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Re:Apple Terminates Epic Games' Developer Account by pvg on Friday August 28, 2020 @09:03PM (#24312299)
The harsher that Apple retaliates, the better Epic's court case. Apple is playing right into his hands.

I keep seeing seeing assessments in this vein but they can't really be right - the courts would have to be toddler-level naive not to see through it. They aren't - here's Judge Rogers addressing Epic at the recent hearing (as reported by Sarah Jeong):

"To Epic: Your client created this situation. Your client does not come to this action with clean hands ..... in my view, you cannot have irreparable harm when you create the harm yourself."

Re:Apple Terminates Epic Games' Developer Account by sfifs on Friday August 28, 2020 @09:43PM (#24312544)
What I think is happening is Epic is trying to force a jury trial on anti-trust and won't hold out for a settlement unlike Amazon and Netflix. At this stage all Epic's actions are geared basically around collecting arguments to bring in front of a jury composed of regular folks.

I'm very confident the old Steve Jobs emails from the eBooks anti-trust case will also be brought into the trial to argue anti-trust is in Apple's DNA.

That's also the reason for that silly 1984 ad parody, so they can bring Apple's original 1984 ad into the trial and make an argument of hypocrisy in front of the Jury - once they were plucky upstarts but now as the most valuable company, they're vampire like etc.

Other vendors are also at this same time taking the opportunity to test Apple store rules limitations - either for Epic to be able to add those additional arguments to their own case OR possibly for them to get standing to join the suit - look at the PR yesterday around Facebook donations to creators hurt by Covid being blocked by Apple store rules.

In this situation, there's very little role the judiciary can play except move the process along. It's going to be a fun battle to watch.

Re:Apple Terminates Epic Games' Developer Account by jahewson on Friday August 28, 2020 @10:10PM (#24312701)
Epic can’t force a jury trial on anti-trust (Sherman act violations) - only the US government has standing to even file that kind of suit. What they can do is sue for damages due to breach of contract or similar bad faith which is a risky and not hugely convincing position.

You’re quite right that they want a jury trial and to put on a show. But legally this is just a business dispute and arguably one that Epic engineered. I wouldn’t be surprised if the case was simply thrown out for that reason.

Re:Apple Terminates Epic Games' Developer Account by commoner on Friday August 28, 2020 @10:37PM (#24312876)
> Epic can’t force a jury trial on anti-trust (Sherman act violations) - only the US government has standing to even file that kind of suit.

Are you sure? How do you explain these cases?

Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007): https://supreme.justia.com/cases/federal/us/551/877/

> PSKS filed suit, alleging, inter alia, that Leegin violated the antitrust laws by entering into vertical agreements with its retailers to set minimum resale prices. The District Court excluded expert testimony about Leegin’s pricing policy’s procompetitive effects on the ground that Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, makes it per se illegal under §1 of the Sherman Act for a manufacturer and its distributor to agree on the minimum price the distributor can charge for the manufacturer’s goods. At trial, PSKS alleged that Leegin and its retailers had agreed to fix prices, but Leegin argued that its pricing policy was lawful under §1. The jury found for PSKS.

Copperweld v. Independence Tube, 467 U.S. 752 (1984): https://supreme.justia.com/cases/federal/us/467/752/

> Thereafter, respondent filed an action in Federal District Court against petitioners and Yoder. The jury found, inter alia, that petitioners had conspired to violate § 1 of the Sherman Act, but that Yoder was not part of the conspiracy, and awarded treble damages against petitioners.

More cases are listed under "United States Supreme Court cases" in this Wikipedia article:

https://en.wikipedia.org/wiki/Sherman_Antitrust_Act_of_1890

Re:Apple Terminates Epic Games' Developer Account by Applejinx on Saturday August 29, 2020 @07:13AM (#24315286)
Yeah, but the thing is Epic is trying as hard as they possibly can to get into their own monopoly position. They want to BE Steam and the App Store, not to destroy them. They can't do otherwise, as a giant corporate entity.

