[ArchOversight]

This isn't retaliation though for Epic going on Twitter and being angry about the App Store practices, or the situation like Hey where the was a lot of press and negativity.

Epic breached the terms of the agreement for their app, so their app was removed from the App Store. Other than needing to fix their app to no longer be in violation of the guidelines, they could have cured that breach of the contract.

Instead Epic decided to sue Apple in court.

According to the Apple Developer Program License that you agree to (section 11.2 specifically) states:

> This Agreement and all rights and licenses granted by Apple hereunder and any services provided hereunder will terminate, effective immediately upon notice from Apple: > (a) if You or any of Your Authorized Developers fail to comply with any term of this Agreement other than those set forth below in this Section 11.2 and fail to cure such breach within 30 days after becoming aware of or receiving notice of such breach;

and section (f):

> (f) if You engage, or encourage others to engage, in any misleading, fraudulent, improper, unlawful or dishonest act relating to this Agreement, including, but not limited to, misrepresenting the nature of Your submitted Application (e.g., hiding or trying to hide functionality from Apple’s review, falsifying consumer reviews for Your Application, engaging in payment fraud, etc.).

This is not retaliation, this is simply following the license agreement that Epic agreed to.

[woofie11]

A one-sided agreement containing a retaliation clause, followed by exercising that clause, is retaliation.

Say you're desperate and need water in a crisis, and I offer you some, but only if you sign an agreement which gives you water, but says I can punch you in the face whenever you say something I don't like. Say you say something I don't like, and I punch you in the face. Did I just retaliate? Or did the contract make it not retaliation?

Apple is clearly retaliating, and I think it's gonna cost Apple way more than it realizes. Removing Epic games is one thing. This is a whole different can of worms.

[danudey]

Apple said "Here are the terms, you can use our services if you agree to them, and if you break them we'll close your account."

Epic said "Okay, we agree.", then broke the terms they agreed to, so Apple is closing their account.

This seems like pretty straightforward break of the terms of use to me.

The reasonable way Epic could have proceeded is to have submitted an update with the "third party store" stuff added, gotten it rejected, and then rolled it back while suing Apple.

Instead, Epic pulled a publicity stunt by sneaking it in, specifically so that Apple and Google would remove their app, and then suing, in an attempt to make themselves look like the good guy (which, depending on your perspective, might be true).

It doesn't feel any more mature than goading someone into throwing a punch at you so you can claim to be "defending yourself" when really you were just being a douche and you got what you asked for.

[greycol]

There's a reason contracts of adhesion are very often not binding. I'm not saying that's the case here (as B2B it will be more likely that the oppressive terms in the terms of use could be upheld) but it's worth considering when saying Epic agreed to the contract.

Like it or not IOS has 2/3rds of revenue in the mobile apps market and how many businesses can afford to leave 46%(0.7*0.66), of their revenue on the table?

It's pretty obvious that epic has goaded apple into punching them. But there's plenty of people who feel it's the equivalent of apple saying you have to give me your lunch money every 3 days or I'll beat you and epic making sure the teacher is watching when they maliciously don't hand over their lunch money (I'll add I'm not arguing that the schools football team wouldn't have much fewer wins without apple, to stretch the metaphor to breaking).

[arcticbull]

> It doesn't feel any more mature than goading someone into throwing a punch at you so you can claim to be "defending yourself" when really you were just being a douche and you got what you asked for.

Still, illegal, and that's the question being litigated here.

You can stick anything you want in an EULA but it's not automatically enforceable. If Apple started adding a stipulation that your first-born would be a slave to Tim making iPhones for life, that wouldn't be enforceable. In general you can't sue until there's damages -- so you couldn't sue just for that term existing in the EULA. You wait for your first-born to enter slavery, then sue.

[WindyLakeReturn]

>This seems like pretty straightforward break of the terms of use to me.

And closing the account is retaliation.

I think people are giving different meanings to words, with moral judgment tied to some of these meanings, and these meanings are causing confusion.

Let's take the word discriminate. Is it wrong if I discriminate when hiring someone? Many will say yes, but because they are thinking of specific forms of discrimination such as based on race or gender. But if I choose to not hire someone because of a lack of programming skill, that is still discrimination, but isn't wrong.

So back on topic. The action of closing the account is retaliation. So the question becomes is it wrong, but to answer that clearly depends upon if Apple's terms are right to begin with and if it is possible to offer someone terms that are wrong to uphold.

[ChrisLomont]

>And closing the account is retaliation.

What good is a terms of use if that use cannot be rescinded upon breaching the terms?

[jkulubya]

Implicit in your question is that the terms are valid. Epic will make the case that they’re not.

And if they succeed, then the terms will be worth nothing, and Apple would have to explain why they go around signing illegal agreements that for example allow them to punch people in the face.

If Epic fails, then yeah, the legal terms say for example that the punishment for what Epic did is a punch in the face, and Apple is just enforcing that legally.

[ChrisLomont]

>Implicit in your question is that the terms are valid. Epic will make the case that they’re not.

