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Comment by RL_Quine | Hacker News Reader

Intentionally breaking the rules and filing a lawsuit against them with a marketing campaign isn't as if apple just decided they "didn't like" Epic.

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No company should be immune to valid criticism. Microsoft was forced to add a browser pop-up on their OS, because it was considered they were abusing their market position.

Of course, retaliation is expected, but Apple has been so inconsistent in their application of the rules that every decision they've ever made is going to be called into question.

And you can be sure if there is even a hint at favouritism or revelations they've given certain partners special deals (that perhaps Epic wasn't allowed but Amazon was), then they are well and truly fucked.

The EU is not going to mess around. They are going to question every single decision Apple has made, and will make a substantial report into their conduct especially the effects on EU business and the economy. If the EU announces they are investigating you, you should be very, very afraid, they do NOT mess around and will absolutely be at the least issuing a rather substantial financial penalty and changes you will be forced to make within the business (and the OS).

Just look at what they've done to Google in the past few years, this is going to be no different.

I expect huge changes are coming for Apple in 2021 and I think we'll all be better off for it.

So sure, take the actions/steps you want, but be prepared to really defend them, and hope you actually have a case that is applied equally and fairly to all.

What exactly, and please be specific, do you think Apple is doing that is wrong? It is not clear from your comments.

In the case of Microsoft, they denied the Xbox gaming app on the store after it had already been going through wide beta use on ios. They denied it on the grounds that they need to review every xbox game. Which is nonsense. They don't review every netflix movie, they don't review every spotify song, they don't review other content. The app that was denied doesn't actually download the games either, its a remote/online streaming player so it is exactly like "netflix for games".

Rumor is, Amazon was cut a deal and others have had a deal so the rules don't seem applied in a fair way. Amazon isn't forced to use Apple Pay for example. (which i think is the part specific with this specific case)

But that doesn't make a lot of sense. Say this case was actually about Nintendo and the Switch. Nintendo doesn't allow any X rated games anywhere ever on their platform. And then this game comes along that, to the user, just plays other games. Why shouldn't they be reviewed like everything else on the platform? To the user the implementation doesn't matter.

Xbox doesn't allow "X rated" games and the all games have an ESRB rating that could be enforced as native app controls just like music streaming, tv & video streaming.

in fact, it's safer than Youtube if safety is a concern...

I'm not saying Xbox does allow that kind of content. Just that "we're an app that runs arbitrary other apps and the discretion for what is available and the rules they follow is ours instead of Apple's despite the fact that to the user they might as well be running locally on the phone."

I don't think you understand what this is. The games run on azure servers or a physical console you already own and they only display on your screen. Nothing is installed on your phone but an app that lets you connect over network to play. The xbox games are not actually installed on your phone.

Games can have stores, marketplaces, platforms, and other arbitrary interactive stuff running inside of them, whereas movies and songs are more or less functionally identical in technical capability (although it would be funny if Netflix put a subscribe button inside a free movie to bypass Apple!)

Amazon didn't cut a deal, you can't subscribe to prime video in the app without using Apple's IAP payment system. You can only subscribe outside the app.

>Amazon didn't cut a deal

Most developers who use Apple IAPs gave to give Apple a 30% cut. Amazon only gives apple a 15% cut. How is that not a deal?

Games are executables, movies are not, nor are songs. Why are people (intentionally?) ignoring this point. Apple reviews all executables.

Stadia is non-executable but Apple bans. They just banning what they don't want.

So if I develop StreamApp today that runs apps in the cloud and just streams the view over the net, and somehow polish the integration with iOS so it is good enough (sharing etc.), would this argument change?

Epic alleges that Apple is breaking the law, and breaking the App Store rules was a pretty much required step to establish standing to sue. Is Apple above the legal system, such that they should be able to destroy businesses that dare to challenge them in court, regardless of the merits of their claims and before they are even heard?

Your comment makes it sound it sound like Apple is breaking the law.

Epic could have brought on this lawsuit while still complying with the App Store rules, in fact the judge suggested they do that so their users aren't impacted. They wouldn't be getting kicked off right now and the Sign-in with Apple button wouldn't be getting disabled. They chose to break the app store rules, which they did agreed to, AND they also decided to sue Apple.

They could revert their app right now and Apple would restore their account and they could still continue their lawsuit. Epic is just weaponizing their user base in their fight against Apple.

