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> “Walled gardens have existed for decades,” said the judge. “Nintendo has had a walled garden. Sony has had a walled garden. Microsoft has had a walled garden.

> “Walled gardens have existed for decades,” said the judge. “Nintendo has had a walled garden. Sony has had a walled garden. Microsoft has had a walled garden. What Apple’s doing is not much different... Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"? Something might be a long standing practice and still be against the law. Something might have not been against the law in the past and be against it now. I'm not saying that it is, but that's what the judge should base his argument on.

nmfisher 6y ago
> Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"? I haven't been able to find the actual details yet, but from what I can gather, this is not the actual hearing. Right now, the judge's job isn't to determine whether Apple's terms were illegal, or whether Epic breached those terms with Apple. The judge is deciding whether or not Apple should be injuncted from booting Fortnite from the App Store, and whether or not the matter should proceed to trial. It's less about black-letter law, and more about judicial discretion (albeit exercised very conservatively). So this type of looser language is to be expected.
- dlgeek 6y ago
  JSYK: "injuncted" -> "enjoined"
  - nmfisher 6y ago
    'injuncted' is the preferred term in Australia. Source: http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=auto&query=injuncted http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=auto&q... I assume "enjoined" is preferred in the USA (and in all fairness, I guess it would be better to use the American term for an American case).
JumpCrisscross 6y ago
> Something might be a long standing practice and still be against the law The first step to finding legal precedent is exploring practical precedent. This being an injunction hearing, part of the judge’s job is determining whether Epic is likely to prevail in its argument. The fact that it seeks to challenge practical precedent makes the outcome less predictable and an injunction less reasonable.
crazygringo 6y ago
> Something might be a long standing practice and still be against the law. That's extremely unlikely -- it would have been prosecuted previously otherwise. A better term for "long standing practice" is precedent. Laws often don't account for certain edge cases or unseen developments, so judges in common law countries do very much look at what other judges have permitted or not in the past, in order to maintain continuity. Otherwise you'd be at the whim of each and every judge interpreting law totally differently, which would be a nightmare for anyone trying to figure out what is permitted or not.
- bart_spoon 6y ago
  > That's extremely unlikely -- it would have been prosecuted previously otherwise. This sounds like the legal equivalent of the joke about the two economists who find a $20 bill on the ground. One asks "Is that a $20 bill?" The other says, "Couldn't be. If it was, someone would have picked it up by now", and they move on.
  - shadowgovt 6y ago
    In some cases, an injustice goes long-standing because nobody bothers to litigate it. But the far more common scenario is that it's been litigated and the counter-argument found wanting.
- ponker 6y ago
  The Emoluments Clause has been in open violation for 3.5 years and nothing has happened. Doesn't mean anything.
  - crazygringo 6y ago
    I'm talking about law as applied to everyday citizens and corporations. When you get to balance of powers and prosecuting presidents, you're not really operating primarily in the legislative game anymore, but rather in the power politics game, no matter how much they dress it up in legal language.
addicted 6y ago
No. The judge is asking a valid question based on precedence. It’s up to the plaintiff’s legal team to show the judge either why their case is different, or that the precedent setters are in the wrong as well.
shadowgovt 6y ago
Hard to say for sure without additional context to the judge's statements; perhaps they were discussing precedent? In general, if something is common for decades and a plaintiff comes to claim it's illegal, the burden of proof is on the plaintiff. The defendant will be able to bring up previous court cases where the status quo was challenged and unmodified.
colinmhayes 6y ago
precedent is law in a common law system such as our own.
echelon 6y ago
This judge has the wrong perspective, but it's to be expected for someone not in our industry. A Nintendo isn't a general purpose computer.
- zepto 6y ago
  An iPhone isn’t a general purpose computer.
  - searchableguy 6y ago
    https://youtu.be/pI-iJcC9JUc https://youtu.be/pI-iJcC9JUc
    - zepto 6y ago
      What is that supposed to show? I see a tightly controlled consumer appliance running polished end user software. My children will have iPads, for sure, but I’m not going to fool myself about what they are. They will also have raspberry PI’s and learn about general purpose computers that way.
      - searchableguy 6y ago
        Apple themselves call it a general computing device? You can see that for iphones as well.
        zepto 6y ago
        So what? Apple also say it’s not a monopoly. If we are simply going to take Apple’s views as objective reality then why is anyone even discussing this?
- parasubvert 6y ago
  There are a lot of people in this industry that think that Apple should and will prevail because of the history of this model. We’ve also seen this movie before and it’s not like iOS and Android are the end of history. There will be new platforms. The last thing we want is for App stores to be declared public regulated utilities. That would be a way to enshrine in law there are no new platforms for 50 years.
Ancapistani 6y ago
> Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"? This has been done in the past regarding firearms law - “the law has stood for decades, so it must be constitutional.” I find that reasoning specious, but it’s happened multiple times so it’s apparently accepted by at least a plurality of our judiciary.
asdasfasdfasdf 6y ago
Judge's judge, it's up for the plaintiff to make the case against any long-standing precedence that's contrary to their case.

