Apple triumphant in Epic Games 'Fortnite' antitrust appeal

Posted:
in General Discussion edited April 2023
Apple has won its appeal in Epic Games' appeal over the App Store policies, but further appeals are expected.

App Store
App Store


The US Ninth Circuit Court of Appeals affirmed a lower court's decision from 2021 that rejected claims from Epic that the App Store policies violated federal laws. Specifically, it pertained to Apple's decision to forbid third-party app stores on its platforms.

The appeals panel upheld the judge's ruling in Epic's favor on California state law claims.

In a statement to AppleInsider, Apple said:
Today's decision reaffirms Apple's resounding victory in this case, with nine of ten claims having been decided in Apple's favor. For the second time in two years, a federal court has ruled that Apple abides by antitrust laws at the state and federal levels.

The App Store continues to promote competition, drive innovation, and expand opportunity, and we're proud of its profound contributions to both users and developers around the world.

We respectfully disagree with the court's ruling on the one remaining claim under state law and are considering further review.

Although Apple won the appeal, it has still worked to alleviate some developer concerns over how it operates the App Store. For instance, it launched the App Store Small Business Program in 2020 to allow developers who earn less than $1 million per year to pay only 15% of sales to Apple.

Epic's CEO Tim Sweeney chimed in on the matter a bit after the ruling.

"Apple prevailed at the 9th Circuit Court," said Sweeney in a Tweet. "Though the court upheld the ruling that Apple's restraints have 'a substantial anticompetitive effect that harms consumers,' they found we didn't prove our Sherman Act case."

"Fortunately, the court's positive decision rejecting Apple's anti-steering provisions frees iOS developers to send consumers to the web to do business with them directly there," added Sweeney. "We're working on next steps."

The Fortnite developer account remains banned. It's not clear when or if it will be reinstated.

Choice Quotes

The ruling states that Apple makes it clear that by improving security and privacy, "it is tapping into consumer demand and differentiating its products from those of its competitors-- goals that are plainly procompetitive rationales."

Along with consumer surveys indicating security is important, the ruling cites Tim Sweeney, noting "Even Epic's CEO testified that he purchased an iPhone over an Android smartphone in part because it offers 'better security and privacy.'"

With Apple's restrictions, users are still free to choose whether to use iOS and its security, or to go elsewhere, such as on Android. "Apple's restrictions create a heterogenous market for app-transaction platforms which, as a result, increases interbrand competition-- the primary goal of antitrust law."

The court also found that Epic's assertions it could match Apple's notarized apps model without human review didn't establish that it would be "virtually as effective" in practice. The court found "compelling" Apple's explanation for why human review is necessary, and that Epic "did not explain how, if at all" a purely automated process could screen for such threats.

On In-App Payments, the court determined the restrictions "have procompetitive effects that offset their anticompetitive effects."

A lengthy legal battle

The affair is a continuation of a lengthy legal battle between the Fortnite creator and the iPhone maker.

Epic Games sued Apple in 2020 after Apple stopped the game-maker from bypassing the App Store payment system in which Apple collects a 30% fee from developers.

Not long after that, Apple terminated Epic's developer accounts, effectively cutting it off from iOS and Mac developer tools.

The case has had numerous decisions and appeals and remains ongoing.

In the first legal response, Apple likened Epic's behavior to being similar to that of a shoplifter in avoiding the 30% fee. Epic responded by accusing Apple of filing to acknowledge the multiple contracts between the two companies, as well as insistence that Apple hadn't proven it would be "significantly harmed" by Epic's actions.

Apple has repeatedly stated that in order to safeguard consumers against scammers, hackers, malware, and spyware, it is necessary to rigorously monitor the programs that run on its widely used phones.

That August 2020 ruling had US District Judge Yvonne Gonzalez Rogers declare Epic couldn't demonstrate irreparable harm from Apple's ban of Fortnite, and that it was a situation of Epic's own making. However, Apple did choose to "act severely."

