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This isn't retaliation though for Epic going on Twitter and being angry about the App Store practices, or the situation like Hey where the was a lot of press an

This isn't retaliation though for Epic going on Twitter and being angry about the App Store practices, or the situation like Hey where the was a lot of press and negativity. Epic breached the terms of the agreement for their app, so their app was removed from the App Store. Other than needing to fix their app to no longer be in violation of the guidelines, they could have cured that breach of the contract. Instead Epic decided to sue Apple in court. According to the Apple Developer Program License that you agree to (section 11.2 specifically) states: > This Agreement and all rights and licenses granted by Apple hereunder and any services provided hereunder will terminate, effective immediately upon notice from Apple: > (a) if You or any of Your Authorized Developers fail to comply with any term of this Agreement other than those set forth below in this Section 11.2 and fail to cure such breach within 30 days after becoming aware of or receiving notice of such breach; and section (f): > (f) if You engage, or encourage others to engage, in any misleading, fraudulent, improper, unlawful or dishonest act relating to this Agreement, including, but not limited to, misrepresenting the nature of Your submitted Application (e.g., hiding or trying to hide functionality from Apple’s review, falsifying consumer reviews for Your Application, engaging in payment fraud, etc.). This is not retaliation, this is simply following the license agreement that Epic agreed to.

