On Day Two of the Apple vs Epic trial, Sweeney said he would have taken an exclusive App Store deal, Apple recounted Epic's praise of Apple's Metal API, more

Simon says Apple refused to let it prominently mention COVID-19 in an update that appeared in its app, because it worried the topic —including just mentioning lockdowns — would be “potentially triggering.” This was the day before it released its own COVID-19 screening app. Nick Statt / @nickstatt : Hmmm. Epic's lawyer asks Sweeney, “If Apple told you the deal would only be with you and no other developers,” referencing a carve-out for lower App Store commission, “would you have accepted that deal?” “Yes I would have,” Sweeney says. Patrick McGee / @patrickmcgee_ : Former head of App Review, Phillip Shoemaker, was furious the fraudulent apps kept making it into the store: https://twitter.com/... Julia Alexander / @loudmouthjulia : Tim Cook to Eddy Cue and Phil Schiller on an email from Tim Sweeney (from the looks of it) in 2015: “Is this the guy that was at one of our rehearsals?” https://twitter.com/... Ben Bajarin / @benbajarin : @saurabhsharan @mgsiegler @adamnash @alexeheath Yes, but the challenge there is the 9th circuit overall of FTC v. Qualcomm where affirmation of a companies ability to ruthlessly compete (hyper-competition) has set an amazing precedent for competitive dynamics.

9to5Mac 2021-05-05 Chance Miller

Context & Ripple Effects

Apple entered the trial with prior emails it said showed Epic seeking a special App Store arrangement. Sweeney's testimony adds a direct statement that Epic would have accepted an exclusive lower-commission deal, while Apple's presentation also stressed Epic's earlier praise for Metal.

The testimony sharpens a dispute already framed by Epic's antitrust arguments: whether App Store rules are market-wide restrictions or commercial terms Apple can selectively negotiate. Internal discussion of a potential reduction in the 30% fee gives that pricing question added relevance.

First-order effects

Apple gains testimony it can use to characterize Epic's immediate objective as preferential commercial terms rather than equal access for all developers.
Epic must reconcile its challenge to App Store restrictions with Sweeney's willingness to accept an exclusive carve-out from those restrictions.

Second-order effects

Other App Store developers have a clearer reason to scrutinize whether commission and distribution rules are applied uniformly, since the trial record centers on the possibility of a tailored deal for Epic.
The litigation's focus moves toward the competitive meaning of negotiated exceptions: Apple can argue flexibility, while Epic can argue that gatekeeper discretion determines which developers receive relief.

Third-order effects

If platform disputes increasingly turn on exceptions rather than published rules, app-distribution competition will be judged more heavily on whether major developers can contest the gatekeeper's terms rather than on the nominal rate alone.

The trend: App-store regulation and litigation are increasingly testing whether platform-wide rules are genuine standards or bargaining leverage that can be selectively traded away.

