Apple wins appeal against Epic

[Cmaier]

Told you guys.

Apple wins appeal in App Store legal battle with Epic Games: ‘A resounding victory’

Apple once again has proven victorious in its ongoing legal battle with Epic Games. As reported by Bloomberg, the US...

9to5mac.com

And epic probably has to pay apple’s legal bill.

Looks like the anti-steering stuff was upheld, though, which surprises me. I’ll have to read the opinion later (waiting for an MRI at the moment…)

 

[dada_dave]

Told you guys.

Apple wins appeal in App Store legal battle with Epic Games: ‘A resounding victory’

Apple once again has proven victorious in its ongoing legal battle with Epic Games. As reported by Bloomberg, the US...

9to5mac.com

And epic probably has to pay apple’s legal bill.

Looks like the anti-steering stuff was upheld, though, which surprises me. I’ll have to read the opinion later (waiting for an MRI at the moment…)

Will the anti steering part be moot if Apple allows side loading? They are not the same thing I realize but it seems to me like allowing side loading would negate the need for steering for most cases. If a developer doesn’t want to pay for Apple’s IAP they simply ask their users to get their app somewhere other than the App Store.

 

[Nycturne]

Looks like the anti-steering stuff was upheld, though, which surprises me.

This part doesn't surprise me a whole lot. This is a bit of a messy situation it seems like. Apple may say that developers can't steer folks to alternative payments, but at the same time, I think you could argue Apple itself is engaging in a type of steering.

That said, it seems like this is akin to the American Express case, would it not? In which case, under that precedent, it seems like Apple should be allowed to have these rules.

 

[Cmaier]

This part doesn't surprise me a whole lot. This is a bit of a messy situation it seems like. Apple may say that developers can't steer folks to alternative payments, but at the same time, I think you could argue Apple itself is engaging in a type of steering.

That said, it seems like this is akin to the American Express case, would it not? In which case, under that precedent, it seems like Apple should be allowed to have these rules.

The issue from a legal perspective is standing. Epic wasn’t in the App Store and probably won’t be in the future. So the remedy doesn’t help them. Judges can’t just make rulings that don’t address the parties before the court.

 

[Nycturne]

The issue from a legal perspective is standing. Epic wasn’t in the App Store and probably won’t be in the future. So the remedy doesn’t help them. Judges can’t just make rulings that don’t address the parties before the court.

I guess my question is: Since Fortnite was removed because Epic was effectively steering users to their own payments platform in the app, doesn't that give them standing? i.e. it was the removal (and later ejection from the development program) for violating the anti-steering policy that kicked off this whole thing. Even if Epic was intentionally crossing the line to provoke the eviction in the first place.

 

[Cmaier]

I guess my question is: Since Fortnite was removed because of Epic was effectively steering users to their own payments platform in the app, doesn't that give them standing? i.e. it was the removal (and later ejection from the development program) for violating the anti-steering policy that kicked off this whole thing. Even if Epic was intentionally crossing the line to provoke the eviction in the first place.

Nope. Look at it this way - how does the remedy help epic?

 

[Nycturne]

Nope. Look at it this way - how does the remedy help epic?

Only if the court also found that Apple's eviction from the developer program was improper. Which I guess didn't happen:

The judge also agreed that Apple wasn't unfairly retaliating against Epic by cutting access to its developer account.

And I wasn't able to get a good idea as to what the other violations were. If it was simply the anti-steering, then cutting access should have been a problem and Apple shouldn't have had grounds to terminate.

So it's a bit weird. The inciting incident that in principle should give them standing happens to coincide with other variables that deny them standing at the same time? So if I violate two of a store's policies and get banned from the premises for them, but only one was a violation of local statute after hashing it out before the judge, there's no standing for the judge to rule on the violation because the banning was still considered proper?

 

[Joelist]

Told you guys.

Apple wins appeal in App Store legal battle with Epic Games: ‘A resounding victory’

Apple once again has proven victorious in its ongoing legal battle with Epic Games. As reported by Bloomberg, the US...

9to5mac.com

And epic probably has to pay apple’s legal bill.

Looks like the anti-steering stuff was upheld, though, which surprises me. I’ll have to read the opinion later (waiting for an MRI at the moment…)

Remember I called this as well. In the same thread IIRC.

 

[Cmaier]

Only if the court also found that Apple's eviction from the developer program was improper. Which I guess didn't happen:



And I wasn't able to get a good idea as to what the other violations were. If it was simply the anti-steering, then cutting access should have been a problem and Apple shouldn't have had grounds to terminate.

