Суд над Epic Games против Apple, вердикт и последствия — все, что вам нужно знать

Multiple app stores are "regularly exploited on the Mac," said Federighi, and that there's a "level of malware on the Mac that we don't find acceptable."

"iOS has established a dramatically higher bar for customer protection. The Mac is not meeting that bar today."

Android is used as an example of the dangers of multiple app stores, pointing to its malware problem that's "well understood in the security community."

He also likened macOS and iOS as products for different purposes. Mac and macOS is like a car with "a certain level of responsibility required," while iOS is intended to be safe enough for parents to let children use.

Despite blasting macOS, Federighi still insisted the Mac is "the safest possible" when operated correctly.

Federighi also defended the iOS walled garden approach, offering an opening up of iOS would subject users to malware due to the use of untrusted sources for downloads.

Apple's head of App Store business development for gaming Michael Schmid told the court on May 19 that Apple earned more than $100 million in revenue from "Fortnite." Schmidt didn't specify a dollar amount, nor if the value was north of $200 million, though based on earlier claims from Epic itself, the figure could be close to $300 million.

Schmidt said Apple also spent $1 million in marketing the game during its last 11 months on the App Store.

Microsoft fired back at Apple's attempt to exclude Xbox executive Lori Wright's testimony on May 20, claiming it was a distraction by Apple.

"Apple is trying to distract from legitimate concerns from many companies across the industry about its App Store policies and practices, including its refusal to allow game streaming in the Apple App Store. Epic speaks and acts for itself, and Microsoft and many other companies have raised concerns through our own voices, including directly with Apple itself," said Microsoft.

Wright's testimony was also involuntary but forthright and thoughtful, Microsoft said, adding "That Apple does not like Ms. Wright's testimony is clear. That Apple has no basis to challenge the substance of her testimony is equally clear"

On May 20, several expert witnesses testified on behalf of Apple, with the first being marketing professor Dominique Hanssens, who has conducted studies on whether iPhone and iPad users regularly used other devices that could play "Fortnite,"

The results revealed 92% had other devices they regularly used, when asked of general users. For those who identified as "Fortnite" players, the figure grew to 97%, and 94% said they used that other device to play games.

Witness 2 was IP merchant bank Ocean Tomo CEO James Malackowski, who argued it was important for IP owners to have the right to determine how that IP is actually used. He was hired to assess the "innovative footprint" of iOS, including how other companies use it.

According to his testimony, Epic was seeking "essentially a compulsory license to all of the IP necessary to distribute apps to iOS users."

Malackowski also reckons Apple spent $500 million on R&D in 2015, rising to $18 billion by 2020. Epic's prayer for relief would "take away Apple's control or Apple's provisions in its license agreements," reducing its compensation for technology it has produced.

Network security expert Aviel Rubin spoke about App Store Security. According to Rubin, Apple's centralized distribution model offers "significant benefits," including lower rates of malware infections and a lower volume of malicious apps.

Rubin also offered that malicious developers could use stores-within-stores to trick users into downloading infectious apps.

On May 21, Tim Cook made it to the stand, late in proceedings as expected.

His testimony started with a reiteration that he had limited involvement in day-to-day operations of the App Store, and worked mostly in a review capacity.

"We've invested $100 billion since the start of the iPhone's development, and that number has just accelerated," Cook said. "We have a maniacal focus on the user and doing the right thing by the customer."

Safety, privacy, and security were key components of Apple's strategies, according to Cook, which helped with the creation of items such as App tracking Transparency.

On the subject of R&D spending, Cook says that its research efforts do benefit the App Store. He also maintained that R&D has increased each year. In 2018, Apple invested $14.2 billion in R&D. By 2019, that number hit $16.2 billion, up 14% year-over-year. In 2020, R&D spending reached $18.8 billion.

Cook said antitrust scrutiny wasn't the driver of the small business program, but regulation "was in the back of my mind."

Cook also likened the complaints of the anti-steering guidelines to as if Apple told Best Buy to add a sign informing customers they could get an iPhone across the street.

He also denied Apple was a dominant player in the smartphone industry, denied Apple made it hard for users to switch from iPhone to Android, but while he said he believed the App Store was profitable, the company doesn't break down profitability in a granular manner.