Discussion

@iansherr Ian Sherr on x
Just a sense that Sweeney wasn't prepared much or he didn't listen. Answer to Epic lawyer: “If Apple had told you that it would offer you a deal and no other developers would you have accepted that deal?” Sweeney: Yeah.
@nickstatt Nick Statt on x
Hmmm. Epic's lawyer asks Sweeney, “If Apple told you the deal would only be with you and no other developers,” referencing a carve-out for lower App Store commission, “would you have accepted that deal?” “Yes I would have,” Sweeney says.
@patrickmcgee_ Patrick McGee on x
Former head of App Review, Phillip Shoemaker, was furious the fraudulent apps kept making it into the store: https://twitter.com/...
@thedextriarchy Adi Robertson on x
Huh — Simon says Apple refused to let it prominently mention COVID-19 in an update that appeared in its app, because it worried the topic —including just mentioning lockdowns — would be “potentially triggering.” This was the day before it released its own COVID-19 screening app.
@loudmouthjulia Julia Alexander on x
Tim Cook to Eddy Cue and Phil Schiller on an email from Tim Sweeney (from the looks of it) in 2015: “Is this the guy that was at one of our rehearsals?” https://twitter.com/...
@thedextriarchy Adi Robertson on x
For Apple it's a win if Nvidia is providing an amazing service through the Safari browser outside the App Store, obviously. “Has Apple done anything to stop Nvidia from offering GeForce Now on Safari?” lawyer asks. Patel says no.
@nickstatt Nick Statt on x
I am genuinely curious how much Sony's relatinship with Epic can factor into the outcome of the trial, considering they're now so financially intertwined. Sony isn't on trial, and Epic will never sue them. But it does bolster Apple's arguments.
@benbajarin Ben Bajarin on x
@saurabhsharan @mgsiegler @adamnash @alexeheath Yes, but the challenge there is the 9th circuit overall of FTC v. Qualcomm where affirmation of a companies ability to ruthlessly compete (hyper-competition) has set an amazing precedent for competitive dynamics.
@nickstatt Nick Statt on x
We're talking about Apple's Metal now. “That's a graphics API. It contributed to Epic's ability to effeiciently build a top-quality version of Fortnite for iOS?' Sweeney says yes. Here, Apple is establishing Epic's reliance on its tools, in theory justifying commission.
@ryuworks Ryu on x
He is making the lives of everyone at Apple difficult and puts into jeopardy the future of every single Apple user's beloved choice of computing platform - ALL FOR A FUCKING DISCOUNT. BURN IN HELL TIM SWEETNEY AND EPIC https://twitter.com/...
@ampressman Aaron Pressman on x
Epic CEO Tim Sweeney bugs Apple CEO Tim Cook in 2015 email about openness of the app story. 10 hours later, Cook is like keep this guy off our stage (which makes sense). https://twitter.com/...
@thedextriarchy Adi Robertson on x
Apple is asking about Epic's recent decision to host https://itch.io/ as a store-within-a-store. Asks if Sweeney has reviewed all the games on Itch. (No.) Sweeney cites Itch's library as “at least hundreds” of games, which is a hell of a lowball. https://itch.io/....
@loudmouthjulia Julia Alexander on x
Personal opinion: there's no real “David” to root for. Epic is going to position itself as a David ("We are all David when it comes to Apple") but it's just a slightly tinier Goliath taking on the Goliaths of all Goliaths. “You'll enjoy the fireworks” is one heck of a line.
@thedextriarchy Adi Robertson on x
Judge asks why Epic didn't let people buy V-Bucks on its website via iOS before Project Liberty. “It wasn't a very attractive option for our customers,” Sweeney says. Had they even started working on it an option? “We hadn't programmed it.”
@thedextriarchy Adi Robertson on x
Lawyer has moved on to asking Sweeney about the benefits Epic gets from being on iOS — specifically the Metal graphics API. Judge touched lightly on this point yesterday, pushing back on Epic's portrayal of Apple as sort of a parasitic middleman.
@fcbunn Bunn on x
“Lawyer: If Apple had told you that it would offer you a deal and no other developers, would you have accepted that? Sweeney: Yes, I would have.” Oh, wait! So he was NOT fighting for developers and freedom? He just wanted special deals? Who would have thought??!! 🤡 https://twitte…
@loudmouthjulia Julia Alexander on x
I like this Epic Games EBITDA slide (finally getting through them for personal amusement) for a lot of reasons, but this just sums up so much of so many publishers esports plans. https://twitter.com/...
@nickstatt Nick Statt on x