> Your comment makes it sound it sound like Apple is breaking the law.

Epic is alleging that Apple is breaking the law. That's the whole point of the antitrust lawsuit, to decide if they are or are not.

> Epic could have brought on this lawsuit while still complying with the App Store rules

No they could not. They needed standing to sue. "Apple is doing what the contract says and we don't like it" does not establish standing. Epic needed to act as though the contract was illegal, suffer some harm, and then they have standing to sue. That's exactly what happened.

You are correct that they could revert their changes and comply for the time being and Apple seems amenable to that.

Epic already had standing to sue from the $300 million in Fortnite IAP fees Apple has collected. They already "suffered harm", they did not need to do anything further in order to sue.

You are fixated on this because of my imprecise use of the legal term "standing", but it's not really relevant. Standing to bring a suit that will probably get thrown out on summary judgement is not useful. What's relevant is that there is harm to consumers here and Epic needed to specifically demonstrate it to have a real chance of prevailing in an antitrust case. An allegedly illegal contract should not restrain them from doing so.

I'm not sure you actually understand the issue, it's not simply a question of terminology. Whether consumer harm exists or not is a question to be determined during the trial, not before.

The question will be decided during the trial, but the evidence is gathered before.

You seem to think if Epic fails to prove consumer harm exists, that their case will not survive summary judgement? This is not true.

What Epic needs to do to survive summary judgement is to present a trialable claim that injury to competition has occurred. The trial itself will then determine whether the claim is accurate not.

I still don't think Fortnite being in or out of the App Store makes a difference to Epic's case. If Epic's theory of Apple's behavior is correct, then they have a winning case regardless of whatever happened to Fortnite specifically.

The harm was unfair anti-competitive practices, namely being prevented from operating their own payment processor. Until Epic got kicked off the App Store for operating their own payment processor, there was no harm.

By being "forced" to use Apple's payment system instead of their own, Epic has already "suffered harm" due to the $300 million in fees they otherwise would not have paid. There was no need to get kicked off the App Store in addition to that. The judge literally recommended Epic undo their "hotfix" and cure the breach of contract while the case continued in court. If for some reason you still do not believe this, I recommend checking with your lawyer.

in fact the judge suggested they do that so their users aren't impacted.

In fact, the judge did not suggest they do so because absent economic harm Epic had no standing to sue until Apple retaliated. The judge simply pointed out that they couldn't provide injunctive relief forcing Apple to allow Epic to have its own store before the case was decided on the merits. (Judges rarely grant injunctive relief to change the status quo, especially in commercial cases.)

I am amazed that this obviously false claim has been repeated a dozen times in this thread. Epic already has suffered economic harm based on the $300 million in Fortnite IAP fees Apple has previously collected. They already had standing to sue to get those fees back. They did not need to do anything else.

> In fact, the judge did not suggest they do so because absent economic harm Epic had no standing to sue until Apple retaliated.

Yes, she did. She literally suggested the sensible way to proceed was to comply with the agreement while the lawsuit went on.

Epic Games remains free to maintain its agreements with Apple in breach status as this litigation continues, but as the Seventh Circuit recognized in Second City Music, “[t]he sensible way to proceed is for [Epic to comply with the agreements and guidelines] and continue to operate while it builds a record.” Id. “Any injury that [Epic Games] incurs by following a different course is of its own choosing.” Id.

https://www.courtlistener.com/recap/gov.uscourts.cand.364265... (Page 5)

Antitrust requires demonstrating harm to consumers, not just to Epic.

Not to establish standing. https://news.ycombinator.com/item?id=24427468

> They could revert their app right now and Apple would restore their account

You have no way of knowing this and frankly I doubt it. And I'm not sure that it wouldn't weaken their legal position.

Apple literally told them that in court. Remove the crap, and you go back on the store.

While Apple originally said that, they have also said that they feel Epic's violation of the rules warrants a one year suspension of their account:

https://www.theguardian.com/games/2020/sep/09/fortnite-could...

Apple said: submit to our antitrust violation and we'll stop abusing our market position and let you back in.

Among other things, Apple does not allow developers to mention competing products or that discounts are available for purchasing outside of the Apple store.

Do you have a reference for this?

https://www.macrumors.com/2020/08/25/apple-statement-restrai...

