Epic’s decision to bypass Apple’s App Store policies was dishonest, says judge | Hacker News Reader

Epic’s decision to bypass Apple’s App Store policies was dishonest, says judge

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277 pointspseudolus494 comments

This hearing went really, really poorly for Epic. The judge repeatedly told Epic's lawyers she wasn't particularly persuaded by their arguments with regards to several key aspects of their case. Epic's case hinges on being able to establish that Apple has a "monopoly" in the single-brand market of "iOS app distribution". However, the judge seemed rather unconvinced that a market definition consisting of only iOS devices was actually the correct market to analyze. If Epic can't establish that "iOS app distribution" is in fact a valid antitrust market, they're going to have a lot of problems with their case, as both their section 1 (tying) claim and section 2 (monopoly maintenance) claim rely on that market definition.

As an aside, I've read a number of comments here lamenting that the judge doesn't understand tech, but I think the opposite is true as well: many of the commenters here don't understand the law. The judge needs to work within the framework of existing legal precedent when making her decisions, and unfortunately for Epic, it doesn't really seem like existing precedent is on their side.

As a specific example, many of the comments here point out that smartphones are not like gaming consoles because smartphones are general-purpose computing devices whereas consoles are entertainment devices. Be that as it may, there's nothing in US law that says general-purpose computing devices are supposed to be treated differently than other products for the purposes of antitrust analysis.

> The judge repeatedly told Epic's lawyers she wasn't particularly persuaded by their arguments with regards to several key aspects of their case.

It is a bit more complicated than that. This was the preliminary injunction stage of the trial.

It is more that Epic did not pass the very high bar that it is so very likely to win the case, such that they should be able to force an injuction to happen right now.

That is a very high bar to pass, and it is more that the judge is not willing to effectively declare epic the winning, right now, all on her own.

Instead, the judge has said that she wants this to go to a jury, and that this is no ordinary case. She said that it is an extrordinary case, that is on the bleeding edge of technology monopoly law, and basically, that such an important case should not be decided by a judgement from the bench.

Or at least this was my impression of what she was trying to say, when I was listening to the trial live.

Which I agree with. I expect this to be a landmark technology monopoly case that is going to make its way all the way to the supreme court. As such, it would be inappropriate for the judge to basically decide the winner so early by enforcing an preliminary injunction, even though I ultimately believe that epic will win.

This is a very ballsy decision by Epic, forgoing significant iOS revenue in the hopes of eventually reclaiming some or all of that 30% app store tax.

I wonder how much of this decision was unilaterally made by Tim Sweeney. He is quite vocal about how much he hates the 30% tax (Valve included) because the vast majority is just profit and not for services rendered. It's excellent ammunition for his case to demonstrate that his storefront only charges 12% and is still profitable.

Question, if Apple were to lose the first trial would they be forced to allow Fortnite back on the App Store while the endless series of appeals follow?

Apple has made it clear that if Epic complies with the conditions they agreed to when they signed up they will be let back on the store.

Every action in this case has been driven by Epic.

> Instead, the judge has said that she wants this to go to a jury, and that this is no ordinary case. She said that it is an extrordinary case, that is on the bleeding edge of technology monopoly law, and basically, that such an important case should not be decided by a judgement from the bench.

It's baffling to me that we have still have this ridiculous idea that a lawsuit that's legally and technically complicated should be decided by people who haven't the first clue about the law or technology.

Civil suits shouldn't be tried by juries. Yeah, I said it, and I'll say it every time I'm in voir dire when I'm drawn into a jury pool for a civil suit. We should reserve it for times when a person's freedom or life are on the line, legally, but people fighting over money in complex legal arguments should be decided by legal and technical experts.

But what would we do if all those legal and technical experts came up with a framework that the general population believed was obviously unfair?

In the current framework, nothing. They're built right into the system. It's a pretty core principal of government operating only by the consent of those governed.

> But what would we do if all those legal and technical experts came up with a framework that the general population believed was obviously unfair?

Vote for new representatives to change the laws.

Technically speaking, as a jurist you aren't supposed to make a decision based on fairness instead of the law, and if you state that you will, you will be removed from the jury or held in contempt. Jury nullification, which you're suggesting as a strategy, isn't intended to be legal, its just unpunishable.

> Jury nullification, which you're suggesting as a strategy, isn't intended to be legal, its just unpunishable.

It's ironic that the whole point of the jury system is to enable jury nullification, and yet those are the magic words that will immediately get you out of jury duty. I wish there was a simple checkmark on the jury summons form that says "I know what jury nullification is and intend to use it," it would save everyone a lot of time.

Unpublishable is a strange description for a concept that was intentionally made the core feature for the system.

Having a jury means that political leaders can’t, on an ongoing basis, have courts make decisions that the general population disagrees with. That’s literally the point.

Trying to figure out why we don't have a jury pool for the Supreme Court in that case.

> But what would we do if all those legal and technical experts came up with a framework that the general population believed was obviously unfair?

We have lots of issues in the US that some people feel are unfair, and we've been pretty successful approaching those problems through the democratic process rather than picking some randos off the street to decide them.

>We have lots of issues in the US that some people feel are unfair, and we've been pretty successful approaching those problems through the democratic process rather than picking some randos off the street to decide them.

Err, the democratic process is about giving an equal voice called the vote to all randos off the street. (Not that it's implemented particuraly democratically in the US).

Not to mention that the original Athenian Democracy did just that: used (alongiside voting) the election of random people off the streets as a counter-measure for representiveness.

> Err, the democratic process is about giving an equal voice called the vote to all randos off the street. (Not that it's implemented particuraly democratically in the US).

The US system is designed to make randos off the street feel like they have an equal voice (so they don't revolt and can be blamed for the failings of government) while actually heavily insulating the country from legislating their wishes.

Originally only one half of the bicameral legislature, and no other branches, were directly elected. Even now only one branch is directly elected.

The Athenians were a human rights nightmare and their economy was based on human trafficking. Even if a tiny minority of the population had some say in the rule of law I wouldn't look to them as something to aspire to.

Let me clarify:

1. Epic spent the first hour of the hearing arguing that the relevant antitrust market was the "iOS app distribution" market. The judge pushed back hard on this because there were alternative distribution channels available to Epic, saying: "I know that's how you want to frame the issue... I'm not convinced that you have."

2. With regards to Epic's tying claim, she said she was not particularly persuaded with their section 1 argument. Referring to IAP, she said: "I just don't see this as a separate and distinct product."

Those points imply she is unlikely to conclude that Epic has met the threshold of likelihood to succeed on the merits to win the preliminary injunction, yes. But they will also be considered during the trial itself.

The litigants get to decide whether it goes to a jury. Both Apple and Epic said they didn’t want a jury trial.

https://www.macrumors.com/2020/09/29/apple-epic-games-no-jur...

I wonder if the existing law is capable of dealing with the current situation. It seems crazy to me that anyone considers the mobile market sane or good for users and developers.

Think about it.

The average person has a smart phone where they only have access to 1 store. The arguments about sideloading on Android are somewhat moot IMO because the severity of warnings and effort to discourage users from sideloading are highly effective and, when combined with no one changing the defaults, the vast majority of people stick to the play store.

On the other side there are the developers who MUST deal with both companies. There is no choice. You can't build an app with a mobile component and ignore 1 of the only 2 distribution platforms. Why would I risk major R&D costs to develop anything novel or disruptive when I have no guarantee I can distribute that product and might even be facing a hostile distributor if my product disrupts them?

Does anyone think having 2 massive incumbents controlling distribution for a mode of computing that's become essential to western life is healthy? How is the market not going to devolve (even more) into a bunch of low effort skinner box IAP trash?

And the game console analogies are dumb. I don't need a game console. I don't have one. However, I NEED a mobile phone to participate in modern society. Try getting and keeping a good paying job if you don't have a mobile phone and are "unresponsive".

> I wonder if the existing law is capable of dealing with the current situation. It seems crazy to me that anyone considers the mobile market sane or good for users and developers. Think about it.

I see this posted sooooo often and every time I just say "nope, it's exactly what I want and I do not want it to change for iOS".

Very pleased to see Epic starting off poorly here. Hopefully this all goes up in flames for them.

But the key point is, how much consumer harm has resulted?

I am an iOS user. I like that iOS takes a heavy handed approach to the App Store and controls it completely.

I do not want developers to hav the option to have their own payments. Apple Pay is so easy and convenient.

I do not want developers to be able to distribute apps without Apple approval.

Apples policies probably result in developer harm, but anti trust law is to protect me as a user not you as a developer.

To be frank, I don’t really care that Apple is a pain to deal with. That is why I, the user, pay you, the developer to deal with them.

I don't think Epic is trying to force their store to be installed by default or to be able to bypass existing iOS sandbox/security mechanisms? So you can continue using the Apple App Store exclusively and reject apps that don't offer Apple Pay?

> I like that iOS takes a heavy handed approach to the App Store and controls it completely.

This is fine, even good as you say, but the problem is there are no other options.

Apple can arbitrarily kill an app you rely on as a user, and you have no recourse. It'll stay on your device but you won't get updates or be able to reinstall later.

Any friction and costs applied to devs will flow on to costs for the customer.

So that's the harm to users, which is hard to quantify.

> anti trust law is to protect me as a user not you as a developer.

Are you sure? Standard Oil set good prices for consumers. The issue was they drove other businesses out of business. Restraint of trade was a big part of it.

Yes antitrust has been focused on the user for decades. Many people blame (?) Robert Bork.

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

In fact Apple lost the iBooks case between it and Amazon because while it was more fair to publishers, it raised prices for consumers.

Ah interesting. I don't think I'd agree with that because if all competition is nuked and prices are nice today, it's still a lot harder to rebuild a healthy ecosystem if/when it gets abused down the line. Whether intentionally or through stagnation.

I'm not saying we should look at just one or the other, but both should be weighed and considered.

In Australia we actually have a bit of a problem with a supermarket duopoly, who have apparently coincidentally both decided to sell house brand milk very cheaply (IIRC $1/L). This has upset a lot of farmers and producers as it decides a large amount of their revenue. I'm not sure what our legal landscape dictates, but it certainly seems unfair and anti-competitive even though it is really good for me personally.

> Apple can arbitrarily kill an app you rely on as a user, and you have no recourse. It'll stay on your device but you won't get updates or be able to reinstall later.

This has happened to me with adblockios and several other apps earlier.

What if a competing app store was "Grandma's App Store" and it had extreme moderation plus a huge cash bond that developers had to put up before being allowed on the store so you could install it as the exclusive store on your grandparents' phones and never have to worry about malware or semi-legit data exfiltration like contacts mining?

Or how about a highly moderated local store for my city where you need to be a resident and provide proof of owning a local business before being allowed on the store? That could be highly moderated and provide a ton of local business discovery with almost no risk of bad actors because being kicked off that store would mean a loss of local patrons.

Why is it automatically assumed competing app stores are going to be trash and why does everyone think Apple / Google are doing such an amazing job right now? Neither seem to be the case IMO.

I think your viewpoint focuses a lot on "what's good for me right now today" rather than "what's good for the long term health of these platforms?" Demand aggregation platforms, especially in industries with only a handful of huge players, are going to be bad for both suppliers and consumers.

You can already see it on every huge platform. The platform (aka distributor / allocator) doesn't care at all about either side. They only care about their share of the market as a distributor. Suppliers become a commodity because losing a supplier is minor churn with no real impact. It doesn't matter which 1 million developers you're dealing with as long as you have 1 million developers, so you might as well optimize for the developers that will accept the smallest profits and the most abuse.

On the consumer side it's the same thing. It doesn't matter which 100 million users you have as long as you have 100 million users. Banning 1 million users isn't a big deal because the platform isn't going to suffer as long as new users are coming in. It might be 1 million users that a specific supplier (aka developer, creator, etc.) relied on for their livelihood, but who cares, right? There's another supplier in line to take their place anyway. And so what if 1000 of those users banned were false positives right? That's only .001% of your user base. Tough luck for them if they lose access to an account they might depend on.

It really worries me to see the number of people that can't see beyond their own convenience to recognize the only winners in the current system are the platform owners. They don't care about you, developers, creators, gig-workers, etc. beyond how many of each they have.

This kind of walled garden in the 80s led to apple losing ground to microsoft and a chant for developers, developers, developers.

Microsoft was forced to provide options for multibrowsers and limit it's paint application from competing with photo editing software.

All of your problems are solved with opt-in to secondary app sources. If you want the apple approved walled garden, don't install the alternative and retain all the benefits of percieved security.

What's wrong with letting people install a different app store, and apps? Was firefox worse than internet explorer?

This shows so much of a misunderstanding of history it’s hard to know where to start.

The Macintosh was in no way closed in the 80s. How could it be? There was no memory protection, and you could hack at the system and make it do all sorts of things via extensions.

There were plenty of third party compilers. In the early 90s, developers didn’t even use Apple’s toolchain. For the most part they used MetroWorks.

Under Gassee (founder of Be) they went after margins instead of going after market share. Jobs said that himself when he came back.

Microsoft was also never forced to provide options in the US.

The entire reason there is a walled garden at all is the pre-iPhone landscape.

Pre-iPhone, the phone software landscape that most consumers interacted with was absolutely awful. Carriers loaded phones with all sorts of pre-installed, uninstallable junk. Most third-party software was also not very good. iPhone uptake was so large in 2007 because Apple put its foot down on all the carrier cruft.

> What's wrong with letting people install a different app store, and apps?

You would end up with something similar to downloading games on Windows: Every big company will force you to use their own app store to download their software which has absolutely no benefit to the end user. I want to install and use an application, not an app store.

Have not seen this happening on Android. Also: some people use only F-Droid to get their apps. IPhones lack such an option.

Great point. Now consider what browser came after Firefox. This is what Apple wants to prevent.

> Apples policies probably result in developer harm, but anti trust law is to protect me as a user not you as a developer.

Except that it does only as long as Apple decide to "protect the user", which is why antitrust laws are in place. Monopoly are illegal both for good and bad companies, their standard doesn't change that.

> I do not want developers to hav the option to have their own payments. Apple Pay is so easy and convenient.

> I do not want developers to be able to distribute apps without Apple approval.

I wouldn't be against that the App Store require theses, if there was an alternative for the App Store.

> Monopoly are illegal both for good and bad companies, their standard doesn't change that.

Monopolies are illegal !! Source?

>I don't need a game console. I don't have one. However, I NEED a mobile phone to participate in modern society. Try getting and keeping a good paying job if you don't have a mobile phone and are "unresponsive".

They are not analogies. This case is centered around video game distribution. The comparisons are, in that respect, spot on. What job do you have that requires you to make in app purchases in a video game?

The point is that what applies to Epic applies to all the other apps on iOS too. What applies to consoles applies to everything on consoles, but you don't need a console. You do need a phone.

But you don’t need an iPhone....

> What job do you have that requires you to make in app purchases in a video game?

If it were just games on iOS I wouldn't care at all about it. They could do whatever they want.

It's business / productivity apps where I think it's a bad deal for everyone but Apple / Google. About 10-15 years ago I used to get a decent number of referrals for small businesses that wanted to turn part of their business process into an app. At the time mobile wasn't huge, so a single desktop app was the only thing on anyone's mind back then.

At that time, I told everyone it wasn't worth spending their money to have a custom app built for some small back office process they wanted to simplify. However, at the time I believed app development was going to evolve to the point where it would be practical to do that type of thing.

Boy was I wrong. Mobile happened and the rest is history. Now it's even more expensive to develop an app because you actually might need to develop 2-4; iOS, Android, Windows, Mac.

Web apps really took off because of that, but I think it was more of a result of being "un-block-able" than being the best technology. Thinks like Adobe Air and JavaFX come to mind as better technologies. JavaFX especially comes to mind because it was (and still is) possible to set up a pretty nice development process with it. However, it never really went anywhere which is a combination of Oracle sucking and Steve Jobs wanting to "kill" Java.

If iOS was an open platform and Oracle could have put JavaFX onto it, we'd have a _significantly_ different app landscape today. IMO we currently have "lesser" app ecosystems as a result of the locked down platform(s) IMO.

Getting back to my boutique app fantasy, I don't think it'll ever be possible without changes to platform policies. With the locked down app stores I can't _guarantee_ a customer I can deliver an app for them and I can't risk the cost on my own. There's also a perception that you _need_ an app even though something like a PWA would be fine for most LoB apps. A lot of apps are just web apps wrapped in an app bundle, but being on the app store is what's needed to be successful. Apple's not really doing anything for the developer in those cases except giving them permission to have their wrapped app appear on the app store.

Fantrax is a good example of a pretty solid PWA where they had to have "apps" as a result of popular demand even though there's not much difference between their PWA and the "app" AFAIK. Even with PWAs though you need to (in effect) rely on Apple's blessing because they control the engine on their platform.

