Apple Seeks Early Motion to Reject Epic's Claim It's Being Denied iOS Access

[MacRumors]

As part of the Apple vs. Epic Games legal battle, Apple has filed a motion asking for a judge ruling on one of the ten claims that Epic Games had made against it. Specifically, Apple is seeking a partial judgment on the claim that iOS is an "essential facility" and denies Epic's claim that it has been unlawfully barred from accessing it through the App Store.

The claim, specified in court filings as Count 2, refers to Epic's argument that it's been denied access to iOS, which it claims is an "essential facility" due to the fact it's been blocked access to the App Store. The Count specifically accuses Apple of violating Section 2 of the Sherman Act through "its unlawful denial to Epic and other app distributors of an essential facility—access to iOS."

Apple is asking the judge to move forward with a judgment due to Epic's lack of "factual, expert, or legal support for its theory of essential facility" and that it has practically given up on attempting to prove it. Apple also cites testimony from one of Epic's own witnesses, who said during the trial regarding the App Store that nothing they say is referencing anything that can be deemed an "essential facility."

Epic’s experts did not opine on whether iOS is an essential facility, or whether Epic has been denied access to iOS. Rather, Dr. Evans admitted in his written direct testimony that Epic and other developers are provided "access to the tools and permissions for writing iOS apps."

And on the stand, Dr. Evans admitted that he was not "expressing any opinion on anything termed an essential facility or anything related to an essential facility claim in this case."

In the court filing, Apple says that the iOS App Store can easily be replicated and duplicated, and per the court's own definition, iOS is not an essential facility. Apple goes on to say that essential means "essential" and not what's "best," "most profitable or preferable."

Apple removed Fortnite and stripped Epic of access to its developer account in August of last year after it violated App Store Guidelines. To the court, Apple reiterated that Epic has access to the App Store, despite its claim it's been unlawfully stripped of access to an "essential facility," as long as it follows the same rules that all developers are adhered to.

Apple notes that Epic Games had full access to the app distribution platform before it began "Project Liberty," Epic's codename for its legal fight against Apple.

There is no dispute that Epic actually has access to iOS. Epic, like all other developers, may obtain "access to the tools and permissions for writing iOS apps," and may distribute those apps through iOS, by agreeing to the DPLA. And Epic clearly did (prior to Project Liberty) distribute its apps through iOS and the App Store. So do millions of other developers.

Apple says that Epic Games' real argument is not that it is illegally being denied access to the App Store and iOS, but that instead it does not like the terms and conditions that developers must follow on the platform.

The Epic Games vs. Apple trial officially started on May 3, and Apple is asking that its request for a partial judgment be entrained on May 24 or as soon as the court may hear its request.

Article Link: Apple Seeks Early Motion to Reject Epic's Claim It's Being Denied iOS Access

 

[ruka.snow]

Someone needs to recompose with image with Apple execs on the other side, running towards us too. Maybe add in Tim Epic as a evil overload looking down on his creation and the people he is trying to screw over.

 

[BvizioN]

Essential facility? Or Essential free money making platform that Epic wants it to be?

 

[Your Royal Highness]

Essentially, Apple is saying to developers if you don’t follow the rules off with your head! And I agree. It’s their platform, their tools, their store and their rules. Maybe Epic should invest in making their own platform.

 

[coredev]

Essentially, Apple is saying to developers if you don’t follow the rules off with your head!

More like Apple is saying if you don't want to play by the rules, go play somewhere else.
BTW the same thing happened to Epic on the Google Play Store. Go figure.

 

[krewger]

I don’t understand how this is any different than a physical retailer. You want a product on the shelves, the retailer needs to profit from selling your item. If you try to circumvent the retailer from making money in their own store by selling it out of your own truck in their parking lot, they have every right to stop selling your product in your store. And for all those who say, but it’s my device I should choose what’s on it! I want to play smash bros on my Xbox but I had to buy a switch to play smash bros. I’d love to bring my electrical devices from England and plug them in to a US socket too, but it’s the wrong voltage and frequency.

