Spotify’s chief legal officer turns his attention to Apple

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For the past five years Horacio Gutierrez has led Spotify’s campaign against Apple

Horacio Gutierrez made his name in US corporate law two decades ago defending Microsoft against charges of anticompetitive behaviour in the first major antitrust case of the internet age. As the tech industry is once again dominated by talk of monopolies, Gutierrez, now Spotify Technology's chief legal officer, has switched sides.

Gutierrez says he doesn’t think Apple has helped itself with a defence based on rejecting criticism outright, a stance that reminds him of Microsoft’s early response to its antitrust troubles. A growing number of governments, other tech companies, and regulators have become receptive to Gutierrez’s arguments. In June 2020, the European Commission responded to Spotify’s complaints about Apple by opening an antitrust investigation, and there are signs it’s leaning against Apple.

Gutierrez, one of the most powerful attorneys of Hispanic descent working in US corporate law, was born and raised in Venezuela. He joined Microsoft in 1998 after graduating from the University of Miami’s law school — it was his fourth law degree — and started off as its lead counsel for Latin America and the Caribbean.

Subscriptions account for about 90% of Spotify’s sales, and it wasn’t even close to turning a profit, even without Apple taking that cut. But if Spotify didn’t allow in-app payments, Apple’s rules forbade Spotify from asking its customers inside the app to sign up through its website, where the company wouldn’t have to pay Apple a commission.

With the blessing of CEO Daniel Ek, Gutierrez took the lead in developing and executing Spotify’s counterpunch. He began gauging the willingness of regulators in the US and Brussels to pursue an antitrust case. Gutierrez saw Europe as a better bet, given the relative dormancy of antitrust enforcement in the US. It didn’t hurt that Spotify was a European company and Ek one of the continent’s most successful entrepreneurs.

As confident as Gutierrez feels about Spotify’s own litigation, he now says the best chance for reforming the tech industry is through new laws. To push for policy changes, Spotify has rallied other developers into a group called the Coalition for App Fairness, which includes dating-app developer Match Group and the consumer-electronics company Tile. In its US lawsuit, coalition member Epic Games unearthed internal documents that could be damaging to Apple even if it loses.

 

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