’t valuable, and that Judge Gonzales Rogers isn’t taking it (takings clause, below)(...Apple should have put forward an honest evaluation of its intellectual property value and used that to build a new commission number, instead of backing into a number that justified 27% which everyone agrees is the contempt and willful disregard of a judge's order (and there is a paper trail for that and perjury I believe).
At the same time, most suspect it will fall to the Appeals Court — and perhaps the Supreme Court — to decide if a federal judge, using a state law, can compel permanent commercial access to proprietary infrastructure — backed by intellectual property — without paying for it, simply because the company acted duplicitously. Apple’s rate may be anticompetitive; it may also be the case that setting it to zero is equally illegal. And that is the crux of the argument and where many think the Judge overrotated on her ruling because she was irate about being disrespected.
Links abound around the fact there are a number of pertinent Supreme Court precedents that have bearing on this argument:
The controlling precedent for the Takings Clause is Penn Central Transportation Co. v. New York City; this, in contrast to the bright line precedent of Lucas v. South Carolina Coastal Council, considers cases where the taking is only partial, not total. In this case, Apple still owns its IP, and can still monetize it through things like the developer fee, in-app purchases, etc.; however, Apple will argue that (1) the economic impact, (2) interference with investment-backed expectations, and (3) character of the government action will render this partial taking of the right to monetize IP used for web-based transactions illegal.
Horne v. Department of Agriculture
Ruckelshaus v. Monsanto Co. held that forced disclosure of trade secrets (in this case, for regulatory approval) is a taking; this makes clear that the takings clause applies to something that is intangible and proprietary like intellectual property.
Cedar Point Nursery v. Hassid held that compelled access — even if it doesn’t result in compelled divesture — constitutes taking. In this case, just because Apple’s intellectual property is non-rivalrous doesn’t mean the company isn’t harmed by being forced to grant access to it.
And this of course is all based on the "Takings Clause" of the 5th ammendment: