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| 2 minutes read

Is there an easy solution to the Epic v Apple dispute?

In early April, ahead of the trial due to start in Oakland, California on 3 May, Apple and Epic have filed their Proposed Findings of Fact and Conclusions of Law (see here and here).  Despite the documents amounting to some 600+ pages, a number of commentators have already produced some very useful summaries of the main issues facing the Court (see here and here for example), as well as highlighting some of the colourful anecdotes that Epic has worked into its submissions and providing an update on a recent motion about witnesses.

The filings show that at trial the Court is going to have to grapple with some very difficult questions, the answers to which could have a significant impact on how digital markets and platforms develop in the future.  

For example, what is the relevant market in which the Court should be assessing Apple's conduct? Is it iOS app distribution and iOS in-app payment processing as Epic alleges? Or is it as Apple suggests a much wider market of game distribution generally, in which the App Store competes with major games console manufacturers? 

The Court's consideration of such issues are likely to be watched closely by regulators around the world who are also wrestling with similar topics. 

Will the case make it to trial?

A recent Bloomberg article queried whether the trial could still be be avoided.  It notes that Apple's terms do permit developers such as Epic to sell subscriptions and content online or on another platform and to enable users to access this content on their iPhones. The difficulty is that Apple blocks developers from advertising the availability of such alternative purchasing options within the iOS app or game. 

Bloomberg speculates that amending this rule might be a simple solution to an expensive dispute. It would make it much easier for Epic to sell V-Bucks to iOS users without having to pay the 30% commission, and it would enable Apple to settle this litigation without having to completely open up iOS to third party payment processing.

However, while I can see the merit of this kind of solution, and it's still possible that the parties might settle before trial, ultimately I think too much is at stake here for either party to be satisfied with such a compromise. For Epic, it would fall short of its ultimate aim of being able to establish a rival app store. For Apple, it would be a crack in its armour that could been seen as an admission of wrongdoing and could fan the flames of the various antitrust investigations into the same subject matter.

Assuming the trial does go ahead, the verdict is also likely to be appealed, so it may be some time before we have any concrete answers.

Rather than spending millions of dollars and thousands of hours on this trial, a compromise on this specific rule -- 3.1.3(b) -- would be a cheaper and quicker solution.


competition law, competition litigation, technology, interactive entertainment