Hearing live blog: Apple requests partial stay of injunction in Epic case

Apple lawyer: apple allowing small set of apps to have live links (certain reader apps), in agreement with japanese gov’t,
 
Judge: you didn’t ask for a limited delay. You asked for stay until appeal is over, which could take 4 or 5 years. Sounds angry.
 
Epic: when apple says they already addressed the part of the injunction re: allowing notice of other payment options, they are not telling the truth. Only allows reaching out by email, and restricts when email can be sent.

Not clear what he’s talking about.

Apple Lawyer: says users have to CONSENT. (ah - epic wants to be able to send email without user consent).
 
Apple: “it will take us 6 months to a year to get this done. Many moving pieces.“
 
Apple Lawyer: “we are committed to making changes. Not just a matter of striking a sentence from the guidelines. The question is what do we replace it with.”
 
Epic: “it’s not just a consent provision.” Developer cannot make provision of features contingent to providing email.
 
Judge: now on to third factor. “Injury to other parties.”

Apple: epic opted out of developer class action, so only party is epic. Consumer class action doesn’t challenge steering. Developers: reached a settlement that allows out-of-app communications but no in-app. So can’t be harm to developers - they view it as fine because they already agreed to it.
 
Judge: final element - public interest.

Sounds like neither party has much new to say on this.
 
Judge: I’ll get something out very quickly in writing.

Sounds like she‘s not going to rule in Apple’s favor.
 
“The third and fourth elements overlap so the Court addresses them collectively: injury to other parties and public interest. The evidence from the trial revealed that the party who would benefit primarily from a stay pending all resolution of all appeals is Apple. The Court can envision numerous avenues for Apple to comply with the injunction and yet take steps to protect users, to the extent that Apple genuinely believes that external links would create issues. The Court is not convinced, but nor is it here to micromanage. Consumers are quite used to linking from an app to a web browser. Other than, perhaps, needing time to establish Guidelines, Apple has provided no credible reason for the Court to believe that the injunction would cause the professed devastation. Links can be tested by App Review. Users can open browsers and retype links to the same effect; it is merely inconvenient, which then, only works to the advantage of Apple.”

From this, it seems the judge is okay if apple allows developers to do no more than provide a button in the app that launches safari. Seems like a win for apple, since there was some ambiguity as to what apple actually needed to do.
 
Aha!

”With respect to the alleged need for clarification because, anecdotally, some developers may not understand the scope of the injunction, the parties themselves have not indicated any confusion. The Developer Agreement prohibits third party in-app purchasing systems other than Apple’s IAP. The Court did not enjoin that provision but rather enjoined the prohibition to communicate external alternatives and to allow links to those external sites.”

In other words, Apple does NOT have to allow in-app purchasing mechanisms - what Epic tried to do is NOT what the court says Apple has to allow.
 
Basically, at this point Apple doesn’t need to do anything. They simply won’t be allowed to reject an app just because it has a link to an out of app payment. Moreover, Apple is allowed to make this process as uncomfortable as possible, up to making users retype links in their browser.
 
This case, cited by the appeals court, seems like it’s not going to be good for Epic:

See City of San Jose v. Off. of the Com 'r of Baseball, 776 F.3d 686, 691-92 (9th Cir. 2015) ("Under
California law, if the same conduct is alleged to be both an antitrust violation and
an "unfair" business act or practice for the same reason-_because it unreasonably
restrains competition and harms consumers--the determination that the conduct is
not an unreasonable restraint of trade necessarily implies that the conduct is not
unfair' toward consumers.” (quoting Chavez v. Whirlpool Corp., 113 Cal. Rptr.
2d 175, 184 (Cal. Ct. App. 2001))).
Click to expand...

In other words, if Apple was not violating antitrust law (which the district court said it was not), but was found to have violated california’s unfair business practice laws (which the district court said it was), and the conduct underlying both accusations is the same (charging 30% and not allowing other app stores and outside payment services), then, apparently, as a matter of law, these two findings conflict.
 
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