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This hearing went really, really poorly for Epic. The judge repeatedly told Epic's lawyers she wasn't particularly persuaded by their arguments with regards to

This hearing went really, really poorly for Epic. The judge repeatedly told Epic's lawyers she wasn't particularly persuaded by their arguments with regards to several key aspects of their case. Epic's case hinges on being able to establish that Apple has a "monopoly" in the single-brand market of "iOS app distribution". However, the judge seemed rather unconvinced that a market definition consisting of only iOS devices was actually the correct market to analyze. If Epic can't establish that "iOS app distribution" is in fact a valid antitrust market, they're going to have a lot of problems with their case, as both their section 1 (tying) claim and section 2 (monopoly maintenance) claim rely on that market definition. As an aside, I've read a number of comments here lamenting that the judge doesn't understand tech, but I think the opposite is true as well: many of the commenters here don't understand the law. The judge needs to work within the framework of existing legal precedent when making her decisions, and unfortunately for Epic, it doesn't really seem like existing precedent is on their side. As a specific example, many of the comments here point out that smartphones are not like gaming consoles because smartphones are general-purpose computing devices whereas consoles are entertainment devices. Be that as it may, there's nothing in US law that says general-purpose computing devices are supposed to be treated differently than other products for the purposes of antitrust analysis.

