DMA be damned, Apple cuts off path to Epic Games Store, Fortnite on EU iPhones

Epic says it's retaliation for public criticism; Apple says it can't trust Epic's promises.

See full article...

 

[Danrarbc]

Tim Sweeney is a POS. B/c of this whole debacle, to keep playing Fortnite w/my kids I had to buy a Windows license and dual boot my Mac.

Sounds more like you should be mad at Apple for deactivation of all of Epic’s accounts which not only means they can’t develop for App Store, which they did violate the terms of. But also can’t sign Mac apps - which they didn’t violate the terms of.

It’s Apple’s decision to tie it together and block them from building for macOS.

 

[Deleted member 388703]

Next: "of course PG&E can cut off the electric service to its critics".

In reality:
"of course PG&E can cut off the electric service of those that tamper with meters."

 

[Yarrum]

Yeah, that's what I was talking about to begin with? Another store can make lower margins, and charge a lower price. Same for console disc games (reckon consoles might be classed gatekeepers for digital stores at some point) or iOS games now. It's up to the consumer if they prefer convenience or price.

There's definitely more stuff to do with price maintenance which is legal in the US. I don't know if it gets classed as something different in the US, but this would come under the same heading and would be illegal price maintenance in the EU: https://en.m.wikipedia.org/wiki/Leegin_Creative_Leather_Products,_Inc._v._PSKS,_Inc.

In the EU/UK there are rules around price fixing, technically RRP's are illegal - so a publisher can sell wholesale copies to Game, Amazon, Supermarkets for £30 each, but they cannot make each store sell them for £60 - so Game would sell them for £60, but Amazon would sell for £40 as they have lower costs or are happy with lower profit, and a supermarket may sell at £30 as a loss leader.

However for some reason these (and various other consumer protection laws such exhaustion doctrine/first sale or refunds) laws don't seem to get applied to digital content.

Most digital content is now sold under the agency model, where the publisher sets the end price and the store just takes a fixed cut - consoles don't have other stores anyway but the result on PC is that a publisher will set their Steam price at £60 (30% cut), Epic price also at £60 (12% cut) and also charge £60 on their own store, because they have no reason to offer different prices (with Ubisoft claiming passing on any savings would 'devalue their games').

So it is always funny when Epic keep on claiming alternative app stores on iOS will result in lower prices, as we are still waiting over a decade later for these lower prices on PC.

 

[SeanJW]

Epic should sign up with SetApp. They don’t have to open their own Epic Appstore. There are other stores they can distribute through now. It cuts both ways — Apple no longer has to distribute your product any more than you have to sell through Apple’s store.

Epic can’t do a damned thing no matter who they sell their app through, unless they’ve found a way to write iOS apps without using the iOS SDK, which has include Apple code that is licensed by your developer agreement. No developer account, no license, no app.

They can do what they currently do, which is make a web page.

Edit: This is common to pretty much every development system. Linux libraries have licenses - violate them, you're not allowed to use them. Microsoft has all sorts of licenses attached to Visual Studio. Apple does for all the stuff included in XCode.

The difficult part of iOS and macOS is all of the iOS and most of the macOS stuff you have to use the Apple licensed software. There's pretty much no other options. So you agree to Apple's terms or don't get on the platform. With both Linux and Windows, you're able to still access the OS without needing their libraries (you want to access the Win32 DLLs, or the Linux syscalls, you can absolutely write your own instructions to do it); macOS you can do the same too (and I do - Go doesn't use anything from XCode), but you're pretty much limited to command line applications. Everything interesting in iOS and macOS is otherwise accessed only from Apple written code...

 

[crmarvin42]

And on Apple's part, I think it erred in stubbornly trying to hold on to, and apply a business model that was originally designed to attract small developers to a nascent platform, but is much less, if not ill-suited to large developers, or other businesses that are peers, like Netflix, etc.

Apple knows how to make agreements with its competitors (or frenemies) that will benefit both parties, like it does with its default search agreement with Google.

But, in having done little, and reluctantly at that, to alter the App Store terms to accommodate the disparate circumstances between a solo indie developer in their home office, versus a corporate heavyweight, Apple has painted itself into a ideological corner, which is not necessarily a good way to conduct business.

Being more open to sitting down and cutting deals, even if it meant taking less, would have saved the hassle of being forced to take deals by the government, and spared the effort of having to break its platform into two, or open the door to even more drastic steps.

For a company that thinks it likes to play the long game, it was the wrong battle to enter into.