> there's nothing in US law that says general-purpose computing devices are supposed to be treated differently than other products for the purposes of antitrust analysis

Other products include Macs and PCs, which allow "sideloading" by default, out of the box. Why are game consoles the relevant comparison? There's nothing in US law that says smartphones are supposed to be treated the same as game consoles.

iPhone was not originally a game console. (Apple itself almost never makes games.) Indeed, iPhone was not originally a store either. Apple argued in court that App Store is not a separate product from iPhone, but that's easily historically refuted: iPhone shipped in 2007 without App Store! App Store was added a year later, so it's obviously not essential to the product. And IAP aren't essential to App Store either, because they weren't added until 2009.

It was developers like Epic who showed iPhone could be a gaming platform. Apple itself has a pretty poor history at gaming, and the Mac has always been subpar compared to Windows.

> Other products include Macs and PCs, which allow "sideloading" by default, out of the box.

Are they legally required to do so?

> iPhone was not originally a game console. (Apple itself almost never makes games.) Indeed, iPhone was not originally a store either. Apple argued in court that App Store is not a separate product from iPhone, but that's easily historically refuted: iPhone shipped in 2007 without App Store! App Store was added a year later, so it's obviously not essential to the product. And IAP aren't essential to App Store either, because they weren't added until 2009.

The failure in your reasoning here is your assertion that the iPhone that was launched in 2007 is the same iPhone that's about to be launched in October.

They are different products.

The iPhone 12 DOES launch with the App Store. If Epic wants to make it so any iPhone(s) that didn't originally launch with the App Store must be able to side load apps, I mean, go ahead.

> Why are game consoles the relevant comparison?

Why aren't they? In fact, I'd argue they are even MORE of a relevant comparison and MORE like a general purpose computer. Sure, Microsoft has not written Office for Xbox, but that's not a limitation of Xbox. You can (and this is encouraged) plug a keyboard and mouse right into an Xbox. It has a GPU, processor, hard drive, RAM, motherboard, etc.. It's literally a computer.

> There's nothing in US law that says smartphones are supposed to be treated the same as game consoles.

There's nothing in US law that says smartphones are supposed to be treated like desktop computers either. I have yet to see a convincing and consistent reason that they should be. I guess if you want to say that all computing devices should be open source and modifiable and all that, sure that's fine, but the distinction here is very much an arbitrary one.

PCs are availble from lots of different brands, you can even build your own from components. Game consoles are developed, built and produced by one and only one company: You can't buy an Xbox compatible console not from MS, neither a Playstation compatible device not from Sony. And you can't build your own. Therefore, the developer has to shoulder all the R&D and associated costs upfront. For game consoles we are accepting that the developer should be able to recoupe that cost by getting a share of all games sold. We even accept the idea that some consoles are sold at a loss.

For PCs, there is no central developer shouldering all the R&D costs. You can choose Windows as an OS, or some Linux or even (not legally, but technical) macOS. Lots of licensing and cross marketing deals going on. ("Intel inside," anyone?) You can build a single PC or a series of 50 or 50.000 without much R&D cost (but you won't have an ecosystem or a loyal user base you can control and monetize).

But you can't build an iPhone or iPad compatible device, nor can you buy one without an Apple logo. So, iPhones are in that regard far more comparable to game consoles than 08/15 PCs built from standard components. And it seems kind of consequential that Apple wants to be able to get their share from everything that uses their R&D (and platform and user base).

Being subpar has nothing to do with it, that's for the customers to vote with their wallets.

> PCs are availble from lots of different brands

Macs aren't.

> For PCs, there is no central developer shouldering all the R&D costs.

I'm not sure how R&D costs are even relevant, legally. PCs, Macs, iPhones, iPads are all financed by hardware sales. That's how you repay R&D, not skimming money off of 3rd party developers. Somehow PCs and Macs have always paid for their own R&D without taking 3rd party developer revenue.

And the judge didn’t agree with the theory that Epic proffered that how it is financed should be the distinction.

But if that’s the case, who “finances” the extra four or five years worth of support that iOS devices get over Android devices? Maybe it’s that Apple knows by having more people running the same OS it increases the market for apps. Android OEMs don’t have the same incentives.

> Android OEMs don’t have the same incentives.

Of course they don't. They don't make the operating system, and also the average selling price is lower.

Not sure what this has to do with the App Store though.

The argument was that game sales fund consoles that are sold at a loss.

No one would claim that Apple sells at a loss. But, continuing support for six year old phones is solely motivated by service revenue - just like consoles.

> continuing support for six year old phones is solely motivated by service revenue - just like consoles.

No, because Macs are supported for even longer. And Mac App Store revenue is not even worth mentioning. (Literally, Apple has never mentioned it!)

The long period of support is because the devices are sold at a premium, and as premium. Price, quality, reputation, they all go hand in hand.

And Microsoft gives Windows away to end users. Even on the cheapest PCs.

My Dell Core 2 Duo 2.66Ghz circa 2010 runs Windows 10. It has to, no one is willing to pay for operating system upgrades.

The underlying point is that it doesn't really matter (from a legal perspective) whether smartphones are more like PCs or game consoles when answering the question of whether it should be legal to sell "walled garden" devices.

> the question of whether it should be legal to sell "walled garden" device

That's not the question. One of the questions is whether the relevant market is iOS apps, as Epic claims, or video games, as the judge suggested.

I mean, it kind of is. If Epic's theory is correct and they win their case, that essentially implies that the "walled garden" approach is illegal and will prohibit hardware manufacturers from tightly controlling what software can be distributed on its hardware.

No. This lawsuit would have been thrown out in 2008 or 2009. Size and market power matter. Apple has over 50% of the US smartphone market and most of the smartphone software revenue.

There are over 2 millions apps in the App Store. That's a gigantic market. Game consoles only have ~2000 titles. App Store isn't a "garden", that vastly understates its extent. Apple has dictatorial control over literally millions of third-party products. That's dangerous.

Except Epic's theory of the case is not that Apple has a monopoly over smartphones, rather they have a monopoly over distribution of apps on iOS devices. Which would have been true back in 2008 or 2009 as well. If Epic wins their case based on the reasoning they have presented to the court, the same reasoning will apply to all "walled garden" hardware.

It's important to keep in mind that this was merely a preliminary hearing, not the full trial. It was abbreviated by design. The entire thing was a couple hours at most? The only question at issue here was temporary injunctions. Nobody had time to present their full trial arguments.

Sure, the hearing yesterday was about the preliminary injunction. But Epic's arguments have been made in detail in their extensive filings with the court.

A civil case isn’t usually just “thrown out” during a preliminary hearing.

> Other products include Macs and PCs, which allow "sideloading" by default, out of the box. Why are game consoles the relevant comparison? There's nothing in US law that says smartphones are supposed to be treated the same as game consoles.

The judge presiding over the case disagrees.

> The judge presiding over the case disagrees.

This was merely a preliminary hearing, and the judge also suggested the case should go to a jury.

The case isn’t going to a jury. Both Apple and Epic agreed to a bench trial.

https://www.macrumors.com/2020/09/29/apple-epic-games-no-jur...

Interesting, I hadn't seen that news yet.

But it doesn't change the fact that the judge did suggest during the hearing that the case should go to a jury.

I'm kind of puzzled why Epic doesn't want a jury.

Jury trial is more expensive.

I’m sure either side could pull some nickels out of their seat cushions to pay more if they thought it was in their best interest.

Both companies are interested in setting precedent. There are procedural advantages to bench trials. For example, bench trials require the presiding judge to stipulate findings of fact while jury trials don't. Jury trials are, therefore, much more difficult to appeal. Additionally, appellate courts are afraid to overturn jury verdicts because the standard to do so is so high.

Most corporate litigators are aware that once it leaves the room with the jury one side is most likely f-u-c-k fucked on appeal.

I assume Epic endgame isn't this trial. Winning would be nice, but loosing might help show the need for new legislations. Also, the US is only one jurisdiction.

IPhones aren't general-purpose computing devices.

I think you have a point.

I don't think Apple has ever marketed their iPhones as a general purpose computing device.

However they do advertise iPad as a laptop replacement.

They do advertise the ipad like that. But that is a ridiculous marketing statement imo. You basically can't install any software. Heck even the web browsers are safari with skins because the actual web browser cannot run on it.

>They do advertise the ipad like that. But that is a ridiculous marketing statement imo. You basically can't install any software.

Yeah, there are only about 1 million and a half applications (including MS office, Adobe Photoshop and so on) plus web apps available...

How is the number relevant?

"You basically can't install any software." --> you literally can install 1.5M different apps...

Not sure what your point is. 1.5M doesn't say anything about generality.

I think you mean "you can't install any software you want" and your parent means "you can install lots of pre-approved software" and you're both right.

At the same time I don't think installing arbitrary software is an essential feature of a laptop. These days most users rely on app stores or package managers.

Apple's iPad has been marketed as a laptop replacement and with its smart keyboard and the amount of apps it doesn't seem a long shot to me.

It's a laptop replacement for some people, some of the time. Which imo doesn't make it a laptop replacement. Because it would make phones from 10 years ago also a laptop replacement for some people, e.g. Teenagers who only use a web browser and some social media.

The key feature of a laptop is that you are guaranteed that it can do what you want. Even if you haven't thought of it beforehand. For example, a photographer buys an ipad pro. She reasons it should be fine since Adobe photoshop has been deemed worthy by Apple. For the first couple of weeks she is happy but then she wants to do some 3D work in bender. Oops blender isn't available on ipad and there is no way to make it work. Her laptop replacement isn't a laptop replacement at all since now she needs a laptop as well to run blender.

For almost every person such a scenario is certain to occur at some point. If Apple markets it as a laptop replacement it should be able to replace a laptop at all times.

> However, the judge seemed rather unconvinced that a market definition consisting of only iOS devices was actually the correct market to analyze... As an aside, I've read a number of comments here lamenting that the judge doesn't understand tech, but I think the opposite is true as well: many of the commenters here don't understand the law.

I mean this is probably a good case of "the law doesn't understand the law" in that the law does not have a particularly useful definition of what constitutes a "market"

I believe you misunderstood how the process works. Plus, I saw this as working out as Epic had planned.

Yes, the judge Gonzalez Rogers said that she is not convinced enough by Epic's claims to force an injunction onto Apple, which would require Apple to immediately reinstate Fortnite into the app store and leave it there until the legal proceedings are finished.

But did anyone really expect that Epic can use the fast track to force Apple to continue distributing Fortnite while forfeiting the 30% before even going to the main trial? Sure, Epic requested that, but that doesn't mean that they reasonably expected to get it granted, too. Such a large case will almost never be settled pre-trial without an official jury.

So her rejecting the injunction is kind of how this normally works.

According to CNN, she also said "Fortnite players on iOS have a variety of choices to access the game even if it is no longer available on iOS" as the main reasoning as to why Apple's action is not illegal tying of App distribution to In-App payments. And then she said that she wants to hear what the public thinks.

So effectively, the stage is now set for Epic. They need to manufacture a large enough outcry by regular consumers about Fortnite being absent on iOS. And they need to do so before the trial in 2021. And to me, it looks like Epic has been very effective so far at making people speak out that they would have wanted Fortnite on iOS.

The judge also said "It's hard to ignore the economics of the industry, which is what you're asking me to do." when comparing the iOS app store to other walled gardens like Xbox and PS. I'd treat that as a friendly hint that Epic needs to show that game consoles and smartphones are not comparable industries. That should be easy, because smartphones are essential for everyday life. Game consoles are not.

And lastly, the judge also said "There are a lot of people in the public who consider you guys heroes for what you guys did, [..]". To me, that sounds like an acknowledgement that the general population does not support Apple's reaction, meaning that Epic is on a good path towards showing that iOS consumers in general do NOT have alternative ways for accessing Fortnite.

Also, I'm not sure this is a neutral report on the Apple/Epic battle. The writer is called "James Vincent", just like this guy: https://appleinsider.com/articles/20/02/26/ex-apple-ad-chief...

iOS users have already moved on to the next hyped app. There is no “outcry” from iOS users. Epic even admitted that less than 10% of Fortnite players are on iOS.

Are you claiming that all of the articles that quoted the judge are biased?

My observation extends beyond the preliminary injunction itself which was always going to be a long shot. Epic's entire case depends on being able to successfully plead a single-brand market consisting of only iOS devices. Yes, you are correct that whether Epic wins or loses the injunction now won't necessarily affect the outcome of the trial. However, failing to establish a single-brand market will.

So to the extent that the judge is unconvinced of the validity of a single-brand market now, is not good news for Epic's chances during the trial later.

I support Epic in this fight, but I agree with the Judge that "market" definitions in casual conversation have become so narrow as to be meaningless. I regularly see posters here unironically assert examples such as "general-knowledge search engine ads", "image-based social media", etc.

Anything can be a monopoly if you arbitrarily define its market as congruent with its market share.

Also consoles are general purpose computing devices in tech terms.

How important are the nuances of law exactly? The talk right now is stacking the Supreme Court with 6 conservatives can give a contested elections to conservatives and overturn Roe v Wade etc.

Not to mention how laws impact demographics differently.

Without knowing anything about laws specifically, this makes it seem like it isn’t very concrete. At all.

The Supreme Court may be the endgame of this trial. Maybe that's why they don't care about the jury. It'll doubtless be appealed no matter who wins, so does the outcome even matter?

Interesting to see the judge bring up the same points that so many have here on HN, myself included. I've read a few articles about this topic, not just this one, but some good points I saw from another article [1]:

> Judge Rogers questioned Epic on when, exactly Apple became a monopoly given that its App Store rules have remained unchanged since the App Store launched, which Epic had no solid answer for, responding only that it was a monopoly when Fortnite came to iOS in 2018. She also said that walled gardens have existed for four decades and that what Apple's doing isn't too different. "They created a platform," she said

> She also reiterated that Epic Games made a "calculated decision" to defy Apple's App Store rules, and the court doesn't provide injunctions for contractual disputes. Epic was "not forthright," she said. "There are people in the public who consider you guys heroes for what you did, but it's not honest.

> Epic Games continued to argue that Apple has an App Store monopoly and charges excessive fees, but the judge pointed out that the 30 percent rate that Apple collects is the "industry rate" collected by PlayStation, Xbox, Nintendo, Amazon, Walmart, Best Buy, Google, and more. "It's all 30 percent and you just want to gloss over it," the judge said to Epic's lawyers.

I don't remember where I read this but someone mentioned that the judge asked Apple why they charge 30%, which I found to be a bit of a strange thing to ask (and probably a bit of a softball). Why not 30%? Why not 40%? Why do companies have margins that they set that the market will bear at all? Etc.

[1] https://www.macrumors.com/2020/09/28/epic-games-apple-disput...

> > Epic Games continued to argue that Apple has an App Store monopoly and charges excessive fees, but the judge pointed out that the 30 percent rate that Apple collects is the "industry rate" collected by PlayStation, Xbox, Nintendo, Amazon, Walmart, Best Buy, Google, and more. "It's all 30 percent and you just want to gloss over it," the judge said to Epic's lawyers.

She also glossed over the fact that software can be distributed free with its own payment systems in laptop/desktop OSs like Windows, OS X, Ubuntu etc. When I paid for Sublime I didn't go into an App Store to pay for it.

Smartphone/tablet OSs are logical successors to the laptop/desktop OSs we have not game consoles. They are general purpose computing platforms.

Based on existing law, why is the laptop/desktop model inherently superior to the game console model?

> Based on existing law, why is the laptop/desktop model inherently superior to the game console model?

Superior for developers because their margins improve. For low margin ones like Spotify that is make or break, especially when you take into account that they are fighting with preinstalled and OS promoted incumbents in both the platforms like Apple Music which are not subjected to the same.

Your example seems particularly weird to me since Spotify's business is having extremely broad hardware support. They set up shop on everyone's platform. I'm sure desktop/laptop listening is a sizable chunk of their use but it's probably dwarfed by all the cars, phones, smart speakers, TVs.

>Superior for developers because their margins improve.

First, this is debatable itself, walled gardens bring their own advantages for developers too. But second, why exactly should developers be the primary concern? There are three parties involved after all: the platform creator/maintainer, the developers, and the users. Why should users not have the choice to essentially collaborate with the platform creator to promote their interests, even at the expense of the developers?

I mean, I know this is HN, and a lot of us wear developer hats. But we tend to wear user hats too, and even in many cases family (or business) support hats. Switching to one of those, developers on open platforms are often jackasses and can develop their own power imbalance vs users. Sometimes (often even!) a single particular piece software can become so vital and represent so much investment that it's much harder to substitute than even the platform itself. At that point any single user faces big hurdles vs the developer. The likes of Adobe and others have repeatedly been able to force very user hostile choices on their customer base because their customers couldn't really coordinate collective action.

