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Apple Explains Why It Terminated Epic's Latest Developer Account
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I don't believe Apple ever reinstated Epic's primary developer account. Just the one for Unreal Engine. They even denied Epic's application for a developer account in South Korea when they wanted to take advantage of the anti-steering laws there for alternate payment services.
Schiller quoted their comments and used them as justification. I’m going out on limb and say he didn’t give them a 👍.
Where did you get this idea from? I have seen no evidence that Epic & Apple “came to an agreement” and this is why their account was reinstated.
It could simply be that Epic Sweden created a new developer account, Apple didn’t prevent them and Epic assumed it meant Apple thought it was OK.
You’re taking the words of Epic/Sweeney as the gospel truth without any evidence. Unless you can show where Apple admitted “having talks and coming to an agreement” then it’s all meaningless.
Do the folks at Apple have any clue how petty this behavior makes them look?
I have never seen "ex post" as opposed to "ex ante" be a requirement for antitrust law. Can you elaborate on this?
To whom? Except for us nerds nobody follows this very closely and the opinion here seems to be split 50/50 for and against. Cook could throw Sweeney off a building Hans Gruber style and it wouldn't move the needle on anything that really matters.
Not giving a thumbs up is not the same as suggesting that was the motivation for terminating their license.
That is irrelevant to whether they should be able to get paid or share there ecosystems with third parities.
Also irrelevant as in a capitalist society, which both the USA and EU are based on, companies and people are awarded the right to make as much as they want (which is expected by all of these companies’ shareholders). I am also not speaking to the ethical merits of this systems.
Literally everyone in the engineering community hated flash. Apple didn’t kill off Flash. Adobe bought the company who created Flash and killed it off. Apple favored open web standards over proprietary web technologies. It was absolutely the right decision not to include it on the iPhone.
Are you allowed to not provide services to an actively hostile company that is actively trying to litigate against you at every turn? Like a patron at a bar that is fighting the staff and threatening their business?
Apple cut all ties with Nvidia, because Nvidia is difficult to work with.. Be less difficult epic?
What I do not understand, is the fact that epic should be a plus for the Apple platforms, with unreal and games… Why do epic shareholders allow the company to be that hostile towards a high income platform? We all know epic came to be so big partly due to Fortnite on iOS..
IF Apple wants to, they can work against epic at every turn… They do not need to accommodate them unless it is deemed anti-competitive.. BUT, they do not compete, apple does not make games… It is a platform Apple has built that epic wants to be on.
Apple is salting the earth… They do not win, and epic along with spotify will not win… And Apple will loose too.
If I were Apple, I would use this opportunity to open up iOS and Vision OS etc.. They will never be able to run a split up OS system across the world and succeed. IF you think about it, it is a luxury problem. iOS is so attractive and widespread, that it is threatening to become a target for monopoly regulation.
Bite the bullet, open up iOS to be equal to Mac OS in openness, open up Vision OS the same way. Rely on strong iD tech to make sure Apple store is nr 1. Implement similar to MacOS security. And be done with this. EU is serious, Asia will follow… There is no way to win in the long run. At some point the walled garden does not pay anymore.
Apple cut all ties with Nvidia, because Nvidia is difficult to work with.. Be less difficult epic?
What I do not understand, is the fact that epic should be a plus for the Apple platforms, with unreal and games… Why do epic shareholders allow the company to be that hostile towards a high income platform? We all know epic came to be so big partly due to Fortnite on iOS..
IF Apple wants to, they can work against epic at every turn… They do not need to accommodate them unless it is deemed anti-competitive.. BUT, they do not compete, apple does not make games… It is a platform Apple has built that epic wants to be on.
Apple is salting the earth… They do not win, and epic along with spotify will not win… And Apple will loose too.
If I were Apple, I would use this opportunity to open up iOS and Vision OS etc.. They will never be able to run a split up OS system across the world and succeed. IF you think about it, it is a luxury problem. iOS is so attractive and widespread, that it is threatening to become a target for monopoly regulation.
Bite the bullet, open up iOS to be equal to Mac OS in openness, open up Vision OS the same way. Rely on strong iD tech to make sure Apple store is nr 1. Implement similar to MacOS security. And be done with this. EU is serious, Asia will follow… There is no way to win in the long run. At some point the walled garden does not pay anymore.
Monopoly power has no bearing on these basic principles. Only specialized antitrust laws such as the DMA or TFUE, that would directly contradict parts would change anything on the principle of lex specialis derogat legi.
But I’ve covered the part of the DMA that limits forum choice, I’ve briefly mentioned consumer protection laws, and that’s it, there’s nothing else. Especially nothing that would affect such fundamental principles of contract law. That would be like a law prescribing that left is right and right is left.
If you’ve got something substantial in mind however, I’d be more than happy to take a look.
