Google: “Any harm Epic has suffered is not irreparable and is of its own making”

http://www.fosspatents.com/2020/10/google-sounds-like-apple-in-new-court.html

by CharlesW • 6 years ago

201 280 6 years ago

phire• 6 years ago

Google (like Apple) is trying to claim that the only harm Epic has suffered is fortnite being kicked off the play store.

That's not how Epic see it. Epic think the harm is that they are unable to do payments the way they want and smoothly run their own games store on phones. They even claim that Google is blocking them from making deals with phone manufactures about bundling their games store on certain phones out of the box.

wccrawford2• 6 years ago

Yeah, apparently "paying too much for services they don't fully use" isn't "harm" to Google. I doubt they'd see it that way if they were on the other end.

mehrdada• 6 years ago

Key word is “irreparable” not “harm”.

If you pay too much you can capture that if you get a final judgement later. It’s not “irreparable” unless you go out of business, for example, in the meanwhile due that harm, so there’s no emergency requirement to compel the other party to do something right away.

GeekyBear• 6 years ago

When Epic tried to make the "30% is too much" argument in court last Monday before Judge Gonzalez Rogers, it didn't go well for them, according to an FT reporter who live tweeted at the hearing.

“The 30% of what you complain seems to be the industry rate, right?

Steam charges 30%. Microsoft: 30% ... If you go to consoles: PlayStation, Xbox Nintendo all charged 30%.

Physical stores: game shop, Amazon, Best Buy, Walmart all charge 30%. Apple and Google charged 30%.”

“it's all 30%, and you just want to gloss over it. You don’t want to address it,” judge YGR says.

Oof, Epic doing poorly on Apple’s 30% fee being excessive.

“There doesn't seem to be evidence to support what you're saying,” Judge YGR says.

https://threadreaderapp.com/thread/1310618271675105282.html

brian_cloutier• 6 years ago

This is not entirely fair. Here is Epic's claim of harm:

In retaliation against Epic for introducing competition to Google Play Billing, and in furtherance of Google’s anti-competitive scheme, Google removed Fortnite from the GooglePlay Store. As a result, Epic suffered—and continues to suffer—irreparable harm to its reputation, goodwill, and competitive standing. Each day that Epic remains off the Google Play Store causes Epic unquantifiable harm because Google’s other restraints ensure that downloading apps outside an app store is threatening and technically challenging to most users,which prevents Epic from effectively distributing Fortnite to many Android users.

Epic only calls out their absence from the play store. They don't articulate any other harms. So, it's natural that Google would only react to this one harm, Epic didn't claim any others!

nitrogen2• 6 years ago

In retaliation against Epic for introducing competition to Google Play Billing

I think this supports the OP's phrasing.

viktorcode4• 6 years ago

As a preemptive strike Google changes third party stores rules on Android 12 towards easier operations.

ksec• 6 years ago

I feel bad for Epic. I know their intention, but the way they are going into this battle is just wrong. And they are kind of losing public support and court orders, all while burning bridges with Apple and Google.

One could argue Epic is trying to demonstrate Apple and Google are basically Visa and MasterCard. ( That is purely my guess, personally I dont see Epic has planned a decent, long term strategy other than simply charging into battle ) And in EU Visa and Master had to lower their CC processing fees from their 3-5% in US to somewhat sane %. Similar case in AUS as well.

I wonder if Tim Sweeney saw the opportunity from DHH / Hey.com, decided to take a bet and jump onto it. Simply judging the flow from Twitter and people within his own circle. ( or Bubble )

I actually have no problem with Apple or Google charging 30% for gaming. I do have problem with Apple charging business like Fitness class, Online Email Services, Education or all other Services simply for access through their Apps. Had it been something like 5% to 10% I think everyone would have been happy to pay. It was estimated 80% of App Store revenue were from Gaming. Apple could have lower their non-gaming cut without substantial loss of services revenue stream.

But it seems there are large enough group of Americans thinking Apple can charge whatever they want. It is their platform.

chii• 6 years ago

I actually have no problem with Apple or Google charging 30% for gaming. I do have problem with Apple charging business like Fitness class, Online Email Services, Education or all other Services simply for access through their Apps.

Why differentiate gaming and non-gaming? The platform should be blind to the content and be a platform.

I would also argue that a platform can curate, but the platform should not lock-down the user from escaping the platform. For example, side-loading should be a legal right that an owner of a device should have.

rblatz• 6 years ago

I love the fact that the computer that is my second factor, has access to my password manager, has all my banking apps on it, has access to my retirements accounts, has access to my personal investment accounts, and has access to my Bitcoin wallet is locked down and I’m not expected to side load a bunch of shady apps. The breach of my phone is a actually way worse than a breach of any of my computers.

MattGaiser• 6 years ago

Anyone have a sense of who is winning or losing here (besides the legal proceedings)?

Outside of Hacker News, this story seems dead.

urda• 6 years ago

It will be real hard to argue to any judge that Epic has anything going for them when 1) they actively broke the TOS and were forward about it 2) they actively sneaked code past reviewers to push a feature that broke said TOS 3) They had an ad campaign and in-game-event ready-to-go from the moment they got pulled, which continues to demonstrate how premeditated this maneuver was.

It will be real hard for a judge to have to agree with them. They could have corrected it, got back into compliance and continued their legal case, but this was not the route they picked.

They gambled, and have (most likely) lost.

oh_sigh2• 6 years ago

Epic could still prevail if the TOS terms they broke are found to be illegal, unenforceable, etc. The important point is Epic doesn't want to be compliant with the current TOS.

trevyn3• 6 years ago

I get the sense that in order to have legal standing for a lawsuit, you have to be actually harmed.

I'm under the impression that they had to do more-or-less what they did (minus the press blitz) in order to have legal standing to bring a case.

In this case, I think they are arguing that the harm occurs because "who decides if you can be on the App Store" should not be a monopoly, and users should be able to decide if they trust Epic to handle payments instead of Apple.

The argument is that the TOS itself is (or should be ruled), in its current form, illegal.

This case is particularly interesting, because it is clear that Apple + Google have a duopoly on a very important market, and both companies exhibit near-identical anti-consumer behavior in this particular respect. So while consumers may have a nominal choice, they do not have a real choice about a decision facet that matters. I'm curious about any anti-trust precedent here, and how this was handled in the courts. (i.e. two separate lawsuits against the companies in question, some sort of unified legal plea...?) How is (implicit) collusion handled?

judge20206• 6 years ago

It will be real hard for a judge to have to agree with them. They could have corrected it, got back into compliance and continued their legal case, but this was not the route they picked.

