Central issue in upcoming Epic Games v. Apple trial: Apple's refusal to allow Epic Games Store and other alternative app stores on iOS

On Friday, Epic Games and Apple submitted tentative witness lists for their antitrust trial that will start on May 3 in Oakland. But Epic attached something far more informative: summaries of the opinions offered by its expert witnesses. In the previous post I discussed how two professors are going to debunk Apple's security pretext for its App Store monopoly. This here is the third and final part of the trilogy on Friday's filings.

When Epic Games filed its complaints against Apple and Google in August, many people thought this was just about bringing down Apple's 30% App Store commission and requiring Apple to allow Fortnite to return to the App Store despite its alternative in-app payment system. In response to Epic's activation of the latter, Apple not only removed Fortnite from the App Store but even announced the termination of another Epic developer account: the one used for the development of Unreal Engine. A temporary restraining order (TRO), which Judge Yvonne Gonzalez Rogers later converted into a preliminary injunction (PI), barred Apple from terminating the Unreal Engine account.

It's a common misbelief that Epic just wants to get Apple to reduce the 30% commission. Epic's original complaint raised some more fundamental issues, and Epic wants to open up iOS more generally for developers and consumers. The most important part here is that Epic--and others--could provide alternative app stores and thereby act as a competitive constraint on Apple in the iOS app distribution market. In its August 2020 complaint, Epic already said the following:

"Epic approached Apple to request that Apple allow Epic to offer its Epic Games Store to Apple' iOS users through the App Store and direct installation. Apple's response was an unequivocal 'no'."

"The Epic Games Store provides access to more than 250 games from more than 200 developers, and those numbers are growing rapidly. The Epic Games Store offers personalized features such as friends list management and game matchmaking services. Absent Apple’s anti-competitive conduct, Epic would also create an app store for iOS."

In Friday's summaries of what Epic's economic experts say, the possibility of the Epic Games Store (and similar app distribution channels) competing with Apple's monopolistic App Store plays a key role. Stanford professor Susan Athey discusses the importance of "middleware" with en mphasis on "an independent Multi-Platform App Store" (this post continues below the document):

376-2 Susan Athey Opening O... by Florian Mueller

Professor Athey describes today's "market for mobile smartphone operating system platforms [as] a duopoly, with market leaders Apple and Android together accounting for almost 100% of mobile smartphone revenue share outside of China." Practically, either platform is a monopoly in its own right, as "[}a user who considers leaving one platform and joining another faces app-related switching costs, including the costs of migrating and synchronizing her apps, purchases [download fees as well as in-app purchaes] and app data (and, in many cases, the costs of re-purchasing apps on the new platform)."

While multi-platform app stores, multi-platform in app-payment systems, or cross-platform streaming platforms could help, "Apple imposes a set of technical and contractual restrictions that block critical categories of middleware, interfering with the competitive process and maintaining the market power of the iOS Platform."

Another Epic expert witness, Michael Cragg, a summary of whose opinions I've uploaded to Scribd (PDF), says Apple's experts focus "on the wrong product and not Epic's role as a would-be direct competitor to the App Store." Apple would like the court to consider the entire game distribution market (across all platforms) as the relevant antitrust market, but Epic's expert says those Apple experts "do not focus on the right market definition question."

Both Michael Cragg and another Epic expert, Nancy Mathiowetz (summary of opinions (PDF)), emphasize in this context that the mere access to, or even the regular use of, alternative devices by iOS users doesn't really mean much for the purposes of this case. As Michael Cragg notes, "by [Apple's experts'] logic, refrigerators and TVs (let alone stereos and TVs) are in the same market because users 'have access' to or 'regularly use' both." But in order for the distribution of games on other platforms to be part of the same relevant antitrust market, there would have to be evidence that "a small but meaningful change in the price or quality of app distribution on either device" would make "users switch from using one distribution channel to another" to an extent that it would be a competitive constraint on Apple's own decisions.

Here's another important point:

"When it comes to distribution, iOS games do not have unique characteristics that make them separable from other iOS apps. All iOS apps (including iOS games), however, do have unique characteristics that make them separable from non-iOS apps, including non-iOS games."

Due to restrictions imposed by Apple, there is no way to access a multi-platform app store on iOS; as a result, switching costs are too high for switching to take place to a meaningful degree, which is why "iOS app distribution remains a market unto itself."

Finally, the opening and rebuttal opinions by Epic's primary expert on platform economics, David Evans, also place great emphasis on "the competitive effects of Apple's foreclosure of alternative channels of iOS app distribution":

376-8 David Evans Opening O... by Florian Mueller

376-9 David Evans Rebuttal ... by Florian Mueller

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Harvard and Georgia Tech professors debunk Apple's security pretext for App Store monopolism: Epic Games v. Apple

This is the second part of a trilogy of posts on a slew of documents Epic Games filed on Friday. In the previous post, I published and briefly discussed Apple's and Epic's tentative witness lists for their May antitrust trial in Oakland. In the next one, planned for later today (Sunday), I'll discuss the economic analysis underpinning Epic's market definition.

Apple would have us--and especially competition authorities and courts--believe that there cannot be security without tyranny: in the world according to Apple, there's either a monopolistic App Store with all its unfair rules and their arbitrary application, or malware will take over our phones.

To software developers like me, this is transparent fearmongering. But Apple has to say something to defend the indefensible. It can afford more easily than any other company in the world to get some people to say things that independent experts couldn't possibly say with a straight face. And it may just hope that judges or the decision-makers in competition authorities could be gaslighted when a topic is technical and uneasiness may just be enough to let Apple sustain a harmful monopoly in app distribution.

Come May, Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California will hear what Apple has been telling antitrust authorities around the globe for a while. Fortunately, the other side--Epic--will also be heard. Based on the summaries of the opinions of Epic's experts on security that were filed on Friday, renowned experts will help the court see through what is just a smokescreen.

Professor James W. Mickens of the Harvard John A. Paulson School of Engineering and Applied Sciences will testify that "Apple considerably overstates the security benefits of its own centralized App Store model" and that "if Apple allowed iPhone users to opt into app distribution via third-party channels, those users would not suffer from a meaningfully less-secure experience" (this post continues below the document):

376-13 James Mickens Openin... by Florian Mueller

Professor Mickens's analysis identifies "five security properties for iPhone apps: sandbox compliance, exploit resistance, malware exclusion, user consent for private data access, and legal compliance." While Apple argues that its operation of an exclusive app store and its review process are key to the enforcement of those security properties, Professor Mickens notes that the first three of those properties are enforceable by an operating system (here, iOS) alone, and with respect to the other two, which an operating system can enforce only to some degree, "a variety of empirical evidence suggests that, in practice, the App Store does a weak (at best) job of enforcing these additional security properties."

