yesEmily BirnbaumNone
×

Get access to Protocol

I’ve already subscribed

Will be used in accordance with our Privacy Policy

Power

How Epic could actually win its cases against Apple and Google

Lawyers and experts say Epic's lawsuits are surprisingly serious — and the $17 billion gaming company actually has a shot at winning.

Fortnite

In Nineteen Eighty-Fortnite, Epic Games took direct aim at Apple's App Store policies.

Epic Games

The lawsuits from Fortnite maker Epic Games against Apple and Google this week bear all the hallmarks of a PR stunt.

Epic introduced its new payment system with a flourish. And the company was ready with almost 150 pages of legal arguments and an ad campaign to hit back when Apple and Google inevitably removed the app from their stores on Thursday.

But former antitrust regulators and experts say Epic's lawsuits are surprisingly serious, and the $17 billion gaming company actually has a shot at winning.

"This is a really well-put-together lawsuit that they obviously had been planning for quite a while," said Chris Saagers, a professor at Cleveland-Marshall College of Law who has written extensively about antitrust issues around Apple. "They've done their homework."

For one, Epic's cases are backed by multiple superstar attorneys in the antitrust world, including Christine Varney, a former U.S. assistant attorney general within the Justice Department's antitrust division, and Katherine Forrest, who served as the U.S. district judge for the Southern District of New York as well as a deputy in the DOJ antitrust division. (Forrest and Varney now work at Cravath, Swaine & Moore LLP — ironically, the firm that represented IBM, which Apple named as a monopolist when it first launched the App Store.)

Their names alone give the case a boost of credibility, said John Newman, an associate professor of law at the University of Miami and former DOJ antitrust lawyer. "I frankly don't think those types of attorneys take on cases that aren't serious," he said.

The cases also appear to be promising, experts said. Epic is arguing that Apple and Google use their "monopoly" power over their respective app stores to stifle competition and harm rivals, specifically focusing on their policies of taking a 30% cut of all in-app purchases. The argument is reminiscent of landmark tech antitrust case U.S. v. Microsoft, in which Microsoft was found guilty of violating the law.

It's notable that Epic is not seeking any monetary relief. Instead, the company is looking for court orders that would prevent Apple and Google from further engaging in their "anti-competitive conduct" over the app stores.

"Epic is not seeking monetary compensation from this Court for the injuries it has suffered," the company said in its lawsuit against Apple. "Nor is Epic seeking favorable treatment for itself, a single company. Instead, Epic is seeking injunctive relief to allow fair competition in these two key markets that directly affect hundreds of millions of consumers and tens of thousands, if not more, of third-party app developers."

Multiple state attorneys general, Congress and the European Commission are all investigating Apple over its App Store policies, elevating the Apple case's importance and visibility.

But Epic could hit a hurdle with its narrow definition of the markets that Apple and Google monopolize. It's arguing that Apple illegally uses its power over the iOS distribution market and payments system, while Google monopolizes its Android app distribution market. Essentially, Epic is alleging a "single-brand market," which judges typically do not prefer. "Alleging a single-brand market is an uphill battle," said Newman.

There's some precedent for plaintiffs winning cases when they allege single-brand markets, but it will be difficult. The issue is that Apple and Google together dominate the app distribution market in the U.S., making it hard to argue that either has a total monopoly.

The lawyers said it seems like Epic's cases, particularly the case against Apple, have a fair chance of going to trial in Northern California, where they were filed. But that process could take years.

Next, Apple and Google are likely to file motions to dismiss the cases, said Maurice Stucke, a former prosecutor in the Justice Department's antitrust division who now teaches law at the University of Tennessee in Knoxville.

But, Stucke said, the question remains: "Where's our government? Why aren't they bringing these types of cases?"

Martin Cooper with his original DynaTAC cell phone.

Photo: Ted Soqui/Getty Images

Martin Cooper helped invent one of the most consequential and successful products in history: the cell phone. And almost five decades after he made the first public cell phone call, on a 2-pound brick of a device called the DynaTAC, he's written a book about his career called "Cutting the Cord: The Cell Phone has Transformed Humanity." In it he tells the story of the cell phone's invention, and looks at how it has changed the world and will continue to do so.

Cooper came on the Source Code Podcast to talk about his time at Motorola, the process of designing the first-ever cell phone, whether today's tech giants are monopolies, and why he's bullish on the future of AI.