 

[Wildkraut]

Sounds like the Apple pants is slowly filling up…

 

[stocklen]

surely this sentence is the crux of the issue:

"Apple says that Epic Games' real argument is not that it is illegally being denied access to the App Store and iOS, but that instead it does not like the terms and conditions that developers must follow on the platform. "


Im sorry I dont care whose side you are on..... Epic has made millions using the iOS app store so far and signed up to the terms and conditions of using it. It can rejoin the platform tomorrow if it chooses to follow the same rules that all the other developers have to follow. Its not being denied anything apart from the ability to make even more money off the platform that it already did.
I know this has been mentioned but other platforms that Epic peddles its wares on.. such as Playstation, Xbox, Google etc etc all have their fees and terms for using that platform - why should Apple be any different and why should a company dictate what another company chooses to charge when they have the choice themselves to use or not use the service.

 

[stocklen]

I don’t understand how this is any different than a physical retailer. You want a product on the shelves, the retailer needs to profit from selling your item. If you try to circumvent the retailer from making money in their own store by selling it out of your own truck in their parking lot, they have every right to stop selling your product in your store. And for all those who say, but it’s my device I should choose what’s on it! I want to play smash bros on my Xbox but I had to buy a switch to play smash bros. I’d love to bring my electrical devices from England and plug them in to a US socket too, but it’s the wrong voltage and frequency.

i agree

Im surprised at some of the anti-apple sentiment in here - especially for an Apple centric forum.

Im not defending apple as such... they are rich enough and make plenty of money to not need my defence...

However they created the iOS devices, they created the App store, and they set the terms for people to come in and use it to sell their software. Expensive? cheap? ive no idea but the developers go into it with eyes wide open and accepting the terms and conditions. In return they get the biggest global platform with the potential to earn millions in revenue - im pretty sure that Apple can and must charge what they like for the privilege.

Epic's behaviour has been childish - that anti apple ad was not just cobbled together and released the moment they ran into trouble.. no.. they preemptively picked this fight with apple... and apple made several attempts to appease the situation with the option of removing the developer account as the last resort and Epic dug their heels in and refused.

If I was Epic, and I really wanted this fight... then I would have at least acquiesced for the time being and left Fortnite on the app store without the rule-breaking code in it - and then picked the fight. They didn't do this and they are paying the price. Im pretty sure that Fortnite fans are getting their fix elsewhere on other platforms and Epic aren't really feeling much of a pinch here.

 

[neuropsychguy]

Well, this is not true. The idea of an App Store and the basics of one from a programming standpoint are pretty straightforward but the reality of creating one is not easy.

In the court filing, Apple says that the iOS ‌App Store‌ can easily be replicated and duplicated

The App Store is not essential but it’s not easy to duplicate. Apple spent years and billions of dollars turning it into what it is.

 

[RockinDev]

If you want to distribute software/apps to iPhone users you must do it through the App Store. The user does not have any other way to get the software/apps on there device. In this sense it is essential.

 

[Cubsfan]

I don’t understand how this is any different than a physical retailer. You want a product on the shelves, the retailer needs to profit from selling your item. If you try to circumvent the retailer from making money in their own store by selling it out of your own truck in their parking lot, they have every right to stop selling your product in your store. And for all those who say, but it’s my device I should choose what’s on it! I want to play smash bros on my Xbox but I had to buy a switch to play smash bros. I’d love to bring my electrical devices from England and plug them in to a US socket too, but it’s the wrong voltage and frequency.

Not that I necessarily agree, but the difference is that the consumer has made an investment that sort of requires them to use a store.

The analogy would be a little more apt if, say, you had to pay $1000 a year to shop at your chosen store. So you have to pay $1000 to Walmart to be able to shop there. And, furthermore, if you decide you don't like Walmart's rules, not only do you have to go pay $1000 to target, but everything you bought at Walmart stops working.