The tit-for-tat filings eventually led to a three-week trial in 2021, which led to a lot of aired dirty laundry, including internal Apple emails and details of the App Store workings.

In the September 2021 publication of her ruling, Judge Yvonne Gonzalez Rogers largely handed Apple a victory in court. Chiefly for Apple it was a confirmation that Apple wasn't a monopoly, and that Epic wasn't able to demonstrate Apple was engaging in monopolistic behavior.

Though Apple was found to enjoy "considerable market share" and "extraordinarily high profit margins," this didn't demonstrate antitrust conduct. "The Court does not find that it is impossible; only that Epic Games failed in its burden to demonstrate Apple is an illegal monopolist," the ruling states.

Apple also prevailed in arguments that Epic breached its contract clauses, leading to damages of 30% of the $12 million it earned from its brief direct payments system's activity.

The ruling did go against Apple when it came to anti-steering, with an injunction issued effectively forcing Apple to allow developers to say other payment methods were possible.

Epic quickly filed an appeal to the U.S. Court of Appeals for the Ninth Circuit, and was later followed by Apple.

One January 22 appeal filing had Epic say Judge Rogers "erred" in her antitrust rulings.

Eventually, in August 2022, the U.S. Court of Appeals said it would hear from both Apple and Epic in October 2022. Each side would have just 20 minutes to make their case to the court, though the Department of Justice was also allowed to present for 10 minutes to argue Epic's side.

Months later, on April 24, 2023, the Appeals Court issued its verdict.

Edited April 24, 4:22 PM ET: Added quotes from Epic, and status of Epic's developer account.

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Comments

  • Reply 1 of 30
    danoxdanox Posts: 2,711member
    Keep fighting, being a vertical computer company is a choice. There’s nothing wrong with designing the OS and the hardware with custom chips. Buy Windows or Android systems if you want something different, both have far greater marketshare, than Apple systems.
    edited April 2023 9secondkox2rob53davenradarthekatAlex1NBart YdewmeflyingdpMacProwatto_cobra
  • Reply 2 of 30
    lkrupplkrupp Posts: 10,557member
    Government regulations being proposed will make this ‘victory’ moot. So maybe Epic can open its own app store in the EU but not in the U.S. ? How ill that be handled?
    9secondkox2watto_cobra
  • Reply 3 of 30
    lkrupp said:
    Government regulations being proposed will make this ‘victory’ moot. So maybe Epic can open its own app store in the EU but not in the U.S. ? How ill that be handled?

    This will kill any proposed legislation in the US. Nobody is going to try and pass a law that overrides the rulings of two courts. I think they were waiting for this outcome before moving on, and now any proposed bills will be shelved.

    As to allowing a separate store in the EU it will be simple. Depending on the country you live you’ll get a slightly different version of iOS.

    What I expect to happen in the EU is numerous criminals and shady developers are going to infest iPhones with malware and privacy invading features. Users will be screaming at Apple (who else will they blame) and Apple will sue the EU for instituting a law that directly caused harm to iPhone users. Unlike the imaginary harm the EU is trying to prevent by forcing 3rd party stores. 

    Excuse me while go troll Epic and the Coalition for App Fairness over this loss. 😉
    mobirdwilliamlondonmdw9secondkox2rob53davenradarthekatAlex1NBart Ydewme
  • Reply 4 of 30
    MadbumMadbum Posts: 527member
    Great victor for Apple over the Chinese communist owned Epic games.

    Tik Tok spying for China is in the news but Epic is just as dangerous 
    mdw9secondkox2radarthekatAlex1Nflyingdpwatto_cobra
  • Reply 5 of 30
    croprcropr Posts: 1,117member

    What I expect to happen in the EU is numerous criminals and shady developers are going to infest iPhones with malware and privacy invading features. Users will be screaming at Apple (who else will they blame) and Apple will sue the EU for instituting a law that directly caused harm to iPhone users. Unlike the imaginary harm the EU is trying to prevent by forcing 3rd party stores. 

