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Comment by woofie11 | Hacker News Reader

A one-sided agreement containing a retaliation clause, followed by exercising that clause, is retaliation.

Say you're desperate and need water in a crisis, and I offer you some, but only if you sign an agreement which gives you water, but says I can punch you in the face whenever you say something I don't like. Say you say something I don't like, and I punch you in the face. Did I just retaliate? Or did the contract make it not retaliation?

Apple is clearly retaliating, and I think it's gonna cost Apple way more than it realizes. Removing Epic games is one thing. This is a whole different can of worms.

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Apple said "Here are the terms, you can use our services if you agree to them, and if you break them we'll close your account."

Epic said "Okay, we agree.", then broke the terms they agreed to, so Apple is closing their account.

This seems like pretty straightforward break of the terms of use to me.

The reasonable way Epic could have proceeded is to have submitted an update with the "third party store" stuff added, gotten it rejected, and then rolled it back while suing Apple.

Instead, Epic pulled a publicity stunt by sneaking it in, specifically so that Apple and Google would remove their app, and then suing, in an attempt to make themselves look like the good guy (which, depending on your perspective, might be true).

It doesn't feel any more mature than goading someone into throwing a punch at you so you can claim to be "defending yourself" when really you were just being a douche and you got what you asked for.

There's a reason contracts of adhesion are very often not binding. I'm not saying that's the case here (as B2B it will be more likely that the oppressive terms in the terms of use could be upheld) but it's worth considering when saying Epic agreed to the contract.

Like it or not IOS has 2/3rds of revenue in the mobile apps market and how many businesses can afford to leave 46%(0.7*0.66), of their revenue on the table?

It's pretty obvious that epic has goaded apple into punching them. But there's plenty of people who feel it's the equivalent of apple saying you have to give me your lunch money every 3 days or I'll beat you and epic making sure the teacher is watching when they maliciously don't hand over their lunch money (I'll add I'm not arguing that the schools football team wouldn't have much fewer wins without apple, to stretch the metaphor to breaking).

> It doesn't feel any more mature than goading someone into throwing a punch at you so you can claim to be "defending yourself" when really you were just being a douche and you got what you asked for.

Still, illegal, and that's the question being litigated here.

You can stick anything you want in an EULA but it's not automatically enforceable. If Apple started adding a stipulation that your first-born would be a slave to Tim making iPhones for life, that wouldn't be enforceable. In general you can't sue until there's damages -- so you couldn't sue just for that term existing in the EULA. You wait for your first-born to enter slavery, then sue.

>This seems like pretty straightforward break of the terms of use to me.

And closing the account is retaliation.

I think people are giving different meanings to words, with moral judgment tied to some of these meanings, and these meanings are causing confusion.

Let's take the word discriminate. Is it wrong if I discriminate when hiring someone? Many will say yes, but because they are thinking of specific forms of discrimination such as based on race or gender. But if I choose to not hire someone because of a lack of programming skill, that is still discrimination, but isn't wrong.

So back on topic. The action of closing the account is retaliation. So the question becomes is it wrong, but to answer that clearly depends upon if Apple's terms are right to begin with and if it is possible to offer someone terms that are wrong to uphold.

>And closing the account is retaliation.

What good is a terms of use if that use cannot be rescinded upon breaching the terms?

Implicit in your question is that the terms are valid. Epic will make the case that they’re not.

And if they succeed, then the terms will be worth nothing, and Apple would have to explain why they go around signing illegal agreements that for example allow them to punch people in the face.

If Epic fails, then yeah, the legal terms say for example that the punishment for what Epic did is a punch in the face, and Apple is just enforcing that legally.

>Implicit in your question is that the terms are valid. Epic will make the case that they’re not.

What law would you claim disallows limiting payment systems?

> Instead, Epic pulled a publicity stunt by sneaking it in, specifically so that Apple and Google would remove their app

I definitely remember cases from the early years of the App Store where people would deliberately sneak e.g. tethering apps into the App Store in the guise of a game, and usually came to public attention when their account was banned.

What are the damages in your hypothetical?

Because Epic knows the damages in this real situation and everyone agrees what they are.

The idea that "it was in the contract that Epic agreed to" is ridiculous. It wasn't a contract that Epic could've disagreed to.

This is the same for end users, but we don't have the power to start a lawsuit against Apple.

The legal term you are looking for is "contract of adhesion": https://www.law.cornell.edu/wex/adhesion_contract_%28contrac...

However, a lot of the text around those contracts you'll find centers around a powerful entity like Apple adhering the contract to a nearly-powerless entity, like an individual consumer. I'm not up enough on the details of what case law has been created to know what happen to a contract of adhesion legally when the signer (Epic in this case) is not powerless themselves. Since Epic is at least nominally capable of negotiating their own contract with Apple on roughly equal terms, the contract may be treated more like a normal contract.

My uninformed, personal guess is that Epic isn't conceptualizing this as a legal fight; I bet they think of this as a PR fight where the lawsuit is part of their PR narrative trying to get Apple to back down on their take. As a pure legal fight this doesn't strike me as a strong hand, but as a part of a larger PR fight... who knows. They may be trying to create a position to negotiate a settlement from.