IMHO, the store model isn't a great comparison because customers can shop at every store with almost no penalty (i.e. if you don't like the price/rules at target, you can just walk over to walmart and buy your soap). There is a very stiff penalty if customers want to move from iOS to Android (or vice versa). You need to buy a new phone and rebuy a lot of the products.

 

[zchrykng]

I don’t understand how this is any different than a physical retailer. You want a product on the shelves, the retailer needs to profit from selling your item. If you try to circumvent the retailer from making money in their own store by selling it out of your own truck in their parking lot, they have every right to stop selling your product in your store. And for all those who say, but it’s my device I should choose what’s on it! I want to play smash bros on my Xbox but I had to buy a switch to play smash bros. I’d love to bring my electrical devices from England and plug them in to a US socket too, but it’s the wrong voltage and frequency.

Pretty much all the physical store analogies are worthless since those stores have no way to force you to come back to them for accessories to something that you purchased there. And they have no way to force people making products to only sell through them.

 

[I7guy]

Sounds like the Apple pants is slowly filling up…

Sounds like epic might be wearing cement shoes…

 

[Smith288]

While I agree epic has no lega standing in terms of being allowed on the AppStore, the crux is that epic has NO other way to facilitate their product into an iOS device. Because you are required to use their AppStore. That’s Epic’s main goal is to force apple to allow/open up a place for them to install outside of the official AppStore like they allow on the Mac.

 

[Cubsfan]

While I agree epic has no lega standing in terms of being allowed on the AppStore, the crux is that epic has NO other way to facilitate their product into an iOS device. Because you are required to use their AppStore. That’s Epic’s main goal is to force apple to allow/open up a place for them to install outside of the official AppStore like they allow on the Mac.

I think they have 2 goals
- Avoid the 30% apple cut. They can do this simply by getting the court to force alternative IAP methods.
- Be able to launch the Epic Game Store on iOS. Clearly this would be a far larger thing.

 

[forgotmyhandle]

Railroad analogy. Apple owns the railroad and licenses others to operate on their lines. Epic does not want to operate a car or a line; they want to own their own railroad.

Access to the App Store is essential, and it seems to me Epic had access to that. They had access to iOS, in what pertains to developing apps (cars on the train.) They did not have access to iOS in what pertains to developing they system (the rail infrastructure.)

 

[AppleFan78]

A store can set basic rules vendors must abide by.

Grocery stores have rules for vendors, how much shelf space they can use, and a required percentage of profits needed from the sale of those goods.

No shirts, no shoes, (now) no masks; no service. It's a store's right to refuse service to those who can't abide by rules, provided those rules are lawful (discrimination is against the law in several categories, but not all - gay couple wedding cake, for example).

Epic knew the rules before signing up. Just because you get more money hungry, doesn't mean you can not abide by the rules. If negotiations with the store owner fail, then choose if you want to continue doing business with that retailer.

It's apparent Epic forgot the old rule of thumb: don't bite the hand that feeds you. Without the App Store, Epic wouldn't be where it is today. That's obvious with Epic's hideous claim that it has a "right" to be available on iOS. LOL

 

[slineaudi]

IMHO, the store model isn't a great comparison because customers can shop at every store with almost no penalty (i.e. if you don't like the price/rules at target, you can just walk over to walmart and buy your soap). There is a very stiff penalty if customers want to move from iOS to Android (or vice versa). You need to buy a new phone and rebuy a lot of the products.

True. But it's also not totally out of line. Where you choose to live does limit you to stores near you. For example, there is a Best Buy very near me so I go there to buy electronics. Micro Center often has better deals on the same products but the nearest Micro Center is over 100 miles away. The cost of the trip is not worth the savings and Best Buy will only price match retailers that are within 50 miles. Should they be forced to price match all retailers regardless of distance or my ability to actually buy the product from the competitor?

