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> 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

by 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.
  - joshuamorton 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? Vote for new representatives to change the laws. Technically speaking, as a jurist you aren't supposed to make a decision based on fairness instead of the law, and if you state that you will, you will be removed from the jury or held in contempt. Jury nullification, which you're suggesting as a strategy, isn't intended to be legal, its just unpunishable.
    - mullingitover 6y ago
      > Jury nullification, which you're suggesting as a strategy, isn't intended to be legal, its just unpunishable. It's ironic that the whole point of the jury system is to enable jury nullification, and yet those are the magic words that will immediately get you out of jury duty. I wish there was a simple checkmark on the jury summons form that says "I know what jury nullification is and intend to use it," it would save everyone a lot of time.
nodamage 6y ago
Let me clarify: 1. Epic spent the first hour of the hearing arguing that the relevant antitrust market was the "iOS app distribution" market. The judge pushed back hard on this because there were alternative distribution channels available to Epic, saying: "I know that's how you want to frame the issue... I'm not convinced that you have." 2. With regards to Epic's tying claim, she said she was not particularly persuaded with their section 1 argument. Referring to IAP, she said: "I just don't see this as a separate and distinct product." Those points imply she is unlikely to conclude that Epic has met the threshold of likelihood to succeed on the merits to win the preliminary injunction, yes. But they will also be considered during the trial itself.
scarface74 6y ago
The litigants get to decide whether it goes to a jury. Both Apple and Epic said they didn’t want a jury trial. https://www.macrumors.com/2020/09/29/apple-epic-games-no-jury-trial/ https://www.macrumors.com/2020/09/29/apple-epic-games-no-jur...

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.
- joshuamorton 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? Vote for new representatives to change the laws. Technically speaking, as a jurist you aren't supposed to make a decision based on fairness instead of the law, and if you state that you will, you will be removed from the jury or held in contempt. Jury nullification, which you're suggesting as a strategy, isn't intended to be legal, its just unpunishable.
  - mullingitover 6y ago
    > Jury nullification, which you're suggesting as a strategy, isn't intended to be legal, its just unpunishable. It's ironic that the whole point of the jury system is to enable jury nullification, and yet those are the magic words that will immediately get you out of jury duty. I wish there was a simple checkmark on the jury summons form that says "I know what jury nullification is and intend to use it," it would save everyone a lot of time.

nodamage 6y ago

Let me clarify: 1. Epic spent the first hour of the hearing arguing that the relevant antitrust market was the "iOS app distribution" market. The judge pushed back hard on this because there were alternative distribution channels available to Epic, saying: "I know that's how you want to frame the issue... I'm not convinced that you have." 2. With regards to Epic's tying claim, she said she was not particularly persuaded with their section 1 argument. Referring to IAP, she said: "I just don't see this as a separate and distinct product." Those points imply she is unlikely to conclude that Epic has met the threshold of likelihood to succeed on the merits to win the preliminary injunction, yes. But they will also be considered during the trial itself.

scarface74 6y ago

The litigants get to decide whether it goes to a jury. Both Apple and Epic said they didn’t want a jury trial. https://www.macrumors.com/2020/09/29/apple-epic-games-no-jury-trial/ https://www.macrumors.com/2020/09/29/apple-epic-games-no-jur...