To provide a source for this: (ctrl-f escrow) https://threadreaderapp.com/thread/1310618271675105282.html

bananaface2• 6 years ago

The basis of the lawsuit is that the TOS are unreasonable. It doesn't matter if they broke them, in fact they had to to even bring the lawsuit.

They might still lose but the fact they broke the TOS won't count against them.

gostsamo2• 6 years ago

Those legal battles can go for years. We are hearing only the first shots now.

galkk• 6 years ago

But could Epic afford it? Their largest hit is Fortnite, and will it be relevant (and bring them tons of money) in several years, if nobody will be able to play it?

prewett• 6 years ago

I think Oracle v Google concerning Java still hasn't been resolved...

nmfisher4• 6 years ago

The real trial hasn't started yet (scheduled for July next year, last time I looked), so there's no winning or losing.

Epic vs Google was covered in The Economist this week. It's a very big deal.

dayjobpork• 6 years ago

The cases get posted on ars, but there is an army that downvotes any comment on that isn't Apple positive.

wccrawford2• 6 years ago

Every time there's news, I see it on Reddit multiple times and on my newsfeed app as well from various sources. It's very much interesting to gamers and they're following it closely.

vikramkr2• 6 years ago

You can sideload apps on android - im far less sympathetic to Epic here compared to their case against Apple. I remember looking into seeing what fortnight looked like on mobile a while back and for Android I dont recall there even being an option to get it through the play store - it had to be sideloaded - and that worked fine. They're standing on thin ice going against android (especially considering the entire country if China uses phones that essentially don't use Google services at all but still run android - Google does not have the same sort of control over android that Apple does over ios).

Fej• 6 years ago

Epic did for a time only distribute their game through their launcher, available only as an APK from their website, but they eventually capitulated to Google's policies and listed Fortnite on the Play Store. They did this because it is evidently not realistically possible for a commercial app to be distributed outside of the Play Store and reach a critical mass of the Android userbase, whatever the cause(s) may be.

Google has made the process of installing alternative app stores obtuse enough that general consumers might not do it. It's not that obtuse, especially to readers of this site, but it looks as though it's enough. There's also the restriction that app installs and updates cannot be done in the background.

Another possibility, or perhaps in addition to the above, is that the general public never goes outside of default app stores to search for games, or is never persuaded to do so. It's the path of least resistance to only use the one(s) included with the phone. Fortnite is the one attempt at a massive enough scale that could have broken this pattern, but it didn't, even though they had Fortnite on all the other platforms to use as an ad, which targets exactly the people most likely to jump through the hoops.

shirakawasuna2• 6 years ago

Sideloading is definitely a pain in that the Google Play Store is given privileges so long as you don't have root (the vast majority of people don't). For example, while the Google Play Store can automatically update 10 apps at a time, other stores (such as F-Droid) require you to manually approve and update every single one, waiting for the installation to complete.

fireattack• 6 years ago

Google has made the process of installing alternative app stores obtuse enough

I do agree an average user would feel the warning intimidating, but I don't think it's obtuse (or do you mean obscure?) at all. If anything, it's pretty explicit.

If you try to install apk from say, your browser (the most likely scenario for Fortnite), the system would ask you to give it the privilege to install "unknown/unsafe app" or whatever it's called. And you only need to change this setting once. Later you can just directly install any APK from this app (browser).

amitheonlyone• 6 years ago

I believe that the warnings you get when trying to install an APK downloaded using the browser is necessary. Especially with older people, it is much like a firewall and will prevent them from installing malware or 'spammy' apps.

watwut2• 6 years ago

They did this because it is evidently not realistically possible for a commercial app to be distributed outside of the Play Store and reach a critical mass of the Android userbase,

They won't reach critical mass on Android, cause the game runs on very few phones.

redxdev• 6 years ago

From what I can tell Epic has two (three, depending on how you count) main arguments against Google. The first is what you mentioned - that they _do_ have the option of sideloading an app like Fortnite. The problem being that they lose out on a massive market because they don't want to use Google's IAPs. This is made worse by the fact that Android gives "scary" warnings when trying to install an app from an untrusted source - which is arguably a good thing for safety/security, but at the same time questionable when Google also benefits from it.

The other issue is that Google actively makes it harder for an alternative storefront to operate on Android by forcing OEMs to only include the Play Store (though I think OEM's own stores might also be acceptable? not sure) if they want Google Play Services (which most apps require). Which means Epic can't go out and make a deal with an OEM to add the Epic Store (or possibly even just a single app like Fortnite that doesn't use Google's IAPs, not sure) to an Android device because said OEM would have to drop Google Play Services.

And they can't just tell you to download the store - there are limitations that you cannot bypass without being a system app (i.e. something preinstalled). The most notable one for a store being that it can't auto-update other applications.

watwut2• 6 years ago

People are overdoing the scary message on Android point. It is warning of the kind people routinely ignore.

commoner• 6 years ago

The allegation that Google prevented OnePlus and LG from preloading the Epic Games launcher onto their devices is a factor in this case that does not apply to Epic Games v. Apple.

https://www.theverge.com/2020/8/13/21368395/fortnite-epic-ga...

If this allegation is true, it's hard to blame Epic for the losses resulting from a decision that Google made.

jjeaff2• 6 years ago

I'm not a lawyer. But that sounds like a textbook example of tortuous interference.

boulos• 6 years ago

Me neither. But tortious. :).

Aunche4• 6 years ago

The Epic Games launcher wouldn't just be preinstalled bloatware, it would be bloatware that historically had security vulnerabilities. I don't blame Google for stopping the deal.

https://www.cnet.com/news/just-as-critics-feared-fortnite-fo...

ThatPlayer4• 6 years ago

But it still shouldn't be Google's choice, but the OEM's.

anfilt• 6 years ago

Epic has a more shaky case here because you can side load on android. The biggest thing I could think epic can shake at google is how google pushed handset manufactures to limit agreements with epic. Although I am not a fan of bloatware it's interesting google singled out epic here.

Abishek_Muthian2• 6 years ago

Leading Indian startups are supposedly forming an alliance to launch their own App Store for fighting the duopoly[1].