I'm not defending Apple, so much as highlighting that Epic gave Apple (and any other potential combative business partner in the future) more than ample ammunition to justify refusing to believe they will uphold contracts. And what is business if not a series of deals backed up by contracts, express or implied?

Sure, Apple could have been more solicitous and possibly avoided regulations, thought I doubt that. The EC has made it clear that the intended to regulate big tech companies pretty much regardless of what they did. And that is fine, governments are going to govern. I wish the US took a stronger hand with a lot of industry, but the tech sector in particular.

Ultimately, business is cut throat, and CEO's are going to do what they can to maximize shareholder value. Apple played hardball, and maybe they shouldn't have, but that is going to happen from time to time in any business. My boss tried calling a clients bluff last year (after being advised by the account manager that we shouldn't do that), and it cost us over a million in revenue this year when they took their business elsewhere.

Epic, OTOH, committed the cardinal sin of business. They willfully violated a legally binding contract. That shit undermines every potential business deal in the future. Any interaction they have with any other company on the planet is going to be bound by a contract, and if they treat contracts as optional, then there is literally no reason to trust them to do stick to the terms you negotiate with them... ever.

 

[OrangeCream]

Next: "of course PG&E can cut off the electric service to its critics".

You mean people who don't pay their bills per their terms of service.

The way Epic went against the contract (third-party payments) is one that the EU has made a legal requirement from regulated gatekeepers like Apple.

And might I remind people, there is no moral dimension to violating the terms of an agreement. None whatsoever.

No, the way they went against the contract was embedding a feature not advertised that at the time wasn’t legal, and enabled in a manner incompatible with developer agreement.

It’s not moral or immoral, it’s legal or illegal.

Apple had an agreement with Epic. Epic broke the agreement so Apple terminated the contract. That is it.

If Epic was morally in the right is irrelevant because at the time they weren’t legally in the right. The legally correct way to do it was to use the APIs and developer’s agreement Apple released with 17.4 this week.

 

[Secondfloor]

No, not at all. Epic has in the past entered in an agreement and broke that agreement knowingly and on purpose. US courts have agreed with this. Apple now states that Epic is not trustworthy and that any agreement by Epic cannot be trusted.

This is not something the DMA is intended to solve. Bad faith needs to be solved in some different way.

Not only that, but there are still cases proceeding through the court system. When there’s pending litigation you do nothing.

 

[OrangeCream]

Epic could just use one of those upcoming third party app stores on iOS couldn't they?

They can’t. Only registered developers can be included in a third party App Store.

 

[OrangeCream]

If by divided you mean 75% of them are rabid Apple fanboys then you're absolutely right...

I suspect a lot of our paychecks live and die on NDAs, developer agreements, and licenses.

 

[DeschutesCore]

At one point when electricity was new, each power company had their own standards, and charged a fee to anyone making a device that connected to their platform. We passed laws to stop this, now there are standards, and you do not need to get yout power company's blessings to use normal home electric devices with their electricity.

Same for phone lines too, I am old enough to remember when only approved devices were allowed to be connected to the phone doupoly's platform. We passed laws to stop this, and innovation flourished while prices went down.

I could go on (eg roads were once private too), this same scenario has played out so many times.

It has been clear throughout history that letting a company act as a gatekeeper for something so important to everday life is terrible for society as a whole. Funny how we never learn the lesson.

Anyone else old enough to remember having to register your landline wall phone with the local phone company? I had no idea it was a "thing" until we got a second phone line. It was the first time I had seen my dad flip out about bureaucratic bullshit.

 

[OrangeCream]

No. Termination of the dev account means that Epic can no longer publish apps on any iOS app store.

Pretty screwed up if you ask me!

It’s kind of like how a felon loses lots of legal privileges for their entire life in the US.

 

[OrangeCream]

The truth of course is that this is a blatant violation. the courts will smack this down and Apple will lose.

You know that didn’t happen last time right? That’s why Epic is in this position in the first place. So far the courts have sided with Apple over Epic. It’s not obvious this will change.

 

[warfare-guilder]

It’s kind of like how a felon loses lots of legal privileges for their entire life in the US.

This is a very bad thing!

 

[Secondfloor]

In all seriousness, Apple can go fuck itself. I nor anyone else should be on the hook to run whatever I want on my device, knowing the dangers. If Google pulled this i'd go back to flip phones.

Try to install different baseband software on your Google phone. Turns out you can’t run whatever you want.

