Apple Seeks Early Motion to Reject Epic's Claim It's Being Denied iOS Access

As part of the Apple vs. Epic Games legal battle, Apple has filed a motion asking for a judge ruling on one of the ten claims that ‌Epic Games‌ had made against it. Specifically, Apple is seeking a partial judgment on the claim that iOS is an "essential facility" and denies Epic's claim that it has been unlawfully barred from accessing it through the App Store.

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The claim, specified in court filings as Count 2, refers to Epic's argument that it's been denied access to iOS, which it claims is an "essential facility" due to the fact it's been blocked access to the ‌App Store‌. The Count specifically accuses Apple of violating Section 2 of the Sherman Act through "its unlawful denial to Epic and other app distributors of an essential facility—access to iOS."

Apple is asking the judge to move forward with a judgment due to Epic's lack of "factual, expert, or legal support for its theory of essential facility" and that it has practically given up on attempting to prove it. Apple also cites testimony from one of Epic's own witnesses, who said during the trial regarding the ‌App Store‌ that nothing they say is referencing anything that can be deemed an "essential facility."

Epic’s experts did not opine on whether iOS is an essential facility, or whether Epic has been denied access to iOS. Rather, Dr. Evans admitted in his written direct testimony that Epic and other developers are provided "access to the tools and permissions for writing iOS apps."

And on the stand, Dr. Evans admitted that he was not "expressing any opinion on anything termed an essential facility or anything related to an essential facility claim in this case."

In the court filing, Apple says that the iOS ‌App Store‌ can easily be replicated and duplicated, and per the court's own definition, iOS is not an essential facility. Apple goes on to say that essential means "essential" and not what's "best," "most profitable or preferable."

Apple removed Fortnite and stripped Epic of access to its developer account in August of last year after it violated ‌App Store‌ Guidelines. To the court, Apple reiterated that Epic has access to the ‌App Store‌, despite its claim it's been unlawfully stripped of access to an "essential facility," as long as it follows the same rules that all developers are adhered to.

Apple notes that ‌Epic Games‌ had full access to the app distribution platform before it began "Project Liberty," Epic's codename for its legal fight against Apple.

There is no dispute that Epic actually has access to iOS. Epic, like all other developers, may obtain "access to the tools and permissions for writing iOS apps," and may distribute those apps through iOS, by agreeing to the DPLA. And Epic clearly did (prior to Project Liberty) distribute its apps through iOS and the App Store. So do millions of other developers.

Apple says that ‌Epic Games‌' real argument is not that it is illegally being denied access to the ‌App Store‌ and iOS, but that instead it does not like the terms and conditions that developers must follow on the platform.

The Epic Games vs. Apple trial officially started on May 3, and Apple is asking that its request for a partial judgment be entrained on May 24 or as soon as the court may hear its request.

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Top Rated Comments

Your Royal Highness Avatar
40 months ago
Essentially, Apple is saying to developers if you don’t follow the rules off with your head! And I agree. It’s their platform, their tools, their store and their rules. Maybe Epic should invest in making their own platform.
Score: 32 Votes (Like | Disagree)
krewger Avatar
40 months ago
I don’t understand how this is any different than a physical retailer. You want a product on the shelves, the retailer needs to profit from selling your item. If you try to circumvent the retailer from making money in their own store by selling it out of your own truck in their parking lot, they have every right to stop selling your product in your store. And for all those who say, but it’s my device I should choose what’s on it! I want to play smash bros on my Xbox but I had to buy a switch to play smash bros. I’d love to bring my electrical devices from England and plug them in to a US socket too, but it’s the wrong voltage and frequency.
Score: 27 Votes (Like | Disagree)
stocklen Avatar
40 months ago
surely this sentence is the crux of the issue:

"Apple says that Epic Games' real argument is not that it is illegally being denied access to the App Store and iOS, but that instead it does not like the terms and conditions that developers must follow on the platform. "


Im sorry I dont care whose side you are on..... Epic has made millions using the iOS app store so far and signed up to the terms and conditions of using it. It can rejoin the platform tomorrow if it chooses to follow the same rules that all the other developers have to follow. Its not being denied anything apart from the ability to make even more money off the platform that it already did.
I know this has been mentioned but other platforms that Epic peddles its wares on.. such as Playstation, Xbox, Google etc etc all have their fees and terms for using that platform - why should Apple be any different and why should a company dictate what another company chooses to charge when they have the choice themselves to use or not use the service.
Score: 27 Votes (Like | Disagree)
coredev Avatar
40 months ago

Essentially, Apple is saying to developers if you don’t follow the rules off with your head!
More like Apple is saying if you don't want to play by the rules, go play somewhere else.
BTW the same thing happened to Epic on the Google Play Store. Go figure.
Score: 24 Votes (Like | Disagree)
BvizioN Avatar
40 months ago
Essential facility? Or Essential free money making platform that Epic wants it to be?
Score: 12 Votes (Like | Disagree)
stocklen Avatar
40 months ago

I don’t understand how this is any different than a physical retailer. You want a product on the shelves, the retailer needs to profit from selling your item. If you try to circumvent the retailer from making money in their own store by selling it out of your own truck in their parking lot, they have every right to stop selling your product in your store. And for all those who say, but it’s my device I should choose what’s on it! I want to play smash bros on my Xbox but I had to buy a switch to play smash bros. I’d love to bring my electrical devices from England and plug them in to a US socket too, but it’s the wrong voltage and frequency.
i agree

Im surprised at some of the anti-apple sentiment in here - especially for an Apple centric forum.

Im not defending apple as such... they are rich enough and make plenty of money to not need my defence...

However they created the iOS devices, they created the App store, and they set the terms for people to come in and use it to sell their software. Expensive? cheap? ive no idea but the developers go into it with eyes wide open and accepting the terms and conditions. In return they get the biggest global platform with the potential to earn millions in revenue - im pretty sure that Apple can and must charge what they like for the privilege.

Epic's behaviour has been childish - that anti apple ad was not just cobbled together and released the moment they ran into trouble.. no.. they preemptively picked this fight with apple... and apple made several attempts to appease the situation with the option of removing the developer account as the last resort and Epic dug their heels in and refused.

If I was Epic, and I really wanted this fight... then I would have at least acquiesced for the time being and left Fortnite on the app store without the rule-breaking code in it - and then picked the fight. They didn't do this and they are paying the price. Im pretty sure that Fortnite fans are getting their fix elsewhere on other platforms and Epic aren't really feeling much of a pinch here.
Score: 11 Votes (Like | Disagree)