IMO, There was already an open, accessible, free app store called - 'Internet Browser' upon which Internet was built. These companies undermined it in collusion with the duopolies to hoard more data from their customers and are now crying wolf.

So, the answer they are proposing now is creating a monopoly to fight the duopoly?

[1] https://techcrunch.com/2020/09/30/indian-startups-explore-fo...

stouset• 6 years ago

You can certainly accuse Google of hoarding its customers’ data, but I think you’ll have a hard time levying that same accusation at Apple.

Not that Apple has zero data on their customers, but the difference in quantity (and intrusiveness) is likely off by a factor of thousands.

Abishek_Muthian2• 6 years ago

Both platforms provided necessary instruments to hoard personal data such as - location (GPS/cellular triangulation), Microphone, Cameras etc. There was absolutely no difference in what instruments they provided to gain data until recently.

newen• 6 years ago

Apple’s argument for privacy is that they don’t give away their user’s data to outside parties. Friend who used to work at Apple told me they store lots of user data and do the typical intrusive data analysis on the data. They just don’t give it to third parties.

Animats• 6 years ago

In a related area, it may be time for independent "add-on stores" for browsers, separate from the ones Google, Mozilla, and Apple operate. Chrome and Firefox now use the same add-on format ("WebExtensions"), so there's no need for separate stores, and Safari is going that way. But each browser vendor has a separate approval process with its own rules and fees.

ramshanker• 6 years ago

I sense regulation incoming. ;)

supernova87a12• 6 years ago

Call me a corporatist, but I don't even think Google and Apple should have to justify their 30% pricing at all as "reasonable". They could charge anything they like -- 100%. It's a voluntary contract, and Epic doesn't have to engage in it. We don't have to engage in it. There's no fundamental right to offer an app on an app store, and if the scope of the market is defined as the market for video games/content, then none of these places are monopolies and companies/people are free to set their desired prices.

Who is the court, or any of us, to say what should be the charge for selling a game on a marketplace? That's like someone telling you what your profit margin should be for a product that everyone wants. Why should it be tied to your costs?

I mean, in many cases it is, due to customer demand reasons, but there are tons of things that you pay for that have prices nothing close to what it costs to provide.

That's why I think it will fail in court at least (maybe not the SEC, or Congress). The argument that 30% is unfair goes nowhere in court -- so what should it be? Courts are not the forum for that question.

Anyway, I finish with snark: if Epic invoked its same logic on itself, clearly it should reduce its profit / subscription charges to a "reasonable" level. Epic is the only one I'm able to buy Epic games from -- clearly they're a monopoly and need to have their market-abusive behavior and extortionate pricing regulated? Right?

I find irony in many people who get probably so knee-jerk opposed to Google/Apple and "on Epic's side" will find themselves justifying why they should be free to set their own prices when they launch their next product.

Barrin92• 6 years ago

Call me a democrat but I think the United States of America shouldn't have to justify its laws at all and should regulate Google's and Apple's store however they want, tax them 100% instead of 20%, after all they voluntarily made a business, they can move their HQ to Swaziland, who is to tell the American people how to regulate their businesses

It's not like Apple and Google can't move, there's like 200 countries, that's like a hundred times more countries than app stores

JumpCrisscross3• 6 years ago

the United States of America shouldn't have to justify its laws at all

We don’t have laws that Apple is breaking. Almost all legal analysts agree Epic’s case is a long shot designed to attract legislative intervention.

supernova87a12• 6 years ago

The government of the USA is completely free to do that if the representatives agree, and let them live with the effects and consequences of their choices. And the demand for companies to operate in their country if they do. US corporate tax rates have been adjusted many times, and have been (until recently) among the highest in the world, but the benefits are worth it.

Your sarcasm about the flight of capital and corporations is maybe more right than you realize.

Sadly, maybe also the part about not having to justify its laws at all...

DuskStar• 6 years ago

Unironically, I would be happy with a sliding tax scale here - if Apple/Google takes x% of the purchase price, then there's an x% federal tax added on top of the purchase price.

jariel8• 6 years ago

"United States of America shouldn't have to justify its laws"

Oh, absolutely 100% positively 'not true' - the US 100% has to 'justify it's laws'.

While 'something should be done here' I don't think prices need to be regulated, rather, just opening up fair market conditions in different layers of the value chain.

Just making 3rd party apps and app-stores available on each platform would suffice.

simula67• 6 years ago

I think they are most likely to move to Ireland or the Carribean and not Swaziland

1. https://en.m.wikipedia.org/wiki/Base_erosion_and_profit_shif...

2. https://en.m.wikipedia.org/wiki/Leprechaun_economics

3. https://en.m.wikipedia.org/wiki/Double_Irish_arrangement

b20000• 6 years ago

there is an imbalance of power here...

mulmen10• 6 years ago

Are you aware that Boeing is not allowed to operate an airline while also manufacturing commercial airliners? Do you think this is reasonable?

https://en.wikipedia.org/wiki/United_Aircraft_and_Transport_...

smabie2• 6 years ago

I think Boeing should be free to jump into the airline business. But even if they could they never would actually go for it. The exposure and risk is simply too high.

bilbo0s3• 6 years ago

Are you saying Epic should not be allowed to have what is effectively a digital goods store while manufacturing apps? Or that Apple and Google should not be allowed to manufacture apps while owning digital goods stores?

Or both?

BobbyJo• 6 years ago

I agree, but they should both be charged with colluding on pricing (neither can justify the prices and it's obvious no market price discovery ever happened.

nodamage3• 6 years ago

Steam set a 30% rate years before the App Store or Play Store even existed, and the same rate is used across the industry in both console stores and physical stores. Accusing Apple and Google of colluding on pricing requires an enormous misunderstanding of what collusion actually means.

nmfisher4• 6 years ago

While I broadly agree with your sentiments, Epic's issue here isn't the percentage commission per se.

It's the fact that both Stores do not allow apps that circumvent Apple/Google's payment systems for in-app purchases (and in Apple's case, the fact that side-loading is prohibited, forcing you to use the App Store for any software you want to run on portable Apple devices).

If you took a favourable interpretation, a 30% commission only becomes anti-competitive once Apple/Google take away any alternative.

