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.
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.
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:
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'.
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.
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.
If Apple had simply removed Fortnite and stopped there, they'd be in a better position legally, and in terms of PR.
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.
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.
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.
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...
Incidentally it's probably the more permanent one, too.
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)
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.
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."