5 ms·

The Epic question: how Google lost when Apple won

23 points by MBCook 3y ago

musicale 3y ago
> market definition was arguably the deciding factor in the Apple case, when Judge Yvonne Gonzalez Rogers singlehandedly decided the proper market definition was “digital mobile gaming transactions,” a market where Apple’s 30 percent cut looked relatively fair, since Sony, Microsoft, and Nintendo nominally charge the same rate. If a judge is going to order Apple to charge Epic a lower platform fee for Fortnite than what Epic is already paying to Sony, Microsoft, and Nintendo (and Google?) presumably there should be a good reason.
eviks 3y ago
Many reasons are a variation of "This case was in front of a jury, not a bench trial." Equating the legal system with pure luck of a dice is also a good first principle
- SllX 3y ago
  This is being overthought. Allow me to quote Justice Jackson from (an unrelated case, but still wise words) her concurrence in Twitter, Inc. vs Taamneh et al.: “Other cases presenting different allegations and different records may lead to different conclusions.” I don’t think it’s anymore complicated than that. The cases were different, the records were different, so rather than pursuing the merits and demerits of our legal system and likening it to a die roll, go play spot the diff with the case records. EDIT: Sean Hollister’s article in The Verge link is by the way an excellent analysis of the differences. Only point 4 lists the Jury as being a direct factor, everything the Jury saw is something a Judge would have seen during a bench trial.
  - eviks 3y ago
    My comment IS about Sean's article in the Verge link??? And no, it's not just 4 > a judge would have seen A judge would've had a different reaction, just like correctly mentioned in 4 in the article "While a judge might have well decided those deals aren’t out of the norm, the jury may have seen how the sausage is made for the very first time" The Jackson quote isn't relevant: the allegations are substantially the same, and Apple's case is much stronger because it's much more anti-competitive even without autodeleted chats, so the "surprise" from a different outcome is justified
    - SllX 3y ago
      There are substantially different facts that are both public knowledge and in the record. The iPhone operating system has always been an integral part of the Apple developed iPhone product-line. Compare and contrast this with Android which was from the start billed as an open platform that carriers and OEMs could do with as they liked. However, there are two substantial business activities that Google has engaged in outside of developing and maintaining the AOSP and also maintaining their own line of Android software: 1) they contractually required OEMs to include all of a set of key apps they developed for use on Android, giving privileged positions to some of them and requiring that OEMs not fork Android in order to continue to have access to Google’s Play Services. 2) And here’s the money shot: when 3rd party developers such as Epic and according to Tim Sweeney in an interview that was also on The Verge, Activision, were developing their own App Stores, Google made the rounds paying them off to not do so. Epic received the offer, but didn’t take the deal. To go one step further, Google also made the rounds to game developers to keep them from listing in Epic’s store as well. Why does Android have a, as framed by the questionnaire the members of the Jury filled out and answered yes to this question on, a defined market area in and I quote “Android app distribution, worldwide excluding China” but the iPhone does not? Because that is how Google billed Android from the start: an open platform with an open software market. Conversely, Apple has never allowed a secondary app market to develop on iOS outside of the App Store and have taken pains to prevent this whereas separate app storefronts are a feature of the Android operating system but Google has actively worked to undermine their market viability. For what it’s worth, I do think Google should have won this one, but either Epic has epic lawyers, Google’s lawyers walked in thinking this was a Grenada or both. I don’t have a lot of respect for the position that antitrust law is even applicable anywhere within the phone hardware and software market in the US. Either way, this was a substantively different record and a different set of allegations leading to a different outcome. Oh and on this: > And no, it's not just 4 In substance it’s just 4. 5 and 6 are things the Judge would have also had as criteria to make a judgement on. What’s different about point 6 is that he could have kept his thoughts to himself rather than pointing this out to a Jury. In the end, whether it’s a Jury or Judge, you are relying on people to make a judgement call. Trying to predict the judgement call different people will make might be possible if you become an expert in that person, but even then they might surprise you. Like with any working class professionals—Doctors, Accountants, Consultants, PR Agents—you can take any two of them from the same profession, give them a set of facts and desirable outcomes and end up with two completely different opinions. Legal strategy does involve knowing your audience to some degree, but both legal teams went in knowing it was and preparing for a Jury trial. If Google had any disadvantages, it wasn’t solely from this being a Jury trial in a Jury pool they helped to select.
quitit 3y ago
I think externally it's tempting to see Google and Apple's app marketplaces as the same thing, but that is more indicative that one's experience is merely as a user. Despite both presenting similarly to users, they're operated differently and each has different objectives and challenges - that's where the evidence in this case was centred. Both stores are successful and desirable but that is not criminal - one has to prove that these came about from illegal activity, in many cases this has to be shown as deliberate, because it is trivial to attribute any and every action to malice if one is willing to ignore all evidence to the contrary. About that: some voices in HN (and theverge.com) are particularly two-faced this way, willing to be generous with one company's intentions while being unyielding and conspiratorial with others. The courts aim to be consistent this way (precedence is their foundation) - and this often doesn't gel with oft-repeated ideals that really aren't anything more than fan fiction.
amadeuspagel 3y ago
Can't have unfair competition if you have no competition.

