Tuesday January 31, 2023

Epic pushes to overturn App Store ruling in opening appeal brief

Epic Games has filed its first brief to the Ninth Circuit Court of Appeals. It seeks to overturn the previous ruling that Apple’s control over the iOS App Store is not a monopoly. Although Epic Games first made its appeal in September, Thursday’s filing marks the first time that it has argued its case in detail. The filing states that Epic proved at trial that Apple retrains traders by contractually requiring developers only to use Apple’s App store to distribute apps and Apple IAP to pay for digital content within apps. “If the district court’s decision is not overturned, it would throw out established antitrust laws and…undermine sound antitrust policies.”
Epic’s first legal challenge against Apple’s App Store restrictions was settled in September when a district court ordered Apple, among other things, to remove some restrictions on in app payments. However, the court cleared Epic of any antitrust charges. Apple has filed a separate appeal to reverse the new in app payment rules.
Judge Gonzales Rogers was ambiguous in her ruling on whether Apple had monopoly power in the mobile gaming market. In her decision, she stated that “the evidence does suggest Apple is near the edge of substantial market power or monopoly power with its considerable market share.” Apple is only saved because its share isn’t higher, that other submarkets are making inroads in the mobile gaming submarket, and perhaps because [Epic] didn’t focus on this topic.”
Epic seems determined to revisit this question in the appeals brief and draw a stronger link between the iPhone’s success with mobile gaming platforms and a possible monopoly case against Apple. “The factual findings of the district court make it clear,” Epic claims in the filing, “that Apple’s conduct is exactly what the antitrust laws prohibit.”

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