Everyone knows that Apple has always enables users to directly download and install third-party apps for MacOS. But even on iOS--and in connection with mission-critical applications--Apple itself actually relies on its iOS security architecture rather than an app review process: "In particular, the Apple-sanctioned Developer Enterprise program5 allows a third-party business to distribute the company’s proprietary apps to company employees. These apps are not reviewed by Apple."

To the extent that iPhones obtain information such as location (by GPS) or motion (accelerometers) that Macs don't have, there is no restriction to data synchronization between iPhones and Macs--and on Macs, third-party apps that users installed without Apple ever having reivewed them could access that treasure trove of data anyway.

While Android app distribution is also restricted, that is not going to be a topic of discussion in May. However, Apple's claims of iPhones being more secure than Android devices will probably come up. In my observation, Android security is only a problem if it takes too long between the emergence of a security loophole and the availability of fixes for particular devices, and with the Android devices I have and use, all of which are from first-rte vendors, I'm not concerned about that. Professor Mickens's summary says the following about the Android-iOS security comparison:

"[A] variety of evidence suggests that iPhones are not significantly more secure than Android devices. For example, a recent security evaluation of hundreds of iPhone apps found that those apps suffered from many of the security problems observed in Android apps. As another example, the open market for smartphone security vulnerabilities currently assigns a higher monetary value to Android security exploits. These market dynamics imply that Android is actually more secure than iOS."

Epic's expert is fair and does recognize that "Apple’s reputation for caring about security is not undeserved," but cautions against blowing this out of proportion, as some of this is attributable to "historical beliefs that are no longer true" even if they were in 2007 after the launch of the first iPhone.

As far as filtering out "religiously-offensive images" and similar content is concerned, it is obviously not a feature of today's operating systems to identify and block such material. But third-party app stores could also hire reviewers. I love the following sentence:

"For example, any reasonable person can determine whether an app provides 'lasting entertainment value'; being an employee of Apple is not a bona fide occupational qualification for issuing such a judgment."

Part of the problem really is hubris: Apple somehow believes that it has a patent on knowing and determining what's good for iPhone users. In reality, Apple just has an app store monopoly, and the world would be a better place with alternative app stores putting competitive pressure on Apple. Competition drives quality.

Last summer, shortly after Epic filed its complaint, a developer I don't remember explained on Twitter that any security benefits iOS has are attributable to technical features such as sandboxing, while it's just as easy to sneak malware through Apple's app review process as it is in Google's case.

This leads us to another Epic security expert: Professor Wenke Lee, the director of the Institute for Information Security & Privacy at Georgia Tech, was a member of a group of researchers who already presented a paper at a 2013 conference on how they managed to sneak malware through Apple's app review process. They submitted an app that was supposedly just about news from Georgia Tech, but inside the Trojan Horse--the researchers preferred the term "Jekyll app"--there were "dormant" code segments that could take control over your phone and generate tweets, text messages, or emails, or could take pictures without you even knowing. The related code segments were actually generated later, so an analysis of the code at the time of the app review wouldn't have found it. I've never written malware, but the first article ever that I successfully submitted to a computer magazine, back in 1985, discussed a variety of unorthodox coding techniques including self-modifying code, so I'm familiar with the concept.

Professor Lee will deliver an opening opinion and a rebuttal to Apple's claims that only Apple, through a monopolistic App Store, can achieve certain security goals, while Epic's expert explains others can do the same, the MacOS model could also be applied to iOS, and companies like Square and Stripe have already shown how to build security payment systems:

376-17 Wenke Lee Opening Op... by Florian Mueller

376-18 Wenke Lee Rebuttal O... by Florian Mueller

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Epic Games and Apple submit witness lists for their App Store antitrust trial starting May 3 in California

Six weeks prior to their May 3 antitrust bench trial in the Northern District of California, plaintiff Epic Games and defendant Apple submitted their tentative witness lists (this post continues below the two documents):

21-03-19 Epic Games witness... by Florian Mueller

21-03-19 Apple Witness List by Florian Mueller

As expected, Apple CEO Tim Cook and Apple Fellow (and App Store chief, as well as former marketing chief) Phil Schiller will testify extensively, as will, of course, Epic CEO Tim Sweeney.

Among the parties' expert witnesses I'm particularly interested to hear what Stanford Professor Susan Athey (with her combined background in economics, mathematics, and computer science) will say.

There will also be witnesses from major tech companies that are not parties to this case, such as Facebook, Microsoft, and Nvidia. Some of them are known to be (very) critical of Apple's App Store terms and policies.

The industry at large, with every respect for Apple's and Google's success, believes it's high time for decisions that open up the market. A few days ago, one of the opinion leaders of Silicon Valley's venture investment community, Benchmark Capital's Bill Gurley, wrote the following on Twitter:

When two parties move price 100% in concert with each other, it is definitive "proof" of a hard two-party oligopoly and lack of market competition. This should invite MORE regulatory consideration, not less. https://t.co/VhsHNVcx8h

— Bill Gurley (@bgurley) March 16, 2021

Whether Android is a competitive constraint on Apple's App Store will probably come up as well. I'd like to add something here to my recent post, Apple may already have lost the strategic battle over antitrust market definition in multiple European jurisdictions: App Store monopoly. Even though the French competition authority (Autorité de la concurrence) denied a group of complaints a preliminary injunction against Apple over its new ad tracking (IDFA) rules because the ultimate decision-makers prioritized data privacy considerations over fair competition, it found that there likely is a distinct market for iOS apps (in which Apple has a monopoly, obviously):

This ruling has another aspect: #antitrust market definition. The preliminary opinion that there likely IS a distinct market for #iOS apps bodes well for an important group of non-parties to this particular case: app developers like @EpicNewsroom and @Spotify @appfairness

— Florian Mueller (@FOSSpatents) March 17, 2021

In Russia, a court hearing on Apple's appeal of a regulatory decision (regarding the rejection of apps) was postponed on short notice. At some point, Apple apparently threatened to exit the Russian market because of a law requiring the pre-installation of apps determined by the Russian government, but is now going to keep serving that market. Apple used to be adamant about not pre-installing apps chosen by someone other than Apple. It remains to be seen whether the new legislative framework moots the antitrust case. In any event, those developments in Russia show that the App Store monopoly can be broken--and Epic's case in the United States District Court for the Northern District of California has that potential, too.

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Apple may already have lost the strategic battle over antitrust market definition in multiple European jurisdictions: App Store monopoly

Never before has there been so much hope that the mobile app store tyranny may come to an end. It's a marathon, not a sprint. There'll be appeals, and the freedom fighters of the Digital Era may experience setbacks. But the first week of March  2021 may very well be judged by history as the end of the beginning.

I've previously commented on the app store bill adopted by the Arizona House of Representatives. This is just the first legislative hurdle of three, and there may be court challenges even if the state senate voted in favor and the governor signed. But it shows that the app store liberation movement is able to build political majorities and overcome Apple and Google's counterlobbying. Initiatives are underway in multiple states, and it varies by state whether Democrats or (as in Arizona) Republicans take the lead.