If Epic forced Apple to allow side-loading apps and third-party app stores, Cook said the result would be a disaster. Apple already reviews 100,000 apps a week and rejects 40,000, and it wouldn't take long for the ecosystem to become a "toxic mess."

Cook objected to Epic's argument on third-party processing, pointing to how consumers would have to re-enter their card details again, as well as the potential for fraud.

"Also, we would have to come up with an alternate way of collecting our commission. We would then have to figure out how to track what's going on and invoice it and then chase the developers," Cook said. "It seems like a process that doesn't need to exist."

During the May 21 testimony, Judge Yvonne Gonzalez Rogers spent nearly 10 minutes questioning Tim Cook directly. It was the longest line of questioning she put to a witness in the trial.

Citing Apple's wish to give users control, Rogers asked "what's the problem with allowing users to have a cheaper option for content?" Cook replied by saying consumers already have a choice between "many different Android models and an iPhone."

Rogers pressed further, proposing "But if they wanted to go get a cheaper Battle Pass and cheaper V-Bucks and they don't know there's not that option, what is the problem with Apple giving them that option?" Cook explained Apple still needed to get a return on its investment, but the judge didn't seem satisfied with that answer.

Judge Rogers offered that gaming apps generated "a disproportionate amount of money relative to the IP," and was effectively "subsidizing everyone else." The Apple CEO said games transact on the platform, therefore game developers owe the commission.

Attention then turned to comparisons with game consoles, with the judge claiming Apple doesn't compete in gaming app distribution. Cook countered saying it competed against the Xbox and Switch, as well as other platforms.

Ultimately, Rogers' line of questioning expressed skepticism about Apple's business model, as well as doubting the small business program for the App Store was launched to assist during the COVID-19 pandemic.

Rather than the usual closing arguments, the last day of the trial had Judge Yvonne Gonzalez Rogers asking questions of Apple's and Epic's lawyers.

Some friction was felt over the definition of the operating system market, with Epic saying Apple competes with Google while Apple says the comparison is a "distraction."

Epic went on to offer that there's no substitutes for market distribution via the App Store, and that sideloading and allowing third-party stores could be considered solutions.

There was also discussion about the conduct of Apple in terms of developer satisfaction and its policies, anti-steering provisions, and potential remedies to the entire situation.

Separate lawsuits by users and developers sought class-action status over a number of antitrust claims on June 4, shortly after the end of the Apple-Epic lawsuit.

The motion requested the class-action status for multiple lawsuits that are before Judge Rogers, who also presided over the Epic-Apple trial, with the motion also making multiple references to the trial.

Epic CEO Tim Sweeney complained via Twitter on June 24 about Apple's marketing, stating "I really hope corporate propaganda campaigns don't become a permanent fixture of the tech industry." Sweeney continued by offering that, if a company has a problem, "just fix it and bear the costs."

The comments were made following Epic's 10-month campaign against Apple, which included its own propaganda video mimicking Apple's "1984" ad," as well as continued promotion of #FreeFortnite.

On June 26, Apple's legal team submitted a filing to the court, consisting of a copy of the NCAA V Alston Supreme Court decision. The filing was intended for Judge Rogers to read, in that it "provides guidance" for her future ruling.

The Supreme Court's decision rejected the idea of that NCAA being immune from federal antitrust law, and that attempts by the NCAA to limit student athlete compensation to keep them classed as amateur should be subject to the same rule of reason analysis that applies to antitrust cases.

In effect, the Supreme Court says courts should be careful about rule of reason findings. It was considered that the decision probably helped Apple overall.

Following the end of the U.S. lawsuit, Australia's Federal Court decided on July 9 that similar legal action in the country could go ahead. The decision reverses a previous ruling that stalled the lawsuit until a ruling was made in the United States' case.

By August 20, the country's Federal Court set a conditional trial start date of November 2022. Justice Nye Perram said he did not want to delay proceedings any further.

On August 20, emails unearthed during discovery of the Epic-Apple lawsuit were revealed to show the creation of the Coalition for App Fairness.

The emails dated May 15, 2020, had Epic VP of Marketing Matt Weissinger proposing the creation of a coalition of like-minded developers, and to add more issues alongside Apple's sales commission issue.