That being said, I don't agree with that and I'm still not clear what the legal basis for that argument is. I'm leaning towards Epic losing this one mightily.

judge20206• 6 years ago

One of their points in court was attacking the 30% since they do, indeed, love the traffic the App Store brings them (since not all players found Fortnite via EpicGames.com).

https://news.ycombinator.com/item?id=24669192

shirakawasuna2• 6 years ago

Simply start your own major smartphone platform to compete with the duopoly, duh. Easy as that.

supernova87a12• 6 years ago

Maybe it tells you something about the market dynamics and difficulty of technology that there are only 2. And maybe that produces the margins it does.

If it's not easy, maybe you should think about why then. And not be so quick to dictate how things should be otherwise.

quotemstr2• 6 years ago

"If the rule you followed brought you to this, of what use is the rule?"

Do we really want to live in a world in which a few tech companies get to shave 30% off of all the value produced by a significant portion of the entire economy? Why should we put up with that? Because we made a rule a long ago that in general companies can decide their own pricing structure and device policy? Is a slavish adherence to this rule worth making us all 30% poorer? Why?

We can and should make an exceptionion to the general principle of corporate independence whenever we find ourselves in a situation in which a key piece of public infrastructure happens to be privately owned --- and app stores have definitely become public infrastructure). We shouldn't let a blind adherence to an abstraction prevent us from ensuring that this public infrastructure is run in the public interest.

supernova87a12• 6 years ago

You need to carefully watch for yourself falling down the trap of growing the definition of what is an entitlement and what is not.

An app store that sells games and voluntary entertainments is not a public infrastructure, operated in the public interest. That's almost laughable.

And don't be so quick to conclude that now because you reap the benefits of a system that was previously set up, you can simply decide that you think the % is too high and take it back "in the public interest". Go ahead, propose that every company only be allowed a 5% markup on its costs. Let's see where that takes us.

strider3g• 6 years ago

ISP should also take a cut, I mean why not..they can... then the electric company can charge all of us a % ... why don’t camera companies get a cut of movie revenues... why don’t tv companies charge cable companies to work with one another, I mean... let’s just go for it

supernova87a12• 6 years ago

They do.

0xfffafaCrash• 6 years ago

ISPs charge onerous prices already and they often have local monopolies enforced by local governments and public utilities (which create artificially high regulatory barriers to entry to eliminate competition [0]) as opposed to dominant market positions in a virtual space as a result of network effects and consumer choice. The government and regulatory bodies are so thoroughly captured that the government has actually made it illegal for municipalities to provide broadband across much of the U.S. [1]. The situation is similar, and in some cases worse, for power companies which are often granted local monopolies, immune from antitrust laws through their relations with local government, and guaranteed insane profits despite awful performance [2]. Using ISPs and power companies as an example for why more government intervention in more open virtual markets would be advisable is probably not a winning argument.

[0] https://www.wired.com/2013/07/we-need-to-stop-focusing-on-ju...

[1] https://broadbandnow.com/report/municipal-broadband-roadbloc...

[2] https://www.vox.com/2015/9/9/9287719/utilities-monopoly

jariel8• 6 years ago

" They could charge anything they like -- 100%. It's a voluntary contract, and Epic doesn't have to engage in it. We don't have to engage in it. There's no fundamental right to offer an app on an app store, and if the scope of the market is defined as the market for video games/content, then none of these places are monopolies and companies/people are free to set their desired prices."

They are monopolies, or more precisely, an oligarchy.

Mobile devices have become 'essential utility' not quite but almost like roads, internet access etc. and Google/Apple have absolute control.

Imagine if Verizon and AT&T said: "We're going to charge 30% of all revenue derived form Internet Usage".

What would be the difference?

Could we just 'refuse to engage' and 'not use the internet'?

We scream 'net neutrality' when it comes to network access, we need to recognize some of the same logic applies here as well.

Sometimes it's hard to demonstrate 'consumer harm' when we don't know what the market would look like otherwise: in Canada, literally up until the 1980's, the telephone system was a de-facto government monopoly called 'Bell Telephone'. You had to buy everything from them, they set prices etc. etc..

Imagine what would happen if iOS and Android 'banned' anything other than Safari and Chrome.

Imagine if theY forced Bing and Google only respectively as search engines and banned all others?

How would we react?

In much the same way Europe has required users have the ability to have the choice of Search, even default search, I think the minimum requirement would be to allow 3rd party apps and 3rd party app stores.

pjmlp7• 6 years ago

Imagine if Verizon and AT&T said: "We're going to charge 30% of all revenue derived form Internet Usage".

Well, mobile operators used to charge up to 80% on their Symbian, J2ME, Windows CE/PocketPC, Blackberry, Brew stores.

mattigames• 6 years ago

That's strawman, Epic's fortnite is not one of the only 2 surviving videogames in the world, while Android and Apple are the only 2 mobile platforms; if Fornite was somehow one of the only 10 mobile games people had available at all I would agree but not in the current state of affairs.

weavejester3• 6 years ago

"Who is the court, or any of us, to say what should* be the charge for selling a game on a marketplace?"*

That falls under competition law. It's in a government's interests to encourage companies to compete with each other, and to prevent a single or a handful of companies explicitly or implicitly agreeing to control market pricing to the detriment of consumers.

In this case, both Google and Apple set the same 30% pricing, and clearly neither have any incentive to rock the boat and compete with each other, and every incentive to dissuade or prevent other companies from creating competing app stores. When competition in a market fails, it's up to the courts or government to step in.

"I find irony in many people who get probably so knee-jerk opposed to Google/Apple and "on Epic's side" will find themselves justifying why they should be free to set their own prices when they launch their next product."

Its not hypocritical (or even ironic) to say that there should be different rules for companies operating as part of an oligopoly, compared to small business competing in a crowded marketplace.

supernova87a12• 6 years ago

The state-overseen apparatus you might next jump to is a nightmare to me.

You would be ok with different tax rates for different size corporations?

A committee / agency to decide what is or is not an oligopoly? So, someone coming up with a new app that does something never done before, that would be a monopoly or oligopoly, right?

echelon• 6 years ago

Google and Apple have gotten too big. They're harming our industry. It's time to break them up.

Besides, our devices are computers. The next evolution of laptops for most people. We should be able to run whatever software we want on them. Google and Apple purposefully acted like mafia to keep them as locked down as they could, while they both benefited from the web and open source to rise to and ultimately cement their position.