nmfisher 6y ago

> Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"? I haven't been able to find the actual details yet, but from what I can gather, this is not the actual hearing. Right now, the judge's job isn't to determine whether Apple's terms were illegal, or whether Epic breached those terms with Apple. The judge is deciding whether or not Apple should be injuncted from booting Fortnite from the App Store, and whether or not the matter should proceed to trial. It's less about black-letter law, and more about judicial discretion (albeit exercised very conservatively). So this type of looser language is to be expected.

dlgeek 6y ago
JSYK: "injuncted" -> "enjoined"
- nmfisher 6y ago
  'injuncted' is the preferred term in Australia. Source: http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=auto&query=injuncted http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=auto&q... I assume "enjoined" is preferred in the USA (and in all fairness, I guess it would be better to use the American term for an American case).

JumpCrisscross 6y ago

> Something might be a long standing practice and still be against the law The first step to finding legal precedent is exploring practical precedent. This being an injunction hearing, part of the judge’s job is determining whether Epic is likely to prevail in its argument. The fact that it seeks to challenge practical precedent makes the outcome less predictable and an injunction less reasonable.

crazygringo 6y ago

> Something might be a long standing practice and still be against the law. That's extremely unlikely -- it would have been prosecuted previously otherwise. A better term for "long standing practice" is precedent. Laws often don't account for certain edge cases or unseen developments, so judges in common law countries do very much look at what other judges have permitted or not in the past, in order to maintain continuity. Otherwise you'd be at the whim of each and every judge interpreting law totally differently, which would be a nightmare for anyone trying to figure out what is permitted or not.

bart_spoon 6y ago
> That's extremely unlikely -- it would have been prosecuted previously otherwise. This sounds like the legal equivalent of the joke about the two economists who find a $20 bill on the ground. One asks "Is that a $20 bill?" The other says, "Couldn't be. If it was, someone would have picked it up by now", and they move on.
- shadowgovt 6y ago
  In some cases, an injustice goes long-standing because nobody bothers to litigate it. But the far more common scenario is that it's been litigated and the counter-argument found wanting.
ponker 6y ago
The Emoluments Clause has been in open violation for 3.5 years and nothing has happened. Doesn't mean anything.
- crazygringo 6y ago
  I'm talking about law as applied to everyday citizens and corporations. When you get to balance of powers and prosecuting presidents, you're not really operating primarily in the legislative game anymore, but rather in the power politics game, no matter how much they dress it up in legal language.

addicted 6y ago

No. The judge is asking a valid question based on precedence. It’s up to the plaintiff’s legal team to show the judge either why their case is different, or that the precedent setters are in the wrong as well.

shadowgovt 6y ago

Hard to say for sure without additional context to the judge's statements; perhaps they were discussing precedent? In general, if something is common for decades and a plaintiff comes to claim it's illegal, the burden of proof is on the plaintiff. The defendant will be able to bring up previous court cases where the status quo was challenged and unmodified.

colinmhayes 6y ago

precedent is law in a common law system such as our own.

echelon 6y ago

This judge has the wrong perspective, but it's to be expected for someone not in our industry. A Nintendo isn't a general purpose computer.

zepto 6y ago
An iPhone isn’t a general purpose computer.
- searchableguy 6y ago
  https://youtu.be/pI-iJcC9JUc https://youtu.be/pI-iJcC9JUc
  - zepto 6y ago
    What is that supposed to show? I see a tightly controlled consumer appliance running polished end user software. My children will have iPads, for sure, but I’m not going to fool myself about what they are. They will also have raspberry PI’s and learn about general purpose computers that way.
    - searchableguy 6y ago
      Apple themselves call it a general computing device? You can see that for iphones as well.
      - zepto 6y ago
        So what? Apple also say it’s not a monopoly. If we are simply going to take Apple’s views as objective reality then why is anyone even discussing this?
parasubvert 6y ago
There are a lot of people in this industry that think that Apple should and will prevail because of the history of this model. We’ve also seen this movie before and it’s not like iOS and Android are the end of history. There will be new platforms. The last thing we want is for App stores to be declared public regulated utilities. That would be a way to enshrine in law there are no new platforms for 50 years.

Ancapistani 6y ago

> Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"? This has been done in the past regarding firearms law - “the law has stood for decades, so it must be constitutional.” I find that reasoning specious, but it’s happened multiple times so it’s apparently accepted by at least a plurality of our judiciary.

asdasfasdfasdf 6y ago

Judge's judge, it's up for the plaintiff to make the case against any long-standing precedence that's contrary to their case.