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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

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.)
  - Despegar 6y ago
    >(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.) This would actually be a violation of the antitrust laws. And it'd be a straightforward Section 1 Sherman Act cartel case.
  - Joeri 6y ago
    I hope Epic doesn’t have a strategy that hinges on a PR win forcing apple to back down, because (A) as this thread is showing there are still a lot of people on apple’s side and (B) apple is usually quite vengeful in these things and will not back down here until compelled by court or law. Just look at what happened to nvidia, for far minor offenses. They were blacklisted from apple’s platforms very thoroughly, and people still mostly side with apple on that one.
    - 6y ago
- tdrp 6y ago
  This. Some people seem to be on the "Apple deserves a cut of 30% because they run the app store and 30% is reasonable etc." but what if tomorrow Apple just said: "OK we've bumped up the 30% to 90%". The exact same set of arguments would follow. The users already own the phones so for the "market to adjust" to such changes would take years.
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.

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.)
- Despegar 6y ago
  >(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.) This would actually be a violation of the antitrust laws. And it'd be a straightforward Section 1 Sherman Act cartel case.
- Joeri 6y ago
  I hope Epic doesn’t have a strategy that hinges on a PR win forcing apple to back down, because (A) as this thread is showing there are still a lot of people on apple’s side and (B) apple is usually quite vengeful in these things and will not back down here until compelled by court or law. Just look at what happened to nvidia, for far minor offenses. They were blacklisted from apple’s platforms very thoroughly, and people still mostly side with apple on that one.
  - 6y ago
tdrp 6y ago
This. Some people seem to be on the "Apple deserves a cut of 30% because they run the app store and 30% is reasonable etc." but what if tomorrow Apple just said: "OK we've bumped up the 30% to 90%". The exact same set of arguments would follow. The users already own the phones so for the "market to adjust" to such changes would take years.

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.