That’s not how you read a law in Europe.
You need to take into account the scope of the law itself, the chapter, the article, the clauses and whatever smaller parts there might exist. All while keeping in mind the context that these elements exist in.
I can’t boil down years of law school into a single comment, especially because a lot of the legal reading part, like many other legal skills, are taught on the premise of “just because”, not unlike kindergarten teaching kids that blue is blue and red is red, just because.
A good example of this are clauses like the one quoted below, of which there are many
Without context, this sounds like the EU says that gatekeepers can restrict users from installing third-party software and stores. But when you read it in context, you realize that this part of the preamble that tries to explain why the DMA is necessary.
Similarly, 6(4) doesn’t mention business users directly because its primary purposes is to establish an obligation towards users and because it would be redundant because business users are implied by the term “third-party software applications or software application stores”.
Because in the DMA “third-party software applications or software application stores” aren’t treated as parties, but rather as a good or service, similar to how “core platform services” is used.
Not only can this be surmised by answering a simple question: Who runs these software application stores?
Answer: natural or legal persons acting in a commercial or professional capacity using core platform services for the purpose of or in the course of providing goods or services to end users.
In other words, software application stores is the very goods or services that the business user definition talks about.
Not convinced? Let’s look at 6(12) to see if the EU is using “software application stores” as a party or as a good or service (emphasis mine):
There you have it. “The gatekeeper shall [provide access] to its software application stores.”
Not “the software application stores shall”, nope, because according to the DMA that’s not a party.
Could they have said “software application store by a business user” or “from a business user” or “provided by a business user”? Sure, but that would be redundant because it’s implied in a piece of regulation that only identifies three parties to whom the regulation applies: the gatekeeper, the end user and the business user.
So what does that mean within the context of this debate? That 6(4) doesn’t create a special obligation or loophole that saves Epic.
Yes the gatekeeper must allow for the installation of third-party apps (i.e., sideloading) or third-party software application stores.
Apple has chosen for the latter, namely third party app stores instead of also allowing sideloading. Which seems to be in line with the DMA by the use of “or” every time this is mentioned.
The DMA also allows for measures taken by the gatekeeper to ensure integrity of the device and for security reasons. Apple has chosen to do this via their whole plan that they presented that requires an active ADPLA and some marginal oversight (at least compared to the Apple App Store).
And it is under those measures that Epic is excluded.
Will Apple’s plan be deemed reasonable? In first instance that’s up to the EC and ultimately that’s up to the CJEU. It’s bad form to make predictions, especially so when dealing with executive bodies as opposed to courts. But I think Apple has managed to thread the needle and only marginal changes, if any, will be required.
What I can say with confidence is that there’s a snowball’s chance in hell that the entire plan, down to the ADPLA needs to be scrapped. That’s just not in the cards.
You make a good point on 6(12) being limited to certain core platform services, OSs aren’t included for example. So it doesn’t seem to apply to that. 6(4) however still has ample options for Apple to set terms for third-party stores.
Your comment about non-profits and the applicability of 2(21) doesn’t hold water though.
I won’t bore you with the definitions of “commercial” in the EU and how non-profits are often deemed to undertake commercial activities, that’s perhaps more suitable for an EU tax law lecture.
Instead I’ll simply point out that the business user definition also covers “acting in a professional capacity”.
This is done so that it covers commercial corporations, non-profits and government entities. The EU doesn’t want these gatekeepers to start blocking access to government apps and the like.
The short answer on 2(21) is: yes, but not for lack of a developer account. Although I might’ve used it as a shorthand.
Short story long: the DMA has a couple of weird caveats that I’d consider poor drafting.
One of them is that it currently only describes the parties in the present tense. By which I mean that it talks about users in the sense of end users and business users that are currently using core platform services. It doesn’t describe parties that would like to use services.
That, combined with some other affordances to gatekeepers to set conditions (often described as taking “measures”) makes me say that Epic, in the current status quo, is not a business user.
You make a good point about the anti-circumvention clause and a good point on the unqualified obligation.
Like you I don’t think it creates an unqualified obligation if only because I don’t think the EU wants to open that Pandora’s box. But I also think that the anti-circumvention clause isn’t going to be used for individual cases (nor that it would hold up at CJEU), rather I think clauses like 13(4) will be used in cases where there seems to be circumvention of the DMA in general (supported by individual examples of course).
Put differently, I don’t think they’ll be used for Apple exercising its contractual rights with one or two individual parties, but rather if they were to, say, put in the ADPLA something along the lines of “You agree that the DMA doesn’t apply”.
But like you said, it’s untested and only time will tell. This most assuredly is going to end up before CJEU one way or another to test where the limits of the EC’s power are and where the limits of the gatekeepers involved are. And it’ll most likely take close to a decade for a decisive answer (European courts don’t move that fast).