On the other side of the Big Pond, Apple's purely pretextual defenses of its app store monopoly are falling apart. There were not one, not two, but three news cycles this week, two of which are bad news for Apple and the third is more likely than not to portend another decision against Apple:

• The Day of Reckoning is coming for Apple in Brussels, with the European Commission's Directorate-General for Competition (DG COMP) preparing a Statement of Objections (SO). Apparently the EU antitrust authority plans to issue the SO--further to a complaint by Spotify (there was also a similar one by a Rakuten subsidiary)--before the summer vacation season.

  An SO is not a final decision. Subsequently to the SO, a company under investigation gets to make its case again--and then there's a hearing and, finally, a ruling, which in turn is appealable. I repeat myself in the same post: It's a marathon, not a sprint.

  In Europe, Apple's market share is only about 30%. A dominant market position (the EU term for what is called a monopoly in the U.S.) can, therefore, be identified only by--which I consider absolutely correct in this case--defining a single-brand market. It's clear that Apple has failed to convince EU competition experts that the market should be defined more broadly, such as all mobile apps or all music distribution channels.

  The situation on the market definition front could be even worse for Apple: DG COMP may agree with Spotify's tying theory, which involves two markets: an iOS app distribution market and an iOS in-app payment services market. With a view to what may be the winning theory here in the EU, let me point you to the December 2020 version of what has already become a true app store antitrust classic: Professor Damien Geradin and Dimitrios Katsifis's The Antitrust Case Against the Apple App Store (Revisited).

  Apple's argument against tying is that the App Store and the payment system are just one product. Indivisible. Well, atoms were considered indivisible (thus the Greek name) until subatomic particles were discovered, and Epic Games achieved nuclear fission by an act of civil obedience, as its CEO called it in a CNN interview. Epic simply delivered proof that there is demand for alternative payment systems. Even if Epic had not done so, one would just have to download Amazon's shopping app or a parking or public transport app to come to the same realization.

  A Commission SO holding Apple responsible for tying might even give rise to a request for judicial notice in the period between the Epic Games v. Apple antitrust trial in the Northern District of California and Judge Yvonne Gonzalez Rogers's ruling.

  For a long time I was somewhat skeptical of whether Spotify's complaint was just going to lead to a "Lex Spotify" or help the developer community at large. Having researched the app store antitrust situation in greater detail since last summer, and considering that Epic--which doesn't specifically complain about direct competition from Apple, while Spotify is concerned about Apple Music--has joined the investigation, I'm definitely rooting for Spotify now. If Spotify prevails on market definition, Apple's App Store monopoly is finished in Europe.

  The closer I looked at the Spotify-Apple issue, the clearer it became to me that what Spotify is facing there is even worse than the problems experienced by major professional soccer clubs who are regulated by associations that are economic operators at the same time. To some degree, the associations' own soccer tournaments, especially some that involve national teams, also compete with club tournaments, and those sports bodies regulate them all. There are serious issues there, but Apple has an "octopus" growth strategy, seeking to grab market after market by leveraging its iOS app monopoly. Apple Arcade is another example.

• Another Reuters article reported on a letter sent out by the Authority for Consumers and Markets (ACM) of the Netherlands to developers and announcing that the investigation is complete and a ruling in the making. The Dutch antitrust agency didn't indicate what the decision would be. It's independent from DG COMP. But both are part of the European Competition Network and obviously in close contact. In light of DG COMP's upcoming SO, the odds are rather long against an acquittal unless there's something deficient about those specific complaints, which I doubt.

• The UK has left the EU, giving the UK Competition and Markets Authority (CMA) the opportunity to rule on high-profile cases that it previously had to leave to DG COMP. The primary author of the paper I mentioned further above, Professor Geradin, mentioned on Twitter that his firm, Geradin Partners, represents the companies whose UK complaints against Apple are now being investigated by the CMA.

  In the UK, the iPhone market share is approximately 50%, so the CMA might not even have to reach the question of a single-brand market: there's no plausible market definition in the UK that wouldn't make Apple's app distribution monopoly in that market subject to antitrust law.

A few years ago, Qualcomm appeared to be under similar antitrust pressure around the globe, but--unless a major surprise still happens somewhere--ultimately got off the hook. However, Qualcomm was able to do deals with key players such as Apple (which needed Qualcomm's 5G chips) and Samsung. It got a lot of support from the DOJ's antitrust chief at the time (a former Qualcomm lobbyist). There are reasons for which I believe Apple cannot extricate itself from this predicament the way Qualcomm did. But, again, this is going to be a rough ride and, to mention this word for the third and final time in this post, a marathon.

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Arizona House of Representatives adopts law untying in-app payment method from mobile app store monopolies: now on to the State Senate

Here's a follow-up to my very recent commentary on HB2005, a legislative proposal preventing Apple and Google from requiring developers to use only one payment system per mobile app store. Republican state lawmakers Dr. Regina Cobb and Leo Biasiucci sponsored the bill.

Today, the Arizona House of Representatives--one of the two chambers of the state legislature--PASSED the bill!

This screenshot is from the status webpage (click on the image to enlarge; the "PASSED" information may not be visible otherwise):

The result of the third reading vote was 31-29. There are 31 Republicans and 29 Democrats in the Arizona State House, and one member per party crossed the aisle, thereby canceling each other out.

A couple of proposed amendments failed, while a proposal by Dr. Cobb (enabling app developers to complain to Arizona's Attorney General about any failure by Apple or Google to comply) was adopted. (Technically, the App Store part of HB2005 was an amendment to a multi-purpose bill, which amendment then in turn got amended in the way just described.)

The Coalition for App Fairness is pleased, but notes that this is merely a first step toward a level playing field for all:

The Coalition for App Fairness is pleased to see the House passage of #HB2005, which will encourage business innovation in Arizona and protect consumer choice. While this is cause for celebration, it is only a first step toward achieving a truly level playing field for all.

— Coalition for App Fairness (@appfairness) March 3, 2021

In order for this measure to be passed into law, the Arizona Senate would have to adopt it as well, and the Governor would have to sign it (as opposed to vetoing it). The (counter)lobbying onslaught by Apple and Google has been massive already, and may further intensify. There are 16 Republican and 14 Democratic senators. It is counterintuitive that Arizona Democrats have such strong reservations concerning this measure, considering that the Democratic majority in the United States House of Representatives took a clear position on tech monopolies and walled gardens in October.

This remains interesting, and meanwhile there are initiatives in various other states. Today, the Minnesota Reformer website published an opinion piece by Justin Stofferahn and Pat Garofalo, calling on the Minnesota state legislature to "curb anti-competitive tactics" in order to become, once again, "an innovation center."

And in precisely two months from today, the Epic Games v. Apple antitrust trial will start in Oakland, California.