deleted 6y ago
[deleted]
stale2002 6y ago
> The judge repeatedly told Epic's lawyers she wasn't particularly persuaded by their arguments with regards to several key aspects of their case. It is a bit more complicated than that. This was the preliminary injunction stage of the trial. It is more that Epic did not pass the very high bar that it is so very likely to win the case, such that they should be able to force an injuction to happen right now. That is a very high bar to pass, and it is more that the judge is not willing to effectively declare epic the winning, right now, all on her own. Instead, the judge has said that she wants this to go to a jury, and that this is no ordinary case. She said that it is an extrordinary case, that is on the bleeding edge of technology monopoly law, and basically, that such an important case should not be decided by a judgement from the bench. Or at least this was my impression of what she was trying to say, when I was listening to the trial live. Which I agree with. I expect this to be a landmark technology monopoly case that is going to make its way all the way to the supreme court. As such, it would be inappropriate for the judge to basically decide the winner so early by enforcing an preliminary injunction, even though I ultimately believe that epic will win.
- hesdeadjim 6y ago
  This is a very ballsy decision by Epic, forgoing significant iOS revenue in the hopes of eventually reclaiming some or all of that 30% app store tax. I wonder how much of this decision was unilaterally made by Tim Sweeney. He is quite vocal about how much he hates the 30% tax (Valve included) because the vast majority is just profit and not for services rendered. It's excellent ammunition for his case to demonstrate that his storefront only charges 12% and is still profitable. Question, if Apple were to lose the first trial would they be forced to allow Fortnite back on the App Store while the endless series of appeals follow?
  - threeseed 6y ago
    Apple has made it clear that if Epic complies with the conditions they agreed to when they signed up they will be let back on the store. Every action in this case has been driven by Epic.
- mullingitover 6y ago
  > Instead, the judge has said that she wants this to go to a jury, and that this is no ordinary case. She said that it is an extrordinary case, that is on the bleeding edge of technology monopoly law, and basically, that such an important case should not be decided by a judgement from the bench. It's baffling to me that we have still have this ridiculous idea that a lawsuit that's legally and technically complicated should be decided by people who haven't the first clue about the law or technology. Civil suits shouldn't be tried by juries. Yeah, I said it, and I'll say it every time I'm in voir dire when I'm drawn into a jury pool for a civil suit. We should reserve it for times when a person's freedom or life are on the line, legally, but people fighting over money in complex legal arguments should be decided by legal and technical experts.
  - CPLX 6y ago
    But what would we do if all those legal and technical experts came up with a framework that the general population believed was obviously unfair? In the current framework, nothing. They're built right into the system. It's a pretty core principal of government operating only by the consent of those governed.
donmcronald 6y ago
I wonder if the existing law is capable of dealing with the current situation. It seems crazy to me that anyone considers the mobile market sane or good for users and developers. Think about it. The average person has a smart phone where they only have access to 1 store. The arguments about sideloading on Android are somewhat moot IMO because the severity of warnings and effort to discourage users from sideloading are highly effective and, when combined with no one changing the defaults, the vast majority of people stick to the play store. On the other side there are the developers who MUST deal with both companies. There is no choice. You can't build an app with a mobile component and ignore 1 of the only 2 distribution platforms. Why would I risk major R&D costs to develop anything novel or disruptive when I have no guarantee I can distribute that product and might even be facing a hostile distributor if my product disrupts them? Does anyone think having 2 massive incumbents controlling distribution for a mode of computing that's become essential to western life is healthy? How is the market not going to devolve (even more) into a bunch of low effort skinner box IAP trash? And the game console analogies are dumb. I don't need a game console. I don't have one. However, I NEED a mobile phone to participate in modern society. Try getting and keeping a good paying job if you don't have a mobile phone and are "unresponsive".
- ericmay 6y ago
  > I wonder if the existing law is capable of dealing with the current situation. It seems crazy to me that anyone considers the mobile market sane or good for users and developers. Think about it. I see this posted sooooo often and every time I just say "nope, it's exactly what I want and I do not want it to change for iOS". Very pleased to see Epic starting off poorly here. Hopefully this all goes up in flames for them.
- clay_the_ripper 6y ago
  But the key point is, how much consumer harm has resulted? I am an iOS user. I like that iOS takes a heavy handed approach to the App Store and controls it completely. I do not want developers to hav the option to have their own payments. Apple Pay is so easy and convenient. I do not want developers to be able to distribute apps without Apple approval. Apples policies probably result in developer harm, but anti trust law is to protect me as a user not you as a developer. To be frank, I don’t really care that Apple is a pain to deal with. That is why I, the user, pay you, the developer to deal with them.
_qulr 6y ago
> there's nothing in US law that says general-purpose computing devices are supposed to be treated differently than other products for the purposes of antitrust analysis Other products include Macs and PCs, which allow "sideloading" by default, out of the box. Why are game consoles the relevant comparison? There's nothing in US law that says smartphones are supposed to be treated the same as game consoles. iPhone was not originally a game console. (Apple itself almost never makes games.) Indeed, iPhone was not originally a store either. Apple argued in court that App Store is not a separate product from iPhone, but that's easily historically refuted: iPhone shipped in 2007 without App Store! App Store was added a year later, so it's obviously not essential to the product. And IAP aren't essential to App Store either, because they weren't added until 2009. It was developers like Epic who showed iPhone could be a gaming platform. Apple itself has a pretty poor history at gaming, and the Mac has always been subpar compared to Windows.
- notriddle 6y ago
  > Other products include Macs and PCs, which allow "sideloading" by default, out of the box. Are they legally required to do so?
- ericmay 6y ago