We’re just in the phase of gatekeepers adopting what their lawyers say will 100% withstand judicial scrutiny + some attempts here and there to test the limits and trigger a cause of action.
It's also a fact that terms like "computer" vs "console" are not clearly defined by law. Right now, I get the sentiment that something like an iPhone or even iPad ought to be subject to a different set of rules from say, a Nintendo switch because they are used quite differently. It's just that this distinction doesn't seemed to be supported by current legislation, and I don't believe that trying this particular argument is going to hold up in court.
Because Epic didn’t reach out to Apple to ask if they could come back.
Instead they just went to the website to register a developer account with the details of their shiny new European entity, which is 99% automated.
Only after they got their new account up and running did they email Apple execs. And not to ask if it’s ok, but to tell them that “they’ve been accepted”, pretend like all is fine and demand an invite for a consultation on how to set up alternative an alternative store.
In the meantime they announced publicly that they had a dev account again.
Only after receiving that email did the ball start rolling and did Apple ask why they should trust Epic again to not breach the contract when they’re actively and publicly saying they dislike the agreement they seek.
Epic didn’t provide much more than a pinky promise and Apple didn’t think that was enough.
You can see all this in the emails Epic published.
On Feb 16 they announced publicly they had a dev account again and on the same day is when they start emailing Apple execs about this.
If I get banned from Walmart and then I create a new account on their website, am I then unbanned or should I have asked if I’m welcome again?
You must be new to iOS. That is the way it has always been.
Also, I don't think Apple thinks they have that right... you can jailbreak the device you own and install anything you want on it.
But if you want to use your device the way it is designed, and use Apple's app store and have your device supported by Apple... well then you have to do it their way. That's why people call it a walled garden.
Some people hate this so much, they switch to janky Android.
I'm not a big fan of how locked down iOS is, but this isn't really a rights issue.
They broke a legal agreement that they signed, ok, not a law
I think that's the only way forward, as Apple has quit Epic.
Ex-post in the case of EU's antitrust laws means a company is being deprived of rights only after it has been proven it has violated the law and caused some measurable harm to a protected class (usually consumers). In the case of the DMA the law preemptively deprives a company of rights in an effort to prevent it from causing unspecific and yet unmeasurable potential harm. These are effectively regulations and, while they can complement antitrust laws, they are not rectifying illegal activity, but regulating lawful activity by law-abiding companies in the hopes of preventing negative outcomes that under other circumstances themselves would not be considered illegal harm but the effects of market forces.
The whole reason the DMA exists is because these companies are not monopolies and have not broken any laws as such.
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Not the person you asked but I can elaborate a bit on this. Will probably be a long comment as I'll probably expand the scope a bit, but we'll see where we land.
In the US most antitrust-related cases mainly are ex post (or at least heavily rely on ex post considerations). This kind of inherent to the underlying procedural laws.
The US, and most other countries wiht a common law system, don't have a seperate branch of adminstrative law. So there's no set of administrative laws and underlying administrative procedure, nor are there administrative courts.
Instead these cases are tried according to civil law in civil courts under civil procedure. This doesn't just apply to cases between two private parties such as Epic v Apple, but also when the government is involved (e.g., the FTC). Since civil law mainly tries to remedy a wrong, there needs to be a wrong to be remedied in the first place (which essentially means it's going to be ex post). There are of course exceptions, such as injuctions to prevent irreparable harm and hte like, but that's a bit beyond the scope of this.
Things like abuse of market power, harm to the market, and other negative effects almost always need to be proven.
In countries with a civil law system, like most countries in the EU, administrative law is it's own branch, with it's own procedures and laws and it's own courts and/or chambers. Most notable however is that most of these countries' legislators, in their infinite wisdom, have decided to make things easier for the government by stacking the deck in favor of the government. Perhaps due to a belief that the government will be benevolvent, who knows.
This stacking of the deck is most visible in how in a lot of administrative law sections a presumption of guilt has been built in, sometimes combined with a "heads you lose, tails I win" philosophy.
A good example of this at the EU level is the Treaty on the Functioning of the European Union (TFEU), the EU's constitution in all but name (this detail will come back later) and more specifically Article 102 of TFEU. Article 102 TFEU and some adjacent statutes are essentially the EU's antitrust act. The DMA, by contrast, technically isn't. The DMA is more a less a bandaid because the already existing antitrust laws didn't produce a market to the EU's liking.
In any case, article 102 TFEU combined with the standing case law produced by CJEU, are a true example of how a deck can be stacked in favor of the government and of this "heads you lose, tails I win" philosophy". And, to circle back to the original topic, it's a great example of ex ante.
