Apple vs Epic lawsuit stayed by higher Appeals court

[gjsman]

Summary

According to the Apple vs Epic ruling, Apple had until December 9 to allow third-party payment systems on the App Store. Apple refused to do this and appealed the decision and asked for a stay, which would at least temporarily prevent the ruling from taking effect.

 

Today, 1 day before the deadline, the 9th Circuit Court of Appeals granted Apple’s stay request until they can review the lawsuit, meaning that developers wanting to be able to use 3rd-party payment systems will need to wait… longer…

 

Quotes

Quote

 Apple has demonstrated, at minimum, that its appeal raises serious questions on the merits of the district court's determination that Epic Games, Inc. failed to show Apple's conduct violated any antitrust laws but did show that the same conduct violated California's Unfair Competition Law. [...]
 

Therefore, we grant Apple's motion to stay part (i) of paragraph (1) of the permanent injunction. The stay will remain in effect until the mandate issues in this appeal.

 

My thoughts

Epic’s lawsuit, so far, is even more fruitless.

 

Sources

https://www.macrumors.com/2021/12/08/apple-wins-epic-appeal-no-app-store-changes-yet/

[gjsman]

So, in a nutshell, the one count out of twelve (IIRC) that Epic games actually won is under review - and potentially, could be reversed leaving Epic Games with absolutely nothing. Except it would be worse than nothing, because it would make it harder to attack Apple for similar situations in the future.

[Brooksie359]

37 minutes ago, gjsman said:

So, in a nutshell, the one count out of twelve (IIRC) that Epic games actually won is under review - and potentially, could be reversed leaving Epic Games with absolutely nothing. Except it would be worse than nothing, because it would make it harder to attack Apple for similar situations in the future.

Just gotta find the one judge that owns stock in apple. Probably not that hard to do. 

[gjsman]

2 minutes ago, Brooksie359 said:

Just gotta find the one judge that owns stock in apple. Probably not that hard to do.

Well, to be fair, if you've reviewed any legal expert commentary (see Hoeg Law's 12+ hour commentary), the original ruling was not really a surprise at all under current US Law, which viewed Epic's claims (even if you morally agreed with them) as a huge stretch. The law just isn't on Epic's side. There's too many unresolved issues: For example, what's the difference between a smartphone and a game console? Legally, nothing at all. 

[hishnash]

4 hours ago, gjsman said:

There's too many unresolved issues: For example, what's the difference between a smartphone and a game console? Legally, nothing at all. 

Yer in the end epic is the worst company to bring such a case against apple.

Since:

1) They agree to Sony and MS who have much much more strict rules
2) iOS economically does not make up much of their income most of their addressable customers use other devices
3) the parent company also sells and SDK under a revenue share agreement
4) this was an intentional move that was planned so they clearly intentionally broke contract (if they had opened the case against before breaking contract legally they would have more chance of success but they knew they would never win)
 
If it had been an app developed who made an app that is clearly only relevant to mobile phones (not to desktop PCs etc) then the case would be much much stronger.

[Mark Kaine]

4 hours ago, gjsman said:

what's the difference between a smartphone and a game console? Legally, nothing at all

that was exactly epic's goal here of course,  they want their store on any device possible... in theory a good idea, the problem is , its epic,  one of the most terrible companies out there and yes that includes their "clay engine"  

 

imo yeah sure, short term a loss but they or others can try again... "little strokes fell big oaks" tactic. 

 

fun thing about that , it actually works, always, as is typical for a law of nature.

 

now if little timmy has the perseverance for something like that...

[gjsman]

The stupidest thing that even the judge couldn’t understand was that during the trial, Apple offered a compromise deal. The deal was like this:

 

If Epic removes the separate IAP option and comes back into accordance with Apple’s current policies, Apple will send all of the 30% cut from that point forward to a third party for escrow and allow Fortnite back onto the store. They would then be able to duke it out in the courts without affecting anyone, and Epic would get all of the revenue from escrow if they won.

 

Epic, to the judge’s bewilderment, would not accept this deal. Even though they put up no fuss on game consoles and license their own product with revenue splits. It appeared in every way that Epic was trying to use children in their fight against Apple and the judge did not take that kindly to Epic for it.

 

This is an area where if Epic was really fighting for developers, doing disputes like this by-the-book (and accepting Apple’s completely-reasonable interim deal) so as to have the most solid victory possible would be a no-brainer.

 

 

[AlTech]

8 hours ago, gjsman said:

Summary

According to the Apple vs Epic ruling, Apple had until December 9 to allow third-party payment systems on the App Store. Apple refused to do this and appealed the decision and asked for a stay, which would at least temporarily prevent the ruling from taking effect.