One thing Apple offers is a way to buy into a collective action system against developers. For many people that's not a bug, that's a feature, so complaining about how developers are "hurt" or "make less money" isn't going to sway them one bit, quite the contrary. They're generally glad when Apple tells devs their way or the highway[Android/Linux/Mac/Windows]. Of course, this concentration of power also has negative implications too in terms of censorship, inability to do some very useful creative development and utilities, potential for major harm if/when Apple goes bad, etc.

But too many on HN have refused to recognize the strengths and the reasons why it's been popular and to try to find ways to incorporate some or all of those while still allowing power users/misfits/hackers to push the envelope. I think our collective disdain for many regular non-tech users is part of why we've ended up in this mess in the first place.

This comment is 100% true.

But for a user, especially a non technical one, a walled garden is a superior ux. Updates automatically, single stop to find anything and easy discovery, no worry of viruses/malware except in extreme circumstances, cheap apps (never seen a .99 app in the wild) etc.

Automatic updates, single stop and little worry for malware are all perfectly achievable without a walled garden. It's been a thing on Linux for ages. It even gives you the choice of how high you want your walls, whether you only trust the debian developers or a user-made aur package or anything in-between.

And yet the only way it was successful on the mainstream was via ChromeOS and Android, which hide from userspace that they are even using the Linux kernel.

You are confusing "because of" with "in spite of"

Where is the evidence that any of that was required?

Apparently yes, given the amount of "Linux" developers that rather pay Apple for a UNIX desktop experience instead of making "Year of Desktop Linux" actually turn into a reality beyond the usual 2% from Steam surveys.

Perfectly achievable, at the expense of being an end user nightmare.

The reason I'm buying an iPhone is I don't have the time to care about how high the walls should be and to ensure every app I use isn't abusing the SDK to suck up data. The reason I'm paying a premium for Apple is I'm choosing to trust them rather than trust every developer.

The day apple, microsoft or google would manage updates of a whole system as well as some linux distribution would actually be the end of many user nightmares.

Unless you don't install any app, you still trust all the developers of the apps you install. Walled garden is just a nice way to name Authoritarianism applied to a platform.

It might make you feel safe to have apple deciding every bits of what you can do with your phone but it does mean that: - it's secure - the apps you are using are - you still have very low control over your data.

You just pay to close your eyes and feel safe.

That’s true of all closed source software, not just walled gardens. Any time you don’t have the source, you’re trusting that the developer isn’t screwing you over.

I’d rather trust Apple than the cumulative two dozen developers that have their software running on my phone.

Or to put it another way, Apple provides systems administrator services with every phone. Most medium and large businesses pay a LOT of money for systems administration to ensure that their desktops and laptops work reliably.

In the Spotify analogy, maybe the music artists would play the role of developers here—-get squeezed for the benefit of end users and the platform owner.

Going beyond that, even if it is superior, why should the game console model be illegal?

It's not even just the game console model.

It's ANY company that offers a closed platform e.g. Shopify addons.

So basically what the judge is saying is that people should be able to install stuff from outside the App Store?

I mean, it isn't a big deal there because you can just go purchase these stuff on other stores.

> Smartphone/tablet OSs are logical successors to the laptop/desktop OSs we have not game consoles. They are general purpose computing platforms.

Game consoles are general computing platforms as much as anything. Like Apple's devices they are artificially restricted with a walled garden model.

"I own this device, therefore I should be able to run anything I want" is an argument I can understand. "Company X invented this platform and therefore can choose what to allow to run on it" is also an argument I can understand (though I disagree). What I can't understand is this argument that Apple specifically shouldn't be allowed to restrict software but game consoles should.

> What I can't understand is this argument that Apple specifically shouldn't be allowed to restrict software but game consoles should.

If it was upto me, I would even argue for fairer rules there. Right now, it is Apple and they are sitting on a much more important computing platform for developers in terms of value, so I am fine if companies concentrate their efforts on iOS. If a precedent comes from this that can be applied in other places, I am all for it.

The main selling point of game consoles are uniform hardware specs and knowing that the console can run all games released on it. That isn't true for phones.

Maybe not in the Android case, but in the iPhone case, it is pretty much true and there are clear ways to deal with the variances in capabilities between iPhone models. It's a much more predictable platform than for PCs or even Macs.

It isn't true in the iphone case either, they don't create a new appstore when they release new hardware generations so they don't check if apps works fine on older hardware nor do they guarantee that the software you buy in their appstore continues to work after updates. Instead it is up to the software provider to update things when Apple breaks their product and to inform the user of which phone can run the app.

PS4 plays the same games as ps4 pro, but has different specs

s/games/software and this could be a quote from 5 years ago about how nice it is to develop for iOS because of its uniform hardware and how long Apple supports their devices.

We can go back and forth naming differences between phones and consoles: phones are smaller and have cellular chips, consoles are usually connected to TVs -- but if you can't say why a difference is so fundamental that they should be treated as entirely different classes of things then it doesn't matter.

What are you talking about? The iphone appstore haven't had uniform hardware since 2008 when the second generation iphone was released.

>We can go back and forth naming differences between phones and consoles: phones are smaller and have cellular chips, consoles are usually connected to TVs -- but if you can't say why a difference is so fundamental that they should be treated as entirely different classes of things then it doesn't matter.

Here's the fundamental bit:

For the vast majority, it's the primary (often only) way to connect with friends, family, colleagues, employers, news, government services, education, wayfinding, banking, emergency services, the entirety of the worlds information, and the world economy.

It also contains peoples most personal thoughts, search history, intimate conversations/photos, location history, political affiliations, and social graph.

For most of the disabled and/or isolated, it affords them a degree of dignity and inclusion that is life changing.

The above is doubly true in a post Covid world.

So, you can't artificially limit the discussion to technical similarities. The societal implications (the real fundamentals) should matter more than anything. Do you really want a world where we make our decisions based on what's best for society, or solely on what is technically true (smartphones and consoles are both just computers!)

We already treat things differently solely because of their importance to society, safety, health, and the economy. Yes, that does mean smartphones are, in a way, victims of their own success because they will be treated differently.

But that's not any different from other fundamental inventions in history (the printing press, banking, emergency services, automobiles, communications, etc).

NOTE: I'm not advocating for, or against, any specific policy. I'm only pointing out why equating consoles and smartphones is denying some very basic realties about how much the economy and society relies on smart phones (compared to consoles).

The vast majority of the world does not use smart phones.

And all of what you listed above applies to computers.

Your first point is not correct, there are about 3.5 billion smart phone users out there. https://www.bankmycell.com/blog/how-many-phones-are-in-the-w...

The vast majority of the world doesn't have toilets or running water. Yet we still consider those essential.

> Game consoles are general computing platforms as much as anything.

By their technical base, yes, but not by their usecase. Consoles have games and apps for media-consumption, but no apps for working, managing your life or other stuff. They are limited in the category of apps they allow, while smartphones and tablets are free for everything (even though they have some restrictions on the type of content they allow in their own app stores).

Your argument is circular. Game consoles don't have "apps for working, managing your life or other stuff" because they are controlled by a walled garden that prevents that kind of software from being developed. You're essentially saying "they're a walled garden, so they should be a walled garden".

Maybe your attention is circular, when you can't even think outside of a single comments.

The discussion is about smartphones, not consoles. And I explained that the technical base is irrelevant for whether it's a walled garden or not, because the purpose and usecase are different. Smartphones and Consoles are both universal computing platforms, but only consoles are also used as a universal device, while consoles are walled by design/purpose. So consoles being walled gardens has no relation to whether smartphones should or should not be walled gardens.

The judge in the case - an actual lawyer - disagrees with you.

>Smartphones and Consoles are both universal computing platforms, but only consoles are also used as a universal device, while consoles are walled by design/purpose

This is a very loose concept that you are arguing should be law. Fine, smartphones are "universal computing" platforms. Tablets are mostly used for media consumption - is the iPad exempt? If a manufacturer releases a Windows PC and calls it a "Home Theater PC", are they now exempt from the "universal platform" rule? If Sony allows users to install other OSs on their PlayStation, the PlayStation now a "universal device"? If a developer releases a calendar application or Slack on the PS4, will the PS4 be converted to a "universal" device?

Or now that we have this carve out for "universal platforms" should Epic continue to pay the Apple 30% because it's a "gaming app"?

Your console carveout is completely arbitrary.

The app stores for PSP, Vita and Switch happen to disagree.

> What I can't understand is this argument that Apple specifically shouldn't be allowed to restrict software but game consoles should.

Well, I didn't see anyone here saying that game consoles should restrict software they run. They are in the monopoly wagon as much as Apple.

Users should be allowed to run any software on their machine.

You can, if you wipe the content-specific platform.

Then there is still monopoly on that content-specific platform.

Think of it as if philips screwdriver producer forbid using those screwdrivers with posidriv heads (it is less efficient but works).

And there would be those that would say: "this is their product, they can dictate how it can be used".

Is there? I bought a closed-platform device by choice.

I don't buy a Phillips screwdriver expecting it to work on a Robertson head because I think it should fit every case.

But you buy it to use it they way you see fit (I assume), not they way the producer did.

I still amazes me that people don't have problem with computer hardware+software being closed, enforced, EULA driven.

And at the same time they expect to be able to e.g. use knife to open a box and not only cut bread (enforced by EULA).

This is similar to what is happening right now with the right to repair of tractors.

I can use that screwdriver to try and hammer in a nail, sure. It probably won't work well and I'll likely break the screwdriver or the nail or the other purpose they're both serving.

That's not the fault of the company that designed, manufactured, and sold the screwdriver, though.

But they won't stop me from doing that either. But they did design the Phillips screwdriver to work optimally with Phillips head screws, so that's what I actually bought it for and use it for.

The EULA doesn't prevent you from wiping your iPhone and doing anything with it. It's your hardware. You won't see any warranty help after that, but that's not their problem at that stage. You can even try to use your iPhone as a hammer, but I wouldn't recommend that either. It wasn't designed that way, but you're totally free to do so.

Personally, I bought my phone to use it the way it was designed, because I liked the design—not in spite of it.

Where is the Robertson head that I can fit in my pocket and also runs iOS, though?

I think you're lumping contractual EULAs with technical limitations and they're not the same thing.

If I bought a system that I am technically able to install anything I want onto, I don't think courts should enforce a EULA that forbids me from doing so.

But that doesn't mean I think the courts should forbid the manufacturer from implementing technical controls to stop unapproved software from being installed.

Those are two very different things, and the courts should treat them differently.

For one, there are consumers who buy iOS devices explicitly because they are hardened against unapproved software. Comparing the amount of malware on Android with what is on iOS proves that this is not an irrational decision.

I don't choose to buy a device like that, but I don't want courts saying that companies are not legally allowed to make such devices.

> Game consoles are general computing platforms as much as anything. Like Apple's devices they are artificially restricted with a walled garden model.

This is true that game consoles are walled gardens. But the question is, what is the market like for game consoles, when you compare common substitutes, as compared to what the market is like for smartphones.

I would argue that the game console market is much less concentrated than the smart phone market.

Anti-competitive practices are only illegal if a company has significant market power. And, IMO, Apple has much more market power than playstation, given that Apple controls about 50% of the smartphone market, in the USA.

> What I can't understand is this argument that Apple specifically shouldn't be allowed to restrict software but game consoles should.

The reason is because Apple controls half the smartphone market, in the USA, whereas game consoles don't have that much market power, especially, if one were to claim that the PC market competes with game consoles. (Which I say that it would. And I would also not say that smartphones compete with game consoles)

Apple's actions only become illegal, because of the combination of both their actions, and the fact that they have significant market power.

Furthermore the Xbox at least does let you install arbitrary unsigned software.

Citation? Last I checked this was only relevant for devices in Developer mode, and required a bunch of hackery. That is little different from installing apps on your iPhone from Xcode, which Apple also allows...

Logical successors or not, the walled garden economic model remains actively in-use and viable on gaming platforms, and has not been found to be legally unacceptable to date. What basis exists for the walled garden economic model to be decreed unlawful, whether for video games or applications or any other digital content? How would that basis be legally distinctive from the walled gardens of physical retail stores?

The judge’s point is that this - “walled gardens” - is an economically sound and widely-used practice that has not previously been found to be unlawful, and therefore (likely) no basis exists to find in favor of Epic’s claims at this stage of the proceedings.

(Usual disclaimer applies: I am not your lawyer, I will not prepare additional citations, please seek legal counsel before taking action based on anything written above.)

> is an economically sound and widely-used practice that has not previously been found to be unlawful

Not unlawful maybe, but unfair? I think the answer is yes.

It's already happened.

Being politically influential, vertically integrated, well organized, and able to negotiate cohesively as a cartel, the Seven Sisters were initially able to exert considerable power

https://en.wikipedia.org/wiki/Seven_Sisters_(oil_companies)

Apple is more powerful, more influential, more vertically integrated and more capitalized than any of those companies.

I'm not sure I understand your argument or your views, as there is only the assertion about Apple ("Apple is more powerful...") provided without any of your own views explaining how that assertion has any bearing on this matter. If you can offer any further explanation of how to connect your comment with the case under discussion, I'd love to consider it in more detail. Anyways, proceeding with the best I can offer —

Do you believe that a US judge can issue a summary judgment against a defendant based solely on fairness, when based solely on case law they are not guilty of any crime? (Apple is the defendant, and US law is biased in favor of defendants in various respects.) I believe that such a finding, whether by a judge or a jury, usually results in the judgment being overturned by the appellate court.

In the context of the Seven Sisters example, then, the simple-test question for finding a judicial bridge for the connection between the Seven Sisters and Apple is below. I use "without basis in law" as a superset of "unfair but not unlawful". I would hazard a guess that the answer to this question is "No." but I haven't researched it further.

"In cases where the US member(s) of the Seven Sisters were defendants, did a judge or jury ever find against them without basis in law, and in such cases, were any of those judgments allowed to stand by the appellate court?"

> Do you believe that a US judge can issue a summary judgment against a defendant based solely on fairness,

As Italian, I don' t believe USA can deliver justice at all (I can make tons of examples).

Se also Assange.

To make it clear: this is a discussion board, someone said it's not unlawful, I replied unlawful it's not the only thing that matters.

For example: in US it is not unlawful to not pay maternity leave, it's unlawful in Europe.

It's unfair in general, so, in my opinion, unfair laws should be changed to make society more fair (as fair as possible)

That's the point.

The power Apple detains make opposing to some of their rules unfair (and impossible) hence the laws are somewhat lacking somewhere.

You probably don' t know him, but Enrico Mattei was killed because he broke the seven sister's oligopoly.

When companies are too powerful, they are dangerous.

When they have global power, they are globally dangerous.

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

The job of the judge is to determine legality based on existing legislation and precedence.

If you want a judge to make a decision based on nonexistent law, you will need Congress to pass a law that they can use first.

> Smartphone/tablet OSs are logical successors to the laptop/desktop OSs we have not game consoles.

I think that's a case a person could make in a court of law, but there are also compelling cases for "It's more like a console than not" and for "It's its own thing, a separate category of computing device, which should be beholden to a separate set of rules."

The App Store was one of the value-adds Apple brought to the smartphone ecosystem. In a system of heterogeneous methods to put apps on phones (if the app suite was configurable at all and not pre-loaded onto the device), Apple provided a system where they would do quality curation of the apps that were loaded on the device they made and a clean, obvious method to track the apps a person wanted on their device and install them. No complex configuration, no different-installers-for-different-apps, none of that PC-ecosystem nonsense. Along with the iPhone API (that erred on the side of performance over flexibility), it brought a strong product to market.

It's possible what is offered now isn't the same thing, but I think a case could be made by a competent lawyer that the store is part of the entire product offering and makes for a better consumer product, which is what US antitrust law often hinges on (consumer harm).

That argument is self-defeating.

The argument that there is some other platform where software is distributed for free relies on that platform being comparable iOS.

If it is comparable to iOS, then consumers can just choose it instead.

> Smartphone/tablet OSs are logical successors to the laptop/desktop OSs we have not game consoles. They are general purpose computing platforms.

Yes, let's ignore the actual predecessors of smartPHONES, you know, cellPHONES. It makes our argument much easier, much.

Surely you remember the original iPhone announcement: being able to call people was only a very minor point in that presentation even then. I would bet money that the iPhone 12 announcement will not have anybody demonstrating the phone capabilities at all.

You should go back and rewatch that original iPhone announcement. Phone calls were a major highlight. They did a live, on-stage conference call between Jobs, Ive, and Schiller. Jobs phoned in the infamous thousand latte order to Starbucks. Features like Visual Voicemail were heavily promoted.

And the second-most important feature was that it played music stored locally on device.

