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It will be real hard to argue to any judge that Epic has anything going for them when 1) they actively broke the TOS and were forward about it 2) they actively

by urda 6y ago

It will be real hard to argue to any judge that Epic has anything going for them when 1) they actively broke the TOS and were forward about it 2) they actively sneaked code past reviewers to push a feature that broke said TOS 3) They had an ad campaign and in-game-event ready-to-go from the moment they got pulled, which continues to demonstrate how premeditated this maneuver was. It will be real hard for a judge to have to agree with them. They could have corrected it, got back into compliance and continued their legal case, but this was not the route they picked. They gambled, and have (most likely) lost.

oh_sigh 6y ago
Epic could still prevail if the TOS terms they broke are found to be illegal, unenforceable, etc. The important point is Epic doesn't want to be compliant with the current TOS.
- dodobirdlord 6y ago
  Sure, but that's something to be worked out in the pending trial. In the meantime what Epic wants isn't really important to anyone.
trevyn 6y ago
I get the sense that in order to have legal standing for a lawsuit, you have to be actually harmed. I'm under the impression that they had to do more-or-less what they did (minus the press blitz) in order to have legal standing to bring a case. In this case, I think they are arguing that the harm occurs because "who decides if you can be on the App Store" should not be a monopoly, and users should be able to decide if they trust Epic to handle payments instead of Apple. The argument is that the TOS itself is (or should be ruled), in its current form, illegal. This case is particularly interesting, because it is clear that Apple + Google have a duopoly on a very important market, and both companies exhibit near-identical anti-consumer behavior in this particular respect. So while consumers may have a nominal choice, they do not have a real choice about a decision facet that matters. I'm curious about any anti-trust precedent here, and how this was handled in the courts. (i.e. two separate lawsuits against the companies in question, some sort of unified legal plea...?) How is (implicit) collusion handled?
- JumpCrisscross 6y ago
  > in order to have legal standing for a lawsuit, you have to be actually harmed They were paying the 30%. That’s harm enough. Civil disobedience isn’t something courts deal with favourably. In a society with rule of law, they shouldn’t. It’s designed to get the public’s and legislature’s sympathy. As such, I judge it poorly based solely on timing. In the middle of a pandemic and recession, in the midst of an election year, I suspect most Americans would be livid if the Congress prioritised a developer / tech giant compensation dispute.
  - trevyn 6y ago
    IMO, the courts should deal with the issue at hand, and not judge if the parties have been being good bois. It's interesting to think about this in the context of "smart contracts" etc. -- the rule of law is stronger if it is more unambiguously encoded. If our current judicial system is deliberately interpreting morality, rather than encoding our sense of morality into the laws themselves, that seems like a rather obvious opportunity for advancing legal systems, especially in an age where we will be forced to codify human morality anyway. The check-and-balance can be moved to judging laws instead of individual cases, and a new system can be grown for bringing cases against laws instead of parties.
    - dodobirdlord 6y ago
      It's not about "being good bois", it's about whether Epic is facing irreparable harm. Epic alleges anticompetitive behavior on Apple's part. Sure, fine, there will eventually be a trial. Epic will probably lose because their arguments are ridiculous, but juries have been convinced by stupider arguments, so who knows how it will play out? In the meantime, Epic has deliberately violated a contractual agreement and has been treated exactly in accordance with that contractual agreement. Epic would like a court injunction to force Apple to pretend like Epic has already won the case in the meantime, alleging that Fortnite and Unreal Engine being banned from iOS is causing irreparable harm to Epic in the meantime. Apple's point, that the judge seems to agree with is "How can we be causing you harm when you did this to yourself?"
judge2020 6y ago
> It will be real hard for a judge to have to agree with them. They could have corrected it, got back into compliance and continued their legal case, but this was not the route they picked. To provide a source for this: (ctrl-f escrow) https://threadreaderapp.com/thread/1310618271675105282.html https://threadreaderapp.com/thread/1310618271675105282.html
bananaface 6y ago
The basis of the lawsuit is that the TOS are unreasonable. It doesn't matter if they broke them, in fact they had to to even bring the lawsuit. They might still lose but the fact they broke the TOS won't count against them.
- viktorcode 6y ago
  Since TOS isn’t enforced on them, Epic will have to provide some evidence that they have no choice but to agree to those unreasonable terms. So far it looks like they can’t do that. Mobile monetary share of Fortnite is small.
  - bananaface 6y ago
    I don't think that's correct either. They just have to show that Apple is engaging in anti-competetive behaviour as defined by the Sherman Act.
  - deleted 6y ago
    [deleted]

by urda 6y ago

oh_sigh 6y ago

Epic could still prevail if the TOS terms they broke are found to be illegal, unenforceable, etc. The important point is Epic doesn't want to be compliant with the current TOS.