Apple cites email from Sweeney saying Fortnite players' friendships were “being torn apart” by Sony's restrictions on cross-platform play for Fortnite. Apple points out iOS supported cross-platform, and Sony later eventually invested in Epic and agreed to cross-platform.
@thedextriarchy Adi Robertson on x
Sweeney confirms that there were “significant negotiations throughout 2018” between Epic and Sony over cross-play.
@nickstatt Nick Statt on x
“Sony finally agreed to cross-platform play, but it has never agreed to cross-wallet transactions, is that correct?” Yes, Sweeney says, and Apple's lawyer points out that this is true even today following Sony's massive investment in Epic. Your v-bucks are stuck on PSN.
@nickstatt Nick Statt on x
Apple's lawyer asking again about Epic Game Store profitability in 3-4 yrs. “You expect to lose hundreds of milions of dollars relative to the amount of minimum guarentees.” Sweeney says yes. Apple is targeting Epic's spend on PC relative to what it says it's losing on mobile
@thedextriarchy Adi Robertson on x
Lawyer's getting at the fact that Sony (and Nintendo) lock down how people can spend money through Fortnite, and Epic chose to strike a deal with Sony instead of doing something like suing.
@loudmouthjulia Julia Alexander on x
Tim Sweeney does not have a PlayStation in his home. Devastating.
@nickstatt Nick Statt on x
We're getting pretty in the weeds here about how Epic negotiated cross-platform play between Xbox, PlayStation, and iOS. Apple's lawyers saying Epic used Fortnite on iOS as a motivating factor to get Microsoft onboard.
@nickstatt Nick Statt on x
Tim Cook is ice fucking cold wow https://twitter.com/...
@loudmouthjulia Julia Alexander on x
Lawyer: “Is a console something you'd consider a portable device?” Tim Sweeney: “Uh, no.” Nintendo: https://twitter.com/...
@thedextriarchy Adi Robertson on x
“When a player did that, Apple would not receive any commission ... and yet those V-Bucks would be spent by the player on the iOS device,” says lawyer. Apple permitted cross-play and cross-wallet transactions, Sweeney agrees, and not all platforms did.
@nickstatt Nick Statt on x
Important though is Sweeney saying Epic “never negotiated a different commission structure with the console makers,” which implies the 70-30% split is in fact a universal standard that is then negotiated on top of.
@patrickmcgee_ Patrick McGee on x
2018 emails between @Apple and @Epic: Apple is looking for quotes on how its “Metal” API helps game developers. Epic is enthusiastic. Epic execs/comms go back-n-forth writing up a punchy quote, conceding it's far better than the Android equivalent.
@thedextriarchy Adi Robertson on x
Pretty funny email exchange where Epic CTO Kim Libreri (aka the guy who helped invent bullet time) complains a PR quote about Metal is “a bit dry and not as hip as one would have expected from the coolest game developer on the planet.” https://twitter.com/...
@nickstatt Nick Statt on x
This is really key. Apple's laywer here is trying to establish the Epic Game Store, with its 88-12 rev split, as a ploy to push the industry toward a model that would benefit Epic and its products.
@nickstatt Nick Statt on x
This is interesting. Sweeney privately feared that when AR went mainstream it would cement 30% cut. “Time is now to solve this problem before AR takes off and that rate is set at 30%,” Sweeney quoted as saying. Probably bc Apple could point to iPhone hardware as justification.
@patrickmcgee_ Patrick McGee on x
Friedman conceded the App Store would be “pretty cheesy” if it were inundated with ads, “but at least it would be transparently cheesy.” In any case, he said the App Store's role as an app discovery tool had become pretty meaningless for consumers. 3/5
@thedextriarchy Adi Robertson on x
Apple's taking advantage of the fact that *of course* Tim Sweeney is going to profess to be excited about all the awesome options for Fortnite and developers in interviews, and that rhetoric conflicts with Epic alleging that Apple is causing it substantial harm.
@thedextriarchy Adi Robertson on x
Apple's citing an email Sweeney sent to Sony exec Phil Rosenberg in 2018 calling lack of cross-play an “untenable position” — saying it would tear kids' friendships apart and might not be legal.
@loudmouthjulia Julia Alexander on x
Epic Games' presentation to the board on launching Project Liberty (Free Fortnite). Basically we have to do this now because: a) Marvel is the perfect event to capitalize on and b) People are mad at Apple and Google and Big Tech in general Epic is also a Goliath but ¯\_(ツ)_/¯ htt…