I brought it up precisely for that phone call. You must remember what prompted it, right? Jobs didn’t go into his phone book and dial the number–he looked it up from maps. And that is precisely how people use iPhone today: they do a bunch of other things and also call sometimes. To be honest, I take more phone calls from my Mac than my iPhone.

Well, yeah. The presentation showed emergent new ways to place calls. Not sure how this contradicts the original point that iPhone was an evolution of the cell phone.

It’s a phone. An iPod. A revolutionary internet communicator.

A phone. An iPod. A revolutionary internet communicator.

Are you getting it?

I am. You can see that the phone part must be at least less than a third of the device ;)

No walled gardens should be beyond reproach IMO. I think Epic has it's work laid out for it, and they would definitely have a shot with a jury trial, and likely at the Supreme Court given Apple vs Pepper.

It's sometimes interesting to look at the history of walled gardens and how they came to be. Nintendo's console model, for example, was a direct reaction to previous failed no-walled-gardens models where consumer confidence that they weren't burning money buying a lemon console that only supported crappy games cracked.

On phones, Symbian and Blackberry were about as open as Android is currently (though signing apps was partially required IIRC). iOS/iPhones has always been closed except for the web browser.

I think there are completely valid cases for having a locked down phone, but it should be up to the user, not the device/OS maker. In this case, I don't think a phone developer can negotiate fair terms until the users have choice.

Single purpose locked-down devices are all around us from ereaders to TV streaming boxes to game consoles, and here I think it's important to distinguish by purpose from the more general purpose of a phone.

In the sense that nobody is obligated to buy an iPhone (and can jailbreak one after buying it, for that matter), it is up to the user. For the consumer, they have more choice if Android-style "app store but also side-loading," phones that lack an app store altogether, and iPhone-style walled garden coexist.

If you have a company phone you have a different type of walled garden than even what the iPhone provides through some MDM layer. Apple could offer such a separate MDM-based consumer product and also allow side loading.

Microsoft was forced to open up browsing/programming/AV APIs, on which future innovation was built. What Epic is asking for is no different IMO. I just don't think the benefits of multiple open platforms can be understated similar to Windows vs. Linux over the last twenty years.

Both Linux and Windows represent terrible user experiences for many users. Windows, until recent improvements, had a very rocky relationship with being online (primary attack target for viruses, rootkits, and botnets). The Linux ecosystem's user-hostility to the average computer user is the stuff of legend, although things have obviously improved greatly (this is still not the year that Linux on the desktop gains mainstream acceptance).

I think you've ignored my main point, which is Windows, Linux and MacOS kept innovating by being open and iOS and Android can do the same for phones.

They could, but what's the benefit? Apple is currently innovating by being closed.

(Android is a more complicated story; if you mean "The Android ecosystem tied to Google Play Services and controlled by Google," I can agree. There's a whole chunk of Android not meeting that criteria, and by many people's estimates, it's behind the 'closed' one for features and reliability).

Let's define innovation here, for iOS it would be the A13 and widgets, while for Android it would be folding screens and a modular Android that's easier to update. But you know, this thread is about Fortnite not being on iOS, and Apple weaponizing technologies like Metal and Safari. Apple innovation is lock-in, while Android is not.

If jailbreaking could be done the same way I can unlock the bootloader for my Android device, you would have a point. Unfortunately it requires using security exploits, which Apple is doing its best to plug.

Symbian apps were sold by mobile operators with margins up to 80%.

You could only install apps outside the store via the SDK.

Later on, during the Ovi Store days it was possible to buy applications and install them via the phone management software, which only technical inclined users did.

Carrier appstores aside, you could download apps directly from Google or any other website on any Symbian phone.

And people didn't want to do that so they bought an iPhone.

People also didn't think Apple would just stop updates to a game they paid Apple money for.

They paid money to Epic, which is the responsible for them not having the game in first place.

You should learn about Apple vs Pepper.

Why do you think that case is relevant to this discussion? The only issue that has been resolved in that case so far is a question about standing. The actual anti-trust questions are still unresolved.

It is completely irrelevant for this court case.

I don't need to be a lawyer to see that a case which determined that users can sue Apple because Apple is the direct seller, and in the dissent said developers would have an even better standing to sue Apple leads us to where we are. It's precedent.

Except Epic has specifically stated they don't want a jury trial.

Also, I'm not sure why you think Apple v. Pepper is relevant here?

Rogers that, the makers of Fortnite were not Forthright. That's an Epic wordplay of the judge.

IIRC, the 30% was chosen so Apple would roughly break even on credit card processing for $1 apps.

So Apple effectively only gets revenue from apps $2+, which then subsidizes the costs of reviewing and distributing the plethora of apps that are free.

In a way, it's a similar principle to progressive taxation. If your paid app is a hit on the App Store, then it's helping support the existence of all the free ones too.

That’s some BS argument people came up with in the beginning g because they saw thst 30% was similar to the credit card processing fees you’d find.

Apple isn’t paying 30c + 2.9% i.e. 33c that someone with no experience ever can get on opening a Shopify store.

They do more than payment processing on the App Store. So it’s possible they approximately break even on 99c apps. And every free app is a loss.

"Why not 30%? Why not 40%? "

How ridiculous.

A) It's not the margins, it's the lock-in.

B) Why didn't the Judge ask what kind of 'margin' Apple or MS gets for desktop versions of their apps? Because it's not 30%.

C) Asking 'when did Apple become a monopoly because they were not 15 years ago' is irrelevant: when did Standard Oil become a monopoly? AT&T? Certainly not the day they started out. These issues are shades of grey.

I'm tired of judges ruling on issues they don't understand, we need more expertise, just as they have in medicine.

Perhaps the most fundamental issue here with respect to 'Nintendo' comparisons - is that Gaming Consoles are purchased for Playing Games. That's it. All market participants know the stakes.

A mobile phone is an entry point to every line of business imaginable - it's a very broad platform and Apple has tried to take cuts of incidental businesses for all sorts of things.

The analogue would be AT&T charging you for 'every kind of business you did over your phone'.

Or Verizon charing you 30% for 'any kind of business you do over the internet'.

Or the electricity company for 'anything you use electricity for'.

Apple is leveraging the broader terms of mobile access: voice, browser, basic apps, which gives them a duopoly over mobile devices with Apple - into a crazy monopoly over their own platform.

Many markets are not rational in the way we would like them to be and have to be regulated, this is very common with single points of access: phone, water, electricity, energy, drugs, hospitals.

This looks like a prime opportunity for some creative and thoughtful regulatory response.

> A) It's not the margins, it's the lock-in.

What lock in? Nobody is forcing Epic to develop for iOS and Fortnight is available on pretty much every other platform. It's literally the antithesis of lock in, no matter how much you dislike Apple or its perceived unjust influence.

Standard Oil came into a market and controlled an increasing proportion of it.

On Epic's own terms, that's not what Apple did. There never was a market for iOS apps that Apple took over.

That means the best argument actually is that they became a monopoly on day one, but you dismiss that for some reason.

Which makes the way Epic defines the situation ridiculous.

You shouldn't be considered to be an infringing monopoly on day one with a single customer.

> the judge pointed out that the 30 percent rate that Apple collects is the "industry rate" collected by PlayStation, Xbox, Nintendo, Amazon, Walmart, Best Buy, Google, and more. "It's all 30 percent and you just want to gloss over it," the judge said to Epic's lawyers.

Justifying lax antitrust with the fact that other, similar market-power abuses, have also been permitted in the current lax antitrust atmosphere... as close to circular logic as it gets.

So you think Apple is abusing its extraordinary monopoly power by... charging what everyone else is charging?

I think legally it makes a pretty big difference: abusing a monopoly is considered a social bad because and to the extent that it results in higher prices for consumers.

> So you think Apple is abusing its extraordinary monopoly power by... charging what everyone else is charging?

By not allowing anyone to charge differently on iDevices.

If they had a monopoly, they should do better than 30% though? Chums like Google who don’t have the monopoly charge 30%. Hell, Twitch takes 50%, right?

If Apple is the only game in town they should charge like 99%. Developers have no choice, right?

> charging what everyone else is charging?

"Everyone else" being other middle-men with enormous market power?

> higher prices for consumers.

Monopoly and market power can also kill companies that "should have" prospered, depriving consumers of choice. Like the supermarket that gives preferential treatment to products owned by the same conglomerate, or the search giant that prioritizes its own services [1]. I would consider that a social bad as well.

[1] https://news.ycombinator.com/item?id=24633387

It's not illegal to be a monopoly.

What's illegal is taking advantage of your monopoly position. Microsoft was a monopoly? That was fine. Microsoft forced people towards Internet Explorer? Trouble.

Yes but the 30% cut (which is supposedly taking advantage of their monopoly) existed from the very beginning. They didn't eventually become a monopoly and then up prices to extort money from developers. From the very start they charged 30%, and despite of that fee, they still gained a huge market share. I would argue that because they were able to gain a monopoly without changing their fees, that the fees are not taking advantage of monopoly whatsoever.

It is not a monopoly. You are spinned. The answer is key. Can’t be monopoly like this legally. Otherwise you may be charged of monopoly of selling coffee in your backyard as only you can do it.

Not just that, to be honest Apple App do not spill over even. You do not need to run in Apple store unlike in 1990 you basically have to run windows.

The people who choose iPhones don't know that they pay almost 50% extra per purchase since Apple doesn't allow apps to show it.

How did you get the 50% figure?

And an extra compared to what exactly? The fee is identical on the Play Store.

username90 probably just used math:

Example: $2 in other app store, $3 in Apple app store.

Subtract 30% from $3 ≈ $2.

$3 is 50% more than $2.

Microsoft at the time owned 90 percent of the entire computer market.

The only thing Apple has a monopoly on is things Apple sells. If it is deemed that you can have a monopoly of a subset of a market, ask yourself how this will be applied to other businesses in the future. Does a mall have a legal (not colloquial) monopoly on stores in the mall?

Edit: If you make a game that has a store in it, do you have to let others sell thing in your game’s store. You have a monopoly on things sold in your game. Your game is a platform.

As someone who develops on these platforms, the problem is how difficult it is to get true figures for market share.

If you just search "Apple vs Android market share" you get an incredibly false picture of reality.

Android isn't just Android. It's everything from a flagship like a Galaxy S20 to a "Galaxy A2 Core" destined for low-income markets that was never meant to compete with an iPhone, and for which most app's target markets might as well not exist.

I remember a conversation with Jake Wharton where he insisted it was fine for apps to adopt the iOS strategy of dropping older OS versions extremely quickly. His reasoning the devices that have owners who spend the vast majority of money on the platform have newer devices that get updates.

To some degree he was right (not enough to excuse the absymal Android update ecosystem but I digress)

We've reached the point where even things that are comparatively used as "semi-dumb phones" show up under Android figures because of how ubiquitous of an OS it is. There are a ton of Android devices out there that are 3 or 4 major versions behind, leading a lot of developers to support them.

But if you actually look at top app revenues' (of which I've seen a few now), they consistently might as well not exist.

For that reason, if we actually shave that down to people who are paying into the app ecosytem (ie. look at the customers of the app developers, not the customers of the phone manufacturers) , suddenly you realize why so many apps and games go iOS-first for development:

https://appleinsider.com/articles/19/07/03/apples-app-store-...

It's no contest, Apple dominates the market for actually making money off apps. Because it's not just that Apple is making more gross revenue, it's the fact they're doing it with a third of the installs(!!!)

It's a one-two punch against Android devs since, as installs scale, support and review problems scale, while revenue is not scaling at all with it vs iOS.

It's a reflection of what I mentioned above, just how many Android devices are really not iPhone competitors, and not catering to a demographic that spends money on apps.

The average developer is making many times what their Android equivalent is making per app. You can make money on Android, but if you're blocked off from iOS, you're hurting in a huge way.

> I don't remember where I read this but someone mentioned that the judge asked Apple why they charge 30%, which I found to be a bit of a strange thing to ask (and probably a bit of a softball). Why not 30%? Why not 40%? Why do companies have margins that they set that the market will bear at all? Etc.

Presumably, if they’d said “because that’s what Google is/was charging”, it could be pursued as price fixing.

> Presumably, if they’d said “because that’s what Google is/was charging”, it could be pursued as price fixing.

That's not price fixing if they make the decision to match Google on their own, rather than in concert with Google.

If Apple chose to match the existing industry standard percentage but has not fixed any prices, is that price-fixing?

Not without coordination with other vendors, no.

The number probably came from looking at what brick and mortar stores do. Typically stores "mark up" products by 40% from their distributors. And if you think about it, that's effectively what Apple does, but in this case, the distributor (aka app developer) has to "mark-up" the price to cover the cost incurred by selling in the app store. In general this practice is pretty common in retail.

Correct me if I'm wrong, but did not Apple create the first app store and then set it, perhaps somewhat arbitrarily, to 30%? After that, all others simply followed suit and set their cut to 30% too?

If so, I would argue that it's high time to revisit the 30% charge. Whatever happened, competition among platforms did not reduce the 30% fee. I'm not sure why, but even if we cannot prove that there was price fixing, the Apple app store and other platforms have become so powerful that individuals and small companies cannot negotiate with any of the stores for a fair price.

> Correct me if I'm wrong, but did not Apple create the first app store...

Steam, at least, has it beat, in 2005: https://en.wikipedia.org/wiki/Rag_Doll_Kung_Fu

I'm fairly certain there were apps available for purchase on Nokia and other phones well before that, as well.

App Store didn't come until 2008.

The revenue model was very different for Nokia software, carriers were involved and revenue distribution was somewhat byzantine, if i remember correctly. One of the reasons developers jumped on the AppStore was that it simplified things pretty dramatically from the previous status-quo: they only had to deal with Apple. One of the reasons Nokia struggled to relaunch was that they couldn’t wiggle themselves out of these relationships with carriers, this albatross around their neck. In that sense, the AppStore was undoubtedly a step forward. That doesn’t mean it’s an eternally-perfect solution.

Like in many other issues involving Apple, what looked like a positive change in immediately-pragmatic terms ended up being a faustian bargain in the long run. Maybe we should just discuss this in terms of “10+ years have passed, things have changed, what was good before might be bad today”. Stuff like the single non-negotiable browser engine was a curiosity and a small impediment 13 years ago, but now it’s a real threat to the health of the web ecosystem. Same for the single-appstore model, which effectively enables a rent-seeking cartel (Apple and Google) which any serious antitrust scholar should find abhorrent.

There were (a few, not just one) app stores on Palm OS devices too. I forget the year and I don't know what the cut was.

I vaguely remember that when Steam launched and started charging 30%, it was way less than what retail charges.

The list of companies: PlayStation, Xbox, Nintendo, Amazon, Walmart, Best Buy, Google, and more

Include many (hint - the first 3) that were taking huge chunks of game publishers' money long before the iOS App Store ever existed. There were also many app stores for palmOS, WinCE, etc. some of which collected far more than 30%.

The Wii Shop Channel predates it by a few years.

There was ClubNokia where you could pay by SMS for ringtones and on certain phones - games. Many 3rd s60 app stores were just credit card collection places and malware distribution centers. None of the stores were preloaded on the phone.

Steam probably had first "app store", but it has to be installed separately and usually you don't have to use it for the most part - you often could buy it online directly from the publisher or on CD/DVD.

PS Store launched in 2006. That's closest to what Apple did. Actually, exactly the same for most part until Apple added in-app, subscriptions etc. Difference was that to get listed on App Store you just had to pay $100 and make application that follows guidelines.

Here is where there are lot differences:

- Legally you can't sell any software for PlayStation without Sony getting a cut. - That includes physical media - Steam can only get it cut from sales on its store - Publishers/developers can either sell directly to you without anyone getting a cut - Or they can sell you a steam code and then steam doesn't get a cut

This is why I'm saying that Apple is closer to Sony than Steam.

I don't know where 30% cut came from, but I know steam has the same cut.

There were app stores for feature phones where you could download J2ME apps way before the iPhone came out. Sprint ran one.

The fact that there even is an "industry rate" is evidence of price fixing, if not by the legal definition (which may require explicit collusion) then by the layperson's definition.

Scale and market power are what makes a monopolist, by definition. It doesn't matter if the terms have changed; what has changed since 2008 is the scale and power of Apple.

Incidentally, the 30% came from the iTunes Music Store, on which the App Store was based 100%.

The most popular game consoles have 2-3 thousands games total. They are truly "curated". The Apple App Store and Google Play store each have 2-3 million apps each. They're orders of magnitude larger than game consoles. This is the crucial difference in platforms.

Apparently the 30% cut has it's origins in a deal between Nintendo and Hudsonsoft. 10% licensing fee, and 20% manufacturing costs for physical cartridges.

https://www.msn.com/en-us/news/technology/the-30percent-fee-...

If Steam, Apple, Google, any of them made a physical cartridge of a developer's games for them, that would seem a lot more reasonable a fee.