dodobirdlord 6y ago
Sure, but that's something to be worked out in the pending trial. In the meantime what Epic wants isn't really important to anyone.

trevyn 6y ago

I get the sense that in order to have legal standing for a lawsuit, you have to be actually harmed. I'm under the impression that they had to do more-or-less what they did (minus the press blitz) in order to have legal standing to bring a case. In this case, I think they are arguing that the harm occurs because "who decides if you can be on the App Store" should not be a monopoly, and users should be able to decide if they trust Epic to handle payments instead of Apple. The argument is that the TOS itself is (or should be ruled), in its current form, illegal. This case is particularly interesting, because it is clear that Apple + Google have a duopoly on a very important market, and both companies exhibit near-identical anti-consumer behavior in this particular respect. So while consumers may have a nominal choice, they do not have a real choice about a decision facet that matters. I'm curious about any anti-trust precedent here, and how this was handled in the courts. (i.e. two separate lawsuits against the companies in question, some sort of unified legal plea...?) How is (implicit) collusion handled?

JumpCrisscross 6y ago
> in order to have legal standing for a lawsuit, you have to be actually harmed They were paying the 30%. That’s harm enough. Civil disobedience isn’t something courts deal with favourably. In a society with rule of law, they shouldn’t. It’s designed to get the public’s and legislature’s sympathy. As such, I judge it poorly based solely on timing. In the middle of a pandemic and recession, in the midst of an election year, I suspect most Americans would be livid if the Congress prioritised a developer / tech giant compensation dispute.
- trevyn 6y ago
  IMO, the courts should deal with the issue at hand, and not judge if the parties have been being good bois. It's interesting to think about this in the context of "smart contracts" etc. -- the rule of law is stronger if it is more unambiguously encoded. If our current judicial system is deliberately interpreting morality, rather than encoding our sense of morality into the laws themselves, that seems like a rather obvious opportunity for advancing legal systems, especially in an age where we will be forced to codify human morality anyway. The check-and-balance can be moved to judging laws instead of individual cases, and a new system can be grown for bringing cases against laws instead of parties.
  - dodobirdlord 6y ago
    It's not about "being good bois", it's about whether Epic is facing irreparable harm. Epic alleges anticompetitive behavior on Apple's part. Sure, fine, there will eventually be a trial. Epic will probably lose because their arguments are ridiculous, but juries have been convinced by stupider arguments, so who knows how it will play out? In the meantime, Epic has deliberately violated a contractual agreement and has been treated exactly in accordance with that contractual agreement. Epic would like a court injunction to force Apple to pretend like Epic has already won the case in the meantime, alleging that Fortnite and Unreal Engine being banned from iOS is causing irreparable harm to Epic in the meantime. Apple's point, that the judge seems to agree with is "How can we be causing you harm when you did this to yourself?"

judge2020 6y ago

> It will be real hard for a judge to have to agree with them. They could have corrected it, got back into compliance and continued their legal case, but this was not the route they picked. To provide a source for this: (ctrl-f escrow) https://threadreaderapp.com/thread/1310618271675105282.html https://threadreaderapp.com/thread/1310618271675105282.html

bananaface 6y ago

The basis of the lawsuit is that the TOS are unreasonable. It doesn't matter if they broke them, in fact they had to to even bring the lawsuit. They might still lose but the fact they broke the TOS won't count against them.

viktorcode 6y ago
Since TOS isn’t enforced on them, Epic will have to provide some evidence that they have no choice but to agree to those unreasonable terms. So far it looks like they can’t do that. Mobile monetary share of Fortnite is small.
- bananaface 6y ago
  I don't think that's correct either. They just have to show that Apple is engaging in anti-competetive behaviour as defined by the Sherman Act.
- deleted 6y ago
  [deleted]