Fuck them both.

thatguy0900• 6 years ago

Google I can see an argument for, but Apple? What would you even break them up into? They only make hardware and software specifically for their own hardware

Qwertious2• 6 years ago

Who is the court, or any of us, to say what should be the charge for selling a game on a marketplace?

This comes down to what I call competitive capitalism VS Hobson's Choice capitalism. Android doesn't really have any competitors - Amazon, Samsung, they have zero legal access to the apps on the Google Play store unless they go through Android. As such, if they refuse to allow competitors to force them to compete, they have a responsibility to compete despite the lack of competition and if they refuse to do that it's the government's job to beat them until they comply.

Again: the problem here isn't "freedom", it's competition. Your next product probably doesn't have a major captive sub-market.

But let's address the " freedom" argument: what I call Hobson's Choice capitalism. "If you don't like it, you're free to rewrite the OS from scratch, then convince every single app on the app store to switch over while starting with no hardware support and no app support. This is a Hobson's Choice - it's not about making an improvement on Android, it's about making a unilateral improvement on the entire universe just to push Android forward. It's absurd and not a real choice.

But more importantly, if you consider Hobson's Choice capitalism to be capitalism, then technically the government is equivalent to a private corporation as long as you can forfeit your citizenship and move to Somalia to be free of your country's obligations on you. This basically contradicts the standard definition of the free market, but that's the point - everyone rejects the Hobson's choice out of hand, because it's just so absurdly irrelevant to competition.

So let's talk about competition: would Google rather take a lower cut, or legally permit Amazon and Tizen to access Google Play apps from their non-Android OSes?

Because right now, they're not competing. They're just sitting on their chicken-egg problem based laurels.

As for Epic: I sort of agree with your pejorative - copyright is intended to provide funding, but the right it actually grants is the right to deny a copy. Some companies simply sit on copyright they never actually intend to monetize, and others keep hold of it far longer than they need to make a healthy profit proportionate to its success. The notion that all copyright needs the exact sake period is also absurd, as some industries are much more fast-moving than others. I think we need to take a long, hard look at copyright monopolies, starting with the absurd "lifetime plus 70 years" duration.

happymellon3• 6 years ago

Epic have bought up games and moved them to their store which, as a Windows only platform, has reduced choice. They should totally get regulated as well since they are reducing competition.

If it wasn't run by a complete and utter dickhead I may have more sympathy.

Reelin• 6 years ago

The Epic Games Store officially supports both Windows and macOS. It runs on Linux via Lutris, and they even paid them a grant for that purpose. (Of course I'd prefer official Linux support. It seems odd to support Android but not Linux.)

Is there some particular reason you don't like Tim Sweeney beyond his failure to be a diehard Linux crusader?

riantogo• 6 years ago

You are not wrong. But your world view is a bit too simplistic. Real world is a messy place. Hence consumer protection is a thing.

stale20024• 6 years ago

Alright, now lets say microsoft did the exact same behavior, on every single PC. And made it impossible for you to install unapproved apps that did not give them a cut.

Would you really believe that such behavior would not break anti-trust law? Because the courts already ruled against microsoft in a much less extreme situation.

And furthermore, are you really OK with that behavior, if microsoft forced every single windows PC in the world, to disallow unapproved apps?

The argument that 30% is unfair goes nowhere in court -- so what should it be?

The lawsuit has nothing to do with the 30% cut. Instead it has to do with Google and Apple engaging in anti-competitive behavior, and using their significant market power to prevent competition.

They should not be forced to change their price. Instead, they should be force to stop their anti-competitive behavior, and allow other apps to be installed, in an easier way (in Apple's case), where as Google should be stopped from forcing OEM providers to not preload the epic app store.

why they should be free to set their own prices

It has nothing to do with price setting. That is nowhere in the lawsuit. Instead, Epic is trying to stop anti-competitive behavior.

hajile• 6 years ago

You are wrong because it's not a free market. Get rid of the patents and hundred-year copyright monopoly grants then we'll talk.

If a monopoly is created and enforced by the state, it is their duty to regulate it.

hhjinks2• 6 years ago

Epic doesn't have to engage in it. We don't have to engage in it

They do if they want to be on the mobile market, as evident by them being kicked off 98% of the mobile market when they decided to not engage in it.

wbsun• 6 years ago

Off topic, I am wondering what are missing in mobile browser before we can completely move these games to web and get rid of native apps? Faster JS? Accelerometer and other censor APIs?

65102• 6 years ago

If they do a phone and a gaming OS I would buy it.

also, I similarly wonder what we are missing for google and apple to force websites to use their payment system and tax the 30% hell out of the entire economy.

And remember, no "sideloading" though brick and mortar stores!

ohyeshedid2• 6 years ago

Bandwidth is likely the largest hurdle.

ladberg• 6 years ago

I believe most sensors are already available to web apps, but a big burden for games would be storing assets on the user's phone as something like Fortnite takes a few gigabytes even on iOS with lower resolution textures.

ry4542• 6 years ago

We're missing the desire of Apple & Google to make this happen. Apple won't let Safari compete with its app store and Google won't let Chrome compete with its app store.

ThatPlayer4• 6 years ago

As examples of this, Safari doesn't even support HTML push notifications: https://caniuse.com/notifications , which would make it near impossible to make an entirely web based messenger app.

pjmlp7• 6 years ago

Usable 3D APIs for starter.

WebGL 2.0 is at the level of OpenGL ES 3.0 (we are at GL ES 3.2 since years now) and has constraints in place due to security reasons.

WebGL 2.0 compute got a standard update last September, but there are no plans in sight to ever make it out of nightly previews, specially given WebGPU.

WebGPU still remains to be seen when it will be available, and in what form, if ever.

WebAssembly in 2020 is still trying to catch up with what Flash Alchemy allowed for in 2011.

To top this, even if you managed to make a cool 3D Web game in proper framerate, it can run like a dog in the customers browser in spite of their good native gaming experience, because the browser for whatever reason blacklists their GPU model and reverts back to either software rendering or not running at all.

Jasper_2• 6 years ago

Flash Alchemy was roughly equivalent to emscripten. What you're likely thinking of is Starlet/Stage3D, which, uh, have you used it? Did you seriously write AGAL code? WebGL is a lot more tenable. Not great, but far better.

viktorcode4• 6 years ago

Browsers are a rather poor app execution environment thus there’s not much incentive for publishers to go that way, as given the choice the customers would largely prefer a native app to a similar browser-based one.

