The argument is a simple one. "Apple has a monopoly," Pakman told me Friday, citing their US market share at 80 percent. Companies in that situation have to play by a "different standard," especially when it comes to anything that could be construed as "tying" (recall that Microsoft was accused of exactly this sort of tying when it rolled new "features" like Internet Explorer into Windows and then had to deal with years of litigation).
"If every iPod comes with [the hypothetical service], that's tying," Pakman said. eMusic and others would certainly bring the matter to regulators' attention. But what if the new service is optional? Would that still be tying?