Wednesday, May 5, 2021 [Tweets] [Favorites]

Epic v. Apple, Day 2

Adi Robertson (tweet):

Apple did support cross-wallet play before banning Fortnite last year — and on the trial’s second day, that fact became a serious pitfall for Epic. Apple continued a long cross-examination of Epic CEO Tim Sweeney, whose hours of testimony included a digression on whether Fortnite counts as a true metaverse or simply a big free-to-play game that has concerts. (Judge Yvonne Gonzalez Rogers suggested, and Sweeney concurred, that “the most readily acceptable analogy” might be Steven Spielberg’s Ready Player One.)

Sweeney was followed by two witnesses from outside Epic: the founder of an iOS yoga app, followed by the product manager for Nvidia’s cloud gaming service. All argued that Apple’s tightly managed App Store forced customers to use clunky workarounds. Meanwhile, Apple argued that the workarounds weren’t necessarily worse — just different.

Nick Statt (tweet):

The theme emerging from both days of testimony is that Sweeney sees this as a fight that goes well beyond a single game and even a single platform. In Epic’s eyes, suing Apple is an existential fight for the future for media, computing and software distribution, and maintaining the status quo would represent a major setback for Epic’s ambitions.

[…]

Doren raised a number of questions about Sony’s negotiations with Epic. The most important of those was how Epic paid Sony additional revenue over the standard 70-30 revenue split on PlayStation to compensate for cross-play, a feature Epic received significant pushback over and which it had to carefully orchestrate across all major console platforms.

[…]

[Sweeney] also repeated his argument that game consoles, which are largely single-purpose devices and not general computing ones, are often sold at a loss and make up the difference through software sales. In Sweeney’s eyes, that justifies a higher commission. […] The point of the exercise, including a hypothetical from Epic’s lawyer over checking a bank balance at the doctor’s office using a game console, was that phones are multi-purpose, general computing devices and that game consoles are not valid substitutes.

Nilay Patel:

Apple’s insistence on comparing the iPhone to game consoles at trial is also really interesting -- do they want the iPhone to be considered a console-like device, or a general purpose computer? What about the iPad?

[…]

Adding to this from a pure policy perspective - we know there are huge numbers of people, especially lower-income people, where a phone is their only computing device.

Tom Warren:

Apple’s attorneys are using retweets from a personal account as a form of defense of Apple blocking cloud gaming apps like GeForce Now, Google Stadia, and Microsoft xCloud 🙃

Jason Snell:

The big question is, will Apple be able to bargain with the powers that be, offering smaller changes that will take pressure and scrutiny off of the rest of the company’s practices? Or will it be forced to change in ways it absolutely doesn’t want by judges and regulators who have decided that its behavior is in violation of the law?

This is complicated stuff. There’s no way to tell how it’ll turn out. But it’s worth considering some of the possibilities, which I’ll rank from most likely to happen (and generally, least catastrophic to Apple) to least likely (and most catastrophic).

Previously:

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