Once More Unto the Apple / Epic / European-Commission Breach, Dear Friends, Once More

Monday, 11 March 2024

Three weeks ago, when Epic Games announced their approval from Apple for a new Apple developer account, under Epic’s Swedish subsidiary, and their intention to use that account to create an Epic Games Store app marketplace in the EU, the assumption was that this had been approved at a high level inside Apple. It seemed pretty safe to assume that no one at Apple had forgotten who Epic is, and that was certainly how Epic presented it, starting with Tim Sweeney graciously describing it as “a good faith move by Apple amidst our cataclysmic antitrust battle”.

So the conventional wisdom as to what has occurred from then forward goes like this:

1. Epic, seeing the opportunity offered by Apple’s DMA compliance plan in the EU, petitions Apple for a new developer account to create an EU marketplace.
2. Senior Apple executives — perhaps Phil Schiller, head of the App Store, personally — consider the petition, and despite having previously banned Epic Games’s Fortnite developer account for the 2020 in-app payments Trojan horse stunt, decide to grant it.
3. Epic announces their plans.
4. Apple then revokes Epic’s newly-granted developer account, citing other recent tweets from Sweeney in which he scathingly criticizes Apple’s DMA compliance plan.
5. Epic goes public with the correspondence from Schiller (email to Sweeney, asking for assurances) and Apple’s attorney (letter [pp. 1 and 2] to Epic’s attorneys, officially terminating the new account, and thus, briefly, dashing Epic’s plans for its own EU marketplace.
6. Everyone, largely assuming item 2 in this list, sees this as astonishingly thin-skinned retaliation on Apple’s part for public remarks criticizing Apple’s plans. “Everyone” here includes EC commissioner Thierry Breton, who tweets that he is immediately opening an investigation.
7. Under this pressure, Apple relents and reinstates Epic’s newly-created account and agrees to allow the Epic Games Store marketplace to proceed.

This list is largely true, but the problem is item 2. Epic, under the assumption or hope that the DMA demanded Apple permit them to open a store, had simply gone through the enrollment form on Apple’s developer website and paid the $99 annual fee. Per Sweeney, responding to a question from me tonight on Twitter/X, that was Friday, February 9, and their account was approved on the following Monday, February 12. Epic made their public announcement that they intended to create an Epic Games Store for iOS in the EU on Friday, February 16.

That announcement, seemingly, was in fact the first time Epic’s plans came to the attention of Apple’s leadership. Schiller’s email to Sweeney was sent the following Friday, February 23, and concluded:

You have stated that allowing enrollment of Epic Games Sweden in the Developer Program is “a good faith move by Apple.” We invite you to provide us with written assurance that you are also acting in good faith, and that Epic Games Sweden will, despite your public actions and rhetoric, honor all of its commitments. In plain, unqualified terms, please tell us why we should trust Epic this time.

It doesn’t make any sense for Schiller to have asked that on February 23 if any senior Apple executives had considered the implications — including Epic’s history of performative non-compliance with the App Store’s terms — and explicitly approved Epic’s new developer account two weeks earlier. Florian Mueller was the first observer to note this, in a post on his new site Games Fray on March 6, this past Wednesday:

The original grant of the developer account appeared to be a sign of a potential improvement of their relationship, but that may have been the result of an oversight as opposed to a conscious decision by Apple’s executives and lawyers to give Epic a chance to prove to be a reliable app store operator in the EU. Right after the developer account was announced (February 16, 2024), Epic’s Swedish subsidiary applied for a DMA consultation slot, and five days later apparently saw that the request had been turned down. Those consultations are offered by Apple to organizations interested in exercising certain rights under the DMA with a view to alternative app stores. The fact that they weren’t going to talk to Epic about this was already a first negative sign.

Stephen Warwick, reporting for iMore, followed up on Florian’s speculation and confirmed it:

Apple has confirmed to iMore that Epic Games Sweden entered the DLPA without any executive review on Apple’s part, confirming Mueller’s suspicion.

To be clear, regardless of executive review, “Apple” had approved Epic Games Sweden’s developer account. But that approval was seemingly automated, or mostly automated, and only after that did Apple executives and lawyers engage Epic in any back-and-forth regarding assurances of future compliance with Apple’s DMA guidelines.

So the real order of events is something more like this:

1. Epic Games Sweden enrolls in the developer program online and gets approval after the weekend.
2. Epic presumes, somewhat reasonably, that this means they have the go-ahead.¹ It is very Apple-like to simply grant the new account without any personal contact. Epic knows Apple is doing this through gritted teeth, because Apple itself has made clear they don’t agree with any of the demands of the DMA.
3. Epic announces their plan for an iOS games store.
4. Now Schiller and others in Apple leadership ponder the question of what to do, and a week later Schiller emails Sweeney.
5. Sweeney responds in the affirmative, replying to Schiller: “Epic and its subsidiaries are acting in good faith and will comply with all terms of current and future agreements with Apple, and we’ll be glad to provide Apple with any specific further assurances on the topic that you’d like.”
6. Apple considers that insufficient, thinking something to the effect of “These guys complained incessantly about the App Store before pulling their Fortnite IAP stunt, and we perma-banned them for good reason then. Now they’re complaining just as incessantly about our DMA compliance plans, so they’re just as likely to pull a rule-breaking stunt again if we grant them a developer account to run a marketplace in the EU. Nothing’s changed with Epic, so screw ’em, they still don’t deserve to be in the developer program.”

I.e., while Apple as an institution granted, revoked, and under public pressure reinstated Epic’s new account, from the perspective of Apple leadership, they only revoked a new account that had been created through an automated system — not for criticism, per se, but for the same reason Epic’s Fortnite developer account remains revoked and Fortnite remains unavailable on Apple platforms worldwide: for the 2020 Fortnite IAP Trojan horse stunt. The “colorful” tweets Schiller quoted and which Apple’s attorney cited were mentioned as proof that Epic hadn’t changed, not as the reason for revoking the new account.

I’m farting into the wind by writing about this somewhat subtle distinction, because the conventional wisdom isn’t going to change. Almost everyone paying any attention at all to this will continue to believe, forever, that Apple executives granted Epic a new developer account and then revoked it because Tim Sweeney tweeted things Apple didn’t like about their DMA plans.²

The bottom line remains as I concluded Friday: Apple played this whole thing terribly. The automated developer program enrollment form — the one that gave Epic the impression they’d been granted express permission to proceed with building an iOS marketplace for the EU — is Apple’s. The whole App Store bureaucracy is Apple’s. (Or as Sweeney aptly called it tonight, “Apple’s App DMV”.)

At the beginning of Apple attorney Mark Perry’s letter terminating Epic’s new developer account, he lays bare Apple’s thinking:

In the past, Epic has denigrated Apple’s developer terms, including the Developer Program License Agreement (DPLA) as a prelude to breaking them.

To Apple executives, it might have made sense to cite in their correspondence with Epic their ongoing denigration of Apple’s developer terms, as evidence that Epic remains recalcitrant and untrustworthy. To almost everyone outside Apple Park, however — most especially (a) third-party developers who have been, for years, souring on Apple’s App Store policies; and (b) EC commissioners, who are ebulliently roasting Apple as a regulatory target and feasting on the resulting publicity — it looks not like a policy of “We’re not going to reinstate Developer Program privileges to a proven rule-breaker whose stated goal was then, and remains now, to break our control over our own platform”, but instead a retaliatory policy of “We’ll terminate the account of any developer who speaks out against us.”

That Apple couldn’t see how this would play is on them.