It makes things interesting but the notion that there's anything heroic or even helpful about what Epic is doing, is real dubious. I think the best argument one can have is that one always wants some Epic around snapping at the heels of whoever is currently the Establishment. That's not the same thing as wanting them to prevail, because then you have to ask 'what are they going to do when they are in that monopolist position that they so obviously want'.

Re:Apple Terminates Epic Games' Developer Account by Despegar on Friday August 28, 2020 @11:34PM (#24313193)
There won't be a jury trial. It will be decided in Apple's favor on summary judgement.
Re:Apple Terminates Epic Games' Developer Account by philplckthun on Friday August 28, 2020 @09:15PM (#24312376)
Just some thoughts; I actually found this phrasing really interesting, because clearly “you cannot have irreparable harm when you create the harm yourself” is provably incorrect.

The judge won’t let this influence the decision on not extending the injunction to the Epic Games contract with Apple because of an earlier point, which is that two separate contracts exist. It’s interesting that this has been addressed with this flimsy follow-up argument.

Obviously the court shouldn’t let this influence their decision because it was a calculated move, and it’s assumed that Epic is fine with the harm it causes them to make a point. Nonetheless it’s causing them financial harm, which may in the long term be irreparable if in the meantime their player base on iOS shifts to different games.

So all in all, it is a calculated risk but irreparable harm is indeed one possible outcome. Whether Apple takes any responsibility in this depends on how the court decides in the case however. Even if their behaviour is judged as uncompetitive, that may not automatically mean that they’re at all at fault here.

Re:Apple Terminates Epic Games' Developer Account by hannasanarion on Friday August 28, 2020 @09:48PM (#24312575)
The judge is using "irreparable harm" as a term of art. What he's saying is you cannot have standing to sue for irreparable harm that you inflicted on yourself.

You can't deliberately crash your own car and then go to court demanding the manufacturer give you a whole new one because the crash revealed a loose screw.

Re:Apple Terminates Epic Games' Developer Account by JakaJancar on Saturday August 29, 2020 @04:34PM (#24319235)
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Re:Apple Terminates Epic Games' Developer Account by _qulr on Friday August 28, 2020 @09:15PM (#24312380)
Epic's motion had several parts. The judge denied Epic's motion to be restored to the App Store. But the judge did grant a restraining order to prevent Apple from closing all of Epic's developer accounts. That was the retaliation, and the judge said it fit the criterion of irreparable harm.

If Apple had simply removed Fortnite and stopped there, they'd be in a better position legally, and in terms of PR.

Re:Apple Terminates Epic Games' Developer Account by pvg on Friday August 28, 2020 @09:25PM (#24312433)
I'm not any sort of expert in this and can't really re-litigate what happened at the hearing. It can't be the case, though, that Epic is pulling some clever Grand Admiral Thrawn Hyperpoker move here if every commenter on the internet along with United States District Judge Yvonne Gonzalez Rogers can tell what it is after about 3 seconds thinking about it.
Re:Apple Terminates Epic Games' Developer Account by _qulr on Friday August 28, 2020 @09:40PM (#24312523)
The strategies on both sides are fairly obvious. On Apple's side, the strategy is to make an example of Epic, in order to dissuade other developers from becoming "rebels" too.

It all depends on who ultimately wins the lawsuit, and that's up the in the air. It's a fairly high risk strategy on both sides, but it'll pay off for the winner. Apple is probably confident (perhaps overconfident) that they'll win in the end.

Re:Apple Terminates Epic Games' Developer Account by pvg on Friday August 28, 2020 @09:45PM (#24312563)
The strategies on both sides are fairly obvious.

If that's the case, the thing you said in your original comment and what I'm taking issue with seems very unlikely - that "Apple is playing right into his hands". For this to work, everything happens to be obvious to everyone except Apple and the court who are somehow inexplicable naifs.

Re:Apple Terminates Epic Games' Developer Account by RonanTheGrey on Friday August 28, 2020 @11:34PM (#24313194)
> that "Apple is playing right into his hands". For this to work, everything happens to be obvious to everyone except Apple and the court who are somehow inexplicable naifs.

For Apple, the stage is set, and they are merely players; they have no choice at this point but to act the way they are because if they don't they lose the consistency argument. So while they may see through the strategy, they're also bound by it, because they have to enforce their terms -- lest other developers get "uppity" and think they can do this too.

