Apple Appeals To Supreme Court In Epic Case
Written by Lucy Black   
Wednesday, 05 July 2023

Apple was judged to have won its fight with Epic games and yet it keep appealing the decision. The reason is that the ruling contains a poison pill which could be the start of the end of the App store. The latest step is an appeal to the Supreme Court! On what grounds?

Epic Games filed an antitrust lawsuit, in 2020, against Apple after Fortnite was removed from the App Store for offering players a 20% discount for paying Epic directly. The case came to trial in May 2021 and centered on Epic's claim that, by exercising tight control over the App Store, Apple was violating California's Unfair Competition Law and was operating as an illegal monopoly. The action promised at its most extreme the end of the App Store as the single source of iPhone apps and a big drop in Apple's profits. 

At the time programmers were either of the opinion that opening up the App Store was a good idea or a way to lose revenue depending on how successful they were in selling apps in the Apple-managed environment. As things turned out Apple won, but not sufficiently for Apple to be happy. Judge Yvonne Gonzalez Rogers in 2021 issued a permanent injunction saying that Apple can no longer forbid developers from directing users to third-party payment options, giving devs the prospect of better revenue from in-app purchases. So the App Store was still a monopoly but one with a hole in its walls.

jtepicgames1

Visit joyoftech.com to view the complete cartoon

The ruling wasn't as clear as it could have been, this is law not programming, and my guess is that Apple probably forsaw the range of tricks we programmers might introduce. If you can put links into your app that directs users to spend money directly with you and cut out the 30% that Apple takes, it's not difficult to see that we might "optimize" this route for making money. It could be that the hole in the walled garden is large enough to make Apple's revenues flow out at a rate that is unacceptable - to Apple.

The ruling may not have set iOS apps free, but it has the capacity to dent Apple's income. So Apple appealed to the 9th Circuit in April 2023 and it just came back with its final ruling that the original decision stands and Apple has to open the gates to in app purchases via external web sites.

So what does Apple do next?

It appeals to the Supreme Court. The grounds for the appeal are interesting:

Because the injunction will have far-reaching consequences to both Apple and to non-parties, there is good cause for a stay of the mandate (and hence the injunction) pending disposition of Apple’s petition for a writ of certiorari. This case is important, not only for Apple and its business model, but also for thousands of developers and millions of iPhone users around the country. This Court should not allow a single-plaintiff action to dictate Apple’s policies nationwide while serious legal questions remain unresolved.

And once again Apple plays its key card in the game, user security:

There is good cause for the stay because if the mandate issues, Apple will be required to change its business model to comply with the injunction before judicial review has been completed. The undisputed evidence establishes that the injunction will limit Apple’s ability to protect users from fraud, scams, malware, spyware, and objectionable content.

How exactly allowing in-app purchases that bypass Apple's 30% cut would make Apple less able to protect users is an interesting question. The link between payment and security is surely weak?

Finally there is a nice example of "knife twisting":

On the other hand, there would be no prejudice to Epic from a stay: Epic is not an iOS app developer and does not stand to benefit from the injunction. Given these extraordinary circumstances, a stay pending Apple’s petition for a writ of certiorari is warranted.

Of course Epic is not an iOS app developer because the court ruled that, as it had broken Apple's rules and had bypassed the 30% Apple tax, Apple could ban Epic from the App Store and hence force Epic to be a non-iOS developer.

jtepicgames2Visit joyoftech.com to view the complete cartoon

Given the Supreme Court's latest run of controversial rulings, if you are hoping for freedom to be restored to Apple platform programmers I wouldn't hold your breath.

More Information

Apple Inc.’s motion to stay mandate pending petition for a Writ of Certiorari

Related Articles

Apple Wins Appeal Against Epic

Epic v Apple - Both Sides Lose But It's A Win For Developers

Epic Games V Apple & Google - Smash The App Stores

Epic Games Takes On Apple - Unintended Consequences

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

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Last Updated ( Wednesday, 05 July 2023 )