What law would you claim disallows limiting payment systems?

[misnome]

> Instead, Epic pulled a publicity stunt by sneaking it in, specifically so that Apple and Google would remove their app

I definitely remember cases from the early years of the App Store where people would deliberately sneak e.g. tethering apps into the App Store in the guise of a game, and usually came to public attention when their account was banned.

[Guvante]

What are the damages in your hypothetical?

Because Epic knows the damages in this real situation and everyone agrees what they are.

[aaomidi]

The idea that "it was in the contract that Epic agreed to" is ridiculous. It wasn't a contract that Epic could've disagreed to.

This is the same for end users, but we don't have the power to start a lawsuit against Apple.

[jerf]

The legal term you are looking for is "contract of adhesion": https://www.law.cornell.edu/wex/adhesion_contract_%28contrac...

However, a lot of the text around those contracts you'll find centers around a powerful entity like Apple adhering the contract to a nearly-powerless entity, like an individual consumer. I'm not up enough on the details of what case law has been created to know what happen to a contract of adhesion legally when the signer (Epic in this case) is not powerless themselves. Since Epic is at least nominally capable of negotiating their own contract with Apple on roughly equal terms, the contract may be treated more like a normal contract.

My uninformed, personal guess is that Epic isn't conceptualizing this as a legal fight; I bet they think of this as a PR fight where the lawsuit is part of their PR narrative trying to get Apple to back down on their take. As a pure legal fight this doesn't strike me as a strong hand, but as a part of a larger PR fight... who knows. They may be trying to create a position to negotiate a settlement from.

(If this is correct, and I were Epic, I'd be looking to partner with other very large and peeved developers, and create a de facto app producer strike... but maybe they think they have enough market clout to go it alone.)

[Despegar]

>(If this is correct, and I were Epic, I'd be looking to partner with other very large and peeved developers, and create a de facto app producer strike... but maybe they think they have enough market clout to go it alone.)

This would actually be a violation of the antitrust laws. And it'd be a straightforward Section 1 Sherman Act cartel case.

[to11mtm]

> My uninformed, personal guess is that Epic isn't conceptualizing this as a legal fight; I bet they think of this as a PR fight where the lawsuit is part of their PR narrative trying to get Apple to back down on their take. As a pure legal fight this doesn't strike me as a strong hand, but as a part of a larger PR fight... who knows. They may be trying to create a position to negotiate a settlement from.

IDK. The jaded part of me asks whether Tencent pulled some strings here; a US company with Mindshare (Epic) is a better looking actor than the swaths of shovelware publishers that would stand to benefit from the long-term effects of a victory here.

[Joeri]

I hope Epic doesn’t have a strategy that hinges on a PR win forcing apple to back down, because (A) as this thread is showing there are still a lot of people on apple’s side and (B) apple is usually quite vengeful in these things and will not back down here until compelled by court or law.

Just look at what happened to nvidia, for far minor offenses. They were blacklisted from apple’s platforms very thoroughly, and people still mostly side with apple on that one.

[munificent]

> (A) as this thread is showing there are still a lot of people on apple’s side

HN is unlikely to be an unbiased sample of the general population, along many axes.

[bsder]

Erm, people blame Nvidia because that one was Nvidia's fault?

Neither Apple nor the PCB manufacturers specified the failing solder balls that Nvidia used. Nvidia made and packaged those chips.

And then Nvidia failed to take responsibility when they failed because it was going to be so expensive.

[tdrp]

This. Some people seem to be on the "Apple deserves a cut of 30% because they run the app store and 30% is reasonable etc." but what if tomorrow Apple just said: "OK we've bumped up the 30% to 90%".

The exact same set of arguments would follow. The users already own the phones so for the "market to adjust" to such changes would take years.

[gowld]

It's a "standard form contract", aka "contract of adhesion".

https://en.wikipedia.org/wiki/Standard_form_contract

> we don't have the power to start a lawsuit against Apple.

Of course you do. You can go to small claims court for a claim of up to ~$5000. Or you can file a class action lawsuit.

[aaomidi]

> You can go to small claims court for a claim of up to ~$5000.

Until there is forced arbitration. You're not really going to say I as an individual have any power in the legal system against Apple, right? This is just a bonkers statement.

[gambiting]

In US, maybe. Forced arbitration is just not a thing elsewhere - you can take Apple to a small claims court in UK and they can't really do much about it other than actually respond.

[baddox]

This argument seems to hinge on the assumption that two parties are experiencing similar "levels of desperation": a person dying of thirst, and the developers of a video game which is available on half a dozen platforms and is probably the most financially successful video game of all time.

[AnthonyMouse]

Could it have been "probably the most financially successful video game of all time" if it hadn't agreed to the terms of the various consoles and phone stores?

[baddox]

I'm not sure why that's relevant. Am I only not dying of thirst because I agreed to the terms offered by the local water company? I think it's not contradictory to believe two things simultaneously: that people should not be held to the terms of a contract they signed when they were dying of thirst, and that it's okay that I needed to agree to certain terms with the water company in order to have running water in my home.

