Thursday, August 18, 2022

Ahead of Ninth Circuit hearing in Epic Games v. Apple, Coronavirus Reporter's opening brief in parallel case highlights censorship as another key App Store antitrust issue

As I reported on Tuesday, the United States Court of Appeals for the Ninth Circuit will hear the Epic Games v. Apple cross-appeal on October 21. Epic already received an impressive outpouring of support from amici curiae all the way up to the Biden Administration and 35 U.S. states (even 36 if one counts California's submission, though it addresses only the state Unfair Competition Law part of the case).

On the other end of the broad spectrum of Apple antitrust cases, there is a case that was brought last year by the team that developed a rejected iOS app named Coronavirus Reporter. One of the team members is a former NASA physician (famous astronaut John Glenn’s pre-mission cardiologist), but don't expect to find any major corporation or Big Law firm involved with that case. As I had my own issues with Apple's (and Google's) COVID app guideline, I naturally take an interest in this case regardless of the lack of firepower behind it. I found the original complaint and some of the subsequent pleadings unusually aggressive, to an extent that didn't serve those plaintiffs well. The case was dismissed. However, they have definitely tried hard to make a very factual and reasonable argument in their appellate opening brief:

Coronavirus Reporter v. App... by JeffreyIsaacs

I have not fully analyzed the order dismissing the complaint, and take no position here on the merits of this appeal, other than that this opening brief is a whole lot better than anything I had seen from them before, not only in style but also in substance.

But what I do hope is that the circuit judges who will hear Epic's appeal in a little over two months from today will also take a look at Coronavirus Reporter v. Apple. What that case shows is that Apple's App Store tyranny is not merely a matter of money. The 30% app tax is a serious issue--but if an app cannot be published at all, or not in the form in which it was designed and could have been more appealing to the market, the damages is far greater. It's 100%, not 30%.

Coronavirus Reporter's opening brief focuses on app review issues. That is a nice complement to Epic Games v. Apple, where Judge Yvonne Gonzalez Rogers simply assumed that some manual app review--no matter how imperfect--was better than none at all. There will never be a perfect plaintiff--even Epic isn't, though it undoubtedly has a lot going for it. But the issues surrounding app review are so fundamental that even a small plaintiff like Coronavirus Reporter is now in the position to tell an interesting story to the appeals court.

There's almost no time left to file an amicus brief, but this would be--or would have been--an opportunity for stakeholders to draw the court's attention to some new developments, even including the Wall Street Journal's revelation of revenue-sharing discussions in which Apple was trying to bully Facebook.