23 points by MBCook 3y ago

> market definition was arguably the deciding factor in the Apple case, when Judge Yvonne Gonzalez Rogers singlehandedly decided the proper market definition was “digital mobile gaming transactions,” a market where Apple’s 30 percent cut looked relatively fair, since Sony, Microsoft, and Nintendo nominally charge the same rate. If a judge is going to order Apple to charge Epic a lower platform fee for Fortnite than what Epic is already paying to Sony, Microsoft, and Nintendo (and Google?) presumably there should be a good reason.

eviks 3y ago

Many reasons are a variation of "This case was in front of a jury, not a bench trial." Equating the legal system with pure luck of a dice is also a good first principle

SllX 3y ago
This is being overthought. Allow me to quote Justice Jackson from (an unrelated case, but still wise words) her concurrence in Twitter, Inc. vs Taamneh et al.: “Other cases presenting different allegations and different records may lead to different conclusions.” I don’t think it’s anymore complicated than that. The cases were different, the records were different, so rather than pursuing the merits and demerits of our legal system and likening it to a die roll, go play spot the diff with the case records. EDIT: Sean Hollister’s article in The Verge link is by the way an excellent analysis of the differences. Only point 4 lists the Jury as being a direct factor, everything the Jury saw is something a Judge would have seen during a bench trial.
- eviks 3y ago
  My comment IS about Sean's article in the Verge link??? And no, it's not just 4 > a judge would have seen A judge would've had a different reaction, just like correctly mentioned in 4 in the article "While a judge might have well decided those deals aren’t out of the norm, the jury may have seen how the sausage is made for the very first time" The Jackson quote isn't relevant: the allegations are substantially the same, and Apple's case is much stronger because it's much more anti-competitive even without autodeleted chats, so the "surprise" from a different outcome is justified
  - SllX 3y ago
    There are substantially different facts that are both public knowledge and in the record. The iPhone operating system has always been an integral part of the Apple developed iPhone product-line. Compare and contrast this with Android which was from the start billed as an open platform that carriers and OEMs could do with as they liked. However, there are two substantial business activities that Google has engaged in outside of developing and maintaining the AOSP and also maintaining their own line of Android software: 1) they contractually required OEMs to include all of a set of key apps they developed for use on Android, giving privileged positions to some of them and requiring that OEMs not fork Android in order to continue to have access to Google’s Play Services. 2) And here’s the money shot: when 3rd party developers such as Epic and according to Tim Sweeney in an interview that was also on The Verge, Activision, were developing their own App Stores, Google made the rounds paying them off to not do so. Epic received the offer, but didn’t take the deal. To go one step further, Google also made the rounds to game developers to keep them from listing in Epic’s store as well. Why does Android have a, as framed by the questionnaire the members of the Jury filled out and answered yes to this question on, a defined market area in and I quote “Android app distribution, worldwide excluding China” but the iPhone does not? Because that is how Google billed Android from the start: an open platform with an open software market. Conversely, Apple has never allowed a secondary app market to develop on iOS outside of the App Store and have taken pains to prevent this whereas separate app storefronts are a feature of the Android operating system but Google has actively worked to undermine their market viability. For what it’s worth, I do think Google should have won this one, but either Epic has epic lawyers, Google’s lawyers walked in thinking this was a Grenada or both. I don’t have a lot of respect for the position that antitrust law is even applicable anywhere within the phone hardware and software market in the US. Either way, this was a substantively different record and a different set of allegations leading to a different outcome. Oh and on this: > And no, it's not just 4 In substance it’s just 4. 5 and 6 are things the Judge would have also had as criteria to make a judgement on. What’s different about point 6 is that he could have kept his thoughts to himself rather than pointing this out to a Jury. In the end, whether it’s a Jury or Judge, you are relying on people to make a judgement call. Trying to predict the judgement call different people will make might be possible if you become an expert in that person, but even then they might surprise you. Like with any working class professionals—Doctors, Accountants, Consultants, PR Agents—you can take any two of them from the same profession, give them a set of facts and desirable outcomes and end up with two completely different opinions. Legal strategy does involve knowing your audience to some degree, but both legal teams went in knowing it was and preparing for a Jury trial. If Google had any disadvantages, it wasn’t solely from this being a Jury trial in a Jury pool they helped to select.

quitit 3y ago

I think externally it's tempting to see Google and Apple's app marketplaces as the same thing, but that is more indicative that one's experience is merely as a user. Despite both presenting similarly to users, they're operated differently and each has different objectives and challenges - that's where the evidence in this case was centred. Both stores are successful and desirable but that is not criminal - one has to prove that these came about from illegal activity, in many cases this has to be shown as deliberate, because it is trivial to attribute any and every action to malice if one is willing to ignore all evidence to the contrary. About that: some voices in HN (and theverge.com) are particularly two-faced this way, willing to be generous with one company's intentions while being unyielding and conspiratorial with others. The courts aim to be consistent this way (precedence is their foundation) - and this often doesn't gel with oft-repeated ideals that really aren't anything more than fan fiction.

amadeuspagel 3y ago

Can't have unfair competition if you have no competition.