 

[KENPHOTO]

If you want to distribute software/apps to iPhone users you must do it through the App Store. The user does not have any other way to get the software/apps on there device. In this sense it is essential.

by your logic, an X-Box or a Play Station can be deemed as an essential service as the only way to get a game on those platforms is to abide by similar rules that Apple makes with iOS.

 

[jmgregory1]

Epic is simply taking a page out of the political playbook that shows you can benefit from claiming a grievance, when in fact there was none.

From the beginning, I’ve wondered whether Epic had any interest in creating their own store [on iOS], or whether they simply needed to get their name out there in the hopes of fueling a resurgence of users.

 

[stocklen]

A store can set basic rules vendors must abide by.

Grocery stores have rules for vendors, how much shelf space they can use, and a required percentage of profits needed from the sale of those goods.

No shirts, no shoes, (now) no masks; no service. It's a store's right to refuse service to those who can't abide by rules, provided those rules are lawful (discrimination is against the law in several categories, but not all - gay couple wedding cake, for example).

Epic knew the rules before signing up. Just because you get more money hungry, doesn't mean you can not abide by the rules. If negotiations with the store owner fail, then choose if you want to continue doing business with that retailer.

It's apparent Epic forgot the old rule of thumb: don't bite the hand that feeds you. Without the App Store, Epic wouldn't be where it is today. That's obvious with Epic's hideous claim that it has a "right" to be available on iOS. LOL

And lets not forget...

What is Epic? Its a Game developer. A software company. Their very existence relies on other companies pouring millions into the development, manufacturing, and distribution of POPULAR hardware platforms.

Epic comes along.. sees that platform as an attractive one to write software for, then basically rides on the coattails of the successful hardware company for providing them the outlet to develop for and make money on.

The app store is part and parcel of that Hardware.

If iOS devices didn't exist, then Epic wouldn't be developing, distributing, and making millions from them. Dont like the terms of that platform? dont develop for it - simple. The fact they do, and did so knowing full well the terms and conditions of doing so leave me in no sympathy for them.

 

[MVMNT]

An essential facility that Epic wanted to circumvent?

Talk about biting the hand that feeds.

 

[ravenstar]

Railroad analogy. Apple owns the railroad and licenses others to operate on their lines. Epic does not want to operate a car or a line; they want to own their own railroad.

Access to the App Store is essential, and it seems to me Epic had access to that. They had access to iOS, in what pertains to developing apps (cars on the train.) They did not have access to iOS in what pertains to developing they system (the rail infrastructure.)

A big question in this case is whether Android phones constitute another rail line running in parallel to Apple's. It's up to Epic to convince the court this isn't the case, and while some on this forum have argued in Epic's favor, I haven't seen much coverage of Epic providing evidence to this effect. If Apple wins this ruling, the foundation of Epic's case will be severely weakened in my opinion.

 

[I7guy]

And lets not forget...

What is Epic? Its a Game developer. A software company. Their very existence relies on other companies pouring millions into the development, manufacturing, and distribution of POPULAR hardware platforms.

Epic comes along.. sees that platform as an attractive one to write software for, then basically rides on the coattails of the successful hardware company for providing them the outlet to develop for and make money on.

The app store is part and parcel of that Hardware.

If iOS devices didn't exist, then Epic wouldn't be developing, distributing, and making millions from them. Dont like the terms of that platform? dont develop for it - simple. The fact they do, and did so knowing full well the terms and conditions of doing so leave me in no sympathy for them.

There are those who question why Apple is entitled to 30%. After all, I've seen argued on MR (somewhere), the app store is developed and Apple should have low costs associated with the running of it. Apple doesn't deserve 30%.

To understand the scope of what it takes to run an app store. There are three easy steps involved:
1. Get a cloud engineer and programmer.
2. Rent some space, on the cheap, from AWS.
3. Done.
4. Communicate how easy, quickly, and cost effective your app store is.