“Friends Of The Court” Come To Epic Games’ Aid In Antirust Appeal Against Apple

The U.S. Department of Justice and 35 U.S. states have thrown their support behind Epic Games in its antitrust appeal against Apple. Epic Games recently sued Apple because Apple would not allow it to use its own payment platform for in-app purchases. Instead, Apple required that all in-app purchases be made via Apple’s payment platform, through which Apple takes a 30% cut.

While the court ruled that Apple must allow app developers to direct their users to payment platforms of their choosing, it did not rule that Apple’s App Store should be considered a monopoly. Hence, the court did not force Apple to permit that iOS apps be sold in competing app stores.

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Epic is appealing this ruling because it believes that Apple’s App Store is a monopoly, as it is the only platform through which iPhone apps can be sold. In this public interest case, a number of third parties have stepped up and filed amicus curiae briefs – or advice to a judge from ‘friends of the court’ – in support of Epic Games. These third parties, which include the Antitrust Division of the Department of Justice as well as 35 U.S. states, have filed their briefs with the United States Court of Appeals for the Ninth Circuit. According to Foss Patents, some of the state attorneys-general supporting Epic in this case are also involved in a lawsuit against Google together with Epic in the Northern District of California. The Department of Justice claims that its curiae brief was not filed in support of either party, though the content of the brief supports Epic Games’ position.

The Sherman Antitrust Act, a federal statute that prohibits the restriction of competition in the marketplace, states that “a company in a dominant position cannot take unilateral action designed to give itself a monopoly.” The brief from the Department of Justice argues that Epic’s case against Apple should be judged by this standard. Therefore, Apple is on the defensive in this case, and it will likely struggle to explain why not only Epic Games, but 35 U.S. states and the federal government are wrong.