Microsoft Supports Epic Games Appeal of Apple Ruling
- Paul Thurrott
- Jan 28, 2022
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Microsoft has joined 35 U.S. States in supporting Epic Games’ legal battle against Apple and its onerous App Store policies and fees.
“Few companies, perhaps none since AT&T Inc. at the height of its telephone monopoly, have controlled the pipe through which such an enormous range of economic activity flows,” the Microsoft filing explains. “Microsoft brings a unique—and balanced—perspective to the legal, economic, and technological issues this case implicates. In part of its business, Microsoft sells hardware devices and is one of the leading operating systems for personal computers. Microsoft also provides an online store for applications that run on its operating system. In other parts of its business, Microsoft sells applications and services that run on operating systems and devices built by other companies, like Apple. It offers products that compete with Apple and, like Epic Games, Inc., it offers games. It has an interest in ensuring that antitrust law both polices a dominant firm’s improper foreclosure of competition and preserves incentives for innovation, investment, and beneficial technological integration.”
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Microsoft’s overt and public support for Epic is important. But here, I will rely on Florian Mueller and the explanation he provides in his authoritative FOSS Patents blog.
“A submission by Microsoft is perfectly complementary to the other [U.S. states] filings because it shows that even another Big Tech company is profoundly concerned over, and negatively impacted by, Apple’s conduct—and because of the arguments [that] Microsoft’s very well-crafted brief makes,” he writes. “Microsoft’s testimony at last year’s trial led Apple to contradict itself: Apple argued that Epic was a Microsoft puppet, but also that Microsoft was somewhat dependent on Epic (which is absurd because Epic, with the greatest respect for Fortnite’s success, isn’t that powerful). Epic can’t be in Microsoft’s pocket and Microsoft simultaneously in Epic’s. That illogicality just showed Apple’s concern over the impact of Microsoft’s testimony.”
Regarding the separate filing from 35 U.S. states—which includes Alaska, Arkansas, Colorado, Connecticut, Delaware, D.C. (yes, yes, not a state), Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah (which submitted the filings), Vermont, and Washington—Mueller notes that the primary argument falls under Section 1 of the Sherman Act.
“Those filings are not just a ‘nice to have’,” he explains of the legal wrangling here. “This kind of support is mission-critical, as I explained a few days ago. And a few hours before those filings, I was already impressed with the fact that ‘the Dean of American Antitrust Law’ (as the New York Times called him), Professor Herbert Hovenkamp, signed a world-class amicus brief submitted by Professor Michael Carrier.”
“Epic’s appeal is very much alive,” Mueller concludes. “Apple will use its market power and money to get support from all sorts of ‘friends of the court’ as well, possibly even ridiculous astroturfing organizations. But it won’t be able to counterbalance the support Epic received from 35 states, Microsoft, the EFF, and America’s most cited and most authoritative antitrust law professor. It will probably be easy to see for the Ninth Circuit that those who support Epic do so because it’s the right and necessary thing to do, while those who will support Apple are just going to have reasons to do Apple a favor.”