  > iPhone was not originally a game console. (Apple itself almost never makes games.) Indeed, iPhone was not originally a store either. Apple argued in court that App Store is not a separate product from iPhone, but that's easily historically refuted: iPhone shipped in 2007 without App Store! App Store was added a year later, so it's obviously not essential to the product. And IAP aren't essential to App Store either, because they weren't added until 2009. The failure in your reasoning here is your assertion that the iPhone that was launched in 2007 is the same iPhone that's about to be launched in October. They are different products. The iPhone 12 DOES launch with the App Store. If Epic wants to make it so any iPhone(s) that didn't originally launch with the App Store must be able to side load apps, I mean, go ahead. > Why are game consoles the relevant comparison? Why aren't they? In fact, I'd argue they are even MORE of a relevant comparison and MORE like a general purpose computer. Sure, Microsoft has not written Office for Xbox, but that's not a limitation of Xbox. You can (and this is encouraged) plug a keyboard and mouse right into an Xbox. It has a GPU, processor, hard drive, RAM, motherboard, etc.. It's literally a computer. > There's nothing in US law that says smartphones are supposed to be treated the same as game consoles. There's nothing in US law that says smartphones are supposed to be treated like desktop computers either. I have yet to see a convincing and consistent reason that they should be. I guess if you want to say that all computing devices should be open source and modifiable and all that, sure that's fine, but the distinction here is very much an arbitrary one.
jpambrun 6y ago
I assume Epic endgame isn't this trial. Winning would be nice, but loosing might help show the need for new legislations. Also, the US is only one jurisdiction.
rowanG077 6y ago
IPhones aren't general-purpose computing devices.
- thih9 6y ago
  I think you have a point. I don't think Apple has ever marketed their iPhones as a general purpose computing device. However they do advertise iPad as a laptop replacement.
  - rowanG077 6y ago
    They do advertise the ipad like that. But that is a ridiculous marketing statement imo. You basically can't install any software. Heck even the web browsers are safari with skins because the actual web browser cannot run on it.
    - coldtea 6y ago
      >They do advertise the ipad like that. But that is a ridiculous marketing statement imo. You basically can't install any software. Yeah, there are only about 1 million and a half applications (including MS office, Adobe Photoshop and so on) plus web apps available...
      - rowanG077 6y ago
        How is the number relevant?
        coldtea 6y ago
        "You basically can't install any software." --> you literally can install 1.5M different apps...
        rowanG077 6y ago
        Not sure what your point is. 1.5M doesn't say anything about generality.
dnautics 6y ago
> However, the judge seemed rather unconvinced that a market definition consisting of only iOS devices was actually the correct market to analyze... As an aside, I've read a number of comments here lamenting that the judge doesn't understand tech, but I think the opposite is true as well: many of the commenters here don't understand the law. I mean this is probably a good case of "the law doesn't understand the law" in that the law does not have a particularly useful definition of what constitutes a "market"
fxtentacle 6y ago
I believe you misunderstood how the process works. Plus, I saw this as working out as Epic had planned. Yes, the judge Gonzalez Rogers said that she is not convinced enough by Epic's claims to force an injunction onto Apple, which would require Apple to immediately reinstate Fortnite into the app store and leave it there until the legal proceedings are finished. But did anyone really expect that Epic can use the fast track to force Apple to continue distributing Fortnite while forfeiting the 30% before even going to the main trial? Sure, Epic requested that, but that doesn't mean that they reasonably expected to get it granted, too. Such a large case will almost never be settled pre-trial without an official jury. So her rejecting the injunction is kind of how this normally works. According to CNN, she also said "Fortnite players on iOS have a variety of choices to access the game even if it is no longer available on iOS" as the main reasoning as to why Apple's action is not illegal tying of App distribution to In-App payments. And then she said that she wants to hear what the public thinks. So effectively, the stage is now set for Epic. They need to manufacture a large enough outcry by regular consumers about Fortnite being absent on iOS. And they need to do so before the trial in 2021. And to me, it looks like Epic has been very effective so far at making people speak out that they would have wanted Fortnite on iOS. The judge also said "It's hard to ignore the economics of the industry, which is what you're asking me to do." when comparing the iOS app store to other walled gardens like Xbox and PS. I'd treat that as a friendly hint that Epic needs to show that game consoles and smartphones are not comparable industries. That should be easy, because smartphones are essential for everyday life. Game consoles are not. And lastly, the judge also said "There are a lot of people in the public who consider you guys heroes for what you guys did, [..]". To me, that sounds like an acknowledgement that the general population does not support Apple's reaction, meaning that Epic is on a good path towards showing that iOS consumers in general do NOT have alternative ways for accessing Fortnite. Also, I'm not sure this is a neutral report on the Apple/Epic battle. The writer is called "James Vincent", just like this guy: https://appleinsider.com/articles/20/02/26/ex-apple-ad-chief-james-vincent-not-bitter-years-after-bad-split https://appleinsider.com/articles/20/02/26/ex-apple-ad-chief...
- scarface74 6y ago
  iOS users have already moved on to the next hyped app. There is no “outcry” from iOS users. Epic even admitted that less than 10% of Fortnite players are on iOS. Are you claiming that all of the articles that quoted the judge are biased?
gundmc 6y ago
I support Epic in this fight, but I agree with the Judge that "market" definitions in casual conversation have become so narrow as to be meaningless. I regularly see posters here unironically assert examples such as "general-knowledge search engine ads", "image-based social media", etc. Anything can be a monopoly if you arbitrarily define its market as congruent with its market share.
qtplatypus 6y ago
Also consoles are general purpose computing devices in tech terms.
skinnymuch 6y ago
How important are the nuances of law exactly? The talk right now is stacking the Supreme Court with 6 conservatives can give a contested elections to conservatives and overturn Roe v Wade etc. Not to mention how laws impact demographics differently. Without knowing anything about laws specifically, this makes it seem like it isn’t very concrete. At all.
- _qulr 6y ago
  The Supreme Court may be the endgame of this trial. Maybe that's why they don't care about the jury. It'll doubtless be appealed no matter who wins, so does the outcome even matter?