 

Today, 1 day before the deadline, the 9th Circuit Court of Appeals granted Apple’s stay request until they can review the lawsuit, meaning that developers wanting to be able to use 3rd-party payment systems will need to wait… longer…

 

Quotes

That's unfortunate, though Russia and South Korea seem to want to force Apple to implement the changes so idk if as a practical matter Apple will only allow it for South Korea and Russia or let everybody else have it after the Epic v Apple (and associated appeals) come out.

 

I do think there's a good chance the losing party in this appeal will appeal it to the US Supreme court. Normally there's not a large chance of them taking a particular case but for this case I think they'll go for it.

8 hours ago, gjsman said:

My thoughts

Epic’s lawsuit, so far, is even more fruitless.

No bad pun warning beforehand?

 

8 hours ago, gjsman said:

 

[AlTech]

8 hours ago, gjsman said:

So, in a nutshell, the one count out of twelve (IIRC) that Epic games actually won is under review - and potentially, could be reversed leaving Epic Games with absolutely nothing. Except it would be worse than nothing, because it would make it harder to attack Apple for similar situations in the future.

I'm beginning to think that winning the lawsuit was never part of the plan. Epic may filed the suit to get legislators and the public taking Epic's side so that when all the appeals fail the legislators can then introduce laws giving Epic what they wanted.

 

I think this is the strategy Epic is going for, whether or not it'll work is another matter entirely.

[Video Beagle]

3 hours ago, AluminiumTech said:

I think this is the strategy Epic is going for, whether or not it'll work is another matter entirely.

Epic really hasn't shown much 3d chess thinking, much less 4d chess in this whole affair. Nothing they did has been a surprise...it's all been very much move, expected next move, expected next move.

 

The count they "won", Apple had largely conceded already during the trial, and the appeal was based on wanting clarity and time to implement....I'm not sure they're even asking for overturn.

[Video Beagle]

4 hours ago, gjsman said:

 

This is an area where if Epic was really fighting for developers, doing disputes like this by-the-book (and accepting Apple’s completely-reasonable interim deal)

I honestly do expect some kind of action against Epic from unreal using developers based on Epic's actions causing blowback on them. 

 

I could see a scenario where Epic games and Unreal Engine need to be split into seperate entities...(I have no idea how you get to that point, what legal mechanisms could be used, or what actors would need to cause it, but that's for the script writers to figure out..I'm more producing this film).

[mr moose]

12 hours ago, gjsman said:

 For example, what's the difference between a smartphone and a game console? Legally, nothing at all. 

It that's important then why aren't they considering that for all practical and end user purposes,  a phone more closely resembles a computer as we traditional consider them.  They are a personal computational device that people use for internet browsing, running specific software pertinent to their lives and carrying out banking, shopping and much more.  In fact with people moving to phones and tablets from traditional computers the courts should be treating them exactly like a desktop/laptop. 

[hishnash]

31 minutes ago, mr moose said:

In fact with people moving to phones and tablets from traditional computers the courts should be treating them exactly like a desktop/laptop. 

Not sure that follows, just because a device is a personal device does not mean it needs to be a desktop/laptop. in fact if it were just a desktop/laptop it might well not be such a personal device (as we would not trust it with the level of data we trust our phones with).  


 

[mr moose]

6 minutes ago, hishnash said:

Not sure that follows, just because a device is a personal device does not mean it needs to be a desktop/laptop. in fact if it were just a desktop/laptop it might well not be such a personal device (as we would not trust it with the level of data we trust our phones with).  


 

It's pretty simple, phones and computers are both personal computational devices and people use phones instead of computers now.  Phones much more resemble a computer than a console.

 

 

EDIT: that should simply read,  significantly more people moved from a computer to a phone for everyday computing than anyone moved from a console to a phone for gaming.   If the court wants to determine that the phone doesn't break laws because consoles do the same thing then they are being incredibly disingenuous with the much larger portion of phone users who do not buy it for any console like functions. 

[Fasterthannothing]

Well this sucks. Android allows external payments why shouldn't Apple also? No excuses for then to lock their stuff down like that. 

[Kronoton]

10 hours ago, mr moose said:

It's pretty simple, phones and computers are both personal computational devices and people use phones instead of computers now.  Phones much more resemble a computer than a console.

 

 

Some consoles could (and still can?) be used as "personal computational devices" and if anything the fact that those devices being are crippled by their makers in that regard would make a somewhat more plausible lawsuit than the whole Epic vs. Apple stuff.

[mr moose]

1 minute ago, Kronoton said:

 

Some consoles could (and still can?) be used as "personal computational devices" and if anything the fact that those devices being are crippled by their makers in that regard would make a somewhat more plausible lawsuit than the whole Epic vs. Apple stuff.