Jasper_2• 6 years ago

Somehow caching the gigabytes of cooked data that is a game. Web apps don't have any way to do data management, and even Chrome's cache on desktop regularly corrupts itself on large files.

bitwize• 6 years ago

Just stating the obvious: punks jump up to get beat down.

trevyn3• 6 years ago

I guess you're right, Martin Luther King Jr. did get beat down. But his cause sure as hell didn't.

xbmcuser2• 6 years ago

My problem with apple and google charging 30% is when they are the competitors. So in essence you are asking your competitors to finance you. If apple wants Apple music or a video subscription service they can't charge as Spotify or netflix 30% same for google etc. And I think this should apply to almost all market services/stores not just mobile app stores. If you want to be market infrastructure provider you should not be allowed to compete in it or allowed to charge 30% rather it should be a nominal fee.

stanrivers• 6 years ago

This is an interesting point that people miss sometimes - so thank you for bringing it up.

I guess a comparison would be a utility that both owns the transmission lines and power plants? However, the transmission line rates are set by regulation. We have accepted as a society that the infrastructure needs to have regulated pricing.

So why is it all that different here?

The transmission of the products, just given the way the cellphone market works, is basically limited to either App Store or Android Store. I basically have no alternative.

Isn't that approaching a monopoly / duopoly where regulation starts to make sense?

I say this all as a fairly conservative person, but it just seems too similar to utilities to me...

Why am I wrong? (Serious Question)

luckylion• 6 years ago

Isn't that approaching a monopoly / duopoly where regulation starts to make sense?

Or it might be a cartel (few players are coordinating for maximum revenue, are not competing, prices are fixed), but we usually won't let that stand either.

It's good to remember that Google and Apple (and others) have been found to collude before when they made secret no-poaching deals. They settled for $415m.

I don't know how that would work though, without breaking up the companies.

mook• 6 years ago

I believe a better comparison would be Comcast also having a Netflix competitor… let's call it Xfinity Stream. And then they make Netflix have extra costs (say, having plans that have low monthly bandwidth caps that limit how much you would be able to use Netflix) but exclude their own service from having those costs. Essentially, making an artificial floor on competitor prices where their own service can ignore that floor.

… Let's just say there's a reason my example is oddly concrete.

In your example, as far as I know consumers do not actually interact with the power plants, and have no choice on what utility company to use; to do so would require duplicate infrastructure. In the (either) app store case there is — I can still install the Microsoft mail client instead of the Apple or Google ones.

parasubvert7• 6 years ago

It took MANY decades before transmission lines, power generation and brokerage were forcibly separated and regulated. They traditionally were integrated, even through the 1980s in some countries.

Utility regulation only works when the product doesn’t change and is a fungible commodity - power is power. It also is about driving prices down for consumers for that commodity.

The iOS and Google platforms have barely existed more than a decade, and the platforms are constantly evolving. New platforms and ecosystems are emerging too, with Facebook/Oculus, Valve/Steam, Amazon with Fire/Alexa, etc.

Enshrining today’s dominant app platforms as the government sanctioned ones will surely stifle their evolution and innovation, because that’s what declaring something a utility is: a commodity with no differentiation.

The crux of this matter is that end consumers generally do not care about the 30% cut, It’s a retail cut they’re used to from other platforms like Sony PlayStation, or Ticketmaster for concert tickets. it barely impacts them (and arguably the curated stores are a better overall experience). I also don’t think almost any consumer of iOS would agree their App ecosystem experience is fungible with Android or anyone else. This is entirely driven by Devs and publishers that want better margins.

Someone• 6 years ago

“I guess a comparison would be a utility that both owns the transmission lines and power plants?”

Something like that happens a lot with mobile networks, where some operators both have a license for bandwidth and sell it to customers, and other operators buy bandwidth from them to sell it to customers (https://en.wikipedia.org/wiki/Mobile_virtual_network_operato...), with an important difference being that customers (sometimes after a few years of contract) are free to switch between providers.

But yes, the important discussion here is whether app stores should become utilities. AFAIK, there is no existing law there, so it will have to be created. Because there is no law, I don’t see Epic winning this in the sense that they will get paid for damages. They may win in the sense that things will change, though.

jnwatson• 6 years ago

If you sell breakfast cereal, you’re competing against the grocery store’s store brand.

bilbo0s3• 6 years ago

In order to do it that way though, we would have to rewrite the laws of retail commerce as they stand today. Unless you are saying that, say, Apple and Google can't, but Walmart, Amazon, and Target can. Because right now, that's exactly what's happening.

In fact, even in the grocery retailing industry, there are integrations that would run afoul of the rule you are proposing. Kroger, for instance, sells brands it owns, while selling competing brands for what is, effectively, a commission. I'm not just picking on Kroger, all major chains engage in this practice. I was only using Kroger by way of illustration.

So what you're proposing has far reaching implications. I don't even think it's necessarily "bad", per se. But it does change the entire "order of battle", as it were, in the American retail space. Lots of people would go out of business, and lots more would be in serious financial trouble.

tappio• 6 years ago

Not really. There is a huge difference as you can buy goods that serve the same purpose from thousands of other shops and online stores.

Google and apple effectively have a 30% tax on all mobile software business. They are killing all apetite on developing new mobile software, as less and less developers want to be involved with their shady practices of stealing features and locking apps out.

It would be the same if there were only 2 stores where you can buy clothes in the US and they tax every manufacturer 30% to sell any goods there, while also selling their own goods without commission. On top of that, occasionally stealing good concepts, copying those, and selling as their own products. And of course, locking out annoying partners at their will without having to explain why one manufacturer can no longer engage in business with their customers.

simonh• 6 years ago

I think that smacks too much of penalising companies not for their behaviour, but simply for being successful. If It’s ok for them to charge standard market rates for providing a service to a company, if they compete with that company suddenly they have to charge less? That just seems anti-competitive. I just don’t see why it’s ok to charge Spotify 30% before Apple Music exists, but not ok to charge the same rate for the same services after.

I realise a lot of people argue Apple shouldn’t be able to charge anything, or should provide features for side loading and APIs and services to third party stores for free, but that’s not what your suggesting. I’m just critiquing your suggestion.