    I don't expect that at all.  There will be a few app stores that are run by larger companies (e.g. HW  + SW vendors, banks, telecom operators...) that can established some trust.  It might look strange for Americans, but on average Europeans trust their bank more than Apple.  I can call/visit my bank manager but I cannot call/visit my Apple manager, which is a crucial element in building a trustful relation.

    There will be a few dodgy app stores that try to lure the customer, but that no normal person will ever use.  

    To make the comparison: no normal person does side load apps from the Google Play store.  And those who do, don't scream at Google.  And as a consequence Google does not sue the EU.

    But there is major risk.  If people are unaware that they install an app from a phishing app store, this could create real damage.  Of course the implementation details (can Apple impose rules?) will be relevant.
    williamlondonAlex1Nmuthuk_vanalingamelijahgroundaboutnow
  • Reply 6 of 30
    9secondkox29secondkox2 Posts: 2,576member
    Wow. Justice actually prevails in this day? 

    Good stuff. 

    Now Apple should sue for legal fees, wasted time, and slander. 
    radarthekatAlex1NwilliamlondonBart Yrezwitswatto_cobra
  • Reply 7 of 30
    9secondkox29secondkox2 Posts: 2,576member
    lkrupp said:
    Government regulations being proposed will make this ‘victory’ moot. So maybe Epic can open its own app store in the EU but not in the U.S. ? How ill that be handled?
    Gotta love it when government oversteps into micromanaging the private sector… 
    /s

    but there is legal standard and precedent now. Any pending legislation may itself be moot now. And even if they wish to waste money continuing this attack on freedom, they will have to find a way to negate the previous judgements - and that’s a slimy, slippery slope. 
    edited April 2023 radarthekatAlex1Nwilliamlondonwatto_cobra
  • Reply 8 of 30
    9secondkox29secondkox2 Posts: 2,576member
    Madbum said:
    Great victor for Apple over the Chinese communist owned Epic games.

    Tik Tok spying for China is in the news but Epic is just as dangerous 
    Especially since they are half owned by Chinese TenCent. Amazing how some of these shady operators virtue-signal while at the same time selling out customer and country for the sake of personal enrichment. Absolutely shameful. 

    TenCent/Epic’s Unreal engine 5 didn’t get so amazing without significant cost, motivation, collaboration, sweeping industry planning, and manpower/hours. The rapid entrenching of this company into automobiles, Hollywood, etc. is more than a little troubling considering where it’s coming from and what that country’s stated goals are. It’s no wonder they were so bold as to go after Apple, which has also made the error of purposely investing nearly 300 billion into a country so opposed to human rights and freedom. 

    It’s almost a shock that Apple won as the “bad guys” seem to win so often. Enjoy it while it lasts. 
    edited April 2023 Alex1NMadbumwilliamlondonMacProwatto_cobra
  • Reply 9 of 30
    danoxdanox Posts: 2,711member
    lkrupp said:
    Government regulations being proposed will make this ‘victory’ moot. So maybe Epic can open its own app store in the EU but not in the U.S. ? How ill that be handled?
    Won’t be moot in America, where Apple has legal recourse to fight it.
    Alex1NBart Ydewmewatto_cobra
  • Reply 10 of 30
    chasmchasm Posts: 3,239member
    For those who might be disappointed by the latest in a string of defeats for Epic:

    Take a really good, hard, objective look at what this company has done, said, and plans to do, along with who has controlling interest in it. Read the stories on this very site about how Epic was fined millions for shady behaviour wrt in-app purchases.

    I think you’ll find that that Epic is not the “freedom fighter” you might imagine it is.

    Likewise, the original judge in this case correctly ruled *against* Apple’s anti-steering provisions IMO, and since no court has overturned that ruling either, this case also stopped Apple from anti-competitive behaviour in that regard as well.
    edited April 2023 Alex1N9secondkox2williamlondonrezwits
  • Reply 11 of 30
    cropr said:

    What I expect to happen in the EU is numerous criminals and shady developers are going to infest iPhones with malware and privacy invading features. Users will be screaming at Apple (who else will they blame) and Apple will sue the EU for instituting a law that directly caused harm to iPhone users. Unlike the imaginary harm the EU is trying to prevent by forcing 3rd party stores. 