They also want to demonstrate what it takes to fight them, the amount of money that will be lost, because that too will have a chilling effect.

Honestly the only way this works out for anyone is if Epic wins a slam dunk because otherwise Apple elegantly demonstrates that their control can never be broken. I think it's possible they win some concessions; the slam dunk though... much less likely.

Re:Apple Terminates Epic Games' Developer Account by canuckintime on Saturday August 29, 2020 @12:45AM (#24313624)
> the only way this works out for anyone is if Epic wins a slam dunk because otherwise Apple elegantly demonstrates that their control can never be broken

Not necessarily. Even if Epic's solitary actions aren't enough to break Apple's control that doesn't mean more developers acting in tandem can't swing the balance of power. Microsoft and Facebook have already mumbled that they are in support of some of Epic's complaints. If those two try to force the issue now as well, and if more developers in general take a stand together (even Google has reason to join in; Apple Music doesn't use Play Store's IAP for subscriptions on Android while Youtube etc is forced to use AppStore's IAP on iOS), I think Apple might just blink first...

Re:Apple Terminates Epic Games' Developer Account by RonanTheGrey on Saturday August 29, 2020 @02:30AM (#24314112)
You're not wrong; the path you're describing is the longer/harder one though.

Incidentally it's probably the more permanent one, too.

Re:Apple Terminates Epic Games' Developer Account by Applejinx on Saturday August 29, 2020 @07:23AM (#24315314)
I suspect that he with the largest market capitalization wins: hence the attempt to hashtag against Apple and make up a social movement in opposition to it, as if Apple was Big Brother practicing totalitarian oppression.

The Apple side of the argument can be expressed as 'on this platform (that you can buy into), who gets to take your money over the internet?' Exerting oversight over their walled garden and taking a cut of revenues means they take very real responsibility over the situation of 'taking your money over the internet', which they're apparently fine with. We buy into that scenario when we are Apple users: there's a point of clearly defined accountability that we take for granted, and we expect any bad actors to be handled by that point of accountability.

Epic's like, 'no, there should be many points of accountability. Or at least, well, US'. We've already got that platform, and it's Android. People still choose to hang out in the Apple walled garden even though it costs a premium to do so, when Android is RIGHT THERE and lots of people are prepared to make it a very appealing proposition (I use Google Fi as a cell provider, but on an iPhone. There's functionality I would have if I went with a Google phone, and the phone would cost less)

Re:Apple Terminates Epic Games' Developer Account by _qulr on Friday August 28, 2020 @09:59PM (#24312632)
I believe that Apple is making Epic's case stronger. However, the case is still very much a wildcard. Epic could lose, and then they've risked everything in order to get nothing in return. If Epic loses, then everything is on the table, including losing all of their Apple accounts.

I believe that Apple has other reasons for acting as it does, which are not necessarily directly related to maximizing its chances of winning this specific case.

This doesn't make anyone a naif. Every party in the situation is playing a different game, not the exact same game. Sometimes your hand is just forced by the actions of someone else.

Re:Apple Terminates Epic Games' Developer Account by wincy on Friday August 28, 2020 @11:35PM (#24313203)
I’m wondering if the point is to get politicians attention with this, since it coincided with the antitrust hearings on Capitol Hill. If they could get some lawmakers on their side, regardless of what the courts decide, the law could be modified to give Epic a more favorable position in all this.
Re:Apple Terminates Epic Games' Developer Account by nugget on Saturday August 29, 2020 @12:46AM (#24313626)
Remember that Tencent owns about half of Epic. Once this dispute is resolved, if Apple were to try and “punish” Epic, they could encounter some pressure from the Chinese Government. There seems to be a lot of dependent relationships involved here.
Re:Apple Terminates Epic Games' Developer Account by _qulr on Saturday August 29, 2020 @08:01AM (#24315494)
Apple already tried to punish Epic. They removed all of Epic's apps from the App Store yesterday. And they tried to terminate all of Epic's developer accounts, including accounts for Unreal Engine, which was only stopped by a court's temporary restraining order.