Part of the data dump included a contract between Epic Games and The Messina Group, a consulting firm for the foundation of the coalition. It was expected Epic would spend up to $700,000 on the Coalition during its lifetime.

While the group was intended to help promote Epic's ideals in its lawsuit against Apple, the Coalition doesn't appear to have offered a large amount of material about the suit on its website or in media materials, aside from social media posts and some press releases.

In settling a separate lawsuit, Apple agreed to create a $100 million fund for developers in the United States, as well as allowing more direct access to users by developers. Commentary from the Coalition for App Fairness on August 27 declared the settlement wasn't enough.

Apple's sham settlement offer is nothing more than a desperate attempt to avoid the judgment of courts, regulators, and legislators worldwide," said the organization in a statement. "This offer does nothing to address the structural, foundational problems facing all developers, large and small, undermining innovation and competition in the app ecosystem. Allowing developers to communicate with their customers about lower prices outside of their apps is not a concession and further highlights Apple's total control over the app marketplace."

"If this settlement is approved, app makers will still be barred from communicating about lower prices or offering competing payment options within their apps," says the statement. "We will not be appeased by empty gestures and will continue our fight for fair and open digital platforms."

On September 9, Epic said it had asked Apple to reinstate its developer account. The request was made as Epic intended to re-release Fortnite on iOS in South Korea.

On August 31, the South Korean government voted to force Apple and Google into accepting alternative payment mechanisms in the App Store and Google Play. Since Fortnite with its third-party payment mechanism would be legal in the country, Epic wanted to release it to take advantage of the law change.

One day later, on September 10, Apple issued a statement that it would "welcome Epic's return to the App Store if they agree to play by the same rules as everyone else."

However, Apple adds "Epic has admitted to breach of contract and as of now, there's no legitimate basis for the reinstatement of their developer account." Since developers must accept the App Store's guidelines, and Epic has refused to do so, Apple said it wasn't prepared to consider a request in reinstatement until the rules are agreed to by Epic.

In the September 10 publication of her ruling, Judge Yvonne Gonzalez Rogers largely handed Apple a victory in court. Chiefly for Apple it was a confirmation that Apple wasn't a monopoly, and that Epic wasn't able to demonstrate Apple was engaging in monopolistic behavior.

Apple does enjoy "considerable market share of over 55% and extraordinarily high profit margins," the ruling reads, but this didn't demonstrate antitrust conduct. "Success is not illegal." There was no evidence of other critical factors that would be considered antitrust behavior, such as barriers for entry and decreasing innovation in the market.

"The Court does not find that it is impossible; only that Epic Games failed in its burden to demonstrate Apple is an illegal monopolist," the ruling states.

However, it wasn't a clear-cut win for the iPhone maker, as both sides won and lost in different ways.

For Apple, the biggest issue is an injunction to prohibit developers from including in apps "buttons, external links, or other calls to action that direct customers to purchasing mechanisms, in addition to In-App Purchasing and communicating with customers through points of contact obtained voluntarily from customers through account registration within the app."

In short, developers won't be forced to abide by Apple's anti-steering policies, preventing them from saying there's other payment mechanisms available to consumers. Apple has 90 days to comply with the injunction.

Apple also prevailed in arguments that Epic breached its contract clauses. Epic has to pay Apple damages equal to 30% of the $12 million it earned in revenue from its Epic Direct Payment system, plus interest.

The judge also agreed that Apple wasn't unfairly retaliating against Epic by cutting access to its developer account.

Judge Rogers also reasoned that Epic's claims were a play to control more of the gaming market. "As a major player in the wider video gaming industry, Epic Games brought this lawsuit to challenge Apple's control over access to a considerable portion of this submarket for mobile gaming transactions," wrote the judge. "Ultimately, Epic Games overreached."

In response, Apple released a statement declaring "Today the Court has affirmed what we've known all along: the App Store is not in violation of antitrust law. As the Court recognized 'success is not illegal.' Apple faces rigorous competition in every segment in which we do business, and we believe customers and developers choose us because our products and services are the best in the world."

On Twitter, Epic CEO Tim Sweeney thanked the court and vowed to "fight on." Epic says it will be appealing the decision.

