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Other app makers back Epic over pending injunction that will force Apple App Store rule change

By | Published on Wednesday 1 December 2021


A number of other app makers have come out in support of Fortnite owner Epic Games as it tries to stop Apple from pausing an injunction that will force the tech giant to allow alternative payment links to be included in any apps on the iOS platform.

App makers like Epic, Spotify and many others have long criticised Apple’s App Store rules which they say are anti-competitive. A key gripe, of course, is the rule that in-app payments must be taken via Apple’s commission charging transactions platform, and the accompanying ‘anti-steering’ rule that says alternative payment options elsewhere on the internet can’t be sign-posted within the app.

Apple has already made some concessions in this domain, mainly in response to litigation and regulator intervention, so that from next year so called reader apps – like Spotify – will be able to sign-post alternative payment options. But that doesn’t help the makers of other kinds of apps, like Epic and its Fortnite app.

Epic has gone legal over Apple’s App Store rules in multiple countries. When its lawsuit in California got to court many of its competition law arguments were actually rejected by the judge. However, said judge did order Apple to start allowing all apps to sign-post alternative payment options from 9 Dec.

Since then, Apple has been trying to get that injunction paused, or ‘stayed’ in legal terms. That’s mainly on the basis that both Apple and Epic are appealing the wider judgement in their wider legal battle, and the tech giant argues that the injunction should be stayed while that appeal goes through the motions. Epic, obviously, does not agree, pointing out the appeals process could take years.

The judge in the lower court sided with Epic on this point, insisting that the injunction should not be stayed and will still go into force on 9 Dec. So now Apple has taken the matter to the Ninth Circuit appeals court, with both it and Epic presenting their respective arguments to the appeals judges.

Among other things, Epic told the Ninth Circuit that ensuring the injunction against Apple’s ‘anti-steering’ rule goes into effect is in the public interest. And backing up that claim on Monday via a so called amicus brief were app makers Tile, Match Group, Basecamp and Knitrino, plus the not-for-profit Coalition For App Fairness, which includes Epic, those four companies and many other app making businesses among its membership.

In their legal filing, the app makers stated: “As a group of app developers large and small, [we] view the district court’s injunction against Apple’s anti-steering provisions as a vital cure for an extremely harmful and anticompetitive practice in a mammoth sector of the United States economy. Granting a stay of the district court’s injunction would deny the amici here and other developers like them the relief they badly need during the (potentially lengthy) pendency of this appeal”.

“This court has previously considered harms to third parties in denying motions to stay injunctions pending appeal”, the filing then said, adding that therefore the Ninth Circuit “should not hesitate to do the same here, where many developers are relying on the relief the district court’s injunction provides”.

After setting out some specific gripes of the companies that put their name to the amicus brief, the legal filing concluded: “During the pendency of this appeal, [other app makers] will suffer concrete and irremediable harm should the court stay the enforcement of the district court’s anti-steering injunction. Antitrust law and policy demand that market participants be free to offer competitive prices to their customers. Because Apple’s contracts so overtly stifle price competition, there is no reason for this court to stay the injunction while this appeal pends”.

We now await to see how the Ninth Circuit rules.