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Campaign groups support appeals court rethink in Epic v Apple case, but for different reasons
By Chris Cooke | Published on Monday 19 June 2023
The Electronic Frontier Foundation and the Washington Legal Foundation have both filed amicus briefs with the US Ninth Circuit Appeals Court urging them to reconsider their previous judgement on the Epic Games v Apple legal battle.
However, the former organisation wants the appeals court to re-think the pro-Apple part of its judgement, while the latter reckons it’s the pro-Epic bit of the ruling that needs to overturned.
The big Epic v Apple bust-up relates to the latter’s App Store rules and especially the rules about in-app payments on iOS devices. Many app makers are obliged to take such payments via Apple’s own commission-charged transactions system and can’t signpost within their apps alternative payment options online.
Fortnite maker Epic – like lots of app makers, including Spotify – reckons those rules are anti-competitive. But the gaming company failed to convince a Californian court that Apple’s App Store rules breach US-wide competition law. It did, however, persuade the judge that that rule banning the sign-posting of other payment options – often referred to as the anti-steering provision – does violate Californian law.
Both Epic and Apple appealed to the Ninth Circuit, each wanting the part of the original judgement that went against its interests overturned. But the appeals court pretty much upheld the lower court’s judgement.
Earlier this month, Epic and Apple asked the Ninth Circuit to review its decision, possibly en banc, so that more judges would consider the arguments.
The Electronic Frontier Foundation – with its focus on digital matters and intellectual property law – supports Epic’s call for the Ninth Circuit to rethink its conclusions regarding whether or not Apple’s rules violate US competition law.
“A central issue in this appeal is whether Apple’s desire to be compensated for the use of its ‘intellectual property’ justifies the anticompetitive restrictions it places on app developers”, the EFF’s filing with the Ninth Circuit last week says.
By endorsing the lower court’s conclusion that Apple’s rules are not breaching competition law, the Ninth Circuit made “a significant error”, the EFF adds. “It did not account for the limits that Congress and the Constitution have placed on ‘intellectual property’, ie patents and copyrights”.
Meanwhile, the Washington Legal Foundation is concerned that the Ninth Circuit upheld the lower court ruling that Apple’s anti-steering provisions violate Californian law. Because that means California’s “very aggressive approach to unfair competition” is impacting on Apple across the entire US.
Other US states, it writes in its submission to the court, “reject California’s approach to unfair competition laws, which is their right. But the nationwide injunction the panel affirmed here allows California to enforce its unfair competition law beyond its borders”.
We await to see if the Ninth Circuit agree to do any rethinking.
