Apple Looks Set To Lose In Epic Case
Written by Mike James   
Wednesday, 16 November 2022

The most important legal case to programmers at the moment is Apple v Epic Games. A year ago Epic lost and Apple won the right to impose its 30% app tax on programmers and users alike. Now there are signs that things might not stay like this.

The law seems to grind on exceedingly slowly, especially if you are used to the faster paced world of software development. At the start of this week the 9th Circuit Court of Appeals started to hear evidence from both sides in Apple v Epic Games and it seems likely that this time around Apple will lose its right to restrict access to apps outside of its own App store. This is great news for the average programmer, but you can't help thinking that Apple will find a way round the derailment of its monopoly.


As a simple programmer I have to defer to more knowledgeable legal brains than mine for opinions in such a complex case, but this doesn't mean that we can't put such opinions to simple tests.

The argument seems to be that Apple claims that, while it might have a slight monopoly, the real purpose of its walled garden is to keep out the nasties. It's all about user security. I've heard this argument before and indeed it is the one most often used to challenge my own opinion that Apple is running the biggest monopoly since Thales of Miletus cornered the market in olive presses (thanks Wikipedia!).

What Epic seems to be arguing is that running an App Store for security reasons is no excuse for stopping others setting up competing app stores that might offer better security and/or lower prices. Epic's council suggested that, for example, Disney could provide its own app store which would provide even greater protection than Apple offers.

Some commentators have remarked that the judges gave no clue as to how things were going, but Florian Mueller, who has been closely following the proceedings, had this to say on his Fossbytes blog:

"The United States Court of Appeals for the Ninth Circuit just held its Epic Games v. Apple appellate hearing. It was incredible. Historic. Awesome."

He goes on to suggest that Circuit Judge Smith is leading the proceedings and clearly thinks that Epic's argument is reasonable.


The sad part for us is that it probably isn't over with the appeals court:

"It will take the appeals court some time to decide this huge case. Apple will most likely lose this appeal. If the Ninth Circuit reverses--as it rightly appears inclined to do--on market definition and--which would be really generous and beyond the call of duty, but appears to be the plan--resolves additional questions and provides valuable instructions, the first question is whether Apple will try an interlocutory appeal to the Supreme Court or content itself with an en banc petition. Anyway, just like Circuit Judge Smith, I believe this case should be remanded. Whoever loses on remand will appeal to the Ninth Circuit. And ultimately this case will presumably end up in the Supreme Court."

We really need this issue settled sooner rather than later, but I agree with Florian's final remark:

"Words cannot express how much I'm looking forward to the Ninth Circuit opinion. I believe it will be worth the wait."

Such a long wait....

You can watch the proceedings for yourself and make up your own mind:


More Information

Apple on losing track against Epic Games - Florian Mueller

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Epic Games Takes On Apple - Unintended Consequences

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Epic Games CEO Finally Notices That UWP Apps Are A Walled Garden

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Last Updated ( Wednesday, 16 November 2022 )