Everyone is confused now about whether the iPad should count as a mobile gaming device. Judge settles on "Android/iOS mobile gaming” as a category. Bornstein seems relatively satisfied with the idea of this as a category.
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Apple complains Epic has decided to “lump non-substitutes together” in order to create one giant lump iOS transactions market.
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Bornstein is trying to raise complaints that developers have, even of free apps that don’t pay commissions — like people getting ads placed above their searches. Rogers is skeptical.
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Judge points out there are 1.8 million apps in dozens of categories. “I think as a practical matter, if you have 100,000 apps in a category, and people are complaining they’re not at the top of the list?” That’s not necessarily a reasonable complaint, she says.
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Meanwhile, “yes, there are some complaints about search,” Apple’s lawyer says, but developers are still happy with the App Store.
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Judge notes that this trial has probably been great advertising for Down Dog, the yoga app whose creator testified in the first week.
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Epic points out the report about the App Store’s allegedly high profit margins as he wraps up. Even though Apple says it doesn’t track these numbers, “the numbers are the numbers, and the numbers don’t lie.”
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Judge expresses doubt about this, says Tim Sweeney admitted Epic also doesn’t do itemized profits & loss. Lawyer says that Apple clearly produced charts that show numbers (even if it said they weren’t totally accurate/fair), and there’s no evidence Epic had comparable ones.
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We’re done with market definition and going to talk about company conduct with Apple’s Veronica Moye. She’s trying to counter a report the judge cited last week that showed 39% of App Store developers were dissatisfied.https://twitter.com/leah_nylen/status/1396867347944771591 …
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“The record is replete with examples of responsiveness” to developer feedback at Apple, says Moye.
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Apple’s Moye going through all the commission reductions that Apple has made since the App Store launched, i.e. the Video Partner Program and the Small Business Program.
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Moye: Even if the Small Business Program was introduced because of litigation (something judge suggested), it’s still pro-competitive. “Does that mean that we have to wait for people to sue Apple?” judge asks. “How can you reasonably say that should be a competitive driver?"
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Epic’s Bornstein argues Apple’s APIs, etc. aren’t part of the App Store, and developer satisfaction surveys are skewed by people liking tools like APIs but liking the App Store much less.
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Judge to Epic’s lawyer: “You made a reference to the lack of price decrease,” but there are other factors like output/quality. “What specific direct evidence is there of anticompetitive effects?"
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Epic’s Bornstein cites higher prices and lower innovation specifically in the market for app distribution and in-app payment options. (As opposed to phone tech, etc.)
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Judge asks him to be more specific, but he sticks with “lower prices” and “higher quality”.
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Apple’s Moye disagrees with Epic about Apple’s developer tools not being a part of the store. “These tools are provided to developers so they can have apps on the store,” and Apple invests many resources into building them.
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Moye reiterates that consumers specifically buy an iOS device for “Apple’s long-standing brand promise” of better safety and security, and if they want an alternative model, they’re free to get an Android device.
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Moye is criticizing Epic’s last-minute “desperate attempt” to “scrounge up” witnesses unhappy with Apple. (They were trying to bring someone on Friday.) Judge says “that’s not quite fair” — notes Down Dog and Match Group had testimony ready right at the beginning of the trial.
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Conversely Moye says Apple didn’t try to engage in “theatrics” like Epic’s strategy of calling up developers.
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Now we’re talking about anti-steering provisions, comparing to the AmEx case that found they were legal. Judge says Apple’s “hiding” of alternate payment options could be anticompetitive even under that precedent.
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Apple’s Moye says there’s “nothing unique or unusual” about adding anti-steering rules for efficiency. Rogers jumps in: Cook said himself it wasn’t about efficiency! “I understand Apple has a right in my view for its intellectual property,” but that’s a different reason.
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If you’re coming new to the anti-steering stuff, here’s what was happening earlier in the trial:https://www.theverge.com/2021/5/11/22431356/epic-v-apple-anti-steering-ios-fortnite-subscriptions-web-day-7 …
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Moye: “We believe it’s a legitimate business justification to not have people have links on the App Store —” Judge stops her: Okay, why not just a note saying there are more options online? Moye says it would be like having a sign at Nordstrom’s telling people to buy at Macy’s.
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Judge Rogers says that if you go to Nordstrom’s you might not see a Macy’s sign, but you can see signs indicating you can pay through several methods, i.e. Visa/MasterCard/AmEx — so what if App Store payment processing is more like that?
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Epic’s Bornstein is going over the finer points of exactly how developers are allowed to market to users:https://twitter.com/leah_nylen/status/1396876545868894215 …
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Here’s a little more context on the provision that Apple and Epic are currently arguing about the meaning of: https://twitter.com/StephenNellis/status/1396876596795957248 …
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Apple’s argument is basically that developers can totally email consumers with promotions, but they can’t specifically send targeted emails to users who have just signed up telling them they can get something cheaper by going elsewhere.
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“Epic has not raised a legal claim here saying it has been harmed as a result of any anti-steering provisions,” Moye says — in fact, no evidence anyone has. Judge notes Down Dog certainly said they were harmed. There’s a little back-and-forth, but judge sticks to her guns on it.
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Judge Rogers and Epic’s Bornstein are talking about the circumstances under which developers can get email addresses. Bornstein complains devs have to go through a separate step of asking for one — Rogers says that might be privacy-preserving for the user.
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Bornstein says if we’re doing a mall analogy, it would be like if you shop at a chain store like Under Armour, that store could have signs saying it has outlets at other locations — even though stores are paying the mall to be there.
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