The Epic Games v. Apple trial is now in its second week, bringing with it expert witnesses including economists, law professors and more. But despite the serious nature of the experts and the subject matter, those in the courtroom and listening in on the public court line have borne witness to several strange moments.
From questions about a naked banana man, to indie games store Itch.io going on Twitter proclaiming Apple lawyers called and made gaming illegal, to the constant questioning around “What is a game? Is Fortnite a game?” we’re here to explain it all.
The role of public perception
The Epic Games v. Apple court trial has produced a slew of memes and memorable Internet moments. Epic v. Apple may be judged in the court of public opinion, and not just on the antitrust merits, legal and economics experts told The Washington Post.
Not everyone is pleased with that idea. Apple in particular has taken pains to point out that Epic has planned a public-relations campaign since 2018 so it could look good in consumers’ eyes. Apple uploaded documents of Epic’s internal discussions as evidence to the trial’s publicly accessible folder.
“Our company is too successful to be sympathetic about,” Epic marketing vice president Matt Weissinger wrote in notes dated May 15, 2020. “It’s a rich company versus a rich company.” Weissinger also wrote that tech journalists were likely to side with Google and Apple for the same reason.
In part, Epic’s riches make it a uniquely capable messenger. “Epic is trying to show … developers have been charged all these fees and you don’t even see them, but we as developers suffer,” said Florian Ederer, associate professor of economics at the Yale School of Management. “The only reason they can do that is because they have a tremendous amount of market power through owning ‘Fortnite.’”
Another internal communications document from Epic predicted that when “Fortnite” was blocked from iOS and Android, players would feel negatively, especially the 55% of iOS users that never bought in-app purchases and wouldn’t be impacted by Apple’s 30% revenue cut either way.
What is a game? And how is ‘Fortnite’ like Tinder?
From the outset of the trial, both sides dwelled on the definition of a game. On May 4, the second day of the trial, Judge Yvonne Gonzalez Rogers asked Epic Games CEO Tim Sweeney what a game was.
“A game involves some kind of win or loss or progression, whether it’s an individual or a social group,” Sweeney replied.
Throughout the week, we also heard from Epic executives, including Vice President and General Manager of Epic Games Store Steve Allison and VP of marketing Matt Weissinger, who were asked whether there was a standard definition of a game.
Defining what a game is might sound pointless to listeners, but it gets to the heart of the Epic v. Apple antitrust case: Narrowing down a market definition to determine if Apple is running a monopoly. In questioning, Epic lawyers often asked questions that led to descriptions of “Fortnite” as more than just a game: a virtual hangout, a “metaverse” even, that hosts concerts featuring artists like Travis Scott and Marshmello and even discussions of race and politics.
But Apple has pushed back on those definitions, calling “Fortnite” a game repeatedly and saying PlayStation, Xbox and Nintendo are competitors to iOS. If that definition prevails, Apple will be able to say it doesn’t run a monopoly in gaming platforms, where it has a small percentage of users. Apple has also shown data that most users don’t play “Fortnite” on iOS and instead play on the major console platforms or PC.
“Epic has the burden of proving their market,” said Jennifer Rie, senior litigation analyst at Bloomberg Intelligence. “And what they’ve said is that it’s a single brand market, essentially, that the relevant market is the distribution of apps on an iOS mobile device. Obviously, Apple would have a monopoly if you defined the market to be just Apple and just distribution on iOS.”
Been listening to this Apple and Epic trial this week.— eimmi (@akemiexpansions) May 8, 2021
Is Fortnite a video game? Is it a metaverse with games inside of it? Is Minecraft a video game? Is Roblox a video game? Are visual novels video games?
What is a video game?
Even Tinder was brought up in arguments, as Epic’s expert witness economist David Evans brought up on Monday that some companies must use Apple’s payment processing system and others don’t. Tinder must give Apple a 30% revenue cut while Starbucks doesn’t need to, as it sells physical goods.
At one point, the judge raised clarifying questions about Tinder, including “is it like Fortnite where you have to have an account?”
Epic's atty clarifies that also has never used Tinder, but he's explaining that Tinder works by using location. The judge says she has also not used Tinder, but asks if users can buy 'likes' from their PCs. He says he doesn't know. (OMG move over, lemme give you a tutorial.)— these trying times. (@doratki) May 10, 2021
Indie games store itch.io, which allows users to self-publish games, was also drawn into the court battle. Epic had mentioned itch.io last week as an example of a nongame app that Epic allows in its games store, in stark comparison to Apple, which doesn’t allow game stores inside its App Store.
On Friday, Apple counsel Karen Dunn brought up that itch.io contains sexualized games, including one titled “Sisterly Lust” that involves “a list of fetishes which include many words that are not appropriate for us to speak in federal court,” according to Dunn.
