carnegie

chasm said:

carnegie said:

22july2013 said:

Is Apple required to let Epic back on the store even if Epic relents and wants to pay 30%?

The court may order it to, but as of now it has not so ordered Apple.

Apple has informed Epic that it will deny a reapplication (by Epic) for at least a year. So at this point, Epic doesn't have the option to just undo the hotfix and make Fortnite compliant.

ACTUALLY, Apple said at the court hearing (which, to be fair, was before pulling the dev license) that it would gladly put Fortnite back on the App Store as soon as Epic submits an update that doesn't violate their contract. Things may have changed since then since the judge essentially told Epic they caused the issue, which I interpret as "don't look to me for help when there's a clear remedy" and I would lay large money on Epic not getting the injunction they are looking for.

Contract law is pretty straightforward, which is why Epic is going to lose this particular battle -- and Apple knows it. If Epic actually did undo the illegal "fake fix" and restore Fortnite to the last legal version, Apple would probably ignore it for a couple of days but then restore their dev license and publish the updates -- after extracting a promise that iOS users will get the same updates as everyone else until the court battle is resolved. Apple has a very clear and unequivocal upper hand here: their contract with Epic is not illegal or invalid, it's entirely legal and enforceable. Epic willingly broke the contract without cause. Apple has followed its documented procedures for dealing with the agreement breach. Emotionally, there's a lot going on there -- but legally, there's no case Epic can make: 100 percent of the "harm" they're suffering is self-inflicted.

I'm aware of what Apple previously said and what the judge wrote in her TRO order. But the situation has changed since then. When Apple terminated Epic's ('84) developer account it said "please note that we will deny your reapplication to the Apple Developer Program for at least a year considering the nature of your acts." Apple could, of course, change its mind and reinstate the ('84) account or otherwise let Fortnite back on the App Store. The judge could also order Apple to do that if Epic brings Fortnite into compliance with Apple's rules. But as it stands, Epic can't just fix Fortnite and have it back on the App Store.

That said, the antitrust issues are more complicated than I think a lot of people appreciate. I don't think Apple should be considered to have monopoly power in a relevant market or that it should be found to have used that power improperly. But it very well could. Epic has plausible arguments in this case. Based on case law (which we can get further into if you want) Apple could be found to have monopoly power in an antitrust aftermarket defined as iOS app distribution. And it could be found to have used that power in anticompetitive ways. It's also possible, though I think less likely, that the IAP market could be considered a separate antitrust market and Apple could be found to have illegally tied those separate markets.

Contrary to what some seem to think, a company can be found to have monopoly power in a single brand market (e.g. iOS app distribution). There are substantial showings which have to be made to establish such a market as a relevant antitrust market. But it's possible. And Apple's situation is of the kind in which that might be established. From there, if iOS is considered a relevant antitrust market, showing that Apple has used its monopoly power in that market anticompetitively would, I think, be the easier part of the argument.

22july2013 said:

carnegie said:

22july2013 said:

Is Apple required to let Epic back on the store even if Epic relents and wants to pay 30%?

The court may order it to, but as of now it has not so ordered Apple.

Apple has informed Epic that it will deny a reapplication (by Epic) for at least a year. So at this point, Epic doesn't have the option to just undo the hotfix and make Fortnite compliant.

The court was considering, but rejected, the idea of putting fortnite back on the store with the alternate payment system. It was not considering forcing the product back on the store if the alternate payment system was removed. I was talking about a different scenario entirely. Your second paragraph is a completely new news item to me. I find your point fascinating. I’m going to see if I can confirm that.

My question remains: can Apple stop a third-party software developer from using the App Store if it simply doesn’t like the developer? Similarly, could Walmart refuse to sell Samsung products just because they don’t like Samsung?

In the earlier TRO hearing, the court didn't need to consider whether Apple had to allow Fortnite back on the App Store if Epic made the app compliant. Epic didn't ask the court to order that because that wasn't, at that time, an issue. And it was clear that Apple would allow Fortnite back on the App Store if Epic made it compliant. That was before Apple terminated the ('84) developer account.

In this recent motion for perlimanry injunction, one of the things Epic is asking the court to order Apple do is to effectively reinstate Epic's ('84) developer account. That is a separate ask from ordering Apple to allow Fortnite back on the App Store even while it isn't complaint. The court could, but hasn't yet, order Apple to reinstate that account even if the court doesn't order Apple to allow Fortnite back with the alternate payment method. So Apple could effectively be ordered to allow Fortnite back on the App Store if it is made compliant.

As indicated, the court could order Apple to do what you asked about. But it hasn't yet done so. So Apple isn't required to do that.

As for your more general question: It might depend on the circumstances, but generally speaking yes. Apple could do what it wanted unless and until a court told it that it couldn't.

22july2013 said:

Is Apple required to let Epic back on the store even if Epic relents and wants to pay 30%?

The court may order it to, but as of now it has not so ordered Apple.

Apple has informed Epic that it will deny a reapplication (by Epic) for at least a year. So at this point, Epic doesn't have the option to just undo the hotfix and make Fortnite compliant.

bloggerblog said:

Apple is notorious for having the worst legal representation in the world. They lose almost every case including blatant bs ones. It seems they lose well over a billion ever year!

Apple has been pretty successful in legal processes, particularly when it comes to IP issues. It loses some, but also wins some - quite a few. A lot of what happens in various legal processes isn't much paid attention to. 

dysamoria said:

I’m not seeing this reasoning either. If a patent has been invalidated, and there’s no statute of limitations on reversing relevant prior action...?

I think the Federal Circuit was wrong in not giving effect to the PTAB invalidations (i.e. those which it had upheld) in the still ongoing infringement action. And I wish the Supreme Court had granted cert and provided some clarity on when such effect should be given - i.e., at what stage is an infringement action really over and thus future PTAB (upheld) invalidations don't matter.

That said, the Federal Circuit ruled as it did and the Supreme Court refused to hear the issue. So the matter was settled. Apple had essentially no chance to get the district court to rule in its favor on the Rule 60(b) motion. I don't think this decision by the district court that Apple's supplemental arguments are untimely really matters. Apple was almost certainly going to lose the motion anyway. There's nothing new here from a legal perspective.