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Epic Games v. Apple App Store antitrust case: written order confirms May 3 trial date, further details of trial format

No surprises here: Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California entered a written order confirming what she already discussed with counsel for Epic Games and Apple on Monday. According to Pretrial Order No. 1, the App Store antitrust bench trial will start on Monday, May 3, 2021 (this post continues below the document):

21-03-02 Epic Games v. Appl... by Florian Mueller

Just like on Monday, it's still unclear how many trial days will be required. Over the next 16 days, the parties will provide different versions of their witness lists to the court. The deadlines for those filings are March 12 (Epic's tentative list), March 16 (Apple's tentative list), March 18 (Epic's supplemental list), and March 19 (either party's consolidated list). There will be another pretrial conference on March 26, and I guess at that one the judge presiding over this landmark case--to me, the most important smartphone litigation ever, eclipsing even Apple v. Samsung and FTC v. Qualcomm--will indicate how many trial days are needed. On Monday, different numbers of weeks were tossed out as hypothetical possibilities. It's hardly going to be shorter than three weeks, I guess.

Trials in that district often have a rhythym that leaves one, two or even three days per week to the court for other matters. That is particularly the case when there are urgent criminal trials that must be held. In this case, however, Judge Gonzalez Rogers expects to be able to hear Epic Games v. Apple every day Monday through Friday.

They'll start early (at 8 AM and finish at 3:15 PM, giving her enough time in the afternoon for orders (related to this case and to others she's presiding over). Considering the time zone from which I'll be following the proceedings, this schedule makes it easy for me to listen to the entirety of the public proceedings.

They will presumably have to "seal the courtroom" on a few occasions, but unlike in a patent licensing dispute, there won't really be too many--if any--private agreements to talk about. This is largely about facts that are public, such as Apple's exceedingly restrictive App Store terms and policies. Third parties like Valve may, howevever, seek protection of some of their sales data.

The order says "[p]ublic access shall be by way of telephone access." The court actually broadcast the audio of Monday's case management conference via its YouTube channel, and my guess is that a YouTube audio stream will be provided again for the actual trial, sure to set a new record for the number of concurrent listeners at least in that district and probably far beyond. As the order notes, "video access is not an option for evidentiary proceedings including trials." In the Ninth Circuit, appellate hearings and sometimes also district court hearings (I remember at least one TRO/PI hearing in the Western District of Washington) are livestreamed with pictures. But in those cases, there are only legal professionals speaking in the courtroom (judge and counsel), not witnesses.

Besides the March 26 pretrial conference, April 7 is also an important milestone. On that day, the parties will file their Proposed Findings of Fact and Conclusions of Law. Those documents will provide an outline of what the parties seek to prove, and how--and, ultimately, what the legal relevance the proven facts should have. The single most important battle here is about market definition, which may create a situation in which Apple would have no chance of successfully defending itself (short of a successful appeal).

In the very short term, the Arizona state legislature is going to vote on an App Store bill introduced by Republican state lawmakers Dr. Regina Cobb and Leo Biasiucci (the majority whip in the Arizona House of Representatives). I wrote about that initiative a few days ago. Apple and Google are fighting against it, but I hope the Grand Canyon State will make technology policy history. I've read that "free market" groups are lobbying on Apple and Google's behalf, but as an app developer I'd like to tell them that those app store regimes are--in their current form--antithetical to the notion of a "free market." Those groups have either failed to understand the problem or they have incentives not to understand.

It's similarly absurd to suggest that the Arizona state legislature would somehow insert itself into the Epic Games v. Apple dispute. Further above I was talking about proposed findings of facts and conclusions of law. None of them would be affected by the Arizona decision in any way. A federal antitrust action in the Northern District of California is not controlled by Arizona state law. "Don't legislate while they litigate" would allow anyone to delay or derail an important piece of legislation by suing someone over the same issue in anticipation of a legislative proposal.

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Epic Games v. Apple trial scheduled to start on May 3: exact duration and in-person vs. video testimony to be determined

Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California said at the outset of today's Epic Games v. Apple case management conference that this is a very significant case, so the judiciary should give it the best it has to offer, which is an in-person trial. But under the circumstances of the COVID-19 pandemic, it may be necessary to conduct the trial, in whole or in part, via Zoom. Even if it's fully in-person, the number of persons simultaneously present in the courtroom will be very limited.

The judge won't take it lightly if someone who's a "COVID denier" on Facebook or goes on extensive travel for other purposes asks to be excused from showing up in person for the trial. She expects counsel for the parties to "investigate" the witnesses in that regard.

For now the plan is that witnesses won't have to wear masks when testifying. Judge Gonzalez Rogers mentioned that the court has plexiglass shields. Actually, experts doubt or even ridicule the effectiveness of such shields as I reported last summer. But Judge Gonzalez Rogers explained she would be closer to the witnesses than anyone else, and by May she'd be "fully vaccinated." While I remain skeptical of plexiglass shields, I don't doubt at all that this judge is very committed to preventing COVID infections in the courtroom. She is in contact with Judge Albright in the Western District of Texas, who is holding patent trials all the time despite the pandemic.

The trial will start on May 3, 2021. This appears to be a pretty definitive plan, though the judge also noted one would have to keep looking at "the [infection] numbers." The exact length of the trial depends on the number of trial exhibits etc. the parties plan to present. Based on the potential durations the judge tossed out, it sounded like the length of the trial will most likely be somewhere between three and five weeks. At some point she said she'd give three weeks, but that was apparently just a hypothetical example.

Today's case management conference was audio-livestreamed via the court's YouTube channel, with only about 25 concurrent listeners when I checked. A YouTube audio stream will apparently also be the basis on which the general public will be able to follow the May trial.

Epic Games v. Apple will be a bench trial (i.e., no jury), while some other App Store antitrust cases against Apple will be put before juries a few months later.

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Could a single state legislature topple both mobile app store monopolies? At least it could make a historical contribution.

This is just my first post on legislative initiatives in multiple states concerning mobile app stores, so I've really just begun to research the topic and have a lot to learn.

A couple of weeks ago, the North Dakota state senate voted against a bill that would have required Apple's App Store and the Google Play Store to allow app developers to use other payment in-app payment systems. The fact that the state legislature decided against it doesn't represent a ringing endorsement of the status quo of mobile app stores. It's possible that many of the lawmakers who voted against the proposal simply didn't want their state, with not even a million inhabitants, to take such a fundamental decision against two of the country's largest and most powerful companies.

There definitely is broadbased political support for the fight against app store monopolies: last fall, the Democratic majority of the United States House of Representatives adopted a report on digital markets that condemns the current situation in pretty strong terms.