I think from a legal argument,  the idea that identifying a device as being a personal computer or being a console heavily relies on what that device is primarily designed for and what consumers buy it for.  We by computers to run programs that we need/want.  We buy phones for communications and to run apps that we need/want, we buy consoles to play games.    As you point out, it's not semantically incorrect to call a console a personal computer,  however I believe using a console as a legal argument for monopolistic actions on a device who's only similarity is that you can play a game on it is very disingenuous.

 

The other problem this lawsuit has is that it is happening in the US,  they might have good laws about monopolies, but the courts haven't upheld those laws in quite a few decades.  I point to the state of the internet and monopolies that ISP's have as an example.

[Kronoton]

1 minute ago, mr moose said:

the idea that identifying a device as being a personal computer or being a console heavily relies on what that device is primarily designed for and what consumers buy it for.

Well thats easy, an iPhone is called the iPhone and Apple has no financial gains from whom the costumers calls or how often

 

O.k. taking you argument a bit more serious, most costumers use their phones for:

- making calls

- texting/social media

- navigation

 

Everything else is a distant also-ran

 

All these can be done with apps that come with phone or free alternatives or even via the web (bypassing the need for the App store).

[mr moose]

15 minutes ago, Kronoton said:

Well thats easy, an iPhone is called the iPhone and Apple has no financial gains from whom the costumers calls or how often

 

O.k. taking you argument a bit more serious, most costumers use their phones for:

- making calls

- texting/social media

- navigation

 

Everything else is a distant also-ran

 

All these can be done with apps that come with phone or free alternatives or even via the web (bypassing the need for the App store).

 

The point is the device itself more resembles a computer in its end use than it does a console.  As you point out all the reasons people use a phone have little to nothing in common with consoles making the "there is no difference between a phone and console" argument disingenuous.

 

Besides, I think you might be forgetting the apps that don't come with your phone that many people use.   Lots of companies have apps for their work forces to apply for leave and manager rosters etc, email and messaging apps (outside of the included ones i.e I use outlook on android),  industry specific stuff like calculators, look up charts, inventory control.  There are also emergency services apps and that's not forgetting things like dating and social engagement apps.   Many of these do not come with the phone and many of us don't want to use google or apple services.     Which to me makes the phone the more common choice over a computer (which sales figures and marketing from apple/samsung etc support).

 

 

[Kronoton]

So?

 

Whatever fine point the epic lawyer might wanna make on phones vs. consoles, rest assured the well  payed Apple lawyer will have a rebuttal ready for it, so unless they either find a law on the books pretty specific to that argument or a whole slew of narrowminded judges all though the appeals process thats just not gonna fly.

[mr moose]

1 hour ago, Kronoton said:

So?

 

Whatever fine point the epic lawyer might wanna make on phones vs. consoles, rest assured the well  payed Apple lawyer will have a rebuttal ready for it, so unless they either find a law on the books pretty specific to that argument or a whole slew of narrowminded judges all though the appeals process thats just not gonna fly.

This isn't an argument either companies lawyers have taken up, it was a postulation by the OP,  who claimed there was no legal difference between a phone and a game console.  My point is that it would be very disingenuous for a court to take that position when it is clearly more like a PC than a game console.   Whether or not that argument even sees light in a court room is almost moot.  For now it is simply a discussion on the merits of each device and comparisons that either highlight a genuine issue or are invalid. 

 

I tend to think if we are going to compare smart phones to any other device then the closest they resemble is a PC and therefore should have the same consumer protections one would expect on a PC.    

 

EDIT: not the least of which is that pointing to another company or product that does something just as bad is not justification for doing it.  I get tired of people defending a companies shit behavior by pointing to another company that is carrying on with shit behavior.   They should both be stopped.

[HRD]

15 hours ago, mr moose said:

It that's important then why aren't they considering that for all practical and end user purposes,  a phone more closely resembles a computer as we traditional consider them.  They are a personal computational device that people use for internet browsing, running specific software pertinent to their lives and carrying out banking, shopping and much more.  In fact with people moving to phones and tablets from traditional computers the courts should be treating them exactly like a desktop/laptop. 

 Epic made that argument and the judge said that they are no legal basis to distinguish phones from consoles' business model. if it is illegal to sell hardware and control software distribution to it then it is illegal no matter what type of hardware we are talking about.
second, there is nothing (legally) that prevents apple from shipping macs that only install apps from the app store in fact Microsoft already tried it with Windows RT and they failed because people did not like it not because it was illegal. there is no law saying a computer must allow side loading. The important thing is people know what they are getting. 
Apple always has shipped iPhones without the ability to side-load and people like it and buy it in part because of that and who do not can buy an android phone.