deleted 6y ago

[deleted]

stale2002 6y ago

> The judge repeatedly told Epic's lawyers she wasn't particularly persuaded by their arguments with regards to several key aspects of their case. It is a bit more complicated than that. This was the preliminary injunction stage of the trial. It is more that Epic did not pass the very high bar that it is so very likely to win the case, such that they should be able to force an injuction to happen right now. That is a very high bar to pass, and it is more that the judge is not willing to effectively declare epic the winning, right now, all on her own. Instead, the judge has said that she wants this to go to a jury, and that this is no ordinary case. She said that it is an extrordinary case, that is on the bleeding edge of technology monopoly law, and basically, that such an important case should not be decided by a judgement from the bench. Or at least this was my impression of what she was trying to say, when I was listening to the trial live. Which I agree with. I expect this to be a landmark technology monopoly case that is going to make its way all the way to the supreme court. As such, it would be inappropriate for the judge to basically decide the winner so early by enforcing an preliminary injunction, even though I ultimately believe that epic will win.

hesdeadjim 6y ago
This is a very ballsy decision by Epic, forgoing significant iOS revenue in the hopes of eventually reclaiming some or all of that 30% app store tax. I wonder how much of this decision was unilaterally made by Tim Sweeney. He is quite vocal about how much he hates the 30% tax (Valve included) because the vast majority is just profit and not for services rendered. It's excellent ammunition for his case to demonstrate that his storefront only charges 12% and is still profitable. Question, if Apple were to lose the first trial would they be forced to allow Fortnite back on the App Store while the endless series of appeals follow?
- threeseed 6y ago
  Apple has made it clear that if Epic complies with the conditions they agreed to when they signed up they will be let back on the store. Every action in this case has been driven by Epic.
mullingitover 6y ago
> Instead, the judge has said that she wants this to go to a jury, and that this is no ordinary case. She said that it is an extrordinary case, that is on the bleeding edge of technology monopoly law, and basically, that such an important case should not be decided by a judgement from the bench. It's baffling to me that we have still have this ridiculous idea that a lawsuit that's legally and technically complicated should be decided by people who haven't the first clue about the law or technology. Civil suits shouldn't be tried by juries. Yeah, I said it, and I'll say it every time I'm in voir dire when I'm drawn into a jury pool for a civil suit. We should reserve it for times when a person's freedom or life are on the line, legally, but people fighting over money in complex legal arguments should be decided by legal and technical experts.
- CPLX 6y ago
  But what would we do if all those legal and technical experts came up with a framework that the general population believed was obviously unfair? In the current framework, nothing. They're built right into the system. It's a pretty core principal of government operating only by the consent of those governed.

donmcronald 6y ago

I wonder if the existing law is capable of dealing with the current situation. It seems crazy to me that anyone considers the mobile market sane or good for users and developers. Think about it. The average person has a smart phone where they only have access to 1 store. The arguments about sideloading on Android are somewhat moot IMO because the severity of warnings and effort to discourage users from sideloading are highly effective and, when combined with no one changing the defaults, the vast majority of people stick to the play store. On the other side there are the developers who MUST deal with both companies. There is no choice. You can't build an app with a mobile component and ignore 1 of the only 2 distribution platforms. Why would I risk major R&D costs to develop anything novel or disruptive when I have no guarantee I can distribute that product and might even be facing a hostile distributor if my product disrupts them? Does anyone think having 2 massive incumbents controlling distribution for a mode of computing that's become essential to western life is healthy? How is the market not going to devolve (even more) into a bunch of low effort skinner box IAP trash? And the game console analogies are dumb. I don't need a game console. I don't have one. However, I NEED a mobile phone to participate in modern society. Try getting and keeping a good paying job if you don't have a mobile phone and are "unresponsive".