Immediate reactions to the ruling offered a variety of different views on the matter.

Long-time App Store commission opponent was pleased that the anti-steering provisions were affected by the court. "This and other developments around the world show that there is strong need and momentum for legislation to address these and many other unfair practices, which are designed to hurt competition and consumers."

Advocacy group the App Association said the decision illustrates "Apple is not a monopolist and keeps in place the services and benefits our members rely on to compete on a global scale." The changes still pose a risk that a few major companies could "avoid contributing equally to the App Store's services."

Smaller iOS developers seemed to offer the view that Apple had lost a major part of the case. Meanwhile, analysts generally feel Apple will weather the storm in the long run.

At the end of trading on September 10, Apple's share price closed down $5.10, or 3.3% down, hitting $148.97 at the bell. Earlier in the day, trading peaked at $155.48 before enduring a decline shortly after 11 a.m. Eastern, around the time of the ruling.

On September 12, Epic Games filed its appeal against the ruling to the U.S. Court of Appeals for the Ninth Circuit. The paragraph-long filing doesn't offer reasons or explanations for the appeal, details that would be expected to arrive in a later, and considerably longer, filing.

Judge Rogers' ruling in the Epic-Apple lawsuit could cause problems for the U.S. government, as Epic failed to prove that Apple violated antitrust laws or that it was "an illegal monopolist."

It is thought the ruling could apply an extra burden on attempts by the U.S. government to rein in tech giants for anti-competitive behavior. Since Apple was found not to have violated the Sherman Act, a law typically used to take on monopolistic firms, the ruling makes it harder for others to use the same law against Apple in the same way.

Apple's justifications on restrictions applied to developers under the guise of platform security may also be a problem, due to Rogers saying the market two-sided. This therefore makes it harder for lawsuits and courts to determine the harms and benefits of multiple sides together.

In effect, a plaintiff couldn't try to prove harm to just developers or consumers, they would have to prove net harm across all of the different groups that use the platform.

Even so, there is still a glimmer of hope for regulators, as Rogers said Apple was "near the precipice of substantial market power, or monopoly power," and that it also failed to truly justify the 30% commission fee for many App Store transactions.

A note to investors by Morgan Stanley on September 13 examining the risks and impact of the ruling to the App Store and Apple's bottom line proposes that the damage to Apple could be fairly limited, even in a worst-case scenario.

It is reasoned that the ruling would prevent developers from adding their own direct payment method, but would free developers to steer users to alternate off-app payment systems. The friction from forcing users into managing multiple accounts rather than the quick and friction-free App Store payment system may work in Apple's favor.

Few of the 30 million app developers on the App Store could feasibly afford to create so much friction, as most lack the brand, credibility, and marketing budget to do so. There are also consumer purchasing habits to consider, as they may be difficult to change in the first place.

It is reckoned that if Apple were to lose all revenue from the top 20 global app developers, the so-called worst case scenario, it would equal a 2% impact on revenue and a 5% hit to earnings-per-share.

On September 13, Epic CEO Tim Sweeney confirmed the company had paid Apple $6 million for violating App Store rules, as per the judge's ruling. Epic was ordered to pay damages related to revenue collected from "Fortnite" sales on the App Store following the company's decision to set up its third-party in-app payment system.

Epic was ordered to pay Apple damages that equate to 30% of the $12,167,719 in revenue it earned from Epic Direct Payment on iOS between August and October 2020, plus 30% of revenue collected from November 1, 2020 through to September 10, 2021.

On September 22, Epic Games CEO Tim Sweeney said that Apple had decided to exercise its right to exclude the company from the App Store, meaning "Fortnite" won't be returning for the moment. The letter from Apple lawyer Mark Perry to Epic also indicated that Apple wouldn't consider any further reinstatement requests until "the district court's judgement becomes final and nonappealable."

According to Sweeney, this is a process that could take as long as five years to complete.

On October 8, Apple filed an appeal of U.S. District Court Judge Yvonne Gonzalez Rogers' ruling in the recent Epic Games lawsuit, and seeks to stay an injunction that would force changes to the App Store's "anti-steering" provisions.