All three branches of U.S. government are dealing with the issue in different ways: the judiciary has various antitrust lawsuits against Apple and Google before it (with a case management conference in Epic Games v. Apple taking place tomorrow, Monday); the executive government (the DOJ's Antitrust Division and various state attorneys-general) may bring antitrust cases as well; and as far as lawmakers are concerned, there's the aforementioned House report (which is non-legislative, though it does recommend that measures be taken) as well as activities in multiple states.

As a developer who's experienced (and continues to experience) how tyrannical and harmful those app store monopolies are, I welcome any initiative that has the potential bring about change, or at least to raise the level of awareness. The situation is unsustainable. I've been in this industry for decades, and I remember the times when Microsoft was accused of expanding into other markets by abusing its control over Windows. What was alleged at the time was, seriously, negligible compared to the present setup. I remember computer book publishers who were unhappy about the creation of Microsoft Press; established office app makers like WordPerfect and Lotus complaining about Microsoft using secret Windows API calls, though I never saw any evidence for that (and, in fact, those companies initially didn't even want to make the transition from MS-DOS to Windows); and there were antitrust issues, but they affected only those competing with Microsoft at the operating system level, like Digital Research with DR-DOS, or at least at the network server level, like Samba, which got help from the European Commission. But the market was wide open then compared to what it is today. Microsoft didn't (as it couldn't) prevent anyone from publishing anything. Microsoft made itself comfortable at the top of the food chain, but a self-serving, arbitrary, or tyrannical gatekeeper it was not.

The fight against the abuse of app store monopolies is generally a marathon, not a sprint. In particular, antitrust enforcement and ligitation are time-consuming. But there can always be a sudden breakthrough somewhere that brings about change. To topple the app store monopolies thorough state legislation is rather ambitious, but my initial analysis is that the Coalition for App Fairness (CAF) has everything to gain and nothing to lose by playing that game. That's because even if a dozen state legislatures voted against such initiatives, the House report would still be far more persuasive--but if any single state enacted an app store law, app developers might find ways to benefit from it, such as by setting up shop in that state, and Congress would have a pressing reason to prioritize this subject at the federal level.

That said, it's just hyperbole that Apple claimed a measure like the North Dakota bill would be the end of the App Store as we know it. Shopping apps like Amazon or parking apps (I just used one a couple of weeks ago) are also allowed to use their own payment systems. Many users may still prefer to create just one account with Apple and to use it across all apps, but the market should decide. Apple's position is that because it made iOS, it shouldn't have to face competition in app distribution.

My own #1 (and #2, #3, #4, ...) issue with Apple and Google is about their rules relating to apps that mention COVID. I see the point, however, in some organizations' criticism of the restrictions those platforms impose on in-app payment systems. We can't solve all issues at the same time, and maybe the payment context is the one in which the cost to consumers is clearest (after all, the Supreme Court allowed a consumer class action against Apple to go forward). But it would be a misconception to believe it's just about "the 30%." In a twittersation on Thursday, the founder and CEO of Epic Games clarifies what this is fundamentally about. In response, I listed a handful of related issues:

Where there is a monopoly, overcharging is just *one* of various negative effects. Apple restricts one billion users' choice using bad apples for a pretext, whether it's payment systems, promotional methods, functionality, themes, or presentation. And makes arbitrary decisions.

— Florian Mueller (@FOSSpatents) February 25, 2021

For state legislatures, the in-app payment part is particularly intriguing because lawmakers can directly benefit consumers in their states and, potentially, attract app development companies. State-level initiatives have been reported from various states, such as Minnesota (StarTribune article) and Arizona (KAWC News).

The Coalition for App Fairness reported that the Arizona House Rules Committee "voted unanimously that [a bill including a part on app stores] is constitutional and in proper form." As a result of Apple's and Google's counterlobbying efforts (which show that they take those initiatives seriously), the question came ujp whether the proposal is allowed under the Commerce Clause, which gives U.S. Congress the power to legislate commerce. However, my research shows that the Commerce Clause doesn't prevent states from regulating commerce in their states as long as what they do doesn't run counter to federal legislation.

Of the three bills I've seen so far (Arizona, Minnesota, and North Dakota), my personal favorite is the language of the Grand Canyon State's version of the bill, which would make it illegal for Apple and Google to "require a developer that is domiciled in this state to use a particular in-application payment system as the exclusive mode of accepting payments from a user to download a software application or purchase a digital or physical product or service through a software application" (emphasis added). As Apple and Google are based in California, not Arizona, the argument is apparently made by the bill's opponents that this is interstate commerce and Arizona is just trying to favor its own companies, but again, the vote on constitutionality was unanimous and in favor of this proposal.

Assuming for the sake of the argument that Arizona (though it could also be any other state) passed such a statute into law, what would happen? Apple and Google could theoretically try to stop providing their app stores in that state, just so they would stop to meet the threshold (number of downloads, or revenue level) set forth in the bill. But after selling numerous iPhones in a given state, Apple could hardly stop serving those customers. The same applies to Google after its OEMs have sold tons of Android devcies somewhere.

Could Apple (or Google) stop doing business with app developers based in that state, especially if companies from other states set up offices in Arizona to benefit from the law? If they did so, they might be required under federal antitrust law or state UCL (unfair competition law) to make their essential facilities available to developers.

The first state legislature to enact such an app store state law could make history, and would benefit consumers and developers alike. I keep my fingers crossed, but there are so many other things going on that I'm sure it's not a question of if, but when, the app store situation will improve. When I campaigned against the EU software patent directive in 2004 and 2005, I thought it was the most fundamental threat to developers ever. It's how I became a campaigner for the first time in my life, and a little over a year after joining the fray, I received an award that went to Governor Schwarzenegger two years later, and I received more votes than fellow nominee Bono, which shows there were a number of people who thought I had made an impact on a major issue. But this app store cause is more important. I'm not going to be a full-time campaigner again, but I am determined to make my little contribution.

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The Search for Scott (Forstall): Epic Games trying to locate former Apple software chief so he can testify in App Store antitrust case

According to Wikipedia, Scott Forstall "involuntarily" resigned as senior vice president (SVP) of iOS software in the fall of 2012. Since then, he's kept a very low profile. Based on his past responsibilities for iOS, Epic Games would very much like to ask him some questions. Interestingly, Mr. Forstall joined Steve Jobs in the announcement of the launch of the App Store "to explain the mechanics of app development for the iPhone" as Epic writes in a joint case management statement with Apple (this post continues below the document):

21-02-22 Epic Games v. Appl... by Florian Mueller

Mr. Forstall's testimony would be used in a couple of months when the big Epic Games v. Apple App Store antitrust case goes to trial in Oakland (Northern District of California).