    I don't expect that at all.  There will be a few app stores that are run by larger companies (e.g. HW  + SW vendors, banks, telecom operators...) that can established some trust.  It might look strange for Americans, but on average Europeans trust their bank more than Apple.  I can call/visit my bank manager but I cannot call/visit my Apple manager, which is a crucial element in building a trustful relation.

    There will be a few dodgy app stores that try to lure the customer, but that no normal person will ever use.  

    To make the comparison: no normal person does side load apps from the Google Play store.  And those who do, don't scream at Google.  And as a consequence Google does not sue the EU.

    But there is major risk.  If people are unaware that they install an app from a phishing app store, this could create real damage.  Of course the implementation details (can Apple impose rules?) will be relevant.

    Whether there are a few good stores is irrelevant. It will only take a few bad stores/Apps to show that this is a terrible idea. And when someone who doesn’t use 3rd party stores has their personal information shared without their knowledge (as opposed to the myth propagated by supporters of side loading who lie and say it won’t affect you if you never side load) there will be enough for a few lawsuits to go around.

    You cant compare Google Play to The App Store. Years ago people used to use 3rd party stores. The mantra of the Android user was “I like the freedom of using any store I want”. Later that changed to “You need to be careful when side loading”. Now it’s “Stick to Google Play and you’ll be safe.” iPhone users have nothing to compare to in terms of them or their friends getting burned by a dodgy App. They’ll still think because they have an iPhone they’re safe.

    When Facebook moves to a 3rd party store and it’s the only place you can get it (along with WhatsApp, Messenger, Instagram and others) people will have no choice but to side load or give up Apps they like to use.

    It’s also irrelevant that people don’t “scream at Google” when something goes wrong. Users do hold Apple responsible even for idiotic things that are their fault (remember kids charging up in-App purchases and Apple getting sued for it?). Another area where you can’t compare Apple to Google.

    The companies that want side loading (like Epic) are opposed to any rules or checks by Apple. Epic even thinks a warning before allowing side loading in Android is anticompetitive and designed/worded to scare people away from side loading. They want unfettered access to the iPhone without any intervention from Apple (like App certificates or any sort of rule checking).

    Complete scumbags and I’m ecstatic epic lost in court.
    Alex1N9secondkox2williamlondonBart YFidonet127rezwitsroundaboutnowwatto_cobra
  • Reply 12 of 30
    MadbumMadbum Posts: 527member
    Madbum said:
    Great victor for Apple over the Chinese communist owned Epic games.

    Tik Tok spying for China is in the oil news but Epic is just as dangerous 
    Especially since they are half owned by Chinese TenCent. Amazing how some of these shady operators virtue-signal while at the same time selling out customer and country for the sake of personal enrichment. Absolutely shameful. 

    TenCent/Epic’s Unreal engine 5 didn’t get so amazing without significant cost, motivation, collaboration, sweeping industry planning, and manpower/hours. The rapid entrenching of this company into automobiles, Hollywood, etc. is more than a little troubling considering where it’s coming from and what that country’s stated goals are. It’s no wonder they were so bold as to go after Apple, which has also made the error of purposely investing nearly 300 billion into a country so opposed to human rights and freedom. 

    It’s almost a shock that Apple won as the “bad guys” seem to win so often. Enjoy it while it lasts. 
    $5 says this whole lawsuit is planned and backed by the Chinese communist party who owns Tencent. Only the dumbest of the dumb politicians  in the USA will be going along with this complete Bull Shit from Epic and European Union! 

    They have common interest in taking down Apple to help their own companies ! Wake up !
    williamlondon9secondkox2rezwitspscooter63watto_cobra
  • Reply 13 of 30
    Madbum said:
    Great victor for Apple over the Chinese communist owned Epic games.