What about what the virtual platform Apple provides? The cartridge is the feature rich phone and virtual services Apple provides to get to the device.

For which a customer spends hundreds of dollars, comparable to purchasing a game console that took cartridges. Apple doesn't provide that, buyers provide that. Apple is trying use their leverage to dominate every angle of the action. Surprise, surprise, surpriiiiise.

And millions of developers pay $99/year, which likely more than covers Apple's costs of providing developer tooling, documentation, etc.

I wouldn’t be so sure. How many man hours go into developing ARKit, Foundation, Swift etc.? How many developer accounts would be required to fund all of that plus the R&D for the ideas that didn’t work out?

I think the $99 is more of a filter, like a captcha, for developers that mean business.

The user paid for those when they bought the phone.

Probably a more accurate analog to the cartridge would be the storage and distribution services. That takes some infrastructure in networking and storage.

Developers still have to store application specific data on their own!

Apple actually gives developers 1PB of free storage per app with CloudKit, and it even has some nice privacy features for users. Of course it has limitations, so most developers prefer rolling their own backend.

How's that? I choose apps that store my data locally rather than their servers if I even do download apps.

I was discussing the storage and distribution infrastructure.

Consider a game that holds a leaderboard on steam, or any app that stores user progress on its servers.

Not exactly pertinent to your comment but pertinent to the conversation as a whole: If Apple/Google/Steam stored all app data for developers and also did the marketing for developers, that is closer to what 30% is worth imho. For hosting the platform, yes your grandfather was the first to stab a flag into the digital real-estate, and for that I owe you 30%? Feudalism that manages to shift cost to both consumer and developer at the same time -- impressive, but not very noble.

That's not a good analogue for a cartridge, though. The cartridge or the device itself stored data locally. Modern gaming consoles store their data on HDD's. Anything beyond that is entirely developer's prerogative.

And according to another user, they do offer storage through CloudKit... which it appears they do, included in the dev account/App Store distribution model—1 PB: https://developer.apple.com/icloud/cloudkit/

It's not really the same because the reason Valve built out all of this infrastructure was so they could take the middleman's cut. Basically, GameStop buys games cheaper wholesale and resells them at a higher retail price. Valve gets all of that by being the direct retailer to the end consumer.

Not even having to manufacture a physical good is a separate cherry on top of that.

This is a super literal take. In the 80s/90s the expense-incurring activity was physical cartridge production. Today it’s bandwidth & delivery infrastructure, card processing, any myriad of things.

Yes, but it's hard to imagine that 30 years of technological progress has not changed the underlying cost structures of these businesses. After all, it's changed the cost structure of almost every other business that has some connection to computing and data delivery by orders of magnitude. Yet, strangely the 30% cut has not changed a bit.

NES carts used to cost like fifty bucks. Aren't most apps in the few-dollars range?

Nintendo console games still cost $50, and seem to outsell $1-$5 games despite the fact that the vast majority of users already own a phone, and consoles cost extra (and there are more than two platforms to choose from.) So I'm going to go out on a limb and suggest that the market does not consider these to be equivalent products.

The still costs $50 is interesting to me, because inflation adjusted this is a pretty steep discount. The 30% stayed the same, but inflation adjusted on something like this the revenue netted is down to what 15% would have previously got you.

All I’m really getting at is that the layers of complication are thick. I feel like one could unwind this with a lot of effort, but I doubt anyone is being utterly fleeced (or is utterly innocent, for that matter).

> This is a super literal take. In the 80s/90s the expense-incurring activity was physical cartridge production. Today it’s bandwidth & delivery infrastructure, card processing, any myriad of things.

Are the current-day costs of those "myriad things" in any way comparable in magnitude to the 80s cost of cartridge production? I highly doubt it. Bandwidth is cheap enough that single webpages are several megabytes each, if you load everything. Card processing fees are 3-4%. My bet the breakdown of Apple's 30% is >25% "licensing" and <5% cost of provided services.

The cartridges are actually kinda a funny story to themselves if memory serves. Nintendo required that they manufacturer the cartridges themselves (and they had minimum orders), which was separate from the licensing side of things. Then you had disk based game systems come along early 90s which were a couple of bucks to manufacturer (on avg). I remember reading about wild deltas depending on your company size & how much you shipped on what you could expect your take to be on a title, which also makes it hard to compare.

The is the wrong history though. It only matters if you accept the App Store == console analogy, which I don't. Historically speaking, App Store was not based on game consoles, it was based on the iTunes Music Store. Everything about the App Store design was exactly the same as the iTunes Music Store, right down to being in iTunes itself. App developers even uploaded their apps to iTunes Connect (which has only very recently been renamed to App Store Connect).

That’s a little like saying since the facts of how the people at Apple arrived at the original 30% disagree with your philosophical views on this matter, it seizes to be relevant. A personalized reality, with personalized facts. Alleged fact, much as it may not make sense to some in hindsight, is they used the Nintendo-Hudson Soft price model and it doesn’t change how they decided that because of anyone’s preferences. It’s totally different than to accept, it’s been this way - for too long - it’s time to change for a more equitable price model. But then that’s the crux about bringing this suit to court in a country whose judicial system is based on precedents.

> Rogers has adjudicated various cases against Apple. In 2012, Rogers dismissed a class action lawsuit with prejudice, upholding Apple's defense that the "Illinois Brick doctrine" from the Supreme Court case Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) applied, as only the developers of apps could be damaged by Apple's policies, and consumers did not have statutory standing to bring suit on the developers' behalf. The Court specifically noted that the 30% fee Apple collects is "a cost passed-on to consumers by independent software developers".[8] The United States Court of Appeals for the Ninth Circuit reversed her decision, and the Court of Appeals was upheld by the Supreme Court in Apple Inc. v. Pepper.[9]

> In December 2014, Rogers presided over a jury trial against Apple, in which plaintiffs claimed DRM on Apple iTunes violated antitrust laws. On December 16, 2014, the jury reached a verdict in favor of Apple.[10]

Source: https://en.m.wikipedia.org/wiki/Yvonne_Gonzalez_Rogers

> The Court specifically noted that the 30% fee Apple collects is "a cost passed-on to consumers by independent software developers".

This is a somewhat shocking conclusion to come to since the independent developers neither set the fee, nor process the payments. I can see why it was overturned.

At the same price of a cartridge today they could give you the app + a basic smartphone

How do you weigh the value of Apple's APIs?

As in, to continue with the game console analogy, you must have at least one license to a powerful engine (like Unreal Engine with a 5% fee) to develop efficiently.

Do you actually save 5% (assuming PS is 30%) by developing for the Apple ecosystem? (Assuming Metal is comparable to Unreal)

> Do you actually save 5% (assuming PS is 30%) by developing for the Apple ecosystem?

Probably not - assuming you're being smart and targeting multiple platforms, you're still going to be using Unreal/Unity. And even if you're only targeting the Mac, Unreal/Unity bring a lot more than rendering to the table, so you're probably still using either of them, all with a commercial license.

And unless you're doing distribution yourself, anywhere you put your game will take a percentage, pretty much all around 30%. Some places like itch.io let you define how much they take, but no one really uses itch.io for anything bigger than an indie game.

> And even if you're only targeting the Mac, Unreal/Unity bring a lot more than rendering to the table, so you're probably still using either of them, all with a commercial license.

Depends, plenty of indies are doing alright with Apple's own gaming frameworks.

Very true. Comes down to if you already know (or want to learn) Swift.

> Scale and market power are what makes a monopolist, by definition.

Very true. Worth noting here also is that (US) antitrust law isn't designed to break up 100% of all monopolies.

US antitrust law isn't designed to break up platform monopolies, period. Which is unfortunate, because the kind of all-owning combinations it's designed around aren't really possible in tech, post-Internet.

Microsoft of the 90s was much-lamented, but in reality they extracted far less value than they could have. They could have easily asked for 30% of all revenue of all Windows software, and developers would have had to pay it.

I'm hesitant to advocate breaking up of platform monopolies or duopolies, but a lesser-version of antitrust law would substantially benefit consumers in both app stores and ISPs. In both cases, the monopoly stems from monopolized access to the end customer, which is what would be beneficial to attack.

IMHO, a sliding scale of mandates for increasingly-open third party access based on market share (broken down into each user market!) would be appropriate.

If you want 90% market share, go for it. But you'd better believe you're going to have to provide (1) customer access to third parties & (2) any work required to enable them, at cost.

To ask you the same question, restated, that the judge asked Epic, which they had no answer for: if Apple wasn't a monopoly before, but they're a monopoly now, when did they become a monopoly?

While it is an interesting question, what does it matter? When did standard oil become a monopoly? Is there some specific date where they changed from competitive to anti-competitive? More likely they grew over time and the ability for competition to exist was diminished over the entire period.

Apple doesn’t even have 60% market share in the US. Android has 86% worldwide. They are no where near a monopoly like Standard Oil or Bell.

> Apple doesn’t even have 60% market share in the US.

They have over 50% market share though. They're by far the largest smartphone manufacturer in the US. And they also get the vast majority of app developer revenue, much more than the Google Play Store.

> Android has 86% worldwide.

Worldwide market share is not necessarily relevant to US law.

> They are no where near a monopoly like Standard Oil or Bell.

This isn't actually required by antitrust law.

Worldwide share could be made to matter during the trial (assuming it reaches that point). It demonstrates that Apple's position in the US is a consequence of consumer choice, as they do have real competition. It's just that their competitors have (for various reasons) failed to take (or in this case failed to hold) a larger share of the US market.

https://www.statista.com/statistics/266572/market-share-held...

Shows the marketshare of mobile OSes by year from 2012-2019. It's worth noting that Apple's > 50% market share is a recent (2019) phenomenon. It's not like they've held that position for the entire decade, and it's not at all clear that they got that position by any illegal or unethical methods [0]. So consumers have made a clear and (somewhat) informed decision by electing to by iPhones.

[0] I'm sure someone will talk about green bubble/blue bubble, but seriously people: stop using SMS/MMS it's crap. Get your friends onto Signal or, hell, even WhatsApp so you can have real cross-platform, secure (less some metadata) communication.

Apple and Android together have a duopoly or an oligarchy over mobile phones.

Apple also has a lock over it's own platform for which switching costs are very high.

If people switched phones every few weeks, this would be less of an issue.

What is the high switching cost?

Hardly anyone buys apps. They either pay for services that work cross platform and the majority of sales are coming from in app consumables for games.

Media? iTunes music you buy has been DRM free for a decade and Apple Music is available on Android.

Movies? Blame that on the studios that don’t participate in Movies Anywhere. Apple is a member along with Amazon, Vudu, and Google. If you buy a movie from a participating studio, it syncs between all of the platforms.

Books? No one buys books from Apple.

"What is the high switching cost?"

People buy phones once every year or two, they're about $1K and data is controlled by the providers = High switching cost.

Your favourite Marmalade ... were it to double in price next week at the grocery store, could be substituted without any friction.

The ASP of an iPhone is $675. An Android phone is less than $300. That doesn’t take into account the ability to sell your phone and/or give it to someone.

What do you mean “data is controlled by your provider”? You just switch the SIM card.

ASP is meaningless because who had iPhone won't buy dirt cheap Android phone.

The ASP of an iPhone is around $700

But now are you saying that we need government intervention because of “lock in” when people are using their own free will to buy more expensive products when their are cheaper more “open” products available? Are people too dumb to make their own choices.

Data isn't locked to one platform.

You can transfer photos, mail, browser history etc between phones and app data is of course managed by the app.

Standard oil never had more than 20% marketshare.

This question assumes that Standard Oil didn’t engage in anti-competitive practices after they gained a monopoly position which they absolutely did. On the run / don’t have time to send links but this is common knowledge and easy to look up. It’s worth noting that a monopoly alone (a definition for % market share) does not meet the criteria for antitrust. Antitrust carries an extra burden of the company abusing its monopoly position eg what Standard Oil did and arguably, what Apple is not doing.

You seem to be asking your second question rhetorically, but its actually an interesting question. The reason we call anti-monopolistic activity "anti-trust" is because Standard Oil organized itself as a series of companies related only through a common trust. That trust controlled 40 different companies, and was the original target of the government's ire. When the trust was ordered dissolved, it eventually was replaced by a holding company.

The history is interesting and informative, and explains a lot about why the US government started to care about issues of corporate governance in the first place. When people talk today about the dangers of "monopoly," they often misunderstand the point entirely.

Size alone is not the issue. It never has been.

The reason it matters is because Epic's entire theory of the case involves Apple having a "monopoly" over the specific sub-market of "iOS app distribution". They've intentionally defined this market very narrowly because they know Apple does not have an actual monopoly in the smartphone market.

As the judge pointed out yesterday, Epic has "created a failsafe definition". Because they have defined a single product market, Apple by definition has a monopoly over their own product.

But assuming Epic's theory is true, it would have been true from the very start of the App Store, back when Apple had barely any market share. Of course, it would have been absurd to complain in 2008 that Apple was unlawfully maintaining its monopoly over "iOS app distribution", which is why Epic's lawyer largely dodged the question during the hearing yesterday.

Epic asserts they’re a Monopoly but that’s a contentious assertion so the easy answer is they aren’t.

Not a direct answer to your question, but somewhat related. When the iPhone was first released (or a year later when the App Store was released) we did have more competition than we do today.

Windows Mobile, Symbian OS, BlackBerry OS (and to some extent Maemo) all had the opportunity to compete with iOS and Android but were either too slow to transition to market demands or did not get a lot of traction to start with.

While not officially a monopoly in my book, I think it's safe to state that we're now down to iOS and Android for 99% of the market with KaiOS Ubuntu Touch (Tizen?) picking up some of the more niche or cheap devices.

If lowering your price doesn't increase demand then you are in a way a monopoly. I don't see any scenario at all where Apple lower their cut from 30% except via government action, so it makes sense to legally force them to either get competition or to lower their cut below 30% to something more sensible.

Or maybe your addressable market is saturated....

Either you are a monopoly for that market or lowering prices will let you gain more market share. More market share is an incentive so there is a reason to reduce prices. You could probably find some reasonable exceptions, but nevertheless I think if a company has no incentive to reduce prices then it probably should be regulated.

Why is “market share” an incentive to reduce prices? Companies don’t chase market share. They want profit. Market share doesn’t pay bills.

There is roughly 50% of the US population who wouldn’t buy an Android phone if it cost $1.

Having incentives to do something doesn't mean that you will do it. Lowering prices reduces your income per sale, that is a disincentive. If it increases sales then that is an incentive. If there are no incentives then there is a problem since then there will never be a reason to reduce price.

Healthy competition is when the different parts have incentives to reduce prices to steal customers from each other. Then unless they collude they will reduce prices until there is barely any profits left. However if reducing prices doesn't help you get the other persons customer then there isn't healthy competition.

So tell me, what non government action would you say could cause Apple to reduce their 30% fee? I don't see any. Apple reducing their 30% fee wouldn't cause more people to choose Apple over Android and vice versa under current circumstances. Both of those fees are set with no care about competition.

> There is roughly 50% of the US population who wouldn’t buy an Android phone if it cost $1.

Pretty sure many would switch if the highest end android phones were free.

Apple has been in business for over 40 years.

- in the early 80s, Apple //e’s were more expensive than the competition.

- in the mid 80s - 2000, the Macs were and continue to be more expensive than the equivalent PCs

- in the early 2000s, iPods were more expensive than the equivalent media players.

- the iPhones are more expensive than equivalent Android phones.

Apple hasn’t “found a reason” to reduce prices in 4 decades. Did it have a “monopoly” on computers, music players, tablets, watches, monitors, etc all that time?

> Pretty sure many would switch if the highest end android phones were free.

“high end” Android phones are cheaper than iPhones. Yet and still Apple dominates the high end. Maybe every one doesn’t buy solely on price.

Well actually, there is no Android phone that performs as well as the $399 iPhone SE, but that’s another debate....

I don't think you quite understand.

The person you are responding to basically quoted the definition of a monopoly, as according to the opinions of the US government.

If changing prices does not change demand for your product, then by definition, according to the US government, you have significant market power (IE, you have a monopoly. The definition of a monopoly is merely having significant market power, according to anti-trust law)

That is the definition that judges and the government use for market power.

As usual, it just takes a little observation to see how non sensical this interpretation is.

Do you really think that every company that can raise its prices is automatically defined as a monopoly? What next? Nike has a “monopoly” on sneakers because it can raise its prices on Air Jordan’s and people still buy them?

Should Apple also be regulated as a monopoly because it raised its prices on Mac Pros and people still bought them?

Could it possibly be that a bunch of posters on HN don’t know as much about the law as ... a real judge who didn’t agree with similar arguments.

If it was an alive frog before, but it is a boiled frog now, when did it become a boiled frog?