woofie11 6y ago
A one-sided agreement containing a retaliation clause, followed by exercising that clause, is retaliation. Say you're desperate and need water in a crisis, and I offer you some, but only if you sign an agreement which gives you water, but says I can punch you in the face whenever you say something I don't like. Say you say something I don't like, and I punch you in the face. Did I just retaliate? Or did the contract make it not retaliation? Apple is clearly retaliating, and I think it's gonna cost Apple way more than it realizes. Removing Epic games is one thing. This is a whole different can of worms.
- Brendinooo 6y ago
  I'd imagine there's a spectrum of "retaliation clauses" that includes acceptable things and unacceptable things, and that whatever is happening in the App Store is pretty different than withholding water from someone who would die without it. Epic may be smaller than Apple, but they are by no means a "little guy".
  - Closi 6y ago
    This isn’t the sort of lawsuit a “little guy” can win.
- aaomidi 6y ago
  The idea that "it was in the contract that Epic agreed to" is ridiculous. It wasn't a contract that Epic could've disagreed to. This is the same for end users, but we don't have the power to start a lawsuit against Apple.
  - gowld 6y ago
    It's a "standard form contract", aka "contract of adhesion". https://en.wikipedia.org/wiki/Standard_form_contract https://en.wikipedia.org/wiki/Standard_form_contract > we don't have the power to start a lawsuit against Apple. Of course you do. You can go to small claims court for a claim of up to ~$5000. Or you can file a class action lawsuit.
    - aaomidi 6y ago
      > You can go to small claims court for a claim of up to ~$5000. Until there is forced arbitration. You're not really going to say I as an individual have any power in the legal system against Apple, right? This is just a bonkers statement.
      - gambiting 6y ago
        In US, maybe. Forced arbitration is just not a thing elsewhere - you can take Apple to a small claims court in UK and they can't really do much about it other than actually respond.
  - jerf 6y ago
    The legal term you are looking for is "contract of adhesion": https://www.law.cornell.edu/wex/adhesion_contract_%28contract_of_adhesion%29 https://www.law.cornell.edu/wex/adhesion_contract_%28contrac... However, a lot of the text around those contracts you'll find centers around a powerful entity like Apple adhering the contract to a nearly-powerless entity, like an individual consumer. I'm not up enough on the details of what case law has been created to know what happen to a contract of adhesion legally when the signer (Epic in this case) is not powerless themselves. Since Epic is at least nominally capable of negotiating their own contract with Apple on roughly equal terms, the contract may be treated more like a normal contract. My uninformed, personal guess is that Epic isn't conceptualizing this as a legal fight; I bet they think of this as a PR fight where the lawsuit is part of their PR narrative trying to get Apple to back down on their take. As a pure legal fight this doesn't strike me as a strong hand, but as a part of a larger PR fight... who knows. They may be trying to create a position to negotiate a settlement from. (If this is correct, and I were Epic, I'd be looking to partner with other very large and peeved developers, and create a de facto app producer strike... but maybe they think they have enough market clout to go it alone.)
- danudey 6y ago
  Apple said "Here are the terms, you can use our services if you agree to them, and if you break them we'll close your account." Epic said "Okay, we agree.", then broke the terms they agreed to, so Apple is closing their account. This seems like pretty straightforward break of the terms of use to me. The reasonable way Epic could have proceeded is to have submitted an update with the "third party store" stuff added, gotten it rejected, and then rolled it back while suing Apple. Instead, Epic pulled a publicity stunt by sneaking it in, specifically so that Apple and Google would remove their app, and then suing, in an attempt to make themselves look like the good guy (which, depending on your perspective, might be true). It doesn't feel any more mature than goading someone into throwing a punch at you so you can claim to be "defending yourself" when really you were just being a douche and you got what you asked for.
  - Guvante 6y ago
    What are the damages in your hypothetical? Because Epic knows the damages in this real situation and everyone agrees what they are.
  - arcticbull 6y ago
    > It doesn't feel any more mature than goading someone into throwing a punch at you so you can claim to be "defending yourself" when really you were just being a douche and you got what you asked for. Still, illegal, and that's the question being litigated here. You can stick anything you want in an EULA but it's not automatically enforceable. If Apple started adding a stipulation that your first-born would be a slave to Tim making iPhones for life, that wouldn't be enforceable. In general you can't sue until there's damages -- so you couldn't sue just for that term existing in the EULA. You wait for your first-born to enter slavery, then sue.
  - misnome 6y ago
    > Instead, Epic pulled a publicity stunt by sneaking it in, specifically so that Apple and Google would remove their app I definitely remember cases from the early years of the App Store where people would deliberately sneak e.g. tethering apps into the App Store in the guise of a game, and usually came to public attention when their account was banned.
- gowld 6y ago
  Clearly not retailation. It may be an unconscionable contract, but it's not retaliation.
- quotha 6y ago
  So any action what-so-ever in response to an action you claim is called retaliation? Fine, call it whatever you want, it is reality. Epic clearly picked this fight, let's see how it goes for them.
- baddox 6y ago
  This argument seems to hinge on the assumption that two parties are experiencing similar "levels of desperation": a person dying of thirst, and the developers of a video game which is available on half a dozen platforms and is probably the most financially successful video game of all time.