PunchTornado• 6 years ago

it's like airbus and boeing being allowed to be an airline company. they're not allowed for good reasons. competition would suffer. imagine being an airline and compete with the guys where you have to buy your planes from.

xbmcuser2• 6 years ago

This is the same that american train robber barons were doing before they were regulated they were stifling the competition in favor of their own products. They say history repeats itself and that is what we are seeing today previously we had train robber barons today we have internet tech robber barons.

bg24• 6 years ago

Some relevant arguments-

(1) Telecom provider as a case in point. They provide a fat internet pipe to consumer. But they do not get to bill the application providers (OTT- over-the-top) on a recurring basis.

(2) App marketplace is an interesting and crazy thing. If I subscribed to Netflix through app marketplace, the marketplace does NOT provide me (consumer) any value at all. But if Netflix has to pay 30% to Apple/Google of all the $$ that I pay to Netflix, something is broken in the system from my (consumer) viewpoint.

ralfd• 6 years ago

the marketplace does NOT provide me (consumer) any value at all.

But it provides Netflix value in that they have more customers.

If you (physically) shop in a store you don't even think about the retail margin.

mattmanser2• 6 years ago

While this "sounds" good, where were you when the supermarkets did this, literally decades ago?

Here in the UK, a common tactic of theirs is selling a branded product, then if it sells in sufficient quantities they make their own brand, cheaper, sometimes lower quality, version.

And then they put it right next to the original product on the shelf.

It can't be one rule for the tech companies, and another for all the other companies. It's a store, expect the store to take a cut and if you're too successful, compete with you.

mcintyre1994• 6 years ago

I guess there are some things that distinguish this though - it's much easier to go to a different supermarket than to switch app stores, given there's no hardware compatible with both. It's also potentially easier to have your product in multiple supermarkets (assuming you don't agree exclusivity), you just have to scale up your manufacturing - on an app store you need to produce a different version. That's complicated by things like React Native and the fact that digital has no replication cost at all once written though. There are also more supermarkets vs 2 app stores, though they probably all do the same thing so I'm not sure how much that matters.

rcgs• 6 years ago

The difference really is that the Apple store is a monopoly.

It’s like there’s only one supermarket where you can sell your products, but they can still compete with you as you described.

schwartzworld• 6 years ago

What a strange comment

if you don't like this thing we're talking about, why didn't you do anything to stop this other tangentially related thing that happened a long time ago?

I'm not even sure what you are describing makes sense. our supermarket sells hood brand milk, as well as their own private label milk. however the private label version is made at the hood factory using hood milk. in this case, I'm pretty sure the people at Hood don't care which one you buy since they get paid for making the "ripoff" brand.

your example would be fitting if Apple made their own clone of epic's app, but paid epic to do it

pyrale3• 6 years ago

where were you when the supermarkets did this, literally decades ago?

This is whataboutism.

Many people around here were not old enough to be interested in politics "literally decades ago". And for those who were, the hindsight we have now is a good reason to start getting interested in the issue.

It's a store, expect the store to take a cut and if you're too successful, compete with you.

The whole point of politics is to fix outstanding issues. "It's always been like that", "suck it" or "fuck you, got mine" rarely make for convincing political speech.

emn13• 6 years ago

Supermarkets aren't nearly as monopolistic as app stores. A supermarket "user" is free not just in theory but also in practice to use competing stores (and many people really do). Not just that: in most places, there are competing stores, quite a few of them, not to mention alternatives like online deliveries. If a goods producer can mass produce products for a supermarket, they're likely also capable of paying for super-market independent marketing; i.e. they have independant channels of communication with the consumer, and can use tools like MSRP to suggest reasonable prices to avoid price-gouging by the supermarkets, and the difference in customer access to ads by the store or by the manufacturer isn't huge. Additionally, a supermarket provides a valuable service to the producer beyond merely locked-in network effects: transporting tons of goods that last mile and distributing them to individuals requires quite a bit of work.

Compare that to app stores: users are in practice not free to pick another app store, even on android - network effects make using alternatives quite tricky and even risky, and the device/OS maker don't make it easy to pick reputable alternative stores. App stores additionally leverage their monopoly on that user to hide their costs from them; e.g. in apples it's not even allowed to mention the cut apple takes and where you might be able to buy more cheaply - and not just in the store, but even in the app itself, even indirectly! There's no MSRP by which to note that that 30% cut is extortionate. Finally whereas last-mile logistics are tricky for real-world goods, app store checkouts are not; almost the entire value provided is in network effects: i.e. the value is provided by the users of the app store, not the app store itself.

All of these disparate factors mean that app stores clearly are not a competitive market, whereas supermarkets aren't quite as bad. But let's not forget: just because supermarkets are "less bad" than app stores doesn't mean there's no potential for market manipulation; we should be vigilant there too - just that the kind of manipulations supermarkets can pull off aren't going to be quite as impactful.

TL;DR: not only are app stores much, much worse than supermarkets when it comes to harmful market manipulation, flaws in one market do not excuse flaws in another anyhow.

dunce2020• 6 years ago

It can't be one rule for the tech companies, and another for all the other companies.

Says who?

WWLink2• 6 years ago

Or they pull a walmart, where they have the brand name product for a lower price than everyone else. Then one day they introduce their house brand product at that price and raise the brand name product's price. Then the brand name's product becomes more expensive than it would be at other stores.

powerapple• 6 years ago

Agree. When Apple Music compete with others, they are not paying 30% fee as other competitors, it gives them a huge advantage and it is not fair for other players. Especially other players entered the market before Apple Music. It is very similar to when Windows bundled with IE actually.

pftburger• 6 years ago

Or do it Amazon style, with different decisions ala AWS, but force open book keeping so that courts can tell if it is a real advantage or just an implied one

srfilipek• 6 years ago

charge as Spotify or netflix 30%

That only occurs if Apple facilitates/manages the subscription.

AFAIK, they are both generally outside of the "Apple Tax" at this time by redirecting subscription signups to a browser.

MaxBarraclough• 6 years ago

This is something Spotify have written about explicitly.

ctrl-f for undercut in https://timetoplayfair.com/timeline/

ericmay3• 6 years ago

Why do we have this assumption that Apple and Google can only make the same margins as Spotify? What if that 30% means that since they have a larger company they wind up with the same margins as Spotify or even worse? What if Apple Music making money subsidized other free software that Apple releases like Numbers and Pages?