ericmay 6y ago
> I wonder if the existing law is capable of dealing with the current situation. It seems crazy to me that anyone considers the mobile market sane or good for users and developers. Think about it. I see this posted sooooo often and every time I just say "nope, it's exactly what I want and I do not want it to change for iOS". Very pleased to see Epic starting off poorly here. Hopefully this all goes up in flames for them.
clay_the_ripper 6y ago
But the key point is, how much consumer harm has resulted? I am an iOS user. I like that iOS takes a heavy handed approach to the App Store and controls it completely. I do not want developers to hav the option to have their own payments. Apple Pay is so easy and convenient. I do not want developers to be able to distribute apps without Apple approval. Apples policies probably result in developer harm, but anti trust law is to protect me as a user not you as a developer. To be frank, I don’t really care that Apple is a pain to deal with. That is why I, the user, pay you, the developer to deal with them.

_qulr 6y ago

> there's nothing in US law that says general-purpose computing devices are supposed to be treated differently than other products for the purposes of antitrust analysis Other products include Macs and PCs, which allow "sideloading" by default, out of the box. Why are game consoles the relevant comparison? There's nothing in US law that says smartphones are supposed to be treated the same as game consoles. iPhone was not originally a game console. (Apple itself almost never makes games.) Indeed, iPhone was not originally a store either. Apple argued in court that App Store is not a separate product from iPhone, but that's easily historically refuted: iPhone shipped in 2007 without App Store! App Store was added a year later, so it's obviously not essential to the product. And IAP aren't essential to App Store either, because they weren't added until 2009. It was developers like Epic who showed iPhone could be a gaming platform. Apple itself has a pretty poor history at gaming, and the Mac has always been subpar compared to Windows.

notriddle 6y ago
> Other products include Macs and PCs, which allow "sideloading" by default, out of the box. Are they legally required to do so?
ericmay 6y ago
> iPhone was not originally a game console. (Apple itself almost never makes games.) Indeed, iPhone was not originally a store either. Apple argued in court that App Store is not a separate product from iPhone, but that's easily historically refuted: iPhone shipped in 2007 without App Store! App Store was added a year later, so it's obviously not essential to the product. And IAP aren't essential to App Store either, because they weren't added until 2009. The failure in your reasoning here is your assertion that the iPhone that was launched in 2007 is the same iPhone that's about to be launched in October. They are different products. The iPhone 12 DOES launch with the App Store. If Epic wants to make it so any iPhone(s) that didn't originally launch with the App Store must be able to side load apps, I mean, go ahead. > Why are game consoles the relevant comparison? Why aren't they? In fact, I'd argue they are even MORE of a relevant comparison and MORE like a general purpose computer. Sure, Microsoft has not written Office for Xbox, but that's not a limitation of Xbox. You can (and this is encouraged) plug a keyboard and mouse right into an Xbox. It has a GPU, processor, hard drive, RAM, motherboard, etc.. It's literally a computer. > There's nothing in US law that says smartphones are supposed to be treated the same as game consoles. There's nothing in US law that says smartphones are supposed to be treated like desktop computers either. I have yet to see a convincing and consistent reason that they should be. I guess if you want to say that all computing devices should be open source and modifiable and all that, sure that's fine, but the distinction here is very much an arbitrary one.

jpambrun 6y ago

I assume Epic endgame isn't this trial. Winning would be nice, but loosing might help show the need for new legislations. Also, the US is only one jurisdiction.

rowanG077 6y ago

IPhones aren't general-purpose computing devices.