  - AnthonyMouse 6y ago
    Could it have been "probably the most financially successful video game of all time" if it hadn't agreed to the terms of the various consoles and phone stores?
    - baddox 6y ago
      I'm not sure why that's relevant. Am I only not dying of thirst because I agreed to the terms offered by the local water company? I think it's not contradictory to believe two things simultaneously: that people should not be held to the terms of a contract they signed when they were dying of thirst, and that it's okay that I needed to agree to certain terms with the water company in order to have running water in my home.
      - AnthonyMouse 6y ago
        > Am I only not dying of thirst because I agreed to the terms offered by the local water company? It is if they have a monopoly on water. Imagine their terms were manifestly unreasonable. If you want water service you'll have to pay $50,000/year. What would you do? If the answer is that it's reasonable to dig a well or something like that, they haven't got a monopoly. If the answer is to pay the $50,000/year because the only alternative is to die of thirst, there you are.
        baddox 6y ago
        Right, and as discussed in this thread and others, Apple does not have a smartphone monopoly under any remotely reasonable definition of the term.
- nodamage 6y ago
  It is really bizarre to think that language in a contract that says "if you break the agreement, the rest of the agreement terminates" is one-sided or retaliation when it's included in basically every contract ever written.
Despegar 6y ago
>Instead Epic decided to sue Apple in court. This gives the impression that suing them is what led to Apple terminating their relationship, but that isn't the case. Epic could have sued Apple without the theatrics and they'd have been fine. They didn't even need to violate the terms of the developer agreement to bring their antitrust lawsuit, which is largely about the developer agreement.
- Hamuko 6y ago
  I imagine what Epic did helps them out in the legal proceedings considering how the antitrust laws in the US are based on consumer benefit. Epic introduces a new payment system and passes on the savings to the consumer. Thanks to payment system competition, consumers can save 20% when buying the same items. Apple sees this and completely removes Epic's game to protect its own interests. It's not hard to see how Apple's behaviour is harming consumers.
- gpm 6y ago
  > Epic could have sued Apple without the theatrics and they'd have been fine. Without the "theatrics" epic would not have had standing to sue and the case would have been dismissed.
  - zucker42 6y ago
    Is this true? Can't you claim standing based on something you would do except for an illegal contract or illegal law?
    - gpm 6y ago
      I don't have a good quick cite for you on contract law, but here's an example for criminal law https://blog.seattlepi.com/seattlepolitics/2015/05/07/judge-tosses-out-lawsuit-against-i-594-states-gun-background-check-law/ https://blog.seattlepi.com/seattlepolitics/2015/05/07/judge-...
  - Despegar 6y ago
    As a party to the developer agreement with Apple they clearly have standing to sue. And since one of the counts in their complaint is that they're being denied use of an "essential facility", they wouldn't even need to have a contractual relationship to have standing to sue.
pier25 6y ago
I would understand Epic being banned from the iOS App Store, but why is their dev account being suspended for macOS development too?
mcintyre1994 6y ago
I'm not sure I see what you've quoted actually matches Epic's behaviour. They've certainly breached the agreement and failed to cure it, but it hasn't been 30 days. I don't think they've hidden functionality, the way their game engine works and lets games update without new review isn't secret. They haven't falsified reviews or committed payment fraud. The wording there is obviously super vague, you could argue what they did is "improper" in the same way you could argue literally anything is improper. Can you be a bit more concrete? What exactly of what you quoted in section (f) do you think applies to Epic? And actually on your first part, they broke the rules and their app is off the store. Is Apple’s usual policy that if you do that and you choose not to put the app back up in a compliant form within 30 days then you get permanently banned from developing for all their platforms?
deleted 6y ago
[deleted]
diebeforei485 6y ago
Just because two parties agree to a few things, it doesn't necessarily mean those things are enforceable or even legal. If that were the case, the entire field of contract law wouldn't exist.
gpm 6y ago
The contract is almost entirely besides the point. Either Apple is violating the law, any contract terms related to this violation are void as a result, and Apple is illegally retaliating. Or Apple is not violating the law, and they are generally free to do as they please. I say "almost" for the same reason I say "generally". It might be the case that if Apple is not violating the law and they wrote the contract badly then they aren't free to do what they want. But no one is arguing that because it's highly unlikely to be the case.
gokhan 6y ago
Not all agreements are enforceable. For example, non-compete agreements are not enforceable in California. There's nothing honorable about Apple, it's just like every other company [1]. Apple uses being a secure device manufacturer for marketing to geeks in US, with a completely different stance in Chine [2]. Do people in China have access to VPN apps in Apple's app store? "Today, Epic Games ... violating the App Store guidelines that are applied equally to every developer and designed to keep the store safe for our users." Safety first, unless you're a citizen of authoritarian regime where Apple's profits justify to look elsewhere. [1] https://venturebeat.com/2014/05/23/4-tech-companies-are-paying-a-325m-fine-for-their-illegal-non-compete-pact/ https://venturebeat.com/2014/05/23/4-tech-companies-are-payi... [2] https://www.zdnet.com/article/china-has-apple-by-the-iphones/ https://www.zdnet.com/article/china-has-apple-by-the-iphones...
naikrovek 6y ago
Epic isn't suing because Fortnite was removed from the App Store...