30% is the reward they get for making great business decisions, and as far as competition goes I don’t really think Apple is that serious. Apple Music is an evolution of iTunes, which has been an Apple product for 20 years.

If Spotify wasn’t profitable it wouldn’t exist. Apple’s platform makes that business possible on mobile. If Spotify’s investors weren’t content with making the money they are making now, Spotify can fold up. There is no reason that they have to make a “fair” profit or the same amount of money as Apple Music. None.

When you look at the App Store ecosystem it is incredibly healthy and competitive. There are numerous music apps, all making a ton of money. I have no sympathy here.

sharpneli• 6 years ago

Let’s say the music business demands $8 per month per user for licensing fee. Apple can sell their music service for $9.99 and get some nice profits. Spotify cannot sell at $9.99 with an in app purchase as the remaining money doesn’t cover the license costs.

This is the very reason Spotify charges more (if they even allow it anymore) when purchased as an iap.

Apple likely has not stomped down on it because that one would be rather clear cut case for courts.

MR4D• 6 years ago

Honest question: do you also want Kroger to be required to charge 20% more for Kroger cornflakes (Or to be prohibited from selling them at all)?

Because that’s the same thing, but without cellphones.

itsdrewmiller• 6 years ago

If my pantry was only compatible with Kroger this would be a good analogy - in the real world I have a wide number of retail stores to choose from, as should be the case with app stores as well.

hindsightbias• 6 years ago

Apple should just release their own Fortnite clone and be done with it.

ohyeshedid2• 6 years ago

Lots of companies have tried, and none have attained the level of popularity that Fortnite has.

gdsdfe• 6 years ago

I think this is ultimately about what the consumers want. Google and Apple can easily drown epic games in lawyer fees and expenses etc. ... But do they have a case in front of the public, do consumers care enough to give a shit, maybe ... I don't see it.

ry4542• 6 years ago

IMHO, Google & Apple are safe for at least 4 more years: the current and next US administration has no interest in changing the status quo in the corporate world. Maaaybe something will happen in 2030.

parasubvert7• 6 years ago

It must be fun being Apple to be both perpetually doomed by detractors as having minuscule marketshare and collapsing sales (any day now for the last 40 years)... and also a rampant monopolist that must be turned into a public utility because we’d much rather have the government review apps than Apple or Google (wait what?).

Pick one! But if you pick monopolist, don’t expect regulation to necessarily go the way you want it to. It probably will preserve everything you hate about the current system, just replacing Apple with a bureaucracy.

Forcing the return of the Wild West of the PC ecosystem Into mobile will only happen when consumers demand it. They won’t, because that wasn’t a very user friendly approach. It Was originally for tinkerers and hackers and that pedigree continues to this day. Mobile carriers and government aren’t likely too fond of the idea of phones where anything can be installed on them.

fragsworth• 6 years ago

At some point monopolies stop being the more user friendly approach by abusing their position to the point that they provide bad service for high costs, and you're forced to deal with it.

These companies were user friendly at first, but as all companies do, they are slowly squeezing the profits out of everything they can.

They are steering us towards a local maximum that ends in them taking a massive chunk of the money from everyone forever, for no benefit to anyone else, simply because they're sitting on market inertia.

People could eventually demand something like that "Wild West" you speak of, because it is the solution that fosters competition and prevents the monopolies from abusing their power.

But I think there is something preventing that from happening - the companies in charge are spending vast amounts of money on PR to convince the public that their monopoly situations are not really so bad. And, I think as a result, they've got folks like you defending them.

dodobirdlord3• 6 years ago

And yet, the platforms and the services they provide just keep getting better and better, and Apple is still charging the same 30% cut that they started with back in 2008. "Slowly squeezing the profits out of everything they can" just reads like anger fantasy.

parasubvert7• 6 years ago

This isn’t about PR or propaganda, that’s a lazy way or implying you’re somehow more enlightened then the defenders. This reminds me of old Windows vs OS/2 or Linux advocacy arguments on USEnet.

I’m defending them because I have seen enough history to not want the alternative for our mobile phones, and also because most folks here are very flawed understanding of antitrust, monopoly and rents. None of those laws as traditionally interpreted and enforced apply to this situation.

They’re free to extract 30% because that’s the holy grail of what businesses are and have always been about, taught in every business school for the past 50 years, and how commerce laws were structured: crafting a sustainable competitive advantage that still benefits consumers.

onetimemanytime• 6 years ago

Hijacker: yes I shot him but it is of his own making. He didn't cave in to my demands.

(Yes, I know Android marketplace is Google's but what we'd think if MS did the same with Windows, charge a cut of every transaction. Don't like it? Too bad, no one is forcing anyone to use Windows)

Razengan• 6 years ago

Replace Google with Apple in the headline and this would be 10x as many points and comments in less than half as much time.

simonkafan• 6 years ago

It's like if you would have to ask Google or Apple for permission when you want to open a coffee shop or any other business and have to give them 30% of your profit.

App marketplaces must be a public good and under the surveillance of the public and not controlled by a few old chief executives of Google or Apple.

ericmay3• 6 years ago

It’s like if Apple and Google went out and bought land and built a very desirable mall and you want to open up your business in their mall.

crumbshot• 6 years ago

More like if, between them, they held almost all commercially-zoned land and then proceeded to run a landlording duopoly.

dingaling• 6 years ago

And the mall owner charged not only rent, but 30% of your store sales which could only be made through their proprietary payment system.

Sounds lucrative.

cannabis_sam• 6 years ago

I fucking love Epic’s attempt at precedent here!

Fuck whatever contract you signed, actively breach that contract, claim some faux-high-ground, while you’re completely fucking over the people who actually use your rickety-ass malware-as-a-service “app store”...

reason-mr• 6 years ago

All of the app stores charge 30%, with some stores going so far as to impose an evaluation fee when listing a new app. It is completely outrageous relative to the amount of work they have done (which is amortized over all of the apps in the store), versus that of creating the app/game. Plus I find it fishy (in a collusionary way) that all of the stores charge basically the same percentage. And, as pointed out, they will not allow another competitive app store on their platforms. Each store in basically a monopoly per platform, with the possible exception of steam/windows.

Google: “Any harm Epic has suffered is not irreparable and is of its own making”

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