    Tik Tok spying for China is in the news but Epic is just as dangerous 
    I disagree on the fundamental assessment that only Apple can operate a secure digital store. With the DMA coming in Europe Apple will be forced to allow 3rd party stores. 

    Don’t get me started on blocking developer accounts you disagree with. That sounds like communist stance to me. 
    9secondkox2elijahg
  • Reply 14 of 30
    davidwdavidw Posts: 2,025member
    chasm said:
    For those who might be disappointed by the latest in a string of defeats for Epic:

    Take a really good, hard, objective look at what this company has done, said, and plans to do, along with who has controlling interest in it. Read the stories on this very site about how Epic was fined millions for shady behaviour wrt in-app purchases.

    I think you’ll find that that Epic is not the “freedom fighter” you might imagine it is.

    Likewise, the original judge in this case correctly ruled *against* Apple’s anti-steering provisions IMO, and since no court has overturned that ruling either, this case also stopped Apple from anti-competitive behaviour in that regard as well.
    The thing is that Federal Judge ruled that Apple "anti-steering" policy violated the CA Unfair Competition Law not any Federal anti-competition laws. First, it's questionable that this judgement can force Apple to adhere to the CA UCL, in every State. Each State have their own anti-competition laws that don't necessarily agree with other States anti-competition laws. This was one of complaints Apple addressed with their appeal. How can a Federal Judge force Apple to comply with a CA law, in every US State? It would be different if Apple anti-steering policies violated Federal anti-competition or anti-trust laws. So on the surface, Apple might only have to allow developers to inform customers of other method of payments (within their apps) or allow links to them, only in CA. 

    And second, the CA Unfair Competition Law is a vague catch-all law for when a company haven't been found to be violating any actual anti-trust or anti-competition laws, but the courts still thinks that the company behavior or practice is "unfair" to its competitors or consumers. The courts gets to decide what constitute "unfair".  There is no law that clearly states that Apple "anti-steering" policy is anti-competitive. 
    thtwatto_cobra
  • Reply 15 of 30
    AppleZuluAppleZulu Posts: 1,943member
    lkrupp said:
    Government regulations being proposed will make this ‘victory’ moot. So maybe Epic can open its own app store in the EU but not in the U.S. ? How ill that be handled?

    This will kill any proposed legislation in the US. Nobody is going to try and pass a law that overrides the rulings of two courts. I think they were waiting for this outcome before moving on, and now any proposed bills will be shelved.

    As to allowing a separate store in the EU it will be simple. Depending on the country you live you’ll get a slightly different version of iOS.

    What I expect to happen in the EU is numerous criminals and shady developers are going to infest iPhones with malware and privacy invading features. Users will be screaming at Apple (who else will they blame) and Apple will sue the EU for instituting a law that directly caused harm to iPhone users. Unlike the imaginary harm the EU is trying to prevent by forcing 3rd party stores. 

    Excuse me while go troll Epic and the Coalition for App Fairness over this loss. 😉
    That’s not how this works. Unless the courts rule something is unconstitutional (that didn’t happen in this case), a court ruling doesn’t stop pending legislation. In fact, if lawmakers don’t like how a court rules on something under current law, their remedy is specifically to pass legislation to change the law. 

    I’d rather they didn’t, but that’s the remedy. If courts rule that existing law won’t force a change that they want, their next step is to try to pass a law that will. 
    beowulfschmidtelijahgroundaboutnowwatto_cobra
  • Reply 16 of 30
    AppleZulu said:
    lkrupp said:
    Government regulations being proposed will make this ‘victory’ moot. So maybe Epic can open its own app store in the EU but not in the U.S. ? How ill that be handled?

    This will kill any proposed legislation in the US. Nobody is going to try and pass a law that overrides the rulings of two courts. I think they were waiting for this outcome before moving on, and now any proposed bills will be shelved.

    (snipped)
    That’s not how this works. Unless the courts rule something is unconstitutional (that didn’t happen in this case), a court ruling doesn’t stop pending legislation. In fact, if lawmakers don’t like how a court rules on something under current law, their remedy is specifically to pass legislation to change the law. 