woofie11 6y ago

A one-sided agreement containing a retaliation clause, followed by exercising that clause, is retaliation. Say you're desperate and need water in a crisis, and I offer you some, but only if you sign an agreement which gives you water, but says I can punch you in the face whenever you say something I don't like. Say you say something I don't like, and I punch you in the face. Did I just retaliate? Or did the contract make it not retaliation? Apple is clearly retaliating, and I think it's gonna cost Apple way more than it realizes. Removing Epic games is one thing. This is a whole different can of worms.

Brendinooo 6y ago
I'd imagine there's a spectrum of "retaliation clauses" that includes acceptable things and unacceptable things, and that whatever is happening in the App Store is pretty different than withholding water from someone who would die without it. Epic may be smaller than Apple, but they are by no means a "little guy".
- Closi 6y ago
  This isn’t the sort of lawsuit a “little guy” can win.
aaomidi 6y ago
The idea that "it was in the contract that Epic agreed to" is ridiculous. It wasn't a contract that Epic could've disagreed to. This is the same for end users, but we don't have the power to start a lawsuit against Apple.
- gowld 6y ago
  It's a "standard form contract", aka "contract of adhesion". https://en.wikipedia.org/wiki/Standard_form_contract https://en.wikipedia.org/wiki/Standard_form_contract > we don't have the power to start a lawsuit against Apple. Of course you do. You can go to small claims court for a claim of up to ~$5000. Or you can file a class action lawsuit.
  - aaomidi 6y ago
    > You can go to small claims court for a claim of up to ~$5000. Until there is forced arbitration. You're not really going to say I as an individual have any power in the legal system against Apple, right? This is just a bonkers statement.
    - gambiting 6y ago
      In US, maybe. Forced arbitration is just not a thing elsewhere - you can take Apple to a small claims court in UK and they can't really do much about it other than actually respond.
- jerf 6y ago
  The legal term you are looking for is "contract of adhesion": https://www.law.cornell.edu/wex/adhesion_contract_%28contract_of_adhesion%29 https://www.law.cornell.edu/wex/adhesion_contract_%28contrac... However, a lot of the text around those contracts you'll find centers around a powerful entity like Apple adhering the contract to a nearly-powerless entity, like an individual consumer. I'm not up enough on the details of what case law has been created to know what happen to a contract of adhesion legally when the signer (Epic in this case) is not powerless themselves. Since Epic is at least nominally capable of negotiating their own contract with Apple on roughly equal terms, the contract may be treated more like a normal contract. My uninformed, personal guess is that Epic isn't conceptualizing this as a legal fight; I bet they think of this as a PR fight where the lawsuit is part of their PR narrative trying to get Apple to back down on their take. As a pure legal fight this doesn't strike me as a strong hand, but as a part of a larger PR fight... who knows. They may be trying to create a position to negotiate a settlement from. (If this is correct, and I were Epic, I'd be looking to partner with other very large and peeved developers, and create a de facto app producer strike... but maybe they think they have enough market clout to go it alone.)
danudey 6y ago
Apple said "Here are the terms, you can use our services if you agree to them, and if you break them we'll close your account." Epic said "Okay, we agree.", then broke the terms they agreed to, so Apple is closing their account. This seems like pretty straightforward break of the terms of use to me. The reasonable way Epic could have proceeded is to have submitted an update with the "third party store" stuff added, gotten it rejected, and then rolled it back while suing Apple. Instead, Epic pulled a publicity stunt by sneaking it in, specifically so that Apple and Google would remove their app, and then suing, in an attempt to make themselves look like the good guy (which, depending on your perspective, might be true). It doesn't feel any more mature than goading someone into throwing a punch at you so you can claim to be "defending yourself" when really you were just being a douche and you got what you asked for.
- Guvante 6y ago
  What are the damages in your hypothetical? Because Epic knows the damages in this real situation and everyone agrees what they are.
- arcticbull 6y ago
  > It doesn't feel any more mature than goading someone into throwing a punch at you so you can claim to be "defending yourself" when really you were just being a douche and you got what you asked for. Still, illegal, and that's the question being litigated here. You can stick anything you want in an EULA but it's not automatically enforceable. If Apple started adding a stipulation that your first-born would be a slave to Tim making iPhones for life, that wouldn't be enforceable. In general you can't sue until there's damages -- so you couldn't sue just for that term existing in the EULA. You wait for your first-born to enter slavery, then sue.
- misnome 6y ago
  > Instead, Epic pulled a publicity stunt by sneaking it in, specifically so that Apple and Google would remove their app I definitely remember cases from the early years of the App Store where people would deliberately sneak e.g. tethering apps into the App Store in the guise of a game, and usually came to public attention when their account was banned.
gowld 6y ago
Clearly not retailation. It may be an unconscionable contract, but it's not retaliation.
quotha 6y ago
So any action what-so-ever in response to an action you claim is called retaliation? Fine, call it whatever you want, it is reality. Epic clearly picked this fight, let's see how it goes for them.
baddox 6y ago
This argument seems to hinge on the assumption that two parties are experiencing similar "levels of desperation": a person dying of thirst, and the developers of a video game which is available on half a dozen platforms and is probably the most financially successful video game of all time.
- AnthonyMouse 6y ago
  Could it have been "probably the most financially successful video game of all time" if it hadn't agreed to the terms of the various consoles and phone stores?
  - baddox 6y ago
    I'm not sure why that's relevant. Am I only not dying of thirst because I agreed to the terms offered by the local water company? I think it's not contradictory to believe two things simultaneously: that people should not be held to the terms of a contract they signed when they were dying of thirst, and that it's okay that I needed to agree to certain terms with the water company in order to have running water in my home.
    - AnthonyMouse 6y ago
      > Am I only not dying of thirst because I agreed to the terms offered by the local water company? It is if they have a monopoly on water. Imagine their terms were manifestly unreasonable. If you want water service you'll have to pay $50,000/year. What would you do? If the answer is that it's reasonable to dig a well or something like that, they haven't got a monopoly. If the answer is to pay the $50,000/year because the only alternative is to die of thirst, there you are.
      - baddox 6y ago
        Right, and as discussed in this thread and others, Apple does not have a smartphone monopoly under any remotely reasonable definition of the term.
nodamage 6y ago
It is really bizarre to think that language in a contract that says "if you break the agreement, the rest of the agreement terminates" is one-sided or retaliation when it's included in basically every contract ever written.