 

[Yarrum]

Apple's specific and different requirements for a DMA store seem to VERY CLEARLY violate Chapter 3, Article 5 Section 3. (Both the prices AND conditions are different from those offered by Apple directly).

Edit: They also seem to be violating Section 8 in Article 5.

I don't think 3-5-3 applies here? It is basically saying Apple cannot force price matching for App Store and non-app store versions, it doesn't say they have to allow an app on the app store.

Similarly doesn't look like 5-8 applies either as the wording is a little bad:

The gatekeeper shall not require business users or end users to subscribe to, or register with, any further core platform services listed in the designation decision pursuant to Article 3(9) or which meet the thresholds in Article 3(2), point (b), as a condition for being able to use, access, sign up for or registering with any of that gatekeeper’s core platform services listed pursuant to that Article.

Which means Apple shall not require devs to sign up for the App Store, as a condition of access to iOS. (That's because the EU designated both iOS and App Store as Core Platform Services)

However it doesn't say they have to allow anyone access to iOS.

The Section that most likely does apply is instead Article 6 Section 4:

4. The gatekeeper shall allow and technically enable the installation and effective use of third-party software applications or software application stores using, or interoperating with, its operating system and allow those software applications or software application stores to be accessed by means other than the relevant core platform services of that gatekeeper...

The gatekeeper shall not be prevented from taking, to the extent that they are strictly necessary and proportionate, measures to ensure that third-party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper...

However that section does them them an exemption if they can justify it.

Also despite what Epic and Spotify claim notice that section is missing anything about this having to be free of charge, when it explicitly calls out stuff they do have to offer free of charge later.

In addition there are sections 12 and 13 that cover terms of use, which suggest Apple can terminate devs who don't follow the terms as long as they are clear and fair - and if Apple have a term that says don't break your contract terms then good-bye Epic.

 

[DeschutesCore]

Amazing that all the balanced and factual comments (like this one) are just voted down to oblivion.

This site has become a total pantomime. Apple are the perpetually the heroes who can do no wrong; Facebook and Epic are Evil (boo, hiss!). There's barely any semblance of reasonable discussion, and god help you if you're not on the popular side.

The truth of course is that this is a blatant violation. the courts will smack this down and Apple will lose.

I'm not Apple's biggest fan by any stretch of the imagination, but Epic is the douchebag in each of these cases. Epic is the one that has been shitting on the law and its own partners, Going back as far as Cliffy B and the Gears of Wars days. They knew the market changed and they've grown stupidly greedy.

Apple was always Apple. They haven't changed. If you know they're shitty when you get into bed with them, that's on you.

 

[FohENG]

Why is this surprising? This was discussed at length during the Epic v Apple trial. Apple was allowed to terminate Epic’s developer account, but stopped short of banning Unreal Engine (which would have harmed a lot of developers).

 

[Cyberax]

They are a utility and treated differently.

Why should they? After all, if you don't like PG&E you can just set up your own grid. Or move to another location.

But banks (at least in the US) cancel accounts of people they don’t want to do business with all the time.

See? PG&E should also be able to do that.

 

[GottaSaySomething]

Why is this surprising? This was discussed at length during the Epic v Apple trial. Apple was allowed to terminate Epic’s developer account, but stopped short of banning Unreal Engine (which would have harmed a lot of developers).

That was USA.

In much the same way that Alabama imbuing personhood on a clump of cells had no effect in the EU - that doesn't either.

 

[vassago]

If you start from the axiom that our phone platforms are at least as important as desktop ones nowadays, and so should give us (at least) the same freedom to run software, the current landscape of power and control on mobile is utter insanity.

I think a lot of people don’t accept that as axiomatic, and I’m curious to know why.

I take the opposite view of "more important should mean more freedom to run random software." My phone is easily more important than my desktop computer when it comes to the data on it; it has my GPS location at all times, constant internet connection, my health data, work email, work Slack, etc. (basically all personal data that could be on my desktop plus some of my work stuff plus more). So I have an interest in it being far more locked down than my desktop so that important data is as safe as possible.

 

[goddog]

I wonder what fraction of a single percentage point of users would actually be interested in replacing the OS on their iPhone? That would be a hefty and ongoing investment from Epic to pick up next to no users.

I’m sure most of my iPhone owning friends, even the techie ones, would roar with laughter if I suggested they remove iOS and hack something else onto their iPhone.

I play with Linux all of the time, and I even think it’s absurd.