Keep Reading Show less
David Pierce

David Pierce ( @pierce) is Protocol's editor at large. Prior to joining Protocol, he was a columnist at The Wall Street Journal, a senior writer with Wired, and deputy editor at The Verge. He owns all the phones.

Politics

Is this the future of the FTC?

In conversation with Protocol, Commissioner Becca Slaughter, whose name has been floated as a possible FTC chair, laid out her priorities for the next four years.

FTC commissioner Becca Slaughter may be President Biden's pick for FTC chair.

Photo: David Becker/Getty Images

Becca Slaughter, a commissioner for the Federal Trade Commission, made a name for herself last year when she famously breastfed her newborn baby during video testimony before the Senate, raising awareness about the plight of working parents during the pandemic.

But lately, Slaughter's name has been circulating for other reasons: She's a likely candidate to be President Joe Biden's pick for FTC chair, an appointment that would put Slaughter at the head of antitrust investigations into tech giants, including Facebook.

Keep Reading Show less
Issie Lapowsky
Issie Lapowsky (@issielapowsky) is a senior reporter at Protocol, covering the intersection of technology, politics, and national affairs. Previously, she was a senior writer at Wired, where she covered the 2016 election and the Facebook beat in its aftermath. Prior to that, Issie worked as a staff writer for Inc. magazine, writing about small business and entrepreneurship. She has also worked as an on-air contributor for CBS News and taught a graduate-level course at New York University’s Center for Publishing on how tech giants have affected publishing. Email Issie.
Politics

What tech policy could look like in Biden’s first 100 days

More antitrust laws and bridging the digital divide should be top of mind for the incoming administration.

A coordinated effort to approach tech could help the White House navigate the future more easily.

Photo: Gage Skidmore/Flickr

Although it is too soon to tell with certainty how President-elect Joe Biden will address the questions surrounding tech policy, it is clear that his inaugural transition on Wednesday will affect the world of tech.

Protocol reporters Issie Lapowsky and Emily Birnbaum, virtually met up with panelists Tuesday to discuss what tech policy and regulation could look like in Biden's first 100 days in office — as well as the next four years.

Keep Reading Show less
Penelope Blackwell
Penelope Blackwell is a reporting fellow at Protocol covering ed-tech, where she reports on the decisions leading up toward the advances of remote learning. Previously, she interned at The Baltimore Sun covering emerging news and produced content for Carnegie-Knight’s News21 documenting hate and bias incidents in the U.S. She is also a recent graduate of Columbia University’s Graduate School of Journalism and Morgan State University.
Politics

'Woke tech' and 'the new slave power': Conservatives gather for Vegas summit

An agenda for the event, hosted by the Claremont Institute, listed speakers including U.S. CTO Michael Kratsios and Texas Attorney General Ken Paxton.

The so-called "Digital Statecraft Summit" was organized by the Claremont Institute. The speakers include U.S. CTO Michael Kratsios and Texas Attorney General Ken Paxton, as well as a who's-who of far-right provocateurs.

Photo: David Vives/Unsplash

Conservative investors, political operatives, right-wing writers and Trump administration officials are quietly meeting in Las Vegas this weekend to discuss topics including China, "woke tech" and "the new slave power," according to four people who were invited to attend or speak at the event as well as a copy of the agenda obtained by Protocol.

The so-called "Digital Statecraft Summit" was organized by the Claremont Institute, a conservative think tank that says its mission is to "restore the principles of the American Founding to their rightful, preeminent authority in our national life." A list of speakers for the event includes a combination of past and current government officials as well as a who's who of far-right provocateurs. One speaker, conservative legal scholar John Eastman, rallied the president's supporters at a White House event before the Capitol Hill riot earlier this month. Some others have been associated with racist ideologies.

Keep Reading Show less
Emily Birnbaum

Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.

The current state-of-the-art quantum computers are a tangle of wires. And that can't be the case in the future.

Photo: IBM Research

The iconic image of quantum computing is the "Google chandelier," with its hundreds of intricately arranged copper wires descending like the tendrils of a metallic jellyfish. It's a grand and impressive device, but in that tangle of wires lurks a big problem.

"If you're thinking about the long-term prospects of quantum computing, that image should be just terrifying," Jim Clarke, the director of quantum hardware at Intel, told Protocol.

Keep Reading Show less
Dan Garisto
Dan Garisto is a freelance science journalist who specializes in the physical sciences, with an emphasis on particle physics. He has an undergraduate degree in physics and is based in New York.
Latest Stories