Allison, the VP and GM of the Epic Games Store, said he was not aware of that game, and agreed that Epic did not review all of itch.io’s games. He clarified that “Epic is only distributing the App Store Itch.io” and not the games themselves. He disagreed that Epic is on the hook for Itch.io’s review of its games falling short of Epic’s own store guidelines, as users have their own account on itch.io.
By allowing itch.io on the Epic Games Store, Epic opens the door to sexual content, which it ordinarily wouldn’t clear by its own guidelines, Apple counsel argued. Through this example, Apple meant to show why it wouldn’t want to loosen the App Store guidelines and permit third-party stores inside its store. Epic has countered by attempting to show that Apple’s review process is more lax than the iPhone-maker lets on, letting through all sorts of malicious applications.
Later on Friday, itch.io tweeted its response to being named in court. “Guys, Apple’s lawyers just called,” the account tweeted. “They said we need to turn off ALL the games. Games Are Now ILLEGAL.” The tweet quickly went viral, drawing support from indie game fans.
guys, Apple's lawyers just called. They said we need to turn off ALL the games 😭— itch.io (@itchio) May 7, 2021
Games Are Now ILLEGAL
Latest from itchio Press Room: We are renaming our "Sensitive Content" filter to "Unspeakable Games"— itch.io (@itchio) May 7, 2021
Judge Rogers spoke up during the itch.io questioning, asking, “So if I have a phone and your app store was on that phone, that other store could be downloaded which has all of this offensive material?” Allison clarified that itch.io and the Epic Games Store are accessible on PC.
“And this lawsuit’s about your ability to do it on your phone, right?” Judge Rogers continued. Allison agreed with that assessment.
Apple doesn’t allow apps that contain third-party games inside its App Store, including Microsoft’s Project xCloud streaming service, Facebook Gaming (which is allowed on iOS but doesn’t contain games) and GameClub. GameClub was brought up by Apple’s Karen Dunn on Wednesday as an example of a competitor to Apple Arcade, the tech giant’s gaming subscription service, that is allowed on iOS. But that invocation drew ire from an unexpected source: GameClub itself. The company’s vice president of business development, Eli Hodapp, told The Washington Post that GameClub was rejected “well over a hundred times in our quest to getting on the App Store” and “has experienced unnecessary friction due to Apple’s requirements.”
“Apple’s defense is that its restrictions are required because it needs to carefully curate the App Store to protect the court,” Rie said. “And the example is that within Epic Games Store, [there] is itch.io where people can access the kind of content that Apple wouldn’t want users to be able to access and download onto its phone. This is its reasoning for the restrictive policy of needing to go app by app or game by game, rather than allowing for an app that had within it all of these various games that a user could access.”
Naked Peely versus clothed banana man
On Monday, Apple implied that showing Peely, a banana character in “Fortnite,” without clothes on would be inappropriate, hence why it presented a photo of Peely wearing a suit.
“We have a large yellow banana here, don’t we? In a tuxedo?” Apple’s lawyer Rich Doren said. “In fact, in the tuxedo, he’s known as Agent Peely. … We thought it better to go with the suit than the naked banana, since we are in federal court this morning.”
Apple says it brought up Peely because it goes toward the company’s argument that it wants to curate its store and keep out inappropriate content through its strict vetting.
Later, Epic had its chance to refute Apple’s implication.
“We talked about Peely, our banana?” Epic lawyer Lauren Moskowitz asked Epic Games marketing VP Weissinger to comment in the legal redirect later Monday. “Is there anything inappropriate about Peely without clothes?”
“It’s just a banana man,” Weissinger responded.
Experts consulted by The Post described the exchange as irrelevant to antitrust — though amusing.
“It’s a little bit tit-for-tat,” said Rie. “I think what Epic has really tried hard to do in the first week of trial is really just make Apple look bad. I don’t think they did a very good job of making out their case.”
Herbert Hovenkamp, professor of law at The Wharton School of the University of Pennsylvania, agreed.
“Most of it is a distraction. It’s important to determine whether Apple has market power,” he said. “Judges know these tricks, so I don’t think they would be particularly effective. But some lawyers are just conditioned to do things the way they do them. They might just be hauling in a whole bunch of irrelevant stuff because they think it might persuade the judge one way or the other.”
As the trial heads into more expert witness testimony from Apple’s side, we’ll hear more from the judge and get a better sense of the trial’s likely outcome. For now, experts seem to believe Apple is most likely to win. Antitrust law has eroded over the years, and the judge has sounded skeptical of Epic in comments over the past few days, though court watchers have cautioned against reading into those comments too closely.
Still, those same experts believe that whether Epic wins, there will be more scrutiny of Apple’s App Store from lawmakers and disgruntled developers besides Epic who are ready to air their concerns.