I'm no expert on frogs or boiling, but I would say the moment the frog is 100c all the way through. There seems to be a defined thing that makes it a boiled frog, but that doesn't seem to be the situation in the Epic v Apple case.

It very much matters if the terms changed, considering that the long shot legal precedent Epic is relying on is Kodak v. Image Technical Services. Terms changing in that case was a key element of why a single brand could be considered a valid antitrust market.

Could you explain this in more detail? I read about this case, and my understanding is that the Independent Service Organizations ("ISOs") didn't actually have a direct contractual relationship with Kodak. They were truly independent, and thus there were no terms to change.

Kodak monopolized the aftermarket for parts and service after their customers were "locked in." The primary market for their equipment was competitive and they didn't have monopoly power, but the Supreme Court still decided against them. This established that a single brand could be a "relevant market" for antitrust purposes under certain circumstances. This is the case that Epic is relying on against Apple. Unfortunately for them plaintiffs almost never win under Kodak antitrust theories.

> Kodak monopolized the aftermarket for parts and service after their customers were "locked in."

It's not clear to me that the timing was essential. Apparently Kodak had a policy since 1975 to only sell parts to direct purchasers of equipment, but the initial case wasn't filed until 1988. So the official terms, which were between Kodak and customers, not Kodak and ISOs, hadn't changed recently.

Clearly Kodak was taking some non-official anticompetitive actions, but that's not the same as changing the official terms.

Subsequent decisions by circuit courts have used the lack of an explicit policy change to find against the plaintiff. This case is at the outer boundaries of antitrust law and lower courts have effectively taken the perspective of the dissent to limit its applicability.

> lower courts have effectively taken the perspective of the dissent to limit its applicability

The dissent... of the Supreme Court opinion??

The "terms" in this context are not referring to contractual terms between Kodak and the ISOs, they are the conditions under which Kodak customers could obtain service and repair parts for the copiers they originally purchased.

In Kodak, customers originally purchased Kodak copiers without any aftermarket restrictions, and then several years later Kodak changed their policy and stopped selling repair parts to the ISOs, which left customers locked into buying repair services from Kodak instead.

The key factor in Kodak was that there was change to the conditions under which customers could obtain repair parts that customers could not have reasonably anticipated or planned for when they originally purchased Kodak copiers. The fact that a change in policy occurred is very important to that case, and indeed some subsequent courts have found that absent that change in policy, Kodak does not apply.

Epic's lawyer spent the first part of yesterday's hearing attempting to argue that Kodak applied to this case, but judge seemed very skeptical of this line of argument. As Apple's lawyer correctly pointed out, single-brand markets are a unicorn in anti-trust law and this case does not fit the narrow exceptions created by Kodak (and a related case, Newcal).

Just a reminder that actually by definition consumer harm is the bedrock standard for antitrust litigation in the US. Scale and market power may be components of an argument for consumer harm, but they are not sufficient in and of themselves.

> consumer harm is the bedrock standard for antitrust litigation in the US.

Which is really dangerous, IMHO, because a lot of the most vile bits of monopoly power can happen without directly causing immediate consumer harm.

You shouldn't need to prove consumer harm to win antitrust litigation. That should be just one of a few different harms, any one of which should be able to win antitrust litigation.

Can you give examples of other kinds of harm you are thinking of?

>Scale and market power are what makes a monopolist, by definition. It doesn't matter if the terms have changed; what has changed since 2008 is the scale and power of Apple.

Anti-trust laws have specific conditions to meet such as predatory pricing, product tying, exclusive dealing, etc. It's not just a matter of market share and market power, they have to have obtained or maintained that market position unfairly. This sets a pretty high bar in a market with 2.5 major app platforms (Apple, Google and Amazon).

> “Walled gardens have existed for decades,” said the judge. “Nintendo has had a walled garden. Sony has had a walled garden. Microsoft has had a walled garden. What Apple’s doing is not much different...

Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"?

Something might be a long standing practice and still be against the law. Something might have not been against the law in the past and be against it now. I'm not saying that it is, but that's what the judge should base his argument on.

> Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"?

I haven't been able to find the actual details yet, but from what I can gather, this is not the actual hearing.

Right now, the judge's job isn't to determine whether Apple's terms were illegal, or whether Epic breached those terms with Apple.

The judge is deciding whether or not Apple should be injuncted from booting Fortnite from the App Store, and whether or not the matter should proceed to trial.

It's less about black-letter law, and more about judicial discretion (albeit exercised very conservatively). So this type of looser language is to be expected.

JSYK: "injuncted" -> "enjoined"

'injuncted' is the preferred term in Australia.

Source: http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=auto&q...

I assume "enjoined" is preferred in the USA (and in all fairness, I guess it would be better to use the American term for an American case).

> Something might be a long standing practice and still be against the law

The first step to finding legal precedent is exploring practical precedent. This being an injunction hearing, part of the judge’s job is determining whether Epic is likely to prevail in its argument. The fact that it seeks to challenge practical precedent makes the outcome less predictable and an injunction less reasonable.

> Something might be a long standing practice and still be against the law.

That's extremely unlikely -- it would have been prosecuted previously otherwise.

A better term for "long standing practice" is precedent. Laws often don't account for certain edge cases or unseen developments, so judges in common law countries do very much look at what other judges have permitted or not in the past, in order to maintain continuity.

Otherwise you'd be at the whim of each and every judge interpreting law totally differently, which would be a nightmare for anyone trying to figure out what is permitted or not.

> That's extremely unlikely -- it would have been prosecuted previously otherwise.

This sounds like the legal equivalent of the joke about the two economists who find a $20 bill on the ground. One asks "Is that a $20 bill?" The other says, "Couldn't be. If it was, someone would have picked it up by now", and they move on.

In some cases, an injustice goes long-standing because nobody bothers to litigate it.

But the far more common scenario is that it's been litigated and the counter-argument found wanting.

The Emoluments Clause has been in open violation for 3.5 years and nothing has happened. Doesn't mean anything.

I'm talking about law as applied to everyday citizens and corporations.

When you get to balance of powers and prosecuting presidents, you're not really operating primarily in the legislative game anymore, but rather in the power politics game, no matter how much they dress it up in legal language.

No. The judge is asking a valid question based on precedence. It’s up to the plaintiff’s legal team to show the judge either why their case is different, or that the precedent setters are in the wrong as well.

Hard to say for sure without additional context to the judge's statements; perhaps they were discussing precedent?

In general, if something is common for decades and a plaintiff comes to claim it's illegal, the burden of proof is on the plaintiff. The defendant will be able to bring up previous court cases where the status quo was challenged and unmodified.

precedent is law in a common law system such as our own.

> Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"?

This has been done in the past regarding firearms law - “the law has stood for decades, so it must be constitutional.”

I find that reasoning specious, but it’s happened multiple times so it’s apparently accepted by at least a plurality of our judiciary.

Of course Epic was being dishonest. This is about the court of public opinion - there’s very little chance of winning this lawsuit, but it draws attention of lawmakers and lobbyists to either change the laws or get the DOJ or EU to take another look at this.

That said, I think most people are going to be disappointed regardless the outcome.

Markets aren’t created by god, they’re created by customers.

If you want to force the creation of an App Store market, one that customers aren’t actually asking for, it will need to be government-mandated.

If you think the EU or US knows how to create a utility market of app stores without completely fucking up competition, security, consumer experience, and enshrining Android and IOS as the “government sanctioned platforms” for 50 years, you are placing far too much faith in the power of regulation. It takes years to decades to get this right - no one has the answers, and governments aren’t great with uncertainty (see how policy and science mix!).

Laws move very slowly, especially with partisan gridlock. Do we really think these platforms have a 50 year lifespan? If not, it’s probably not worth regulating.

Be careful what you wish for.

Partially off topic but I like this feature of American law of asking people (and not judges) to decide the outcome of this kind of trials:

> Judge Gonzalez Rogers did recommend, though, that the case be taken to a jury trial in July next year to settle these issues permanently. “It is important enough to understand what real people think,” said Rogers. “Do these security issues concern people or not?”

So I guess there will be no outcry when Microsoft starts charging the alleged "industry rate" to allow programs to run on Windows.

Apple has been charging since they allowed third party access to App Store. Quite different in this case. Epic and consumers know what they’re getting into with Apple.

And now everyone should know what they are getting into with any of these stores that 30% is normal. Fight back is futile. Just makes microsoft look like stupid business guys not charging 30% yet.

First, they don't charge everyone 30% (have you seen the emails between Amazon and Apple?).

Second, why break up AT&T in 70s/80s, you know what you are getting into when you sing up a contract with them.

The difference was that AT&T had a monopoly because of the government. They had a real monopoly. They were the only game in town.

Really?

Didn't US have a mail service at that time?

I think that is an alternative "platform" for communication (just like Android to Apple), a bit of a stretch but not much.

Are you really comparing using a phone vs mail, to using iOS vs Android, or any other phone out on the market?

I'm showing that argument that iOS AppStore is not a monopoly because "If you don't like closed iPhone you can buy Android" is ridiculous.

Of course you have alternative hardware+os that you can use, just like in case of telephony you had alternative hardware (paper) that you could use, which didn't stop US goverment to split AT&T up.

What can’t I do as efficiently on an Android device that I can do on an iPhone?

The FTC has a nice site that makes it clear that antitrust enforcement doesn't require a government-mandated or absolute monopoly. https://www.ftc.gov/tips-advice/competition-guidance/guide-a...

ETA: Fixed wrong link.

Well, you can quote the nice site from the FTC and provide your own interpretation.

You can read the interpretation in this specific case from the judge who is presiding over it.

The "interpretation" in this case is just a few skeptical comments made in a hearing by the judge. And her comments mostly seem to address Epic's (dis)honesty in describing its motivation, they are not some deep statement on the foundation of antitrust law. The case is going to a jury trial.

Well, whose interpretation of the law should get more credence - yours or the judges?

Initial remarks do not constitute a decided interpretation.

Wouldn’t you say that it is a more accurate representation than a random person on HN?

I'd wait for the verdict.

I'd say that the most accurate representation is that of what the official government website is saying.

So it should be an open and shut case then shouldn’t it? We don’t need things like expensive lawyers, trials, a complete reading of the law and precedents. All we need is a laymen’s summary interpreted by random people on HN...

So this case should be a slam dunk, huh? But you know the actual judge in the case must not have read the website. You should send her a link.

> So it should be an open and shut case then shouldn’t it?

No thats not what I said. I don't think that you haven't actually paid attention to anything that the judge said, or the opinions of the supreme court.

Instead the important question in this trial is based on what the market is defined as, and not the irrelevant stuff that you are bringing up.

That is the important question here.

But it is not at all controversial, that a company does not need to be a singular firm, in order to break anti-trust law.

Thats not controversial. The judges agree with me. The supreme court agrees with me. You are disagreeing with the multiple pieces of case law.

Instead, the question that matters, is what the market is defined as.

So, for example, if the market is defined as "smartphones", then that means that Apple has 50% of the US smartphone market, and therefore there is a good chance that Apple falls under anti-trust law.

If, instead, the "market" is defined as the game console market, as Apple is trying to claim, then the argument gets much harder that Apple would fall under anti-trust law.

So, the question at hand, is, is the market "iPhones", "smart phones", "game consoles", or maybe even "general computing devices".

And depending on which of these market, the iPhone falls under, then apple court either be breaking anti-trust law, or not. But the fact that they don't have a literal, singular monopoly is not the question at hand that matters.

I would really recommend that you read up more on anti-trust law. Because I am not saying anything controversial here.

> But you know the actual judge in the case must not have read the website.

The judge actually agrees with me, not you. She agrees with me, that the important question that matters, is how we define the market. I would recommend that you listen to the trial hearings yourself, if you are able to find them online. You'd understand what I am saying to be true, if you had actually listened to the judge.

I know this, because I listened to the judge, live, say this in the court hearing, that the important part of the case is how the market is defined.

It is really funny that you are not aware of that, that the judge agrees with me on this, and is aware that one of the most important question at hand, which requires the trial, is how to define the market.

There are ways that you can attack this idea that Apple is breaking anti-trust law. But the ways that you are attacking it are not supported by the law, the supreme court, or the judges.

You should read up on the actual important questions at hand, in this case. Because there really are some interesting questions here. Specifically, the question is how the market is defined, which is the important part. But none of the stuff that you brought up are the things that the judges or lawyers care about.

Really not sure why you think that you know more than the supreme court, or the judge in this case. I got my information by listening directly to the judge, live.

If you would actually like to learn what the supreme court has said on the matter (Instead of just trolling, when it is clear that you haven't actually done any research on this issue), then I would recommend you read this link:

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

This link has actual references to specific supreme court decisions.

But I guess if you are not going to care what the courts says on the matter, which are the literal, ultimate authority on the issue, then I am not sure what to tell you.

You can physically go read the opinions of the courts on this yourself. They agree with me, not you. I am going to trust the opinion of this from actual judges the matter, myself.

But, if you are only willing to do a small amount of research of your own, then the case that I would recommend reading is "Hayden Publishing Co. v. Cox Broadcasting Corp", as well as "Broadway Delivery Corp. v. UPS" and "Yoder Bros., Inc. v. Cal.-Fla. Plant"

These cases the judges found that a "party may have monopoly power in a particular market, even though its market share is less than 50%". In another one they rejected "a rigid rule requiring 50% of the market for a monopolization offense without regard to any other factors"

Those are directly from the court cases. They are directly from the judges.

And you quote a lot of cases based on your opinions. But, the judge in this particular case didn’t agree with Epics argument.

So you are just going to completely ignore the actual judges that I quoted?

> But, the judge in this particular case

The judges have specifically agreed with me on the issue that I brought, which is that the important issue in the case is the market definition. Please do not try misdirect from what I am specifically saying here.

So, to restate, the important issues in the case are the market definition, and not anything that you brought up. And the judge agrees with me on this, regarding what the important issues are in this case, and do not agree with you on that.

Your argument may have had some legitimacy as a proxy when all were cases that may be similar to what is being argued about Apple.

But now we have something better - a real judge hearing arguments about the facts on the ground. Not just a laymen’s interpretation.

Especially in this particular case, the judge brought up consoles and PCs as Epic’s market and didn’t buy its attempt at defining the market in a way that was convenience.

> a real judge hearing arguments about the facts on the ground

The real judge agrees with me, and not you, and agrees with me that the important question about this case is what the market is defined as.

> the judge brought up consoles and PCs as Epic’s market

So you are now completely agreeing with every single point that I was making, and admiting that you were entirely wrong, and now recognize that I was correct for pointing out that the judge thinks that the important question for this case is how the market is defined?

That is what you are doing for pointing that out, lol. The judge agrees with me that the important points about this case are how the market is defined, and not anything that you brought up.

> But, if you are only willing to do a small amount of research of your own, then the case that I would recommend reading is "Hayden Publishing Co. v. Cox Broadcasting Corp", as well as "Broadway Delivery Corp. v. UPS" and "Yoder Bros., Inc. v. Cal.-Fla. Plant"

Have you actually read through these cases yourself? None of these are Supreme Court cases, and none of them actually found that the defendant held monopoly power.

The first case was remanded back to the district court for further proceedings to determine whether the defendant actually held monopoly power, but it doesn't look like anything further actually happened (perhaps it was settled out of court).

The second case found that the plaintiffs failed to present evidence that the defendant actually held monopoly power and the court therefore affirmed the judgement for the defendant.

The third case found that the defendant only held 20% market share in the correct relevant market and therefore did not have monopoly power.

The only thing these cases say is that it is theoretically possible for a company with 50% market share to hold monopoly power, not that courts have actually ruled that way before. Furthermore, even if they had, it's not relevant to Epic's lawsuit because Epic is not alleging that Apple holds monopoly power in the smartphone market. Instead, they are alleging that Apple holds monopoly power in the specific sub-market of "distribution of apps on iOS devices" which they by definition have 100% control over.

> none of them actually found that the defendant held monopoly power.

This specific comment chain is about the concept of if there is a definite threshold, that a company must be larger than, in order for it to have monopoly power.

> The only thing these cases say is that it is theoretically possible for a company with 50% market share to hold monopoly power

Yes. That was the point that I was making. That a firm with 50% market share could hold monopoly power. That was it, and I was making no more points than that.

The other person that I was responding too has incorrectly strict definition of "monopoly power", in that he believes that there has to basically only be a single firm in the market, that is backed up by the government, in order for it to have monopoly power.

And thus I have provided definitive evidence, that the courts have held, that his threshold is incorrect.

And I was making no other points, other than to say that it is false to claim that in order to have monopoly power, a company much be "the only game in town", and backed by the government, as the person I was responding to incorrectly claimed.

> it's not relevant to Epic's lawsuit

It is relevant, because the courts have not ruled what the relevant market is yet. Even though Epic is initially trying to define the market a certain way, ultimately, the market could be determined as something else.

