Microsoft Supports Epic Games Appeal of Apple Ruling

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.”

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Conversation 8 comments

  • rm

    28 January, 2022 - 11:15 am

    <p>"<span style="color: rgb(68, 68, 68);">When the walls come tumblin’ down</span>!" – John Cougar Melloncamp</p>

    • ebraiter

      28 January, 2022 - 2:42 pm

      <p>You mean John Mell<strong>e</strong>ncamp [and "Cougar" was removed by then. 🙂 ]</p>

  • bluvg

    28 January, 2022 - 12:07 pm

    <p>Claims aside, this comment is a non sequitur: </p><p><br></p><p> "<em>Epic can’t be in Microsoft’s pocket and Microsoft simultaneously in Epic’s.</em>" </p><p><br></p><p>They absolutely can. If the point is that Microsoft doesn’t rely on Epic, fine, but shared benefit/economic interest certainly can be a driver between two entities.</p>

  • scovious

    28 January, 2022 - 12:30 pm

    <p>It seems like literally everyone who doesn’t own a piece their stock or drink the Apple cool aid wants Apple to have less of a closed platform, or at the very least be less draconian with their App Store which is the only way for buy software with their Apple products. It might had not even been an issue if regular developers weren’t asked to pay double the tax that Amazon pays.</p>

    • bkkcanuck

      28 January, 2022 - 12:46 pm

      <p>But it is not for courts to make law, it is the legislature’s job… and precedence is not on Epic’s side. If 35 states are supporting the appeal, you would think there would be enough of a will to actually change the law rather than trying to get the courts to do their job. </p>

  • kidakidb

    29 January, 2022 - 9:26 pm

    <p>Apple’s walls are going to come crumbling down soon. </p>

    • pecosbob04

      31 January, 2022 - 12:59 pm

      <p><strong>"Doomed"</strong> I tell ya!</p>

  • curtisspendlove

    04 February, 2022 - 2:13 pm

    <p>I’ve been beating this drum for a while but no one realizes how this is going to end. </p><p><br></p><p>This “crusade” against App is not going to end well for developers. </p><p><br></p><p>And the free ride for colonies like Facebook will be over (I’m fine with this). </p><p><br></p><p>But Apple is quietly laying the groundwork to charge everyone with an app (free or not) 30% of their earnings involving any iOS / tvOs / etc (minus 3% transaction fees). </p><p><br></p><p>You think I’m crazy. But you won’t soon. They are building the framework and they can soon say “well we *have* to do this … developers asked for more flexible ways to pay us and the governments around the world have mandated it”. </p>

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