According to Epic, Apple initially sounded like they were fine with Mr. Forstall testifying, and that they would take care of the logistics. But, according to Epic, "Apple now states that it never suggested it could compel Mr. Forstall to appear for a deposition," after "promising [for well over a month] it would provide a date for Mr. Forstall’s deposition." At some point, a deposition had been tentatively scheduled (for Febvruary 11), but the week before, "Apple revealed that Mr. Forstall had not responded to Apple's inquiries or confirmed that he will appear for a deposition." And the story goes on like this:

"When Epic requested that Apple provide Mr. Forstall’s last known address and contact information, Apple initially provided a PO box and a Twitter handle. Apple also represented that it was not authorized to share Mr. Forstall’s phone number, but later stated that it did not believe that it was in possession of Mr. Forstall’s current phone number. Epic therefore requested that Apple agree that (i) Mr. Forstall’s deposition may occur after February 15, 2021, and (ii) Epic may supplement its expert reports with information arising from his deposition. Apple agreed that Mr. Forstall’s deposition may occur after February 15, 2021, but imposed an arbitrary deadline of March 10, 2021, and refused to agree that Epic may supplement its expert reports. The Parties have not resolved these issues. Epic is currently attempting to locate Mr. Forstall, and hopes that the Parties may avoid the need for Court intervention on these issues."

In the same court filing, Apple admits that it had originally "indicated that it expected its counsel to represent Mr. Forstall at his deposition." Apple says it's OK with the deposition if it takes place before March 10, but doesn't want Epic to "hold discovery open indefinitely while it seeks to locate, serve, and depose another witness." The discovery cutoff date was last week.

If the parties can't work it out until then, this issue may come up during tomorrow's discovery hearing before Magistrate Judge Thomas Hixson (who is not presiding over the actual case but effectively handling certain matters, particuarly discovery-related ones, for Judge Yvonne Gonzalez Rogers. Judge Hixson has a strong antitrust background, which probably comes in handy with respect to Epic Games v. Apple.

March 10 is approaching fast, so the question is whether Epic can locate Mr. Forstall in time, and compel him to testify, ahead of that deadline given by Apple. Ultimately, it's for the court--not Apple--to decide. The trial is still on track to go forward in May, and Epic appears convinced that the trial date wouldn't be affected by this additional deposition.

Former executives are sometimes very reluctant to testify in cases involving their ex-employer. Two years ago, a former Qualcomm president duct-taped the gate to his home (and ultimately had to testify anyway).

Apple's behavior in this context may actually have served to strengthen Epic's resolve to hear what Mr. Forstall has to say. If it is true that he was forced out in 2012, he might not be 100% loyal to his former employer, more than eight years after having been (if true) fired. I don't think Apple is certain that Mr. Forstall's testimony would hurt its case. But if Apple could rely on him, and didn't have to fear that he might seize this opportunity to cleverly and truthfully (under oath) settle some accounts, why would Apple have played these kinds of games with Epic? This could get very interesting, though it's also possible that--once located and compelled--he'll just be evasive and obstructive.

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UK competition court doesn't doubt the merits of Epic Games' antitrust injunction claims against Apple, Google--just forum non conveniens for Apple's U.S. corporate parent

As MLex's Lewis Crofts mentioned on Twitter, Fortnite and Unreal Engine maker Epic Games

• is cleared to sue multiple Google entities as well as Apple (UK) Limited in the Competition Appeal Tribunal (sitting in England and Wales),

• cannot sue Apple Inc. (the Cupertino-based corporate parent of the entire Apple group) in the UK as a related case is already pending in the Northern District of California, making the UK a forum non conveniens under the circumstances, and

• Epic will reconsider pursuing its case against Apple in the UK after the resolution of the U.S. federal lawsuit, but points to certain holdings by the London-based court that are favorable to its wider cause:

  "We note the CAT’s assessment that Apple & Google’s anticompetitive app store policies are ‘serious issues to be tried’ under UK Competition law, and that it is 'well arguable' that their conduct has ‘an immediate and substantial effect in the UK'"

At this stage, the UK court had to make a purely procedural decision: whether or not Epic's complaints should be served on non-UK-based entities Epic wanted to sue in the UK. The court has no problem with service on UK-based Apple and Google entities, and even some Ireland-based (not UK, but EU) Google entities as far as Epic is seeking injunctions against them. With respect to those Irish entities, what helped Epic is timing: it filed before Brexit took effect.

The ideal outcome for Apple and Google would have been if the court had held that there was no "serious issue to be tried." That would have been comparable to an outright dismissal of a case not well pled. No such deficiency was identified here with respect to the injunctions Epic is seeking--just with respect to mere declarations of breach. The court furthermore evaluated whether Epic had "gateways" (reasons for which to bring cases against non-UK entities in the UK). But what ultimately did result in the dismissal of U.S.-based Apple Inc. from the case is simply that the British court determined the Northern District of California was the forum conveniens, and that, at a minimum, London wasn't a better choice.

The court also held that some of its claims didn't entitle Epic to sue certain non-UK Google entities in the UK, but the remaining claims ("claims for breach of the Chapter I and Chapter II prohibitions under the CA 1998 as regards the alleged 'Restrictive Terms' in the DDA and the removal of Fortnite from the Google Play Store") still give Epic a potential path to victory there. The court determined that "there is no issue to be tried as regards the claims for the two declarations in the Apple and Google actions" (also noting that "it may be unfortunate that declaratory relief is not included as a remedy available in the [Competition Appeal] Tribunal").

In the Unwired Planet patent case, the UK Supreme Court actually took a very permissive approach to forum conveniens, holding that even if a smartphone maker generated only 1% of its worldwide sales in the UK, a UK court might nevertheless set a worldwide royalty rate for a standard-essential patent portfolio, and if the defendant didn't agree to a license deal on those terms, it would face a UK-wide sales ban. Here, however, a UK court exercised restraint in jurisdictional terms.

Even if Epic had received the go-ahead today to sue Apple Inc. in London, a decision in the UK would still have taken longer than the California case, in which the trial is only a few months away. The discovery cutoff date in the U.S. case was one week ago.

Today's UK decision doesn't help Google in any way, nor does it solve Apple's real problem, which is that its App Store monopoly is under pressure in multiple jurisdictions.

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Epic Games files antitrust complaint against Apple with the European Commission's Directorate-General for Competition (DG COMP): media reports

Frankfurter Allgemeine Zeitung (FAZ) and the Financial Times report that Fortnite and Unreal Engine maker Epic Games has filed an EU antitrust complaint against Apple. Epic is being represented by Clifford Chance (the FAZ article quotes Mr. Ashwin van Rooijen), a major global firm that has been a key player in many EU tech antitrust matters over the years.

When asked why they filed this complaint against only Apple, and not simultaneously against Google, Epic's lawyers apparently said that Apple was presently the focus of EU antitrust enforcement in this context. There is an ongoing investigation of Spotify's complaint against Apple. Both Epic and Spotify are members of the Coalition for App Fairness (CAF), an organization whose positions on app distribution Microsoft has supported publicly without joining the organization.