I agree that there are interesting questions here, to be decided, as to what the market is. But, unfortunately, it is not really possible to have a discussion with someone about the interesting questions, if they are going to spread misinformation on the uninteresting, and completely uncontroversial parts.

At this point, it took me paragraphs and paragraphs, when the original commenter who was engaging dishonestly, and ignoring court precedent and information on government websites, all in order to try and establish an uncontroversial point that they were contesting, which is that a company can have monopoly power, even if they are not the only singular firm in the market.

> The case is going to a jury trial.

Unless something has changed, we don't actually know that yet. Epic specifically requested a bench trial and Apple has until 5pm today to decide whether they want a jury or not.

Smae with Microsoft and internet explorer. People could just choose not to buy windows. I guess anti trust laws have changed in the interim.

I wonder if that would enough to push companies like Adobe to make a linux version.

You can still distribute a Mac App outside of the App Store, without a fee. It's pretty clear, as I think is Apple's strategy, that there is a line between Mac and iOS when it comes to possible use cases.

I'm curious to know what they plan to do with iPad OS though... the MacCatalyst and Swift UI strategy will be interesting to watch evolve in light of these challenges.

The rate is irrelevant to the question of Epic vs Apple. In their case, Apple had terms already in place which Epic agreed to in order to develop on their platform. Epic then decided to try to defy those same terms by challenging them in court. The judge pointed out that's not how T&Cs work.

If Microsoft introduces wiOS (Or OS W?) in which you can only run applications you install through an app store, then users and developers will decide whether that's an experience they want and if it is, then an ecosystem will develop around it just as happened with Apple. If not, it will just be an expensive lesson for Microsoft while everyone remains on their preferred OS.

If it turns out all major OSes lock their users into app stores and there remains a significant market for users who don't want that experience, the market will be primed for another OS competitor to take that share.

I'm sorry, but you make it sound very trivial to create an OS. I don't think there's a level playing field there.

? huh? We’re literally talking about Microsoft here.

Of all people, Microsoft could do it. They have before. A Windows X with a appstore only would be a trivial variant for them.

Either way, it’s irrelevant to the parent comment: if you agree to the terms, they willfully defy them... well, you’re violating your commercial agreement.

What next, I sue amazon for discontinuing my AWS services when I start running spambots on it or some other willfull violation of their avceptable use policy [1]?

Its ridiculous.

The only ones winning here are lawyers.

[1] - yes, they do have one, and you will get suspended if you violate it. https://aws.amazon.com/aup/

Microsoft windows on mobile failed. One of the biggest reason was lack of external services and apps. If Adobe stop working on MacBooks, they won't be lucrative to many people anymore. And Adobe won't build for an OS without users. It's the same problem as social media but worse.

Early market movers have an advantage and that will keep growing.

Another reason why many hospital systems, military, etc department pays microsoft to support XP. Those OS aren't "better". Most people using them won't choose them over windows 10 or Mac if given the option.

It failed because Microsoft gave up on it, while not having the patience (and money) they had with XBox.

Windows Phone was already reaching 10% mark when they gave up, and were the Android alternative to many Europeans.

The proof being that in what concerns tablets, most people around here not carrying iPads, are carrying 2-1 Windows laptops with detachable keyboards, not Android tablets.

Install Ubuntu ?

As long as Linux can be installed on desktops you technically have a choice.

It's not trivial but not impossibly hard either.

You have open source Android or Linux to start with.

Windows 10X.

" the market will be primed for another OS competitor to take that share."

No.

There are massive barriers to entry for some markets, particularly platforms, and it's naive to indicate that 'some competitor will come along'.

Many markets are 'locked down' to the point wherein there is very little competition among them, and high tech gives us many examples of that.

Not saying you might not be right this time, but that was literally the view of the mobile phone market in 2007...

Ed Colligan, CEO of Palm: "We've learned and struggled for a few years here figuring out how to make a decent phone, PC guys are not going to just figure this out. They're not going to just walk in.”

There were mobile phones, the 'in between' BlackBerry, then smartphones.

Those were fundamental market disruptions and it doesn't happen very often.

Some markets do that every 'generation' (gaming consoles) but usually not.

Laptops may have presented such an opportunity, but they were slowly differentiated from the desktop.

So 'new markets happen' and during that time, yes, there's opportunity for new participants ...

But who 'won' the 'new smartphone wars'?

Apple and Google. Literally the two richest companies in tech. (Or close to).

That 'new market opportunity' was championed by none other than the giant gorillas of tech (and business) says something about the nature of power and competition.

Didn't they try to add an app store with win 8? And failed miserably for quality reasons?

Yes. Windows RT was what it was called, and it was Windows locked down to only run store apps. The market decided it sucked and it ended up failing.

Oh there will be an outcry of angry developers the magnitude of which has never been seen before but I also think that MS should be legally allowed to do it.

If Microsoft wants to start doing that in their app store, I don't see why they couldn't. But they'd be competing with all the other app stores available for buying PC software (as well as physical stores selling physical media).

But Microsoft doesn't make hardware that's the only target for their desktop OS, so they don't have the market lock-in Apple does, nor could they claim the app store and the hardware they don't make are part of the same product for PCs running Windows.

In contrast? They already do this for the XBox Live store, where they are the sole online distribution channel for software running on the console they manufacture.

They've already begun the process. There's a "Windows 10 S mode" that when enabled, only allows running programs downloaded from the Microsoft store.

> She also said that walled gardens have existed for four decades and that what Apple's doing isn't too different.

In relation to this lawsuit it's mostly the same, but in general it's way different. The iOS is not a gaming platform. While gaming consoles are purely for entertainment and mostly optional in almost everyone's life, phones are not. The iOS walled garden is a lot more like a Windows or Mac walled garden would be, if it existed, which would be horrible.

Phones are somehow not accepted as a general purpose personal computing platform, while they clearly are. I don't think Epic Games could reasonably sell that argument in their position, but it doesn't mean they are wrong.

TBF, Apple is trying to make Mac a walled garden.

Trying? It virtually is already.

Want to put out some software and not pay the $99/year Developer Fee and still have a simple install process for your users? Good luck with that.

Install Brew

Brew install whatever you need.

Apple is doing a decent job here. Art Student gets a very easy to use computer with a safe app store.

Comp Science student can compile and install whatever they need.

They even ship brew now, don’t they?

> simple install process for your users

Those are the pertinent words. Yes, folks like us have no issue going to Terminal.app and `brew install whatever`, but most "regular" users are going to baulk at that idea.

People have been saying this for years but there is no evidence. You do need to sign your apps in most cases these days but they don’t restrict you from downloading anything you want.

No evidence? Every release it gets slightly more difficult to download apps from non apple sources. If you download an app you need to know to go to the security panel, log in, and then click allow. It's only to get more difficult. Apple has so much to gain by pushing osx to be more like ios.

Not really. The Mac is increasingly a only professional tool. Apple needs developers and scientific users to continue to use the platform.

More importantly they are on record in detail as completely denying this idea and asserting that they want people to be able to install whatever they want, and have access to all levels of the system. This is why you can switch things like SIP off.

If you download an unsigned app you need that rigamarole, but it’s easy to distribute a signed app from your website, and a user who knows what they are doing has no real difficulty.

This reduces the chance my 85 year old mum will accidentally download malware while still making it easy for me to install whatever I like on my machine or, for that matter, hers.

And they document how to switch off that protection if you’d like as well.

I wish I could side with one of the parties in this case but it's too complicated, too fucked up.

Epic would be perfectly happy with a big-boy exemption for Fortnite that the "little devs" (who actually might be hurt by the 30% cut or "walled gardens") would never see. They're half owned by Tencent, which stands for everything wrong with exploitative F2P tactics and China's foot-in-the-door politics. I don't want them to win.

But Apple, of course, is clearly planning to cut off open platform development in favor of a single-store system, slowly creeping into macOS. Worse: Microsoft is learning from them and will clearly attempt to replicate any such system should they be successful, which would end up in something closer to a true monopoly.

It's kinda awful. I wish this wasn't two companies suing each other over creed but an actual investigation by a government agency for exploiting a monopoly position.

There is some hope from Europe, but I agree with the rest of your comment.

So as soon as I use a PS4 to do something other than play video games, Sony should be forced to abandon their current business model? Seems like a shaky distinction to me. “General purpose computer” is an opinion, nothing more.

Replace /PS4/PS3 with OtherOS/ and we see that Sony wasn’t forced to open their platform.

The reason that consoles are not accepted as a general purpose platform is because the manufacturers have gone even farther than phone manufacturers in locking them down. Consoles are just computers with gaming-oriented operating systems.

Consoles couples hardware generations with appstore, the iphone store has one appstore for all hardware generations. That is a huge difference. There is no iphone3 appstore where I can buy iphone3 apps, in fact iphone3 stopped being supported so likely there are many apps that you can no longer install that worked just fine before. However there is still a ps3 store where I can buy 14 year old games and they still work with no maintenance required from the developers because their ecosystem doesn't break things.

> There is no iphone3 appstore where I can buy iphone3 apps

Of course there is. It's called the App Store, and it's where all of the apps that support the iPhone 3g are. And just like your example with the PS3 these apps are likely not maintained. The fact that you can't download the latest version and run it on an iPhone 3g is no different than not being able to play PS4 games on a PS3.

I have an iPhone 4 in my desk, as a reminder of how quickly the world moves. I just turned it on. It connected to wifi and worked just fine. I'm sure no different than your PS3.

Many apps you could get and run on iphone 4 like youtube no longer exists or no longer supports iphone 4. It isn't the same thing. If you could open up your iphone 4, go to the appstore and buy the same apps and run them just fine like you could 9 years ago then it would be the same thing.

Actually you can.

I had a first generation iPad that I dug up last year. If the newest version isn’t available, you can still download the “last compatible version”. In some cases, the backend APIs that are needed to support the app have been deprecated.

This is a similar argument lawyers made.

And the judge explicitly disagreed.

I don't really agree that my phone is a "general purpose computing platform". What detail makes something a general purpose computer? Is it true that only games can run on it (what about Netflix clients and media browsers)? My Android media player has a CPU, video output, and runs some games and some non-games. Does that make it a general purpose computer?

Unfortunately, there are no antitrust laws whatsoever differentiating products based on whether they are "general-purpose" or not in the United States, and there is also no court precedent for such a distinction. Thus, from the law's perspective, an Xbox is a product just like an iPhone, and any ruling affecting one also affects the other. "General-purpose" has no legal meaning.

Personally I don't think it's fair to compare Apple to any of the names (Playstation, Xbox, Nintendo, Amazon, Walmart or Best Buy) since a videogame from Sony, Nintendo or Microsoft can be sold on Amazon, Walmart or any other store. And you can open your own store (F-Droid for example) in Android.

Why isn't it a fair comparison? Just because the big video game companies have multiple channels of sales it doesn't mean they don't collect their cut for each sale. It's very much the same thing just slightly obfuscated. Access to the platform is still restricted and those who want release content have to pay.

I think the relevant market here is phones. Anything that can substitute for a phone and reduce sales of phones. Within this market, devices have long been able to run whatever apps were compiled using relevant free SDKs and downloaded from any website. iPhone/iOS was the first phone to not allow side loading.

On the Nokia 3310? Or a rotary phone? What is a “phone”?

There is a huge difference between having access to a single channel and 2+ channels. It promotes competition among the channels. What if Apple takes 30% of your phone bills, because it just can. What if Apple and Microsoft starts restricting the applications that you install in their OS and then start charging 30% of all programs that you install in their OS?

So what you're saying is you want EA to be able to have its own store on iPhone where Apple collects 30% on the backend anyway? Because that's what Sony, Nintendo, and Microsoft do now. I don't see "I should be able to purchase iPhone apps at Target" as a compelling argument, much less relevant to the case at hand.

Between the creator and consumer, choices should be available and not restricted to any specific platform. The creator (or the distributor willingly chosen by the creator) can fix whatever the price and should be able to distribute it via multiple channels. And the channels can charge whatever percentage they want, as far as consumer has access to alternate channels. Apple/Microsoft/Google should either allow alternative channels to be available if consumers wish.. or else, they should agree the app stores to be treated like utilities (utilities are heavily regulated with pricing, profit margins, etc). FAANG are already too powerful and why do you want hand over more power to them? Imagine, Microsoft allowing only Edge browser and not allowing any other browser in Windows OS.. and then start charging 30% for all payments done via the browser. That's what happening in app stores. Soon, Oculus will do the same thing in VR world..

> Between the creator and consumer, choices should be available and not restricted to any specific platform.

So don't, then. Apple doesn't force developers to make iPhone exclusive content. And consumers are not forced to use only one device. This whole issue is merely developers complaining that they want cheaper access to the most lucrative markets. It has nothing to do with consumers.

will you make same argument if Microsoft makes Windows OS a walled garden with Edge as the only browser? will it be justified that there are Linux alternatives and no one is forcing users to use Windows?

Your reasoning is valid if Apple happens to be not so big player or if Apple has many alternatives. Between iPhone and Android, do consumers have any other choice? Between Windows and Mac, do consumers have any other choice?

I don't really care that Chrome is the only browser on a Chromebook, no.

Wait, there’s competition between retail channels? Great, I’m looking forward to getting the next major AAA game for a discount at Target due to this so-called competition with Wallmart.

Just kidding. It’ll be $59.99 at both stores. There is, practically speaking, no competition in the retail space either.

But Walmart does offer a discount, Walmart sells most new Nintendo Switch games for $49.99 rather than $59.99.

That's a function of it being a Switch game, not a Walmart discount. They'll be the same price at Target.

Nintendo Switch titles tend to cap at $50, not $60.

Where are you getting that from? Nearly every "large" switch title has a price of $60. Including ones that are years old.

https://www.nintendo.com/games/game-guide/?pv=true#filter/:q...

Fair enough - I personally recall seeing a lot of titles at the $49.99 price point, but the Nintendo store itself is infinitely more accurate.

It doesn't change the underlying point, however.

No, it doesn't because if you purchase thru Walmart.com they are offering some titles "below" the retail price by Nintendo and Target.

I think she’s referring to licensing fees. Not distribution costs.

Not all videogames can be sold by a retailer. To use the Nintendo example, not all of the games sold in their store can be purchased from Amazon, because physical cartridges don’t exist for those games. In fact, most indie titles (Among Us, for one example) can’t be purchased from Amazon, Wallmart, Target, etc. Nor can they be re-sold.

How much does a retailer like walmart charge on a transaction like a video game? I'm not sure but I'm inclined to guess it's more than 30%

It's likely they add 30% to what they pay their supplier. At least that's what it was like 15-20 years ago when I worked in a games store, for PC and vide games. Board games have better margins.

Interesting. So maybe that's where apples 30% margin comes from. Retail stores charge that so they figured a virtual retail should charge the same. Except it has a much lower operating cost.

There are also a couple more levels in a physical supply chain, each adding their own percentage: manufacturer, distributor, probably a few more I don't know about.

When Apple introduced the App Store with iPhone OS 2, didn’t they claim than 30% was less than half what retail chains could charge?

While the XBox also supports physical media, there are some digital-only titles that can only be loaded via the Xbox Games Store.

And physical media is always a far worse deal for developers than 70% of digital sales. Developers might only get 20% of physical sales.

For now. Both next-gen consoles have "digital-only" versions. I myself have opted to preorder the digital versions of both, because I see no reason to own physical games anymore.

It's only a matter of time until this will be the only option. Will your argument change when this comes to pass?

All of the console makers still charge a license fee for each game sold - even on disk.

Also, some console games that you buy on disc lock features behind IAP. Even when you sell the physical disk, you can’t sell the associated in app purchases.

Buying those games from Amazon, Walmart, or any other store still results in a license fee paid to Sony, Nintendo, or Microsoft: 30%, in fact.

Distribution is not determinant in license fees.

The reason the comparison is reasonable is because console manufacturers exert the same level of control over their platforms that Apple does, even when a physical copy of a game is sold in a store. The manufacturer still gets to collect their royalty from that sale, and the manufacturer still has approval rights over the game itself.

Yeah, go try selling a PlayStation game without paying Sony. Sony gets its cut no matter you got online or in store.

I don't understand why Epic don't persue the argument of an unlevel playing field.

Amazon don't have to pay 30% for every transaction I make through the Amazon app on my iPhone. Same with eBay. Yes, I know Apple class these as different categories, but when push comes to shove what's the real difference here?

Epic are providing electronic assets that they have paid in-house artists to create and want to distribute in exchange for their in-game currency (V-Bucks). Why should Apple cream 30% off the top of that revenue?

Other than the electronic distribution, Apple has no fixed or variable costs relating to these in-game assets.