Oh I have no illusions epic wont do it, as you are right it would be a very small user base. However right now if they pushed their own OS on something similar to steamdeck they could reap all the profit, it looks to be a massive market opportunity (I am really shocked by all the 3rd parties entering the market). I would be very surprised if they even try that. they simply want someone else to pay for all the development and reap benefits.

I am very interested in how long they will keep running the epic store at a loss, we know as of last November its never turned a profit, and if I remember right the projections have been moved form 25 to 27. do they run it at a loss for a decade? eventually fortnite will not be the printing press it is, even if it becomes an evergreen game. I think we are already seeing some this with license changes and cancellation/suspension of the new HQ out near GN's neck of the woods. that 1.5 billion dollar stake Disney bought is probably to help stave that off for longer as well.

 

[GottaSaySomething]

I take the opposite view of "more important should mean more freedom to run random software." My phone is easily more important than my desktop computer when it comes to the data on it; it has my GPS location at all times, constant internet connection, my health data, work email, work Slack, etc. (basically all personal data that could be on my desktop plus some of my work stuff plus more). So I have an interest in it being far more locked down than my desktop so that important data is as safe as possible.

That word "important" is doing two things there.

"Important" to what?

To use a really old example: "no you cannot have flash player on a work laptop" - that was important.

Die hard linux user here BTW, programs working together makes the system - I have a friend who likes that he needs a special app to use a bluetooth label maker & another for a little thermal camera

Both are beyond crap.

 

[Secondfloor]

Apple's specific and different requirements for a DMA store seem to VERY CLEARLY violate Chapter 3, Article 5 Section 3. (Both the prices AND conditions are different from those offered by Apple directly).

Edit: They also seem to be violating Section 8 in Article 5.

I’m not seeing it. Could you explain?

 

[Yarrum]

Do you work in waste management by any chance?

In most normal businesses you don't face contracts like: "we take 30% of all your revenue in perpetuity if you want to sell your product to consumers".

You do know that Epic's default terms for Unreal Licensing are you owe them 5% of your revenue past $1m and that includes IAP and subs (it's also based on the store price not your revenue - so from a $12 widget you'd owe Epic $0.6, even though after VAT and store cut your revenue was $7).

 

[zogus]

Sounds more like you should be mad at Apple for deactivation of all of Epic’s accounts which not only means they can’t develop for App Store, which they did violate the terms of. But also can’t sign Mac apps - which they didn’t violate the terms of.

It’s Apple’s decision to tie it together and block them from building for macOS.

You do not need a developer license to download xCode, build a Mac app, package it and distribute it through a channel other than Apple’s own store. Although macOS will block an unsigned Mac app from running by default, this can be overridden by right-clicking on it once, after which macOS will open it without complaining.

 

[Secondfloor]

Yes but we're talking about being able to download EpicStoreInstaller.ipa and running it on an iPhone, right?

No, we are not.

 

[Adapheon]

That is illogical. Why do you care if the game makers make money at all? Are they going to give you a loan? Paying your house? Feeding your family? Are you a stockholder?

To put it practical terms. I have a Kia. There is one source for a new Kia. The dealer. I might get a better price or terms from one dealer over another. But that benefits me.

What you are saying is that you care how much money the dealer and Kia are making. That doesn’t make sense at all. The game makers and publishers are doing fine. They don’t need me worrying about them and most of them really want a drip line to my wallet.

Nope. No need to be concerned with any of them at all.

Right, I forgot every game developer is a millionaire.

Lots of developers barely get by, and it speaks a lot to your character that the people that make the art your play mean less than nothing to you.

 

[Secondfloor]

Historically the Commission and legal structures have leaned heavily towards protecting consumers from harm (cf. the punitive element in the music streaming case). The argument that Apple is stifling competition would probably get a lot of weight.

I find it difficult to believe that the EU courts would force Apple to do business with an entity that in the past had broken a legal contract with Apple, and also lost a civil judgement for breaking that contract.

 

[jaberg]

including price-fixing of ebooks

How has that smackdown worked out for the consumer? Who holds the monopoly position on ebooks now?

 

[SeanJW]

You do not need a developer license to download xCode, build a Mac app, package it and distribute it through a channel other than Apple’s own store. Although macOS will block an unsigned Mac app from running by default, this can be overridden by right-clicking on it once, after which macOS will open it without complaining.

That's not quite actually true anymore. All AS hardware requires signed MachO binaries, no exception. Intel hardware does not.

