Epic’s Appeal Brief

[Cmaier]

Epic's Opening Brief in Appeal of Epic Games v. Apple | PDF | Ios | Android (Operating System)

Opening brief from Epic Games in its appeal of the verdict in the Epic Games v. Apple case. Filed January 20, 2022.

www.scribd.com

Good luck with that.

 

[mr_roboto]

I take it this these arguments are unlikely to succeed? I tried to skim it a bit but got bogged down in the preliminaries.

 

[Cmaier]

I take it this these arguments are unlikely to succeed? I tried to skim it a bit but got bogged down in the preliminaries.

Seems unlikely to succeed to me. But we’ll see.

 

[MEJHarrison]

Presuming they fail again, what would be the next step? An appeal at a higher level? How far can they go?

 

[Cmaier]

Presuming they fail again, what would be the next step? An appeal at a higher level? How far can they go?

Next level up is the Supreme Court of the United States. Can’t go higher than that.

 

[Joelist]

Seems unlikely to succeed to me. But we’ll see.

Yep! Unlikely to succeed. The trial court rightly rejected Epic's ridiculous attempts at market definition. The same will happen all the way up the appellate chain.

 

[Yoused]

Next level up is the Supreme Court of the United States. Can’t go higher than that.

Well, there is the WTO, though this does not seem to be what you call your cross-border dispute, so the WTO would not have much leverage.

 

[Cmaier]

Well, there is the WTO, though this does not seem to be what you call your cross-border dispute, so the WTO would not have much leverage.

That wouldn’t be an appeal of this case, either. It couldn’t change what apple does in the US. No jurisdiction.

 

[Colstan]

Looks like the government is taking Epic's side in the appeal.

The Justice Department, Microsoft and the following 35 U.S. states have filed in support of Epic:

"The states--led by the Beehive State--are (in alphabetical order): Alaska, Arkansas, Colorado, Connecticut, Delaware, D.C. (I'm not taking a position on the controversial question of statehood here), Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah (submitter), Vermont, and Washington."

As a non-lawyer, with at best a passing familiarity of the case, the government seems to be taking a narrow approach. The states are saying that the lower court "erred in deciding that Section 1 of the Sherman Act does not apply to a 'unilateral contract.'" They claim that "excluding contracts like Apple’s simply because Apple 'unilaterally imposed' the terms makes bad antitrust public policy."

Also, one can't help but notice that Microsoft, who has been conveniently carved out of anti-trust bills, has added its voice alongside the government, because apparently they are suddenly all for competition and enforcing anti-trust laws.

@Cmaier, does this change the equation for Apple in any meaningful way, in your opinion? Or is this bandwagon political posturing?

 

[Cmaier]

Looks like the government is taking Epic's side in the appeal.

The Justice Department, Microsoft and the following 35 U.S. states have filed in support of Epic:

"The states--led by the Beehive State--are (in alphabetical order): Alaska, Arkansas, Colorado, Connecticut, Delaware, D.C. (I'm not taking a position on the controversial question of statehood here), Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah (submitter), Vermont, and Washington."

As a non-lawyer, with at best a passing familiarity of the case, the government seems to be taking a narrow approach. The states are saying that the lower court "erred in deciding that Section 1 of the Sherman Act does not apply to a 'unilateral contract.'" They claim that "excluding contracts like Apple’s simply because Apple 'unilaterally imposed' the terms makes bad antitrust public policy."

Also, one can't help but notice that Microsoft, who has been conveniently carved out of anti-trust bills, has added its voice alongside the government, because apparently they are suddenly all for competition and enforcing anti-trust laws.

@Cmaier, does this change the equation for Apple in any meaningful way, in your opinion? Or is this bandwagon political posturing?

I doubt it will have any effect. The law is what the law is.

 

[jbailey]

Also, one can't help but notice that Microsoft, who has been conveniently carved out of anti-trust bills, has added its voice alongside the government, because apparently they are suddenly all for competition and enforcing anti-trust laws.

I think Microsoft will not be quite as happy if Epic wins against Apple. I doubt there will be a carve-out for hardware that breaks even or loses money but profits are made up in software (games) sales. That's not a thing. If Epic wins, you can be pretty sure that their next target is going to be the console makers. After all, aren't all the consoles also the only source of software for their platforms and the contracts are also unilateral.

 

[Nycturne]

I think Microsoft will not be quite as happy if Epic wins against Apple. I doubt there will be a carve-out for hardware that breaks even or loses money but profits are made up in software (games) sales. That's not a thing. If Epic wins, you can be pretty sure that their next target is going to be the console makers. After all, aren't all the consoles also the only source of software for their platforms and the contracts are also unilateral.

While I also fully expect Microsoft/Sony/Nintendo to be next if Epic wins, I do wonder how much the games division could lose compared to what Microsoft as a whole would win from not having to give Apple a cut of OneDrive, Office, etc when a subscription is sold on the platform.

 

[Cmaier]

While I also fully expect Microsoft/Sony/Nintendo to be next if Epic wins, I do wonder how much the games division could lose compared to what Microsoft as a whole would win from not having to give Apple a cut of OneDrive, Office, etc when a subscription is sold on the platform.

I think their games market is bigger than their apple office apps market

 

[Nycturne]

I think their games market is bigger than their apple office apps market

Probably. And it’s not the 30% cut that makes Xbox‘s streaming service infeasible on iOS, but the individual review requirement.

I just don’t think they would throw their name into this mess unless they felt there was a way for them to come out ahead in the long run. I feel like I’m missing something that would explain what Microsoft’s angle here is.

 

[diamond.g]

I think Microsoft will not be quite as happy if Epic wins against Apple. I doubt there will be a carve-out for hardware that breaks even or loses money but profits are made up in software (games) sales. That's not a thing. If Epic wins, you can be pretty sure that their next target is going to be the console makers. After all, aren't all the consoles also the only source of software for their platforms and the contracts are also unilateral.

I wonder how this would affect GamePass for Microsoft. I think Sony would just make games more expensive (or make the console more expensive) to cover the loss. Along with pushing first party IP more.

 

[Joelist]

SCOTUS isn't going to buy Epic's ridiculous idea of market definition anymore than the trial court did. 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.,