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> 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.

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

Are they legally required to do so?

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.