"We agree with Judge Gonzalez-Rogers that 'the sensible way to proceed' is for Epic to comply with the App Store guidelines and continue to operate while the case proceeds. If Epic takes the steps the judge has recommended, we will gladly welcome Fortnite back onto iOS. We look forward to making our case to the court in September."

You're right. I hadn't seen that Apple had stated this explicitly. I guess Epic filed another motion to the judge to try and prevent Apple from allegedly illegally forcing them to comply, so they're currently waiting to see the result before taking more actions.

Edit: Oh, and Epic also says Apple privately threatened to ban them for a year, contradicting what they said in court.

They already had standing based on the $300 million in IAP fees Apple has collected from Fortnite. They could have simply sued and said "we want our $300 million back". They didn't need to do anything else.

Antitrust requires demonstrating harm to consumers, not just to Epic.

1. Not necessarily. Per se violations do not require proof of consumer harm, for example. Epic's tying claim against Apple is an alleged per se violation.

2. It was already established in Apple v. Pepper that developers had standing to sue Apple over App Store policies. The case then went up to the Supreme Court which ruled that consumers also have standing to sue.

3. Showing consumer harm may help Epic win their suit. But it's not necessary to establish standing to bring the suit in the first place.

Epic needs a strong case, not a minimum viable case. They need to demonstrate the full extent of the problem. An allegedly illegal contract shouldn't stop them from doing that.

While I certainly agree that Epic needs a strong case in order to win, it's not clear that their actions with regards to Fortnite actually help their legal case so much as their public relations.

In any case it seems like the goalposts have been moved from "Epic needs to establish standing" to "Epic needs a strong case". My point was only to correct the former misconception which for some reason has been incorrectly repeated all over this thread.

Maybe they don't need consumer harm for their one per se claim, but what about the other 9 claims? They need it for more than just PR reasons. I don't know if standing is considered separately per claim, but if not then it's an issue of terminology, not substance. Feel free to substitute the appropriate legal terminology for the ability to bring a claim.

To clarify, in order for Epic to bring a claim it needs to show that it has personally been harmed. In order for Epic to win the claim it will need to prove that competition has been harmed.

Standing needs to be established separately for each claim, yes, but I expect in this case the $300 million in fees takes care of that across the board.

Where does the marketing campaign fit into your story?

Epic has a customer base that won't understand the nuances of the case. If they didn't tell their story to their customers in a way they can understand, they would suffer a lot of damage to their reputation, regardless of whether they are right or wrong, because customers are being cut off from a product they enjoyed.

They will suffer reputation damage anyway, but they at least stand a chance of convincing some of their customers that they have a good reason for taking these actions.

There was also a marketing campaign for Net Neutrality by pretty much every single tech company. It's perfectly fine that anyone at anytime can raise awareness for their cause. And in this case, the cause is in everyones interest who is losing 30% of their sales to Apple in an immoral tax.

But my identity is my identity. Unless my account is compromised, dont stop ME, the customer, from using MY identity. Right now the major identity providers are all black holes of support, if something goes wrong, you have no recourse to get yourself back.

I'd be more ok with Apple not allowing new accounts, but existing accounts should not be removed from people without them agreeing to a transition process to a non sso, local epic account.

Epic's legal position as I understand it is that Apple is behaving illegally and they likely had to break the illegal rule for standing to sue.

The judge in this case have suggested that the case can proceed if Epic reverts their contract breaking changes. Apple has made it clear in court that if Epic reverts their changes they can restore their standing in the App Store.

> they likely had to break the illegal rule for standing to sue.

I'm not sure if this was ever true, but it's quite clear at this point that they can make their app comply with App Store policies and and continue their lawsuit at this point.

Litigation had just begun and you believe the judge has already made a ruling on standing?

Sorry I don't know where you got this idea but that's now how the legal system works.

Do feel free to quote a written ruling from the judge if you think I am off base. A binding ruling on standing which Apple has had the chance to appeal to the Supreme Court.

You do know the trial judge isn't even the final judge that would decide on an issue of standing, correct? Not only is your claim implausible, but a lower court judge doesn't have the final say on standing even if your claim was true.

“[t]he sensible way to proceed is for [Epic to comply with the agreements and guidelines] and continue to operate while it builds a record.” Id. “Any injury that [Epic Games] incurs by following a different course is of its own choosing.” Id.

Page 5

https://www.courtlistener.com/recap/gov.uscourts.cand.364265...

Epic already had standing to sue from the $300 million in Fortnite IAP fees Apple has collected.

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