Federal District Judge Yvonne Gonzalez Rogers heard arguments this morning regarding Epic̵
The hearing gave the clearest indication yet of the best arguments of either party on the matter and what positions Rogers seem most likely to influence as the case moves towards full trial.
When is a monopoly not a monopoly?
A key issue in this case is Epic’s claim that Apple’s exclusive control of the iOS App Store is an illegal monopoly that hinders competition. Today’s discussion of Epic’s claim has been heavily focused on which market Apple is allegedly monopolizing.
Apple argued that iOS is just one of many platforms like in the broader competitive video game market Fourteen days. There, Apple faces competition from console manufacturers, PC-based businesses like Steam and GOG, and Google’s Android platform, to name a few. In this market, Rogers himself found that most competing platforms charge developers the same 30 percent fee as Apple, suggesting that iOS has no harmful market-controlling power.
Epic’s attorney, Gary Bornstein, argued in response that the market in question should not be viewed simply as “all the ways someone can reach a user to play a video game”. Where Apple has the monopoly, it is in the market for developers to sell their game specifically to iOS users.
“So that Apple can face the competitive discipline [from the market]That would mean there would have to be a significant number of developers who would give up the platform if Apple raised the price, “argued Bornstein.” We know this is not the case. You are not going to give up the opportunity to reach a billion users. “
This is an important distinction that Epic must legally make. There is existing case law that states that a company can have monopoly control of a secondary market (in this case app downloads) even if there is competition in a broader market (in this case video game and / or smartphone hardware) is exposed. However, proving this case is an uphill battle that usually requires proving that customers are wrongly “tied” to that secondary market after the primary purchase.
63 percent versus 10 percent
At the hearing, Bornstein stated that “63 percent of iOS users play Fourteen days Play on iOS only. “These players are not technically ‘tied” to iOS – they could and many are moving to another platform, but they also don’t necessarily have multiple devices to play with and may not be able to afford separate hardware to access them Fourteen days, he said.
Even if iOS players have access to other hardware, the situations are not always analogous, according to Bornstein. “It’s like saying there aren’t any [monopoly] Ridesharing and taxi market when people can also walk or bike or get a friend to drive them or use public transit, “he said.” You can’t play Xbox while on a bus. “(Though you can play a switch, as Judge Rogers stated in response).
Apple lawyer Richard Doren said the number of iOS Fourteen days Players who do not use other platforms do not matter. Instead, he cited the claim by Epic co-founder and CEO Tim Sweeney that less than 10 percent of Fourteen daysThe daily average users played on iOS. That shows “Epic itself uses that [alternative] Options in the market that are available to him, “he said, and Apple cannot have monopoly control over Epic Fourteen days Business.
“”Fourteen days has no right to access to everyone in the world, “said Doren.” You just need alternatives [to iOS] available, and they have that in spades. ”
In her statements, Judge Rogers seemed more inclined to assess Apple’s position in the broader video game market. “If we look at this plaintiff and the industry, walled gardens have been around for decades,” she noted. “Nintendo had a walled garden. Sony had a walled garden. Microsoft had a walled garden … In this particular industry, what Apple does is not much different … It’s hard to ignore the economics of the industry … which one is what [Epic is] ask me to do. “
Fourteen days That being said, Judge Rogers also said she was inclined to agree with Epic’s claim that “there is an uproar in the market over the lack of competition for [distribution of] iPhone apps. You read the papers, I read the papers, it’s there. “That said, Judge Rogers also suggested that this particular case may not be the right one to make that argument,” given the competition for mobile games. “