Judge Excoriates Epic’s Dishonesty in Hearing Regarding Lawsuit Against Apple

Brian Fung, reporting for CNN on yesterday’s three-hour hearing over Zoom:

Judge Gonzalez Rogers looked skeptically at many of Epic’s claims, explicitly telling the company several times in the hearing she was not persuaded by its arguments or its strategy. Epic knew that it was breaching its contract with Apple when it published the update, but did it anyway, she said, accusing the company of dishonesty.

Apple has justified its app store policies partly as a way to protect consumers from security risks and malicious software. Epic has countered that it is a credible business that has been on the iOS App Store for years and poses no security threat. But Gonzalez Rogers said that is not the issue.

“You did something, you lied about it by omission, by not being forthcoming. That’s the security issue. That’s the security issue!” Gonzalez Rogers told Epic. “There are a lot of people in the public who consider you guys heroes for what you guys did, but it’s still not honest.”

This was a long hearing — I enjoyed Fung’s notes on Twitter, as well as Financial Times reporter Patrick McGee’s. Some highlights from McGee’s Twitter thread:

Judge YGR says it’s complicated, “we are in a new world — they don’t call this The Wild West for nothing.” Says: walled gardens have existed for 4 decades. Nintendo, Microsoft and Sony all had/have them. “What Apple is doing is not much different … they created a platform.”

[Epic lawyer] Bornstein says the economics of consoles are different: “Consoles are sold at a loss, so their 30% is very different from (Apple’s) 30%.”

Judge YGR: “Well plaintiffs always want me to define relevant markets as narrowly as possible. It helps their case. And defendants always want me to define markets as broad as possible, because it helps their case.” […]

YGR: “The 30% of what you complain seems to be the industry rate, right? Steam charges 30%. Microsoft: 30% … If you go to consoles: PlayStation, Xbox Nintendo all charged 30%. Physical stores: GameStop, Amazon, Best Buy, Walmart all charge 30%. Apple and Google charged 30%. It’s all 30%, and you just want to gloss over it. You don’t want to address it,” Judge YGR says. […]

Epic’s Bornstein says alternatives to the smartphone have their own constraints. “For example you can’t play an Xbox when you are, you know, on a bus.”

YGR: “You can’t play, but you can play on a Switch.”

Basically, Epic’s lawyers seem to think Judge Gonzalez Rogers is a dummy, but she most certainly is not a dummy. She seems to take the angle I’ve taken all along: Apple runs iOS as an app console, and it doesn’t hold water for Epic to argue that the Xbox, PlayStation, and Switch game platforms are fine, but Apple’s app platform is not.

★ Tuesday, 29 September 2020