thih9 6y ago
I think you have a point. I don't think Apple has ever marketed their iPhones as a general purpose computing device. However they do advertise iPad as a laptop replacement.
- rowanG077 6y ago
  They do advertise the ipad like that. But that is a ridiculous marketing statement imo. You basically can't install any software. Heck even the web browsers are safari with skins because the actual web browser cannot run on it.
  - coldtea 6y ago
    >They do advertise the ipad like that. But that is a ridiculous marketing statement imo. You basically can't install any software. Yeah, there are only about 1 million and a half applications (including MS office, Adobe Photoshop and so on) plus web apps available...
    - rowanG077 6y ago
      How is the number relevant?
      - coldtea 6y ago
        "You basically can't install any software." --> you literally can install 1.5M different apps...
        rowanG077 6y ago
        Not sure what your point is. 1.5M doesn't say anything about generality.

dnautics 6y ago

> However, the judge seemed rather unconvinced that a market definition consisting of only iOS devices was actually the correct market to analyze... As an aside, I've read a number of comments here lamenting that the judge doesn't understand tech, but I think the opposite is true as well: many of the commenters here don't understand the law. I mean this is probably a good case of "the law doesn't understand the law" in that the law does not have a particularly useful definition of what constitutes a "market"

fxtentacle 6y ago

I believe you misunderstood how the process works. Plus, I saw this as working out as Epic had planned. Yes, the judge Gonzalez Rogers said that she is not convinced enough by Epic's claims to force an injunction onto Apple, which would require Apple to immediately reinstate Fortnite into the app store and leave it there until the legal proceedings are finished. But did anyone really expect that Epic can use the fast track to force Apple to continue distributing Fortnite while forfeiting the 30% before even going to the main trial? Sure, Epic requested that, but that doesn't mean that they reasonably expected to get it granted, too. Such a large case will almost never be settled pre-trial without an official jury. So her rejecting the injunction is kind of how this normally works. According to CNN, she also said "Fortnite players on iOS have a variety of choices to access the game even if it is no longer available on iOS" as the main reasoning as to why Apple's action is not illegal tying of App distribution to In-App payments. And then she said that she wants to hear what the public thinks. So effectively, the stage is now set for Epic. They need to manufacture a large enough outcry by regular consumers about Fortnite being absent on iOS. And they need to do so before the trial in 2021. And to me, it looks like Epic has been very effective so far at making people speak out that they would have wanted Fortnite on iOS. The judge also said "It's hard to ignore the economics of the industry, which is what you're asking me to do." when comparing the iOS app store to other walled gardens like Xbox and PS. I'd treat that as a friendly hint that Epic needs to show that game consoles and smartphones are not comparable industries. That should be easy, because smartphones are essential for everyday life. Game consoles are not. And lastly, the judge also said "There are a lot of people in the public who consider you guys heroes for what you guys did, [..]". To me, that sounds like an acknowledgement that the general population does not support Apple's reaction, meaning that Epic is on a good path towards showing that iOS consumers in general do NOT have alternative ways for accessing Fortnite. Also, I'm not sure this is a neutral report on the Apple/Epic battle. The writer is called "James Vincent", just like this guy: https://appleinsider.com/articles/20/02/26/ex-apple-ad-chief-james-vincent-not-bitter-years-after-bad-split https://appleinsider.com/articles/20/02/26/ex-apple-ad-chief...

scarface74 6y ago
iOS users have already moved on to the next hyped app. There is no “outcry” from iOS users. Epic even admitted that less than 10% of Fortnite players are on iOS. Are you claiming that all of the articles that quoted the judge are biased?

gundmc 6y ago

I support Epic in this fight, but I agree with the Judge that "market" definitions in casual conversation have become so narrow as to be meaningless. I regularly see posters here unironically assert examples such as "general-knowledge search engine ads", "image-based social media", etc. Anything can be a monopoly if you arbitrarily define its market as congruent with its market share.

qtplatypus 6y ago

Also consoles are general purpose computing devices in tech terms.

skinnymuch 6y ago

How important are the nuances of law exactly? The talk right now is stacking the Supreme Court with 6 conservatives can give a contested elections to conservatives and overturn Roe v Wade etc. Not to mention how laws impact demographics differently. Without knowing anything about laws specifically, this makes it seem like it isn’t very concrete. At all.

_qulr 6y ago
The Supreme Court may be the endgame of this trial. Maybe that's why they don't care about the jury. It'll doubtless be appealed no matter who wins, so does the outcome even matter?