Despegar 6y ago

>Instead Epic decided to sue Apple in court. This gives the impression that suing them is what led to Apple terminating their relationship, but that isn't the case. Epic could have sued Apple without the theatrics and they'd have been fine. They didn't even need to violate the terms of the developer agreement to bring their antitrust lawsuit, which is largely about the developer agreement.

Hamuko 6y ago
I imagine what Epic did helps them out in the legal proceedings considering how the antitrust laws in the US are based on consumer benefit. Epic introduces a new payment system and passes on the savings to the consumer. Thanks to payment system competition, consumers can save 20% when buying the same items. Apple sees this and completely removes Epic's game to protect its own interests. It's not hard to see how Apple's behaviour is harming consumers.
gpm 6y ago
> Epic could have sued Apple without the theatrics and they'd have been fine. Without the "theatrics" epic would not have had standing to sue and the case would have been dismissed.
- zucker42 6y ago
  Is this true? Can't you claim standing based on something you would do except for an illegal contract or illegal law?
  - gpm 6y ago
    I don't have a good quick cite for you on contract law, but here's an example for criminal law https://blog.seattlepi.com/seattlepolitics/2015/05/07/judge-tosses-out-lawsuit-against-i-594-states-gun-background-check-law/ https://blog.seattlepi.com/seattlepolitics/2015/05/07/judge-...
- Despegar 6y ago
  As a party to the developer agreement with Apple they clearly have standing to sue. And since one of the counts in their complaint is that they're being denied use of an "essential facility", they wouldn't even need to have a contractual relationship to have standing to sue.

pier25 6y ago

I would understand Epic being banned from the iOS App Store, but why is their dev account being suspended for macOS development too?

mcintyre1994 6y ago

I'm not sure I see what you've quoted actually matches Epic's behaviour. They've certainly breached the agreement and failed to cure it, but it hasn't been 30 days. I don't think they've hidden functionality, the way their game engine works and lets games update without new review isn't secret. They haven't falsified reviews or committed payment fraud. The wording there is obviously super vague, you could argue what they did is "improper" in the same way you could argue literally anything is improper. Can you be a bit more concrete? What exactly of what you quoted in section (f) do you think applies to Epic? And actually on your first part, they broke the rules and their app is off the store. Is Apple’s usual policy that if you do that and you choose not to put the app back up in a compliant form within 30 days then you get permanently banned from developing for all their platforms?

deleted 6y ago

[deleted]

diebeforei485 6y ago

Just because two parties agree to a few things, it doesn't necessarily mean those things are enforceable or even legal. If that were the case, the entire field of contract law wouldn't exist.

gpm 6y ago

The contract is almost entirely besides the point. Either Apple is violating the law, any contract terms related to this violation are void as a result, and Apple is illegally retaliating. Or Apple is not violating the law, and they are generally free to do as they please. I say "almost" for the same reason I say "generally". It might be the case that if Apple is not violating the law and they wrote the contract badly then they aren't free to do what they want. But no one is arguing that because it's highly unlikely to be the case.

gokhan 6y ago

Not all agreements are enforceable. For example, non-compete agreements are not enforceable in California. There's nothing honorable about Apple, it's just like every other company [1]. Apple uses being a secure device manufacturer for marketing to geeks in US, with a completely different stance in Chine [2]. Do people in China have access to VPN apps in Apple's app store? "Today, Epic Games ... violating the App Store guidelines that are applied equally to every developer and designed to keep the store safe for our users." Safety first, unless you're a citizen of authoritarian regime where Apple's profits justify to look elsewhere. [1] https://venturebeat.com/2014/05/23/4-tech-companies-are-paying-a-325m-fine-for-their-illegal-non-compete-pact/ https://venturebeat.com/2014/05/23/4-tech-companies-are-payi... [2] https://www.zdnet.com/article/china-has-apple-by-the-iphones/ https://www.zdnet.com/article/china-has-apple-by-the-iphones...

naikrovek 6y ago

Epic isn't suing because Fortnite was removed from the App Store...