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Epic Games versus Apple antitrust appeal scheduled; Apple has the harder job

Last year’s Epic Games versus Apple ruling left neither side happy, with both the developer and iPhone maker filing appeals against the judgement. The appeal hearing has now been scheduled for October 21, and it looks set to be an uphill battle for Apple.

Apple and Epic will each get only 20 minutes to make oral arguments, but we may also be hearing from the antitrust division of the Department of Justice (DOJ), and potentially also an argument on behalf of 35 state attorneys general – each of which is effectively siding with Epic …


Epic Games sued Apple for not allowing it to use its own payment platform instead of in-app purchases through the App Store, with Apple taking a 30% cut.

The court ruled that Apple must allow developers to steer app users to external payment platforms, but concluded that the company did not meet the legal tests to be considered a monopoly – and thus did not have to permit competing app stores for iOS apps. Both Apple and Epic Games filed appeals on different aspects of the ruling.

Epic is appealing the ruling that the App Store is not a monopoly, arguing that there is no other way for developers to sell iPhone apps other than through Apple. The iPhone maker, in turn, is arguing that the court made a legal error when considering the anti-steering issue.

The Department of Justice antitrust division filed what’s known as an amicus brief – a statement from an uninvolved party which is intended to help the court reach the correct decision. Although technically neutral, labelled as “in support of neither party,” the DOJ’s submission favors Epic’s argument that Apple does have monopoly control of the iOS app market.

Additionally, the attorneys general of 35 US states have also joined forces to submit an amicus brief that again argues that Apple does have monopolistic powers.

Epic Games versus Apple appeal

Foss Patents reports that the appeal hearing has been scheduled for Friday, October 21.

The Ninth Circuit will hear Epic Games v. Apple App Store antitrust appeal on October 21 in San Francisco […]

It’s a cross-appeal as Epic is appealing the dismissal of its federal antitrust claims under the Sherman Act, while Apple is appealing the consolation prize Judge Yvonne Gonzalez-Rogers handed Epic in the form of an anti-anti-steering injunction under California state law (Unfair Competition Law).

It should be noted that the site’s Florian Mueller is a developer, and makes no secret of the fact that he believes Apple should lose the case. But he has argued this from legal precedent, rather than any feelings of his own. Mueller also points to the sloppiness of the judgement, as well as one absurdity within the ruling which appears to suggest the court did not understand the most fundamental of facts.

Those misconceptions culminated in a sentence according to which Apple’s market share in smartphones is smaller than in smartphone operating systems, though we all know that no iPhone is sold without iOS and iOS is never sold without an iPhone. 

We may potentially hear from five different parties:

  • Apple
  • Epic Games
  • The US Department of Justice
  • A lawyer speaking for 35 state attorneys general
  • California (speaking on a state-specific issue)

However, it is not yet known whether the latter three will apply for permission to be heard. In particular, whatever the outcome of this appeal, it is certain that the losing side(s) will appeal to the Supreme Court, so the third parties may decide to wait until then.

9to5Mac’s Take

Anyone who predicts what will happen at the end of a court case is either brave or naive.

The original ruling was a compromise – one that we predicted – and it’s possible that the appeal decision will likewise be somewhere between the two positions.

However, it seems unarguable that Apple has the tougher challenge here. It is not only arguing against Epic Games, but also effectively against the position stated by the Department of Justice and a whole bunch of US states. It is also flying in the face of upcoming antitrust legislation, which may eventually render the ruling here irrelevant.

Two things are certain: It’s going to be a tough fight, and it will eventually be decided in the US Supreme Court.

Photo: Sasun Bughdaryan/Unsplash

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Avatar for Ben Lovejoy Ben Lovejoy

Ben Lovejoy is a British technology writer and EU Editor for 9to5Mac. He’s known for his op-eds and diary pieces, exploring his experience of Apple products over time, for a more rounded review. He also writes fiction, with two technothriller novels, a couple of SF shorts and a rom-com!

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