(If this is correct, and I were Epic, I'd be looking to partner with other very large and peeved developers, and create a de facto app producer strike... but maybe they think they have enough market clout to go it alone.)

>(If this is correct, and I were Epic, I'd be looking to partner with other very large and peeved developers, and create a de facto app producer strike... but maybe they think they have enough market clout to go it alone.)

This would actually be a violation of the antitrust laws. And it'd be a straightforward Section 1 Sherman Act cartel case.

> My uninformed, personal guess is that Epic isn't conceptualizing this as a legal fight; I bet they think of this as a PR fight where the lawsuit is part of their PR narrative trying to get Apple to back down on their take. As a pure legal fight this doesn't strike me as a strong hand, but as a part of a larger PR fight... who knows. They may be trying to create a position to negotiate a settlement from.

IDK. The jaded part of me asks whether Tencent pulled some strings here; a US company with Mindshare (Epic) is a better looking actor than the swaths of shovelware publishers that would stand to benefit from the long-term effects of a victory here.

I hope Epic doesn’t have a strategy that hinges on a PR win forcing apple to back down, because (A) as this thread is showing there are still a lot of people on apple’s side and (B) apple is usually quite vengeful in these things and will not back down here until compelled by court or law.

Just look at what happened to nvidia, for far minor offenses. They were blacklisted from apple’s platforms very thoroughly, and people still mostly side with apple on that one.

> (A) as this thread is showing there are still a lot of people on apple’s side

HN is unlikely to be an unbiased sample of the general population, along many axes.

Erm, people blame Nvidia because that one was Nvidia's fault?

Neither Apple nor the PCB manufacturers specified the failing solder balls that Nvidia used. Nvidia made and packaged those chips.

And then Nvidia failed to take responsibility when they failed because it was going to be so expensive.

This. Some people seem to be on the "Apple deserves a cut of 30% because they run the app store and 30% is reasonable etc." but what if tomorrow Apple just said: "OK we've bumped up the 30% to 90%".

The exact same set of arguments would follow. The users already own the phones so for the "market to adjust" to such changes would take years.

It's a "standard form contract", aka "contract of adhesion".

https://en.wikipedia.org/wiki/Standard_form_contract

> we don't have the power to start a lawsuit against Apple.

Of course you do. You can go to small claims court for a claim of up to ~$5000. Or you can file a class action lawsuit.

> You can go to small claims court for a claim of up to ~$5000.

Until there is forced arbitration. You're not really going to say I as an individual have any power in the legal system against Apple, right? This is just a bonkers statement.

In US, maybe. Forced arbitration is just not a thing elsewhere - you can take Apple to a small claims court in UK and they can't really do much about it other than actually respond.

This argument seems to hinge on the assumption that two parties are experiencing similar "levels of desperation": a person dying of thirst, and the developers of a video game which is available on half a dozen platforms and is probably the most financially successful video game of all time.

Could it have been "probably the most financially successful video game of all time" if it hadn't agreed to the terms of the various consoles and phone stores?

I'm not sure why that's relevant. Am I only not dying of thirst because I agreed to the terms offered by the local water company? I think it's not contradictory to believe two things simultaneously: that people should not be held to the terms of a contract they signed when they were dying of thirst, and that it's okay that I needed to agree to certain terms with the water company in order to have running water in my home.

> Am I only not dying of thirst because I agreed to the terms offered by the local water company?

It is if they have a monopoly on water.

Imagine their terms were manifestly unreasonable. If you want water service you'll have to pay $50,000/year. What would you do? If the answer is that it's reasonable to dig a well or something like that, they haven't got a monopoly. If the answer is to pay the $50,000/year because the only alternative is to die of thirst, there you are.

Right, and as discussed in this thread and others, Apple does not have a smartphone monopoly under any remotely reasonable definition of the term.

We're not talking about the smartphone market, we're talking about the app store market.

If there actually was competition between app stores then you could put your app on Google Play and people with iPhones could get it there. People with PlayStations could get it there. They would be the same market so that you could use one app store instead of another to reach the same customers, rather than needing to be in all of them in order for your product to be available to all of your customers.

It's like the water company having a local water monopoly, you're not allowed to dig a well, and your proposed solution is to move out of their service area. Which is not only unreasonable, it doesn't even work if you're the water source because your business is to provide water to customers in every service area.

Which is why in real life, water utilities are considered monopolies and are regulated as such so that they can't impose unreasonable terms on providing water service.

I'd imagine there's a spectrum of "retaliation clauses" that includes acceptable things and unacceptable things, and that whatever is happening in the App Store is pretty different than withholding water from someone who would die without it.

Epic may be smaller than Apple, but they are by no means a "little guy".

This isn’t the sort of lawsuit a “little guy” can win.

It is really bizarre to think that language in a contract that says "if you break the agreement, the rest of the agreement terminates" is one-sided or retaliation when it's included in basically every contract ever written.

So any action what-so-ever in response to an action you claim is called retaliation? Fine, call it whatever you want, it is reality. Epic clearly picked this fight, let's see how it goes for them.

Clearly not retailation. It may be an unconscionable contract, but it's not retaliation.

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