@nickstatt Nick Statt on x
Apple's line of argument here is essetntially that Epic is unfairly targeting Apple, when the console makers are the cause of more financial burden and logistical nightmares for its business. Sony in particular, which accounts for a majority of Fortnite players/revenue.
@nickstatt Nick Statt on x
Back to Project Liberty, Epic's master plan to launch antitrust suits against Apple/Google over Fortnite's removal. Apple's lawyer quoting Epic COO Daniel Vogel via email on Liberty as “way to get Apple and Google to reconsider without us looking like baddies.”
@benbajarin Ben Bajarin on x
@mgsiegler @adamnash @alexeheath Been listening to the whole thing, and interestingly in light of the restrictions other platforms impose that Epic willingly abides by, iOS comes off looking pretty good in some areas. :)
@tha_rami Rami Ismail on x
That Epic email on the right is three years old and not directed at me and I am in no way affected by it but I am still sweating a bit reading it. https://twitter.com/...
@patrickmcgee_ Patrick McGee on x
Blunt response from SVP of software Eddy Cue, who reports directly to Cook: 2013: “The reason we lost Safari on Windows is the same reason we are losing Safari on Mac. We didn't innovate or enhance Safari....We had an amazing start and then stopped innovating.... 2/3 https://twit…
@pkafka Peter Kafka on x
Main thrust of Apple attorney questions this am: Getting Epic CEO to acknowledge that Epic used lots of Apple tools/tech/terms to get Fortnite into iOS. Idea is to knock down Epic's argument that Apple doesn't deserve the $$$$ it makes from App Store.
@nickstatt Nick Statt on x
@TimSweeneyEpic Here's my write up of @TimSweeneyEpic's day two testimony in Epic v Apple. Most consequential imo is Sweeney's admission that Epic wants Fortnite to be a creator platform, and App Store fees would ruin that. https://www.protocol.com/... https://twitter.com/...
@gartenberg Michael Gartenberg on x
@realjohn That's the baffling part. That so much of this stuff was put into email by folks who should have known not to. “So what I say, not what I do?” Or perhaps Sr VPs didn't think their emails would come back to haunt them?
@repkenbuck Congressman Ken Buck on x
Epic is fighting for its entire existence in this trial while Apple is fighting for four days of revenue. https://www.wsj.com/...
@hoeglaw Richard Hoeg on x
@BigES13 Make no mistake Apple has the vastly easier case to make. Epic is fighting for a new application of Sherman. Apple just has to say “it's ours, your honor, why are we here?”. Doesn't mean they will win, but it's much closer to a *standard* defense.
@charlesarthur Charles Arthur on x
The Android number, though, that's pretty stunning: 0.7% of the take. With more than a billion devices available. (Playstation 46%, Xbox 25%, Switch 12%, PC 8%, iOS 7%.) https://twitter.com/...
@drbarnard David Barnard on x
It's ironic that the walls I've bashed into most in trying to create useful things for other people are the walls Apple itself built. https://twitter.com/...
@tomwarren Tom Warren on x
Apple's attorneys are using retweets from a personal account as a form of defense of Apple blocking cloud gaming apps like GeForce Now, Google Stadia, and Microsoft xCloud 🙃 https://twitter.com/... https://twitter.com/...
@mgsiegler M.G. Siegler on x
@adamnash @alexeheath Working Title: “Apple Brought a Rocket Launcher to a Gun Fight in a Nuclear War”
@benedictevans Benedict Evans on x
It's hilarious that Apple uses this example to argue web apps are just as good an option as native given 1: The FT only did it because of Apple's restrictions on what apps could do and 2: the FT web app was never satisfactory and was abandoned for a native app! https://twitter.co…
@justinschuh @justinschuh on x
This offers an interesting peek into how this struggle played out inside Apple nearly a decade ago. Sadly, they largely gave up on Safari anyway, as they pivoted to driving everything into their app store, where they can now enforce their cut on all monetization. https://twitter.…
@bhansmeyer Becky Hansmeyer on x
I think the App Store needs attention. I fear that Apple is too stubborn to make changes that are in everyone's best interest right *now*, before their autonomy is regulated away. As for BC, I believe the most important leadership quality is humility, and they ain't got it.
@drbarnard David Barnard on x
Ah... the heady days of 2016, when I thought Apple was finally going to make more than token changes to the App Store. Felt the same in 2008, and 2009, and 2010, and 2011, and 2012, and 2013, and 2014, and 2015, and for some reason still hope Apple rethinks the App Store in 2021.…