For proper disclosure, I am a member of the informal #AppRising movement and brought my own complaints against Apple and Google in multiple jurisdictions last month (EU case numbers: AT.40747 Apple, AT.40748 Google). I consider this kind of topic to be the single most important tech antitrust issue of the 2020s. Standard-essential patent (SEP) issues continue to be very important, but are eclipsed by the #AppRising. But the concerns raised by app developers are diverse, and just like I haven't seen Epic comment on my complaint regarding COVID-related apps, I don't want to take a position on Epic's (and others') complaints over in-app payments--which doesn't mean that I necessarily disagree, just that at this point it's too early for me to speak out on a legally complex issue.

As I just mentioned my own complaints, a few hours ago iClarified mentioned me in connection with a new rule--or maybe it's more of a clarification of an existing rule--by Apple in connection with "health pass" apps (apps that enable users to show to others, such as airport security staff, that they have been vaccinated or have recently been tested negatively). So here's a bit of a clarification from my end in the context of iClarified's report on Apple's potential clarification regarding health apps: I don't envision my own app company to offer any "health pass"-like functionality and, therefore, prefer not to comment on that category of COVID-related apps other than noting that governments--rather than private entities--should regulate health passes, such as by ensuring that only health passes with a certain stamp of approval would be recognized at airports, sports venues, and so forth.

I don't mean to comment on Epic's choice of bringing a complaint against only Apple, not Google. I'm sure they had their reasons, and it's possible they previously talked to DG COMP and made their decision based on the feedback they got.

My company, however, seeks to resolve its issue with both major platforms at the same pace. Last week's decision by the Munich I Regional Court against Google, of which I've meanwhile translated the remaining 10% I just summarized a week ago, makes it clear that "gatekeepers" (the ruling already uses that key term of the upcoming Digital Markets Act) must not disadvantage high-quality health-related offerings just because they don't come from a governmental source. My company is going to bring a lawsuit in Munich on that basis pretty soon. The Munich court's holding is very clear, and Google's rule on COVID-related Android apps is fundamentally more abusive--because it results in complete foreclosure--than its preferential treatment of a government-run health information portal by its search engine. If Google doesn't take the Munich court's holdings seriously, it will just have to be enjoined again. After filing the complaint, I will publish an English translation on this blog.

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Filed complaints with competition authorities about Apple's and Google's COVID app rules

Reuters just reported on my antitrust complaints to competition authorities in multiple jurisdictions, challenging the basis on which they don't allow tens of millions of app developers to publish COVID-related apps on their stores, no matter how legitimate those apps may be.

In alphabetical order, these are the jurisdictions:

• Australia: Australian Competition and Consumer Commission

• European Union: European Commission, Directorate-General for Competition (DG COMP)

• Germany: Bundeskartellamt (Federal Cartel Office)

• The Netherlands: Autoriteit Consument & Markt (Authority for Consumers & Markets)

• United Kingdom: Competition & Markets Authority

• United States: Department of Justice

On Monday I will also file with the Competition Commission of India.

What these jurisdictions have in common is that they've all been particularly affected by COVID-19, and these competition authorities either have ongoing investigations or pending complaints or (in the case of the Federal Cartel Office of Germany) have expressed an interest in app platform antitrust issues.

For me it was quite a difficult decision to do this. I'd rather just have continued to watch cases like Epic Games v. Apple, but after much thought I concluded that the issue I have with Apple and Google in this context is part of a broader problem. When I made this decision, I had no idea that a U.S. antitrust lawsuit over Apple's COVID app rules--Coronavirus Reporter v. Apple--was being prepared. I learned about it only a couple of days ago, and commented on it today. But I figured that there'd be other legitimate COVID-related apps that must have been rejected only because they were not submitted by governmental entities or healthcare providers.

What my company had to do to our Corona Control Game in order to comply with Apple's and Google's rules is best explained with an analogy:

Imagine what it would have meant if the makers of the Titanic film had had to deal with only two movie theater operators, each of which controlled a distinct part of the world. Each of these cinema operators would have stated its rules slightly differently, but the net effect would have been the same: do the Titanic film without the Titanic ship, or else.

The distribution channel would have given no reason for that, or maybe it would have told the movie company that the Titanic was such a tragedy that it's offensive to create an entertainment product involving it.

The message would have been: you can make a movie about a sinking luxury ship. So if you name it "Sinking Ship", "Luxury Ship", or give it a fantasy name like "Dobogandalupa", that solves the problem with the title. But that's not enough: the ship must not look like the Titanic, it must not bear the name "Titanic", any tickets, posters or whatever must not contain that name, and, lest we forget, the actresses and actors must never say "Titanic".

Technically, it would be pretty much the same film if you analyze it purely quantitatively. You could have the same storyline and the same cast, but... it would be the Titanic film without the Titanic ship. It becomes a different product. A creative product like a game is not just a question of how many lines of your program code you can reuse (that percentage was obviously pretty close to 100%).

There were some opportunists who simply rebranded and rethemed sidescrolling jump-and-run games or Angry-Birds-style games to get attention for a "COVID" game. But those games weren't legitimate COVID games. Their gameplay had nothing to do with the problem of viral contagion, much less with disease control measures.

Despite the restrictions, some reviews noted the game's ability to make a positive contribution to the fight against COVID-19. Some examples:

• Viral Days is a brand new strategy game that supports the fight against COVID-19 (Pocket Gamer)

• Viral Days is a must play in these days of COVID-19 (IZTech)

• "[I]t’s a really great way to spend some time that’s going to keep you on your toes and teach you something as well." (AppAdvice)

• Viral Days is a Mobile Game That Shows us the Best Way to Handle Pandemics: "an entertaining mix of strategy and management with a message that we all should be heeding right now" (Gamezebo)

• Viral Days, el videojuego para móvil para crear conciencia de la infección de la Covid (El Español)

• "Estamos ante el primer juego para móviles que demuestra el beneficio de usar mascarillas, el distanciamiento social y la cuarentena como medios para combatir las infecciones virales." (APPerlas)

• "Improves people's awareness ... a very meaningful gameplay experience ... fits very well with real life"
  (逗游网 doyo.cn)

• "Melhores jogos para Android e iOS da semana [24/12/2020]" (tudocelular.com)

• Best iOS app released the week before (iPhoned.nl)

That's nice, but it still doesn't solve the problem. People who are looking for a COVID-themed game should be able to find it, because it's a legitimate game about viral infections (this post continues below the video):

We also created a special edition, Viral Leaders Trump & Johnson, which Google approved, but Apple rejected. You can find it here (Android app, or as a browser game on Mac and Windows computers).

As the Reuters article notes, "Google and Apple rules say COVID-19 related apps must be government approved in order to avoid promoting conflicting or incorrect health advice" (and Apple just banned all COVID-related games, no matter how legitimate).