However, there's a big caveat with that: the signature section of the MachO binary does not need to actually have a signature in it to be counted as "signed". The signature section is still checked properly for validity (so this "null" signature doesn't count as signed for all the real checks where they check your certificate is cross-signed by Apple), so it's a meaningless distinction in reality.

So on Intel hardware, you can have unsigned MachO binaries. On AS hardware, you can't, but you can have binaries with a pretty empty signature section and it's good.

I found that out when I was fussing around with "do I need to walk through these binaries signing them?" code - the 'unsigned' AS code I was producing from Go actually automatically had these empty signature sections to get around the "nope, must be signed" thing, but my code was going "oh, look, signature section, must be a valid signature in there" and not actually signing them.

 

[OrangeCream]

Next: "of course PG&E can cut off the electric service to its critics".

You mean people who don't pay their bills, or modify their meters to misrepresent the amount of energy they used, per their terms of service.

Thanks to the EU ruling, Epic can find a third party store so that its game is available in that other store. If Apple tries to influence who else is willing to work with Epic I am sure that the EU will be paying attention and make Apple pay.

Thanks to the EU ruling, Epic is required to be a registered developer in order to use any third party store.

 

[OrangeCream]

The consequences of breaking a contract are typically a lawsuit and settlement. That's what happened in the case of Epic v. Apple. Apple won. Epic has complied with all court rulings.

Subsequently Apple was declared a gatekeeper for iOS software by the EU and required to allow third party app stores and payment processors - which was the previously adjudicated point of disagreement between themselves and Epic.

But they were never required to allow Epic to be re-registered as a developer.

Courts held that legislation would be required to force Apple to allow Epic to host a competing app store and alternative payment processing. The EU responded by looking at the issues and passing exactly such legislation.

No, the EU responded by allowing registered developers to host competing App Stores. Given the implementation, marketplaces are Apps (the App Store is technically an App), and if Epic isn't a registered developer, they cannot release a marketplace app:
https://developer.apple.com/support/alternative-app-marketplace-in-the-eu/Apple will provide authorized marketplace developers access to new app marketplace technologies that allow them to receive apps from other Apple Developer Program members securely, let users download and install their marketplace iOS apps from their marketplace developer’s website, integrate with system functionality, backup and restore users’ apps, and more.

So your premise is that because Epic has unsuccessfully contested Apple's policies in the past, despite having complied with all rulings in relation to that dispute, today Apple can arbitrarily avoid complying with the clear intent of the EU regulation because they're just kind of pissed at Epic in general?

Well, yes. Until the EU says Apple has to allow Epic to register, Apple has the freedom to disallow Epic from being a registered developer.

It really looks like Apple is planning on taking this exact argument to EU regulators ... so I guess we'll get to see how that plays out.

Until the EU says Apple hasn't complied with the DMA, Apple's compliance requires that Epic be a registered developer.

 

[Secondfloor]

Apple is playing with fire, and they're going to reverse course fairly quickly or we will be reading news of the worlds largest fine ever levied in a few years.

This is because iOS has been designated as a Core Platform

That doesn’t say what you think it does. Interoperability doesn’t mean any software all, it means no private API’s.

There is absolutely no requirement in the DMA that anyone can do anything on a device.

Such as:

The gatekeeper shall not be prevented from taking, to the extent that they are strictly necessary and proportionate, measures to ensure that third-party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper.

Furthermore, the gatekeeper shall not be prevented from applying, to the extent that they are strictly necessary and proportionate, measures and settings other than default settings, enabling end users to effectively protect security in relation to third-party software applications or software application stores, provided that such measures and settings other than default settings are duly justified by the gatekeeper.

Here’s the real killer Epic: It is entirely fair and reasonable to not enter into a contract with an entity that has broken a prior contract.

The gatekeeper shall apply fair, reasonable, and non-discriminatory general conditions of access for business users to its software application stores, online search engines and online social networking services listed in the designation decision pursuant to Article 3(9).

For that purpose, the gatekeeper shall publish general conditions of access, including an alternative dispute settlement mechanism.

Apple has already done this:

A gatekeeper may request the Commission to engage in a process to determine whether the measures that that gatekeeper intends to implement or has implemented to ensure compliance with Articles 6 and 7 are effective in achieving the objective of the relevant obligation in the specific circumstances of the gatekeeper. The Commission shall have discretion in deciding whether to engage in such a process, respecting the principles of equal treatment, proportionality and good administration.