@thedextriarchy Adi Robertson on x
Epic's lawyer notes that buying V-Bucks through the website is inconvenient. Judge jumps in, asks if Fortnite's userbase is mostly young. “Isn't that a responsible way to deal with a young client base? Why should we want them to have the ability to just on impulse buy something?”
@migueldeicaza Miguel de Icaza on x
In Epic vs Apple, one of the exhibits is from the guy that built the AppStore Review team. After he left Apple, he became a crypto bro, raptured by hype, he goes on to make these claims: https://twitter.com/...
@justinschuh @justinschuh on x
@migueldeicaza This was immediately following the Blink fork. Apple had to grow their team just for basic maintenance, because Google had been doing the lion's share of the work up to that point. E.g. My team handled essentially all Webkit vulnerability response and remediation.
@reckless Nilay Patel on x
Apple is basically making the argument that web apps are a good competitor to native apps, which, well... they are not. Famously they are a “shit sandwich,” according to @gruber https://twitter.com/...
@migueldeicaza Miguel de Icaza on x
Like many, I was told that slapping attorney/client privilege into an email and CC your lawyer was all you had to do to keep your email from showing up in court. Epic vs Apple shows emails that were not as safe as the authors expected them to be. Here is why: https://twitter.com/…
@hoeglaw Richard Hoeg on x
There's virtually no way to distinguish Epic's theory of the case form generalized operating system control of all sorts of hardware. Epic is apparently struggling, but the important part to remember is that were they to win, they don't control the fallout of the decision. https:…
@keleftheriou Kosta Eleftheriou on x
.@pschiller: “PLEASE develop a system to automatically find low rated apps and purge them!!” me: “Say no more...” 👨🏻‍💻 🤫 https://twitter.com/...
@benbajarin Ben Bajarin on x
@pt @Carnage4Life @TechmemeChatter Apple is positioning their dev tools, SDK, API, as proprietary tools (IP) and thus 30% is more like a royalty. Interestingly, Sweeney agreed iOS in general has better quality apps than Andriod. And Apple has QCOM defeat of FTC on their side for …
@thedextriarchy Adi Robertson on x
We are way down a garden path of trying to explain why game consoles aren't equivalent to iPhones because of their controller configuration or size or various other somewhat random-seeming distinctions Epic has come up with.
@adamnash Adam Nash on x
@mgsiegler @alexeheath Apple culture doesn't work like that. If they feel like Epic negotiated in bad faith and did this for self-interested publicity, they will never voluntarily concede the fight. This is part of the “non-linear thinking” that Bill always complained about when …
@gartenberg Michael Gartenberg on x
@realjohn Not part of Apple culture at all precisely for the reason it might find itself defending emails (even out of context) in depositions related to an awful lot of lawsuits that happen. I was cautioned more than once.
@drbarnard David Barnard on x
Part of me now wants to find a way to sue Apple just for the discovery. To better understand the discussion around the volumes of email I've sent about scam apps, App Store policies, etc. Haven't seen one yet, but I'm expecting at least one of my emails to pop up in the Epic docs
@bdsams Brad Sams on x
2008, Apple shoots down allowing Yahoo widgets on iPhone. Only took them another decade to build their own. https://twitter.com/...
@reckless Nilay Patel on x
Apple's doing a good job of poking holes in the Epic case, but it feels like Epic is doing an equally good job showing how much control Apple has over every app on the store. ⁦@thedextriarchy⁩ recaps day 2: https://www.theverge.com/...
@neilcybart Neil Cybart on x
I wish more people writing / talking about Apple vs. Epic would focus on what it is that Epic actually wants in all of this = its own app store on iOS so that it can collect its own share of in-app purchases.
@adariostrange Adario Strange on x
I'm listening to Epic's Tim Sweeney give testimony in the Apple court case and hearing him reference Snow Crash and the metaverse gave me chills. This is the history of the future. #VR #AR
@thedextriarchy Adi Robertson on x
Nvidia has mostly stayed quiet about the Apple rejection. Now, it says it submitted the app through the approval process. It approved the app, then a few days later rescinded approval. They “provided a pointer to their application guidelines” and said the app was not conforming.