I fully agree Apple should take a cut of Fortnite being a reviewed, and therefore trusted, app on their store. I find it hard to justify the ongoing 30% cut of additional assets that bear no discernable cost.

Take your average high end mall, Apple negotiates with the mall owner to pay much less than other stores because having Apple around makes the mall more attractive. Equally unfair as the Amazon case?

Every business owner, mall owner, or head office of a franchise takes a large cut of the profits with likely little in fixed or variable costs. Saying this should change is like arguing society is fundamentally flawed. With the market as it is now Apple can ask for the 30% just for being associated with the brand.

So is this case is going to determine if phones are general purpose computers or game consoles?

Many people use a phone instead of a computer, often it's an individual/families only internet access. I don't think there are any examples of general purpose computers acting as walled gardens.

Edit: Change first sentence to question.

> if phones are general purpose computers or game consoles

There is zero law that makes this distinction.

True. I wonder if there needs to be.

It worries me that game consoles, an appliance used for playing games, could be used to set a precedent for general purpose computing that could quite possibly lead in a direction non/very few of us want to go.

Gaming consoles are no longer just gaming consoles. They’re also web browsers (albeit inferior ones) and media consumption machines (music and movies).

One could even argue that they’re media creation machines, with the presence of RPG Maker (and a few other pieces of software I can’t recall the names of at the moment).

Interesting point.

That being said, the only uses I've seen consoles used for are gaming and media consumption. I know there's web browsers on there, but I don't think I've ever actually seen one used.

As for media creation, I don't know. There's certainly an argument to be made for it, but I don't know where playing a game stops and making a game begins.

Some people make a living broadcasting livestreams exclusively from consoles. I think that counts as "media creation."

I know people who do use them over a computer

I think it’s a bad road to go down to have different legal precinct based on an opinion about how certain devices tend to be used and the subjective importance of them.

Also, I can’t help but notice the circular logic—a game console isn’t general purpose because it’s locked down so as not to be general purpose.

Legal battles that are won by "the wrong side" are a solid foundation for making new laws.

The user owns the device. They should be able load software without apples blessing.

The problem is simple. There is no way for a user to load their own signing keys for the boot ROM to load other OSes like linux, or even simpler disable signature checks.

There is no way to give iOS your own signing keys or disable signing checks to run applications. As such there is no way for me to run Firefox rendering engine. This is because the app store policies. Then there are other open source applications that don't want to bother with having a developer account with apple.

There also the fact proprietary software probably raises their prices. So the user eats the 30% instead unlike the case if that software were able to self distribute.

The user agreed to the inability to load whatever software they wanted when they purchased the Apple device.

A purchase is not a contract. The closest thing is the EULA for iOS and I am not sure it states such a restriction, but lets assume it does. Still then the user should be able to load an other operating system.

That's an interesting point that I'll have to reflect on more. Thanks.

Regarding the 30% app store charge, if you were giving 100% of the sale, wouldn't you then be personally liable to collect VAT and country specific tax yourself to sell worldwide? I feel this is glossed over as the admin + complexity for this is a real burden if you have to deal with it yourself.

Apple collects > 100% to cover the VAT and sales tax (sticker price does not include them).

When Apple has to pay transaction costs and country specific tax for you, deal with the tax admin, while also managing the app store, if 30% for this is unreasonable, what's a reasonable amount and why?

Many countries have VAT at around 20% on each sale for example so wouldn't Apple be losing money if they went down close to even 20%?

VAT isn't included in the 30% fee so you have to pay that as well. Apple just handles the transaction and the paperwork, they still get their full 30% cut.

It’s true that 30% cut is AFTER VAT is paid. It’s also true that Apple handles VAT for the developer, and that’s a real mess. So in the list of things that the 30% pays for, VAT handling (and all invoicing in general) should be remembered.

I read a couple of comments here from people alleging that the judge is trying to protect Apple. According to Wikipedia, in the past, she "adjudicated various cases against Apple": https://en.wikipedia.org/wiki/Yvonne_Gonzalez_Rogers

You may be misreading that line. It says she adjudicated two cases against Apple (besides this one), and both were found in favor of Apple (one by her, one by a jury).

This is the way it's going to go if developers keep saying it's about the IAP premium and not the fact that apple is literally selling access to people's phones in bulk.

One of the few benefits of the walled garden that often gets forgetten by developers is the anti-piracy features. On iOS, installing a pirated version of an app is exceedingly difficult for most people, and that (theoretically) improves sales.

If Epic were to allow side-loading on iOS, developers may notice a financial hit from increased pirating of apps.

These hypothetical losses are easily offset by the apple tax.

Epics actions may have been dishonest, but what rebellion is?

Regardless, Epics actions don't remove the case that Apple has a monopoly and uses anti-competitive practices to benefit itself at the cost of the consumer and creator.

Sure, but you can understand why courts aren't in the business of allowing themselves to be a vector for rebellions. ;)

Fair enough :)

Anti-competitive practice to benefit itself? Yes, Apple sure has done this, as has Epic and every business ever. A monopoly though? I mean I guess, as much as Epic has a monopoly on its App Store.

I keep reading this analogy, but it does not make sense.

Apple is controlling access to customers with iOS devices. There is no alternative.

Epic is not. Any competitor can sell to the same people that buy from Epic's store.

Not GP, but this is not exactly correct. Epic has been buying up releases to sell exclusively (just like consoles do in their walled garden monopolies).

Yeah, it's funny how people conveniently forget that and cry for the poor billionaire underdog.

And they're warring about the commission on ... in app purchases ... on a predatory free game aimed at teenagers?

Yes and doesn’t Epic offer self serving discounts on fees I’d you use their own game development platform?

But I can’t buy virtual currency somewhere else and use in Fortnite. I still have to go through Epic to buy digital goods on their platform.

Right exactly, you’ve narrowly defined a monopoly for your argument as “mobilizing iOS devices”, just like Epic had a monopoly on its App Store. There is a 100% analogous alternative to iOS devices: Android devices.

Pay to play app stores are a symptom not a cause of a broken internet. Sideswiping a pay to play distribution scheme does not a hero make.

Epic can fight back all walled gardens are monopoly and he is fighting a dragon or dragons using his wooden weapon on his epic horse. Even sing the song “To dream the Impossible dream ...” is as delusion as the original novel or movie.

It can fight the 30% but as long as Apple allow small business and people like us pay 99 get publish I am on that m... walled garden side.

Too bad Epic’s trial wasn’t held in the court of HN public opinion.

"That’s the security issue. That’s the security issue"

Its' not honest, but it's definitely not 'the security issue'.

Christ even judges believe in "platforms" now.

Apple gets to write the terms of service and you must do whatever is said. It's inherently anti-developer. Duh Epic broke the contract.

I'm not sure what people are expecting the legal system will do in favor of Epic. At best Apple will be found to use Unethical cornering the market strategies, but that's unrelated to the TOS.

You get to accept it, or not. That is 100% on you.

so many things wrong here.

platform. walled garden. precedent. dishonest. ... load of judicial bs

everybody charging 30% is evidence of monopolistic behavior, not a defense argument

judge is okay with walled gardens because she works in one

If everyone is a monopoly then no one is.

> “You did something, you lied about it by omission, by not being forthcoming. That’s the security issue. That’s the security issue!” Rogers told Epic

Why does that sound like it's a reality tv show?

That's what stood out to me, too: how is "not being forthcoming" a security issue? I don't have confidence that the judge understands the technical parts of the case. They might not matter, depending on the legal issues in play, but if they matter, this quote seems a bit clueless.

The lie-by-omission is leaving out the security aspect of having a walled garden. It’s not well expressed if you read this as an essay, but it is natural for on-the-fly spoken language.

Apple's argument is that they provide a guarantee to iPhone that all the apps in the App Store are safe and secure. They can't make that guarantee if developers add secret features the reviewers don't know about.

Yet the developers can clearly add secret features and sneak them past the review as it's been trivially demonstrated by Epic.

How do you know it was a trivial demonstration? As far as I've seen the details of how Epic did it aren't known.

They can display links depending on response from servers, a pretty basic functionality required for many apps. So "hacking" the appstore is as simple as updating their backend with a "purchase here, 25% cheaper" link to their own webbpage.

Sure, it’s mathematically impossible to guarantee the behavior of an app in advance.

That’s why Apple needs to be able to remove or disable apps that pass review through intentional deception.

Edit: for that matter they need to be able to remove apps that have unintended bad consequences too, at least until developers have a chance to fix them. Like they did with Zoom on the Mac.

> Yet the developers can clearly add secret features and sneak them past the review as it's been trivially demonstrated by Epic.

And then they promptly got removed from the App Store, which is what this is all about.

I mean honestly, is anyone surprised? Apple is America's golden child and you can be sure no one in the U.S. is going to touch it.

Our biggest hope lies in the EU, at least they try to fight these giant corporations..

> you can be sure no one in the U.S. is going to touch it.

That hasn't been true historically.

Apple should provide a button to basically permanently liberate the hardware. You no longer get security updates from Apple, perhaps there's a permanent light that turns on on the front so that any buyers know that this device no longer belongs to the Apple ecosystem and could be compromised. The phone cannot talk to Apple services. You can install whatever you want and lose all warranty coverage.

It would rebut many of these complaints but I honestly don't think it would be very popular.

Not particularly impressed by this judge. Her biggest arguments boil down to every 6 year olds favorite "Well other people do it too!". That doesn't justify the practice so much as illustrate how pervasive the practice has been allowed to become.

I also fail to see how that is relevant. She comes off as overly interested in Apple succeeding here.

It’s very relevant. If other people do it, and it’s a problem, then this isn’t about Apple. It’s about the practice, and the scope of the case should be much larger and apply to everyone.

I support that outcome. I don’t think Apple should be targeted. If walled gardens are bad, they should be banned everywhere, not just the one Epic happens to want to profit from.

Not to mention that in the legal system, other people doing something is called precedent, and it’s a very important thing in (US) law.

AFAIK, this is a hearing for a preliminary injunction, not the actual trial itself.

That means that saying, "Well, other people do it too" is exactly what a judge should be examining at this point. There was a T&C contract, the form of which is standard across the industry, and Epic broke the T&C on purpose. Which likely means no injuctive relief at this point.

You could argue that the T&C are onerous and/or that there are anti-competitive behaviors, but neither of those can be addressed in this preliminary phase.

I don't see any basis for claiming that the judge has an "over interest" in Apple succeeding. That claim implies impropriety, and such a claim should carry a high bar for evidence.

The judge is right in many many things.. but this one caught my eye

> Microsoft has had a walled garden.

No it doesn't. I have never purchased anything from Microsoft. 90% of the software I have purchased is straight to the vendors (e.g. InternetDownloadManager, ACDSee, etc.). The remaining 10%, even when it comes to Microsoft products (OS, Office), I purchased them back-in-the-day from stores, and I got the CDs/DVDs. Same with computer games. AoE, Diablo I-II-III and expansions, and many more.

I know that M$ tried to pull everyone through their (imho) crappy Store, but still, I can get everything I want/need outside their marketplace and straight from the Devs, bypassing their store. Unless the Judge strictly means the mobile app store, in which case, I exited WM6 a 10+ years ago and have no knowledge of this.

XBox is the walled garden, not Windows.

Not to mention, the Epic store itself is a walled garden!

The epic store is not a walled garden. If you use Windows you have many choices of App Store, including just downloading from your web browser, and hell if you don't like what's on Windows you can install Linux. If you buy an iPhone you are forced to use the App Store and pay Apple 30% of every digital product you buy on it. It's intensely consumer hostile.

I'm a consumer, I find it to be liberating.

But yea the Epic Store is a walled garden. They don't let me publish whatever I want.

The actual Epic store is a walled garden. You’re intermingling two separate things. Epic won’t let you out a game in their store without taking a cut.

By that logic is your local supermarket a walled garden? They won't let you sell stuff without taking a cut.

...

Not sure what point you’re making here.

I guess so? They invested and developed their customer base, they deserve a cut of what my products I want them to sell like they take from every product they sell?

This is how the supply chain has worked since the beginning of time.

> is your local supermarket a walled garden?

Yes? Of course? That’s the whole point of a supermarket. To curate and distribute in exchange for a cut.

You don't know what a walled garden is. A walled garden, or closed platform, is a platform that prevents you from going outside the ecosystem, or platform, in order to use it's features.

To continue the supermarket comparison, it would be like a system where you buy pots and pans and a stove and what not from Whole Foods, but you can only use food you purchased from Whole Foods, and anyone wanting to sell you food would have to sell it through Whole Foods.

Open to closed is on a continuum [1]. What we include or don't include in our analysis is a matter of preference. As such, there is no one true definition of a walled garden.

For example, Apple doesn't dictate which electricity provider I use to power its devices. Does that mean it's an open platform? Of course not.

The comparison of the App Store to a grocery store is apt. They both leverage their access to demand to control (and extract profits from) the supply side.

[1] https://en.wikipedia.org/wiki/Closed_platform

Whole Foods has store brands. You can't buy Whole Foods' store brand items at any other store. That aspect of exclusivity is harmful to consumers, since if they want to get the store brand items from different stores they have to pay money (fuel/bus/etc) to go to each store.

I guess the main difference between what apple and a supermarket is that with apple you buy some hardware and are then forced to only get software from one store.

It would be like buying a house somewhere and are then forced to only shop at one specific supermarket as long as you live there. No more buying your stuff anywhere else.

Or like going to a concert venue and not bringing outside alcohol. Or going on a plane and having to buy airline food. Or going to a movie theaters and not being able to order popcorn from elsewhere. Or having your wedding in a church and not getting to bring your favorite rabbi in to do the service.

All business is bundling and unbundling.

I can go into my local grocery store, and if I don't like something about the Oreo's I can go across the street to a different grocery store and get my Oreo's there. Epic Games only lets me download Fortnite on my PC or Mac through the Epic Games Store, so no they are not the same as buying groceries.

That applies for brands that are sold across multiple stores, but what about store brands? I can't get kirkland signature products outside of costco.

If your local supermarket A-Mart sold A-Cars that refused to drive into other supermarkets parking lots then yeah. You could argue that you don't like other supermarkets practices and want to ensure you or your spouse or your parents don't accidentally drive there so you buy A-Cars for all of them. And it isn't a monopoly, these cars have only about 50% market share, if you want to go to another grocery store why not buy their cars?

Anyway, the point is that coupling things unnecessarily is dumb. There is no need to enforce coupling of hardware and software like Apple does, the only reason is to ensure that Apples strong points also lets them sell their weak points.

>If your local supermarket A-Mart sold A-Cars that refused to drive into other supermarkets parking lots then yeah.

But that's not what epic's doing? You can install EGS and steam side by side. Since there's virtually no lock-in, it's closer to "two supermarkets you can drive to" than "whatever app store you have preloaded on your phone".

I agree, this was to show the difference between Apple and Epic.

Most games on Epic Store are available on other stores too. How walled is this? And how much do they get for InApp-Income of the apps? Do they enforce it like Apple and Google?

Sometime (or often?) they have a time-exclusive offer for new games, but it seems they pay good money for this, so it's a simple business-descision for the gamedevs.

And if you use xbox you can buy your games from any videogame store in your town. Maybe the new digital editions will be but current ones aren't.

Even if you bought it in the store they already paid the Xbox tax.

It’s not consumer hostile, quite contrary actually. Maybe not pro-consumer or developers who do not want to pay hostile. Also, no one is forced to buy an iPhone. In fact, Android holds a significantly larger market share where you can go do everything you complain Apple doesn’t let you do. I buy the iPhone because I like knowing it will just work.

> Android holds a significantly larger market share where you can go do everything you complain Apple doesn’t let you do.

Some stats show iOS has larger market share then Android on US.

A citation would be really nice here; I’ve not seen a chart that’s put Android at less than 70% of the market share (usually it’s over 80%).

Sorry what I can do is Google it for you but I have no idea if the first Google results are correct

https://www.counterpointresearch.com/us-market-smartphone-sh... Apple leads in US smartphones with aprox 40% (not OS but devices)

https://gs.statcounter.com/os-market-share/mobile/united-sta... this one shows iOS at 60%

https://gs.statcounter.com/browser-market-share/mobile/unite... Safari has more then 50% share in mobile browsers.

You could install whatever you wanted on wm6

Due to the preceding Nintendo and Sony I had assumed she was talking about XBox there.

Whether you’ve used it or not, there is a Windows store. There was also a Windows phone store, and there is currently an Xbox store. The second two examples were and are walled gardens.

then the judge should have been more precise because this is a night and day difference. If Windows, the operating system itself, would function as a walled garden, that is to say every developer for windows would have to shell over 30% of their revenue, we'd have started a revolution two decades ago.

Apple's app store isn't comparable to the XBox store (revenue on the apple store was 50 billion last year, compared to three on the xbox), it's comparable in reach to the Windows ecosystem overall.

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