The argument from Apple continued with its claim that directing users to alternate payment mechanisms is an inherently dangerous proposition, such as by sending users to malicious websites. It also hamstrings Apple's efforts to fight fraud.

Epic filed its opposition to Apple's appeal on October 23, saying that Apple hasn't done enough to legally prove it will be irreparably harmed by the changes, even if they are temporary.

Epic said that Apple doesn't meet the legal standard that requires it to demonstrate it faces harm by compliance, using Apple's positive post-ruling comments and delay in filing to pause the injunction as being signs Apple will be fine.

"The public interest favors denying (Apple's appeal); an injunction is the only path to effective relief," Epic's argument reads. "History shows that in the absence of an injunction, Apple will not make any changes."

In an October 30 update, Apple told the court it had complied with part of the injunction, and that it had appealed to stay the remainder of the injunction. It said "the immediate implementation of that aspect of the injunction would upset the integrity of the iOS ecosystem."

Furthermore, as Epic Games doesn't have any standing to secure or enforce an injunction due to having a lack of a developer account and no products in the App Store, the injunction therefore shouldn't make it through a review.

Apple's request to delay changes to its App Store rules as part of the lawsuit ruling was denied on November 10. In a brief in-court hearing, Judge Yvonne Gonzalez Rogers tossed the request.

"In short, Apple's motion is based on a selective reading of this Court's findings and ignores all of the findings which supported the injunction, namely incipient antitrust conduct including supercompetitive commission rates resulting in extraordinarily high operating margins and which have not been correlated to the value of its intellectual property," Judge Rogers writes.

At a Coalition for App Fairness Global Conference on Mobile App Ecosystem Fairness in South Korea in November, Epic Games CEO continued to attack Apple and Google as major app platforms.

"Apple locks a billion users into one store and payment processor," he said. "Now Apple complies with oppressive foreign laws, which surveil users and deprive them of political rights. But Apple is ignoring laws passed by Korea's democracy. Apple must be stopped."

Sweeney also called Google "crazy" for its system of fees, and praised the country's new app store regulation.

On November 18, Apple's lawyers made a second attempt to get Apple out from having to make changes to its App Store policies, before a December 9 implementation date, this time to the Court of Appeal.

"Apple Inc. has been ordered to change its business model in a way that will harm customers, developers, and Apple itself," says the company in the filing. "The injunction should be administratively stayed before it becomes effective on December 9, and remain stayed until the appeals are resolved."

"The district court erred in entering a nationwide, class-type injunction in a single-plaintiff case brought by a developer that has no apps on the App Store, proved no harm from the provisions at issue, and did not even directly challenge or seek to enjoin them," continues the filing.

"Undisputed evidence establishes that Apple will be harmed by precipitous implementation of this unlawful and inequitable injunction," says Apple. "Apple should not be required to change an integral part of its business model, which has been in place for more than a decade, until this Court decides the appeals on the merits."

Getting close to the wire on December 2, Apple petitioned a higher court to delay its implementation of changes to the App Store.

This time, Apple maintained the same arguments, but added that it would be a monumental task to implement them, which could take "months" to complete, as well as be detrimental to everyone involved.

"Given the injunction's effective date of Dec. 9, Apple seeks immediate entry of an administrative stay that would expire 30 days after the Court's ruling on the stay motion," according to the filing.

Without a stay, Apple said that "the App Store will have to be reconfigured — to the detriment of consumers, developers, and Apple itself."

While Apple is dealing with its US lawsuit with some success, it's not having the same luck in Australia. A temporary stay on the lawsuit was overturned on in July by a full bench of the Federal Court in Sydney, with the High Court in Canberra refusing Apple's request for special leave to appeal in December.

Along with overruling Apple's appeal, the High Court also awarded costs against Apple.

The decision means Apple's Australian case is set to proceed, potentially starting in November 2022.

In a reply brief filed with the U.S. District Court for the Northern District of California in December, Apple supports a motion to stay an injunction that would force it to allow developers to add alternate payment links or buttons within apps.

The important part is that Apple's attorneys shot down a suggestion by Epic Games that Apple wouldn't get a cut of transactions that would occur outside of the App Store.

"That is not correct. Apple has not previously charged a commission on purchases of digital content via buttons and links because such purchases have not been permitted," the brief reads. "If the injunction were to go into effect, Apple could charge a commission on purchases made through such mechanisms."