[mr moose]

7 hours ago, HRD said:

 Epic made that argument and the judge said that they are no legal basis to distinguish phones from consoles' business model. if it is illegal to sell hardware and control software distribution to it then it is illegal no matter what type of hardware we are talking about.
second, there is nothing (legally) that prevents apple from shipping macs that only install apps from the app store in fact Microsoft already tried it with Windows RT and they failed because people did not like it not because it was illegal. there is no law saying a computer must allow side loading. The important thing is people know what they are getting. 

 

??

 

Windows RT not supporting and not allowing are not the same thing, the enterprise version allowed it through sideloading.  The product didn't last long enough for proper support to be a thing (from either MS or developers) for any other version.  I think you are conflating why RT failed with a separate issue not yet realized in a court.

 

EDIT: also I have to point out the inconsistency when you claim RT failed because people don't like that you could only get apps from the windows store, however you are happy to claim it is the reason many buy iphones?  It seems you have highlighted again how apple users enjoy being shit on by apple but detest said same behavior from other companies.    Is their marketing really that good?

 

Also, what legalities are you referring to?   At what point has it been decreed in a court that mac OS can limit software to store only, or what about MS or even android? 

 

Again,  my point was addressing a claim made by the OP, not a claim made by lawyers.

7 hours ago, HRD said:

 

Apple always has shipped iPhones without the ability to side-load and people like it and buy it in part because of that and who do not can buy an android phone.

And it's shit.  I don't care if the average user doesn't understand the implications much less if they even care, but the wider industry and consumer will lose out from such practices (as they already are) and only apple benefits.

 

 

 

 

 

[hishnash]

17 hours ago, SlidewaysZ said:

Well this sucks. Android allows external payments why shouldn't Apple also? No excuses for then to lock their stuff down like that. 

Not for games that are distributed through the play store (and not epic is sueing google since they themselves don't think side loading is good after so many hacked versions of fortnight with malware were shared online leading to many users be scared of downloading fortnight from any source)

 

[Kisai]

17 hours ago, SlidewaysZ said:

Well this sucks. Android allows external payments why shouldn't Apple also? No excuses for then to lock their stuff down like that. 

Because an Android device is bizarre frankenstein monster that could be a TV, Car Infotainment, Phone, Tablet, or even a Computer. We only talk about Android phones as being phones because that's the only market Android has been reasonably successful in, and even then Samsung is incredably willing to throw away Android in favor of their own OS they use on the SmartTV.

 

Just Samsung doesn't have much legal or financial pressure to do so. If they decided to only sell their own phones with only their own OS, there would be ZERO software for it. Just like their TV's.

 

13 hours ago, mr moose said:

I think from a legal argument,  the idea that identifying a device as being a personal computer or being a console heavily relies on what that device is primarily designed for and what consumers buy it for.  We by computers to run programs that we need/want.  We buy phones for communications and to run apps that we need/want, we buy consoles to play games.    As you point out, it's not semantically incorrect to call a console a personal computer,  however I believe using a console as a legal argument for monopolistic actions on a device who's only similarity is that you can play a game on it is very disingenuous.

 

The other problem this lawsuit has is that it is happening in the US,  they might have good laws about monopolies, but the courts haven't upheld those laws in quite a few decades.  I point to the state of the internet and monopolies that ISP's have as an example.

No, from a legal standpoint, a PC and a game console are both computers, and are closer to each other than a Mobile phone is. From a technical perspective, iOS and iPadOS are only named such because MacOS is the computer OS. They are essentially the same OS with a different UI layer, and that becomes incredibly obvious to anyone who has used the "iphone emulator" for development work on a Mac, because on a mac, those iOS apps run on the native CPU (Intel at the time) not through an ARM translator. So yes, iOS apps can, and do run on MacOS, unchanged. Since all game development is also done on PC's, the same technical argument also holds.

 

The only devices that are not "computers" by any stretch are those that lack any means of entering text, such as a DVD player, or the surround sound system/switcher, those are essentially single-function devices and have as much input as a toaster. Even a SmartTV counts as a Computer. If you can plug in a USB keyboard or use a Bluetooth Keyboard, it's by essentially a computer, because the definition of computer is a device that accepts input and provides output based on that input, eg it's programable.

 

Now in a legal sense? A smartphone, tablet computer, desktop computer, laptop computer, game console and a smartTV are legally indistinguishable. You can buy software on all of them, you can play games on all of them, and for this court case, that's the only points that matter. Who actually gets the commission, and how much is what is being argued, not "why can't the epic store be on everything", because IMO, they probably could have had a better case if they had been able to get Valve, Nintendo, Sony, and Microsoft involved, but no they chose the biggest 900lb gorilla to go after.