@nickstatt Nick Statt on x
Sounds like Epic's lawyer is trying to get out ahead of Sweeney's attempts to negotiate a unique App Store deal, similar to ones Amazon has made with Apple. They're doing so by arguing Appel was unwilling to negotiate, like a console maker would have been.
@migueldeicaza Miguel de Icaza on x
@justinschuh Well it does say in 2013 “we are stating to work on Safari again”
@carnage4life Dare Obasanjo on x
Would be an interesting precedent if a court agrees that using a lot of Apple dev tools to create your iOS app means they're entitled to 30% of your revenue. https://twitter.com/...
@chrismlacy Chris Lacy on x
1. Apple loses, must allow 3rd party iOS stores. 2. Google releases Play on iOS, moves all its iOS apps. 3. FB/Twtr/Snap make deal w. G. They get X% of lifetime $ from all apps installed via app install ads. 4. G Search prioritizes Play iOS results. The App Store is neutered.
@benbajarin Ben Bajarin on x
Having listened to Apple's cross-exam of Tim Sweeney, the struggle in Epic's argument is why they singled out iOS when they comply with all the other stores whose restrictions and commission are the same. This is the main weakness in Epic's position.
@benedictevans Benedict Evans on x
Apple makes, say, $15bn in App Store commission. It will be forced to allow alternatives in the next year or two. But then what? Some questions. 1: How many users and developers actually switch, given Apple's option will still be lower-friction?
@benedictevans Benedict Evans on x
2: 90% of this is games. How much of that flows straight back to app-install ads? How much of that flows straight back to *Apple* app-install ads? (Evil genius theory - this is why Apple turned off IDFA)
@tomwarren Tom Warren on x
the Judge in the Epic Games v. Apple trial just addressed the flood of documents yesterday. “Some of these documents I ordered sealed over the weekend were in fact released. I'm not sure if at this point whether the genie is out of the bottle.” https://twitter.com/...
@tomwarren Tom Warren on x
Sweeney said to Spencer: “you'll enjoy the upcoming fireworks show.” 🎆🎇https://www.theverge. com/ ... https://twitter.com/...
@tomwarren Tom Warren on x
Epic tried to push Microsoft to open up Xbox Live to free multiplayer gaming just weeks before the big battle with Apple over Fortnite. Internal emails between Xbox chief Phil Spencer and Tim Sweeney reveal the details. Story here: https://www.theverge.com/... https://twitter.com…
@mgsiegler M.G. Siegler on x
@alexeheath Yep, that's why it's so surprising Apple opted to fight. At some point, while they may not be able to put an exact dollar value on the negative PR/regulatory blow back, but they must know the magnitude of pressure they're going to feel as a result of this. Cut off nos…
@alexeheath Alex Heath on x
the level of stuff unearthed in discovery in Epic v Apple is truly stunning, and likely the point
@thedextriarchy Adi Robertson on x
Day 2 of livetweeting the Apple/Epic trial starts in 15 minutes. Expecting more cross-examination of Epic CEO Tim Sweeney, plus witnesses from Nvidia and Xbox, and god willing better audio. Coverage of yesterday below: https://www.theverge.com/... https://twitter.com/...
@marshacollier Marsha Collier on x
New emails show Steve Jobs referred to Facebook as ‘Fecebook’ amid App Store conflict 👉 New documents, revealed by Epic Games, show that the relationship between Apple and Facebook has been strained since as far back as 2011. #rechnology via @9to5Mac https://9to5mac.com/... https…
@trippmickle Tripp Mickle on x
Tim Cook tends to lecture Facebook. His predecessor preferred to ridicule it. https://twitter.com/...
@patrickmcgee_ Patrick McGee on x
@Apple @epic App Store Margins (Apple has disputed these) https://twitter.com/...
@mattnavarra @mattnavarra on x
In the emails, Steve Jobs calls Facebook, “Fecebooks” https://www.cnbc.com/...
@simoncarless Simon Carless on x
Want to know how much $ the devs of those ‘free’ Epic Games Store games got, & how many copies were grabbed? Here's the first 9 months to September 2019. 👀 https://twitter.com/...
@ballmatthew Matthew Ball on x
1/ Epic v Apple has given unprecedented insight into cross-platform gaming. More data than the platforms themselves have! For example, Fortnite's MAUs by ecosystem. Note how new devices expanded total player counts and didn't cannibalize the platforms that already had Fortnite ht…

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