I have only this one issue with those companies (and with Google I disagree on API copyrights, but that's nothing new). I tend to agree with them on patent policy, especially when it comes to standard-essential patents. But their COVID app rules, which adversely affected my creative product and, as the Coronavirus Reporter v. Apple case shows, caused harm to other kinds of apps, are unreasonably restrictive--and the stated reason (ensuring that users aren't misinformed) is totally inconsistent with the fact that both Apple and Google distribute products that definitely misinform users in connection with COVID-19 and its symptoms:

On the App Store and on the Google Play Store, you can find homeopathy apps. Give me a break. That's a scam, and it's been debunked over and over. The Department of Justice--one of the agencies I'm complaining to--has even taken legal action against someone who recommended homeopathic medications in connection with COVID-19 ("U.S. Attorney’s Office Files Enforcement Action Against Chiropractor Promoting Fake COVID-19 Treatment").

If Apple and Google are all that concerned about people being misinformed during this pandemic, the best starting point is not to disallow an app like Coronavirus Reporter, which merely lets users communicate, or an educational game that was designed from ground up to encourage people--especially, but not only younger audiences--to comply with governmental disease control efforts. Instead, Apple and Google should purge their app stores of homeopathy apps.

It's not just that they're distributing homeopathy apps. It gets a lot worse. They even distribute books that tell people the best way to confront a pandemic is to rely on homeopathy. Here's the Apple Books Preview of Homeopathy for Epidemics, and here's the Google Play Store page. On the Google Play Store I even found this book: Ancient Bible And Modern Natural Secrets To Fight Virus Epidemics. Yeah, that's probably the best way to keep iOS and Android users healthy. The description of that book specifically mentions homeopathy. So some nutheads and some credulous people who believe in homeopathy will get infected and go on to infect others. And many of them will oppose vaccination. That's just what society needs these days.

I also don't understand why Apple allows a Mac app, Amphetamine, to be named after an addictive substance. In that case, the name simply isn't necessary: some may find it funny, but in reality it promotes bad stuff and there would be non-objectionable, even more descriptive alternatives.

While my game demonstrates the problem of viral infections and encourages good behavior, one of the most popular apps on both those stores has the following objective: "Infect the world." That other title is about creating a deadly pathogen and extinguishing humanity despite people's disease control efforts. If depraved and/or deranged people play that in the midst of a pandemic, such a game might even induce them to spread the coronavirus with full intent.

On this blog I'm not going to cover my own complaints more extensively than I would if others had brought the same complaints. Actually, there are things I won't say when I'm a complainant but do say when I just watch cases. I did, however, wish to shed some light here on why I did what I did.

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Subjectiveness of app reviews: Viral Leaders Trump & Johnson (satirical fun game) approved by Google, inexplicably found objectionable by Apple

[Update on 02/09/2021] A subsequent, refocused version of Viral Leaders, the "Impeachment Edition" (on the occasion of the Senate impeachment trial of former president Donald Trump), was approved by Apple. [/Update]

One of the issues raised in the Coronavirus Reporter v. Apple antitrust complaint in the District of New Hampshire is the allegation that Apple's app reviews are "arbitrary and capricious" to the extent that one app might be rejected though a similar or more problematic app is approved. I've also heard people say this about Google, and I can prove at least an inconsistency with respect to the application of its rule on COVID-related metadata, where a game is allowed to use the term "pandemic" in its Google Play Store description though this is expressly prohibited by Google unless an app is (co-)published by a governmental or recognized healthcare entity, which isn't the case.

Some criticize Apple and Google for collecting 30% of some companies' in-app revenues while others get a free ride even though, as those critics argue, they should be subjected to that "app store tax" as well. I haven't formed an opinion on that assertion yet, but it wouldn't surprise me if it was true.

One week ago, Apple's App Review Department sent my app development company the following email:

"Your app, Viral Leaders Trump & Johnson 1.0.0 (0), has been reviewed, but cannot be made available for TestFlight beta testing.

"For details, or to contact App Store Review, visit Resolution Center in App Store Connect."

In App Store Connect, Apple merely referenced its app review guideline 1.1 Objectionable Content. No further explanation given--and we weren't even allowed to test that app via the TestFlight beta version distribution system.

Google, however, approved it about 24 hours ago for the Google Play Store. It had previously been approved for testing on the 17th (Sunday).

Seriously, there is nothing objectionable about Viral Leaders Trump & Johnson. It's simply a special edition of my Viral Days real-time strategy game. In Viral Days, you take care of little cartoony people walking the streets of a fictional town during a virus pandemic. In that game you can buy and distribute masks, quarantine or hospitalize people, disperse groups, and impose lockdowns. It comes with 25 levels. Now, Viral Leaders has just one level, and features cartoony versions of ex-president Donald Trump and British prime minister Boris Johnson. Both famously caught a virus last year after downplaying its significance. In Viral Leaders, they spread the virus to ordinary citizens, so you best send them home as soon as you can afford it (2,000 virtual coins).

The politicians stop from time to time to say something. Many of those quotes are real, while others are just fun, but there's nothing offensive in the game.

Here are a few social media posts so you can see how far this is from "objectionable content":

In this little fun game, Donald #Trump can't deal with the fact that Joe #Biden is now in the White House. #SendTrumpHome! Download the #Android app, or play the browser game on a Mac or Windows PC. https://t.co/bWEvp0vZkO (We also made an iOS version, but Apple disallowed it.) pic.twitter.com/G9a97nTCIr

— Viral Days (real-time strategy game) (@ViralDays) January 22, 2021

#Trump #Pelosi #Impeachment #ViralLeaders pic.twitter.com/O6zmTivKiT

— Viral Days (real-time strategy game) (@ViralDays) January 22, 2021

Sieh dir diesen Beitrag auf Instagram an

Ein Beitrag geteilt von Viral Days Game (@viral_days_game)

When we submitted the app, we provided to Apple a complete list of all the things those politicians say in the game. If Apple had taken issue with any particular ones of those utterances, they'd have let us know. So Apple's concern must have been more fundamental.

But what is it? It can'be about the virus context, given that one of the most popular games on the App Store, named Plague Inc., is traditionally (they now call it the "main game") about "infect[ing] the world". By contrast, Viral Leaders, just like Viral Days, is all about preventing the spread of the virus.

It can't be about poking fun at Trump either. In my game, all that one can do to him is click on him, spend 2,000 virtual coins, and then he says "I'm fired!" and goes home. There are various Trump fun apps on the App Store, and at least one of them, named Slap Donald Trump, even depicts and thereby encourages physical violence against him. The icon of that app (which you can see if you click on the link I just provided) shows a photo of Donald Trump's face, a hand hitting him, and that side of his face turning red. If Slap Donald Trump is allowed, how in the world can Viral Leaders Trump & Johnson be deemed objectionable?

I immediately thought of this when I read in the Coronavirus Reporter v. Apple complaint that "the Apple App Store violates antitrust law by disallowing third-party applications using arbitrary and capricious standards."

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