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Comment by pwinnski | Hacker News Reader

Some might see a difference between "a developer who went public about their frustrations with the App Store" and a developer who deliberately violated the policies and then filed a lawsuit and started an extensive PR campaign.

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Epic needed to demonstrate that they and consumers were harmed in order to have standing to sue. If Apple's policies are illegal then Epic is not bound to follow them and retaliation is unjustified. It won't be known until it's decided in court. That's why Epic's motion should be granted to prevent retaliation until the court decides.

Yes, this exactly. I hope everyone reads this.

How would Apple's policies be illegal? Epic entered a contractual agreement with Apple and then knowingly and intentionally broke it in order to benefit themselves.

I'm not a lawyer, but presumably because there's US antitrust law, under which the courts may find Apple's contractual impositions to be illegal. They may also find they are legal, but if the court has any doubt they should grant Epic's request to stop retaliation.

I doubt this is antitrust. There's a zillion other places to sell a game (as Epic has shown). If you want to claim the entire market in question to be Apple products, I doubt that will get very far. Everything is a monopoly when you make your market hyper specific.

Well that’s Epic’s argument, so it’s the question that the courts will resolve in this case.

This isn't some hyper specific market. Mobile games are a $76 billion industry (and rising) with the overwhelming majority of users only having access through either the Google play store or Apple store.

$76B is world market. US law doesn't apply to a significant part of that.

Neither Apple nor Google is a monopoly in mobile games. By revenue Apple has about 60%. Check [1], search threshold to see what cases often require.

Taken together they would be, but then you cannot prosecute Apple and win without showing collusion between them and prosecute them both for collusion.

[1] https://www.justice.gov/atr/competition-and-monopoly-single-...

Epic is specifically arguing that Apple's policies violate the Sherman Act, the California Cartwright Act, and the Unfair Competition Law of California. For more information, refer to the complaint: https://cdn2.unrealengine.com/apple-complaint-734589783.pdf

You realize that contracts don't override the law, right?

If we sign an agreement where in exchange for my services you have to give me your first daughter, you can break the contract and refuse to pay, even if you signed it, because it's illegal.

In legal terms, a contract is an enforceable agreement; by definition if it is illegal or void or unenforceable, it is not a contract. Breach is a thing you do to a contract. Therefore you can't breach an illegal contract - you never had a contract.

Epic's motion is to allow them to continue to deliberately flout the rules of the App Store, which opens up a lot of other issues.

Apple has signaled that Epic is welcome to submit a version of their app which does not violate their rules, and they will approve that. They're walking a fine line, but I think their legal argument is sound on that score.

We can agree or disagree about the overall right or wrong of Apple's rules, that's separate from the issue of Epic's motion, which is absolute nonsense.

> a developer who deliberately violated the policies

Are you talking about Netflix?

I'm unaware of any current legal action Netflix is taking against Apple.

That's not what the parent said.

I listed three conditions: "[1] violated the policies and then [2] filed a lawsuit and [3] started an extensive PR campaign"

Netflix arguably did the first, but I don't recall them doing either of the other two things.

Because they were not kicked from the app store for doing so.

Come on, I don't think anyone is pretending that this wasn't a deliberate provocation by Epic

I guess so, but so what? Deliberately provoking a potentially illegal act to litigate it is fair game. It doesn't legitimize the move by Apple, nor does it invalidate Epic's claim. If they want to play high-stakes poker, they better have good attorneys, but that's life in the American judicial system.

But... it does describe the difference between Netflix, which is what the thread is about?

Suffering a harm is how one gets standing to sue.

Suffering harm is how one sues and wins, yes. Anyone can sue for anything and quickly lose, but to have any hope of winning, you must be harmed.

It was an invitation for Apple to screw up. They could have just banned the app. Instead they went full nuclear. Apple stepped in the trap.

Some might also see that to breakthrough a totalitarian platform good coordination of efforts (lawsuits, PR, etc) are needed.

The acceptable punishment part is when Apple closes the Fortnite developer account.

The unacceptable retaliation is that Apple threatens to close the developer accounts of everyone working on the Unreal Engine, which is used in millions of projects in addition to Fortnite.

What Apple is doing here is akin to mafia punching your sister to get you to pay up.

Why closing Fortnite developer account is acceptable? If they have one app that was banned for 'violating guidelines', and another one that doesn't violate anything, why should the second app be removed, too? Because the unruly developer must be punished?

Some might. But Tim Cook seems not to, because his answer, "We do not retaliate or bully people", was unequivocal.

It’s still retaliation. No way around that.

Some would consider this enforcement, which is not the same as retaliation.

How so ? They are pulling access to all platforms including desktop, also unreal is sdk/library used by ton of third parties , all of them are impacted too

It's equal enforcement among all developers. Every other time that a developer has intentionally broken app store guidelines Apple has terminated their entire Developer account.

epic size orgs would not just use one account. It includes preview access and to clot products .

In my experience , I usually sign different agreements with different products for such diverse access . Sometimes it is with different legal entities .

I don’t know if Apple does an MSA which is the kind of document which covers the general engagement , so unless such a MSA exists and allows for this kind of termination , I am pretty sure this cannot be done for violating guidelines of single agreement to cancel other contracts in place.

Apple probably has clauses to unilaterally terminate agreements and is invoking that, but that is not remotely the same as closing down a account for violating guidelines

Well mafia could say the same thing

But if you use a gun like Apple did...

All that really will matter is how the government and courts see it. Those words will be used in court.

Its a little surprising how effective that PR campaign has been so far.

Your sentence for today to write 100 times, Bart Simpson style, is: "I shall never use my monopoly power to restrict access to justice for my clients".

A PR campaign geared towards kids... which is quite embarrassing

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