    I’d rather they didn’t, but that’s the remedy. If courts rule that existing law won’t force a change that they want, their next step is to try to pass a law that will. 
    This part exactly.
    elijahgwatto_cobra
  • Reply 17 of 30
    tundraboytundraboy Posts: 1,882member
    I hope this finally ends lawsuits that accuse a company that is patently not a monopoly of acting like a monopoly.  Plaintiff lawyers who sell this absurd legal theory to their clients are committing malpractice.
    rezwitswatto_cobra
  • Reply 18 of 30
    avon b7avon b7 Posts: 7,538member
    AppleZulu said:
    lkrupp said:
    Government regulations being proposed will make this ‘victory’ moot. So maybe Epic can open its own app store in the EU but not in the U.S. ? How ill that be handled?

    This will kill any proposed legislation in the US. Nobody is going to try and pass a law that overrides the rulings of two courts. I think they were waiting for this outcome before moving on, and now any proposed bills will be shelved.

    As to allowing a separate store in the EU it will be simple. Depending on the country you live you’ll get a slightly different version of iOS.

    What I expect to happen in the EU is numerous criminals and shady developers are going to infest iPhones with malware and privacy invading features. Users will be screaming at Apple (who else will they blame) and Apple will sue the EU for instituting a law that directly caused harm to iPhone users. Unlike the imaginary harm the EU is trying to prevent by forcing 3rd party stores. 

    Excuse me while go troll Epic and the Coalition for App Fairness over this loss. 😉
    That’s not how this works. Unless the courts rule something is unconstitutional (that didn’t happen in this case), a court ruling doesn’t stop pending legislation. In fact, if lawmakers don’t like how a court rules on something under current law, their remedy is specifically to pass legislation to change the law. 

    I’d rather they didn’t, but that’s the remedy. If courts rule that existing law won’t force a change that they want, their next step is to try to pass a law that will. 
    And that is the natural result of legislation adapting to the times. Something that is logical seeing as legislation aims to tackle mainly existing situations and that, in the case of technology, issues can develop over long or short periods of time and that in the case of digital technology, scale is also a consideration. It is what has put Apple and Google between the 'gatekeeper' crosshairs in the EU for example. 

    Data protection legislation used to be a relatively straightforward thing. Today, with most of the developed world digitally dependant, it is a highly complex affair. 

    The DSA/DMA were desperately needed pieces of legislation. 






  • Reply 19 of 30
    chasm said: Likewise, the original judge in this case correctly ruled *against* Apple’s anti-steering provisions IMO, and since no court has overturned that ruling either, this case also stopped Apple from anti-competitive behaviour in that regard as well.
    FYI: anti-steering provisions by credit card companies have been upheld by the U.S. Supreme Court. 

    https://www.natlawreview.com/article/now-amex-has-its-privileges-us-supreme-court-upholds-anti-steering-rules

    "Looking at that single market, the Supreme Court held that the plaintiffs had failed to carry their burden of showing that Amex’s anti-steering provisions had anticompetitive effects. In particular, the plaintiffs had contended that those provisions increased merchant fees. But since the credit-card market must be defined to include both merchants and cardholders, the anticompetitive effects of the anti-steering provisions could not be judged by looking at merchant fees alone. Instead, since cardholders are part of the market, the plaintiffs had to prove that the anti-steering provisions increased the overall cost of credit-card transactions (thereby adversely affecting both cardholders and merchants). This they failed to do. Instead, the Supreme Court observed that any rise in the overall cost of credit card transactions was traceable to an increased demand for transactions (likely driven in part by the e-commerce boom). Moreover, over the long term, merchant fees had actually decreased."
    edited April 2023 williamlondonwatto_cobra
  • Reply 20 of 30
    omasouomasou Posts: 548member


    Hey Tim keep wasting Epic's money, you'll eventually prevail /s
    edited April 2023
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