Epic Games has some important allies in its bid to overturn a court ruling that cleared Apple of violating antitrust laws. CNET and FOSS Patents report Microsoft, the Electronic Frontier Foundation and the attorneys general of 35 states have filed briefs supporting Epic’s case with the US Court of Appeals for the Ninth Circuit. The states argued the district court mistakenly claimed the first section of the Sherman Act (a cornerstone of US antitrust law) didn’t apply to unilateral contracts like the terms Apple set for developers. The court also didn’t properly weigh the damage of Apple’s claimed anti-competitive behavior versus the benefits, according to the brief.
Microsoft, meanwhile, noted that it still had reason to be concerned about Apple’s “extraordinary gatekeeper power” despite its size, citing its own interest in maintaining competition and innovation. This included allegedly anti-competitive behavior beyond the rules affecting Epic. Apple’s effective ban on cloud gaming services in the App Store is believed to hurt Xbox Game Pass Ultimate, as an example. Microsoft also disputed the district court’s view that Apple’s in-app payment requirement wasn’t an anti-competitive effort to tie products together.
The EFF, meanwhile, echoed the states’ concerns about weighing harmful effects while offering parallels to Microsoft’s interpretation of tying. The foundation also said the district court made errors when it presumed customers were fully aware of Apple’s policies when they joined the company’s platform.
Apple remained confident in its chances. In a statement to CNET, the company said it was “optimistic” the district court’s ruling would be upheld and maintained its view that it was providing a “safe and trusted” App Store offering a “great opportunity” for creators. Epic has declined to comment.
Briefs like these won’t guarantee success for Epic — the appeals court isn’t obliged to consider them. This is a strong showing of support, however, and it won’t be surprising if Microsoft, EFF and the states influence the decision. If Epic wins its appeal and doesn’t face further challenges, Apple may have to further reform the App Store.