So it's a bit weird. The inciting incident that in principle should give them standing happens to coincide with other variables that deny them standing at the same time? So if I violate two of a store's policies and get banned from the premises for them, but only one was a violation of local statute after hashing it out before the judge, there's no standing for the judge to rule on the violation because the banning was still considered proper?

The issue is that apple, contractually, can ban developers for any reason. So the fact that they banned Epic for a rule that was overturned by the court doesn’t change the fact that Apple didn’t need any reason at all to ban Epic.

Just like a store can deny you service for any reason they want; there are countless videos of folks getting trespassed from private businesses, and they are always trying to tell the cops “i didn’t do XYZ like they said.” Cops don’t care. If the owner wants you gone, you’re gone.

So, since Epic can’t benefit from the ban on anti-steering, because Epic won’t be on the store, under traditional legal principles the ruling would be improper. There may be some different wrinkle under anti-trust law, which isn’t my specialty. I’ll read the opinion later and see if I can figure out what’s going on; it may be as simple as the burden on appeal - only manifest errors are overturned on appeal.

 

[Joelist]

It all starts with the appellate court rejecting Epic's idiotic definition of market. The notion that you can define a single product (especially one that does not have a majority share of the market it competes in) as its own market would let you apply antitrust law to literally any and every product in any market. As to the California state law finding, that could wind up at SCOTUS with the argument being over whether the Interstate Commerce Clause allows one state to make a regulation like their anti-steering one. We'll see.

 

[Herdfan]

Will the anti steering part be moot if Apple allows side loading?

Is this a really possibility? They would lose a lot of control if they did.

 

[Nycturne]

Is this a really possibility? They would lose a lot of control if they did.

I suspect if they do, it'll go the way of notarization, and iOS will act like macOS if Gatekeeper could not be disabled or bypassed.

And I also suspect anything notarized wouldn't get access to specific APIs as a way to encourage people to stay in the App Store. I wouldn't be surprised if certain service-based APIs simply aren't accessible. i.e. If you aren't going to pay the tax to pay for something like MapKit, you don't get MapKit. Depends a lot on the balance between encouraging folks to stay in the App Store versus not giving ground to Google Maps or other competitors' libraries/SDK.

It all starts with the appellate court rejecting Epic's idiotic definition of market. The notion that you can define a single product (especially one that does not have a majority share of the market it competes in) as its own market would let you apply antitrust law to literally any and every product in any market. As to the California state law finding, that could wind up at SCOTUS with the argument being over whether the Interstate Commerce Clause allows one state to make a regulation like their anti-steering one. We'll see.

I think it's the weird state of a platform can create markets. But does that mean a specific platform is a singular market? I'd be surprised if it is. Generally we talk about game console platforms in the plural. So long as Nintendo/Sony/MS aren't colluding, there is competition, and there's no right to have access to a specific platform by a developer.

The Apple/Google duopoly can also throw a wrench in the works here, but I'd imagine the same thing applies.

So, since Epic can’t benefit from the ban on anti-steering, because Epic won’t be on the store, under traditional legal principles the ruling would be improper. There may be some different wrinkle under anti-trust law, which isn’t my specialty. I’ll read the opinion later and see if I can figure out what’s going on; it may be as simple as the burden on appeal - only manifest errors are overturned on appeal.

This was partly my thought as well, since there's a wider implication (and if we assume the ruling just, public good) of the relief, even if Epic themselves can't benefit.

That said, there are categories where a business cannot simply "deny service for any reason", which seems like it throws a bit of a wrench into things. Anti-trust and protected classes being the two big ones.

 

[Cmaier]

That said, there are categories where a business cannot simply "deny service for any reason", which seems like it throws a bit of a wrench into things. Anti-trust and protected classes being the two big ones.

Sure, though even Epic never asserted that Apple didn’t have the right to kick it out of the program (at least not in the court - they say all sorts of things to the press).

So, here we have a situation where Apple was free to kick out Epic, and the reason it did kick out Epic was not illegal (after all, no court has said Apple must re-admit Epic). Therefore the remedy is of no benefit to Epic, which is the only party in court asking for remedies.

Having read the opinion, the 9th circuit upheld the anti-anti-steering portion of the district court’s opinion on two bases:

1) Epic’s subsidiaries are still in the App Store, so Epic indirectly benefits.

2) If Apple’s customers learn that cheaper prices are available, they may then figure out that they could switch to a different platform entirely and get lower prices, benefiting Epic which owns app stores on other platforms.

I’ll let you draw your own conclusions, but I have definite opinions as to both of these grounds that I won’t discuss.