Saturday, November 27, 2021

In Black Friday filing, Epic Games opposes Apple's 9th Circuit motion to stay the injunction

On November 16, Apple filed with the United States Court of Appeals for the Ninth Circuit a motion to stay the Epic Games v. Apple injunction, whih came down in September based on a finding of a violation of California Unfair Competition Law (UCL). Epic had ten days to respond, plus one extra day because the deadline would otherwise have been on Thanksgiving Day.

I continue to believe that the Ninth Circuit is more likely than not to grant Apple's motion. While I don't agree with all of Apple's arguments, and don't disagree with all of Epic's either, there simply are overwhelming reasons to order a stay. It's the most logical and reasonable thing to do. Should the appeals court deny Apple's motion, Apple asks for an additional administrative stay (30 more days) so it can seek Supreme Court review.

After Epic's opposition brief, which I'm sharing below, I have nothing to add, nor do I see a need to modify any of my positions, or to adjust any of my predictions. I do, however, wish to note that Epic's opposition brief simply assumes that Apple would have to continue to allow commission-free purchases being made outside of an iOS app, even though the purchased digital goods or content would be consumed in an iOS app (which is also called "cross-wallet" or "cross-purchase"). That is simply not the case. While the court took note of Apple's current policy, there is absolutely nothing stopping Apple from making adjustments in that regard, should Apple indeed have to comply with the injunction. As an app developer, that's not the way I'd like it to be, but as a commentator I strive to provide correct analysis.

Here's Epic's brief, filed late on Black Friday:

21-11-26 Epic Games Opposit... by Florian Mueller

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