[AnthonyMouse]

> Am I only not dying of thirst because I agreed to the terms offered by the local water company?

It is if they have a monopoly on water.

Imagine their terms were manifestly unreasonable. If you want water service you'll have to pay $50,000/year. What would you do? If the answer is that it's reasonable to dig a well or something like that, they haven't got a monopoly. If the answer is to pay the $50,000/year because the only alternative is to die of thirst, there you are.

[baddox]

Right, and as discussed in this thread and others, Apple does not have a smartphone monopoly under any remotely reasonable definition of the term.

[Brendinooo]

I'd imagine there's a spectrum of "retaliation clauses" that includes acceptable things and unacceptable things, and that whatever is happening in the App Store is pretty different than withholding water from someone who would die without it.

Epic may be smaller than Apple, but they are by no means a "little guy".

[Closi]

This isn’t the sort of lawsuit a “little guy” can win.

[nodamage]

It is really bizarre to think that language in a contract that says "if you break the agreement, the rest of the agreement terminates" is one-sided or retaliation when it's included in basically every contract ever written.

[quotha]

So any action what-so-ever in response to an action you claim is called retaliation? Fine, call it whatever you want, it is reality. Epic clearly picked this fight, let's see how it goes for them.

[gowld]

Clearly not retailation. It may be an unconscionable contract, but it's not retaliation.

[gokhan]

Not all agreements are enforceable. For example, non-compete agreements are not enforceable in California. There's nothing honorable about Apple, it's just like every other company [1].

Apple uses being a secure device manufacturer for marketing to geeks in US, with a completely different stance in Chine [2]. Do people in China have access to VPN apps in Apple's app store? "Today, Epic Games ... violating the App Store guidelines that are applied equally to every developer and designed to keep the store safe for our users." Safety first, unless you're a citizen of authoritarian regime where Apple's profits justify to look elsewhere.

[1] https://venturebeat.com/2014/05/23/4-tech-companies-are-payi...

[2] https://www.zdnet.com/article/china-has-apple-by-the-iphones...

[mcintyre1994]

I'm not sure I see what you've quoted actually matches Epic's behaviour. They've certainly breached the agreement and failed to cure it, but it hasn't been 30 days. I don't think they've hidden functionality, the way their game engine works and lets games update without new review isn't secret. They haven't falsified reviews or committed payment fraud. The wording there is obviously super vague, you could argue what they did is "improper" in the same way you could argue literally anything is improper.

Can you be a bit more concrete? What exactly of what you quoted in section (f) do you think applies to Epic?

And actually on your first part, they broke the rules and their app is off the store. Is Apple’s usual policy that if you do that and you choose not to put the app back up in a compliant form within 30 days then you get permanently banned from developing for all their platforms?

[gpm]

The contract is almost entirely besides the point.

Either Apple is violating the law, any contract terms related to this violation are void as a result, and Apple is illegally retaliating.

Or Apple is not violating the law, and they are generally free to do as they please.

I say "almost" for the same reason I say "generally". It might be the case that if Apple is not violating the law and they wrote the contract badly then they aren't free to do what they want. But no one is arguing that because it's highly unlikely to be the case.

[pier25]

I would understand Epic being banned from the iOS App Store, but why is their dev account being suspended for macOS development too?

[naikrovek]

Epic isn't suing because Fortnite was removed from the App Store...

[diebeforei485]

Just because two parties agree to a few things, it doesn't necessarily mean those things are enforceable or even legal.

If that were the case, the entire field of contract law wouldn't exist.

[Despegar]

>Instead Epic decided to sue Apple in court.

This gives the impression that suing them is what led to Apple terminating their relationship, but that isn't the case. Epic could have sued Apple without the theatrics and they'd have been fine. They didn't even need to violate the terms of the developer agreement to bring their antitrust lawsuit, which is largely about the developer agreement.

[Hamuko]

I imagine what Epic did helps them out in the legal proceedings considering how the antitrust laws in the US are based on consumer benefit.

Epic introduces a new payment system and passes on the savings to the consumer. Thanks to payment system competition, consumers can save 20% when buying the same items. Apple sees this and completely removes Epic's game to protect its own interests.

It's not hard to see how Apple's behaviour is harming consumers.

[gpm]

> Epic could have sued Apple without the theatrics and they'd have been fine.

Without the "theatrics" epic would not have had standing to sue and the case would have been dismissed.

[Despegar]

As a party to the developer agreement with Apple they clearly have standing to sue. And since one of the counts in their complaint is that they're being denied use of an "essential facility", they wouldn't even need to have a contractual relationship to have standing to sue.

[zucker42]

Is this true? Can't you claim standing based on something you would do except for an illegal contract or illegal law?

[gpm]

I don't have a good quick cite for you on contract law, but here's an example for criminal law

https://blog.seattlepi.com/seattlepolitics/2015/05/07/judge-...