In effect, Apple plans to implement some way to collect fees from developers, even if they were made outside the App Store.

Apple on Dec. 8 won its bid to place a stay on anti-steering prohibitions that were set up to kick in on Dec. 9. Those provisions, included in the ruling by Judge Gonzalez Rogers, would have forced Apple to allow developers to add in-app links or buttons to alternate payment options.

The U.S. District Court of Appeals for the Ninth Circuit said that Apple could have the time it needs to make an argument in its appeal against the decision. Both Apple and Epic Games have appealed the court's decision.

Apple was denied an earlier motion to stay the injunction by the U.S. District Court for the Northern District of California.

A December 2021 profile of the Coalition for App Fairness outlined how the group was created, expanded, and Epic's involvement.

As part of the profile, it was said Epic originally planned to spend "80K-$100K" on the Coalition's launch, which was thought to be an attempt to remove the game company's image as being a "not sympathetic" player, by working with other smaller firms.

Despite having a decidedly pro-Epic and anti-Apple stance, the group apparently doesn't think it's an Epic litigation vehicle, with founding members keen to avoid that appearance.

As part of the organization's techniques, it divides roles to specific member companies based on their expertise. For example, some dealt with strategy and communications, while others used their relations with international governments.

While Apple hasn't allowed Epic to bring Fortnite back to the App Store itself, the game has returned to iOS and iPadOS via an alternate route.

On January 13, Nvidia and Epic announced that "Fortnite" will be playable through the GeForce Now cloud streaming service. Rather than as a dedicated app, "Fortnite" would instead be playable via the Safari browser, using a native mobile variant optimized for touch-based controls instead of the existing PC-based port.

Nvidia opened up registrations for beta testers, for a limited trial later that month.

In a January 20 appeal filing, Epic said that Judge Gonzalez Rogers "erred" in her antitrust rulings over the lawsuit. Epic's attorneys say the judge erred in her interpretation of evidence and testimony, as well as disagreeing with the judge's stance over Apple's power in the market.

Insisting Apple "unlawfully maintains its monopolies in the iOS app distribution and in-app payment solutions markets by expressly excluding all competitors," Epic says the judge didn't define the market the same way that Epic did, nor in the wider definition offered by Apple.

Epic wants the Sherman Act claims and the judgment on Apple's breach of contract reversed and overturned, complete with injunctive remedies. It also wants an appeals court to agree that there are errors in the ruling, leading to a retrial with extra instructions on how to adjudicate matters.

If the ruling isn't reversed, Epic claims "this decision would upend established principles of antitrust law and, as the district court itself recognized, undermine sound antitrust policy."

A joint letter from attorneys general for 34 states and the District of Columbia told an appeals court that Apple continues to "stifle competition" with its App Store monopoly. The letter from January 28 firmly sides with Epic on the lawsuit.

"Apple's conduct has harmed and is harming mobile app-developers and millions of citizens," the states said. "Meanwhile, Apple continues to monopolize app distribution and in-app payment solutions for iPhones, stifle competition, and amass supracompetitive profits within the almost trillion-dollar-a-year smartphone industry."

The U.S. Department of Justice also filed its own letter, albeit one not signed by assistant attorney general Jonathan Kanter. Kanter used to be the lead attorney for the Coalition for App Fairness.

Continuing the filings against Apple, Microsoft has joined the list of people providing supporting filings to the court. Microsoft's amicus filing on February 1 is firmly on the side of Epic Games.

In its filing, Microsoft cites that it has a "unique — and balanced — perspective to the legal, economic, and technological issues this case implicates," and it also "has an interest" in supporting antitrust law since it sells both hardware and software, like Apple.

Apple has "extraordinary gatekeeper power," Microsoft said, before jabbing at the alleged errors in the ruling by the judge. The ruling has "potential antitrust issues [that] stretch far beyond gaming," including many other areas that Apple operates within.

If the original ruling is upheld, Microsoft says it could "insulate Apple from meritorious antitrust scrutiny and embolden further harmful conduct." The company further concludes that this would mean "innovation will suffer."

Apple's response to the appeal is expected in March.