In a nutshell:
- The EC uses this guidance in their application of article 102 TFEU (the guidance refers to an article 82, which was the old article number in an older treaty that this is lifted out of)
- Almost everything has the presupposition in favor of the EC and almost everything has a “heads you lose, tails I win” caveat
- The EC doesn’t have to use market share to establish a dominant market position, if the involved company has a a significant market share then it helps the EC’s case, but absence of significant market share doesn’t help the involved company (this has lead to some curious case law where pretty much every company that has more than 10% market share can be deemed to have a dominant market position)
- The EC doesn’t have to establish abuse of the dominant market position, merely proving that the company is capable of adversely affecting a competition structure is sufficient, existence of abuse helps the EC’s case, absence of abuse does nothing for the company involved
- The EC doesn’t have to establish that hypothetical abusive conduct has a restrictive effect, merely that a hypothetical abusive conduct could have restrictive effects, again, if it exists it helps the EC, absence doesn’t help the company
- The EC doesn’t have to establish harm by the company, merely proving that the company is capable of causing harm is sufficient, again, existence of harm helps the EC’s case, absence of harm does nothing for the company involved
- The EC doesn’t have to establish intent, again, if intent can be proven it helps the EC, absence of any evidence of intent doesn’t help the company
- Behavior (or capability to act) that was initiated and fine prior to being in a dominant market position, can be used against a company once they achieve a dominant market position
- The only two limits on all of this are:
- The EC can’t hypothesize different market conditions than the current one (e.g., “they could do abusive behavior X, if the market would be Y”)
- The EC needs to take into account potential benefits outweighing potential downsides, see Intel v Commission
Almost all of it is also discussed in Enel if you want to verify. Not really a landmark case beyond the context of liberalization, but in answering the Italian court, CJEU does a good job of discussing much of the list above (starting at pt. 40).
Another good source that touches on this is Competition Law by Richard Whish and David Bailey. This wiki, while not greatly written and quite a bit technical, sourced a bunch of stuff on an older edition of that book.
In any case, this shows a stark contrast with the US. Where in the US ex post is the main focus with two parties on relatively equal footing (the Federal Government has given itself a few exceptions, but mainly in the sense of limitations on cause of action) v. the EU where it's mainly ex ante, with the government is given quite a head start.
While much of this has to the do with legal procedure (civil law v. administrative law) it's also along the lines of the respective philosophies. The US prefers to be reactive with the main fear being false positives, whereas the EU likes being proactive with the main fear being false negatives.
There are some other philisophical considerations, such as the EU's embrace of ordoliberalism wheres the US leans more towards laissez-faire.
Lastly the EU doesn't just love protectionism, it needs protectionism.
It's a feature of the EU, or rather the reason for its existence.
People like to think that the EU was founded to maintain peace and while true, the means by which this was achieved is by creating a single market. The idea was that countries that depend on eachother for their economy won't attack eachother. I'm leaving out a lot of nuance here, but that's the gist of it. To the EU their existence is in danger of they don't protect their single market. Which is why antitrust regulation was placed in it's de facto constitution: the Treaty on the Functioning of the European Union.
Breach of contract is pretty extensively codified in most jurisdictions, including the US. There's also plenty of case law on it.
Funny enough this already exists… sort of.
When you start your iPhone for the first time an EULA is presented that specifies that you're limited installing apps from the App Store and the other good stuff.
At the top, in all caps, it states that if you don't agree to the terms, that you should stop using it and that you can return the device for a refund.
Same in the macOS EULA by the way.
Goes to show that nobody reads EULAs.
So I think I understand your contention that regulations are not antitrust laws. But I cannot find anything to support that definition. In fact, I find mostly the opposite, which is that antitrust laws consist of both regulations and enforcement. Can you clarify what I'm missing here?
Link: https://www.mercatus.org/research/policy-briefs/us-antitrust-laws-primer
"US antitrust laws, broadly speaking, aim to curb efforts by firms to reduce competition in the marketplace or to create or maintain monopolies. These laws proscribe certain mergers and business practices in general terms, leaving courts to decide in specific terms which mergers and practices are illegal based on the facts of each case. "
The above seems to mean that a company does not need to break a specific law to be guilty of antitrust violations. In fact, it appears to be designed quite clearly to avoid a constant cat and mouse game of "letter of the law" issues. But I suppose that's in the US, and the EU might have a different approach?
Edit: seems to be the same for the EU.
Link: https://www.ftc.gov/system/files/at...presentations/europe-column-may-2020-full.pdf
"Like U.S. legal prohibitions, the EU antitrust prohibitions are general in terms of their fundamental structure. Article 102 TFEU, for example, prohibits “any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it.” It is true that Article 102 goes on to set out four examples of abuse, but the EU case law unequivocally states that this list is illustrative, and what matters is whether conduct is, or is not, an abuse of a dominant position, not whether it fits one of the four categories of abuse.1"
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