Apple files expert witness testimony in its legal battle against Epic Games

We’re nearing the start of the trial between Apple and Epic Games. As such, Apple has gone ahead and filed its expert witness testimony to the court.

The filing was first reported today by MacRumors. The bench trial between Apple and Epic is set to start on Monday, May 3, 2021. That means the companies need to get all of their ducks in a row ahead of the start date. Filing expert witness testimony is one of those ducks.

There is no set approval for the expert witness testimony filing at the time of publication. However, if the written statements are approved by the court, then they will be documented and serve as actual trial testimony. However, seeing them ahead of time does give us a look at how Apple plans, at least in part, to dispute Epic Games’ dispute with Apple in the legal matter.

As noted in the original report, Apple tapped several different professors that offer expertise in matters like law, antitrust, computer security, and other fields. One such professor is Lorin Hitt, who is at the University of Pennsylvania and teaches Operations, Information, and Decision. In defense of Apple’s App Store and the associated fees, Hitt argues that, as a game transaction platform, Apple is right in line with other services and platforms:

My market share calculations support the conclusion that Apple does not have market or monopoly power in a properly defined market. Apple’s share of the digital game transaction market lies between 23.3% and 37.5%. In light of my conservative approach, these market share estimates, especially at the high end, are likely to overstate Apple’s true market share and are, in any event, inconsistent with Apple having substantial market power. The entry of new game transaction platforms is also inconsistent with Apple having market power.

For what it’s worth, Apple has made the same argument.

Another entry is from UCLA Professor of Marketing Dominique Hanssens, arguing that Apple doesn’t have a monopoly in the gaming market because iPhone and iPad owners probably also have other devices to play games on. They reached that conclusion based on a survey they conducted:

Results of my first survey show that 92 percent of respondents who downloaded apps from the ‌App Store‌ had regularly used at least one other type of device (i.e., devices other than iPhones and iPads) with which they could access digital gaming content, in the last 12 months. Further, 99 percent of respondents in the first survey had regularly used or could have regularly used at least one other type of device (i.e., devices other than iPhones and iPads) with which they could access digital gaming content, in the last 12 months.

In an interesting move, all things considered, Apple is going to use the App Store’s “security” and review process as a way to drum up support for why the App Store itself is so important, especially for mobile users. Aviel Rubin is the technical director for the Johns Hopkins University Information Security Institute, and he argues that adding third-party app stores to iOS would “decrease iOS security”.

The introduction of third-party app stores for iOS would decrease iOS security, safety, and trustworthiness, as evidenced by the cases of Google and statistics indicating that third- party app stores host 99.9% of discovered mobile malware… Irrespective of whether they would be able to or intend to achieve the same security goals, the reality is that they could not. Moreover, there is no guarantee that all, or even most, third-party app stores would commit to upholding user security and privacy and intend to achieve such security goals, particularly if those standards come at the expense of efficiency and revenue.

There is no doubt whatsoever that Epic Games is going to argue that, despite Apple’s claims and promotion of the review process, there are still plenty of scam apps available in the App Store. And, Epic Games probably has an argument to make in this regard. Back in March we reported one such scam app, which ultimately stole one user’s entire life savings — and that was after the app was reviewed and approved.

And there have been more than a few similar apps discovered in the App Store since that report surfaced.

The full report is worth a read, even if it’s just a taste of what’s coming from Apple in regards to the legal battle with Epic Games. You can check out the timeline of events that brought us here just below.

The timeline

August 13, 2020

  • Epic Games updates Fortnite on the server-side, bypassing the App Store review process. It adds a direct payment option, breaking another rule in the process.
  • Apple removes Fortnite from the App Store due to Epic Games breaking the App Store rules.
  • Epic Games launches a media blitz, and it also sues Apple for anti-competitive behavior.
  • Epic launches “Nineteen Eighty-Fortnite”, a parody video of Apple’s original “1984” ad:

  • Google removes Fortnite from the Play Store, as Epic Games also violated the Play Store’s rules.
  • Epic sues Google, too.
  • Spotify weighs in! Unsurprisingly, it applauds Epic Games for its decision to stand up against Apple.

August 14, 2020

  • Facebook says Apple’s App Store fees make it impossible to help small businessesimpacted by the coronavirus pandemic.

August 17, 2020

  • Apple threatens to revoke Epic Games’ developer accounts for not only iOS, but also macOS. That cut-off is set to take place on Friday, August 28, 2020.

August 18, 2020

August 20, 2020

  • The Wall Street Journal and other news publications sign an open letter asking for Apple to reduce its App Store fees down to a standard 15%.

August 21, 2020

  • Epic Games promotes the #FreeFortnite Cup, or tournament, that is meant to bring even more attention against Apple, and is promoting “anti-Apple” prizes.
  • Epic sought special treatment for Fortnite before it declared war against Apple and the App Store’s guidelines.

August 24, 2020

  • Judge Gonzalez-Rogers rules that Apple does not need to reinstate Fortnite back into the App Store as the legal battle wages on. The judge also rules that Apple cannot revoke the Unreal Engine development tools, but it can still move forward with removing Epic’s developer account for iOS and macOS.
  • Apple says it agrees with the ruling made by Judge Gonzalez-Rogers, and is prepared to welcome Fortnite back onto iOS as soon as Epic Games is ready to follow the App Store guidelines.

August 26, 2020

  • Epic confirms that the new season of Fortnite, which is Marvel-themed, will not be available on iOS or Mac. Cross-platform functionality with those platforms is also removed.

August 28, 2020

September 8, 2020

September 9, 2020

  • Epic Games says Apple is going to disable the “Sign in with Apple” feature as soon as Friday, September 11.
  • Apple changes its mind regarding “Sign in with Apple”, allows existing customers to keep using it.

September 10, 2020

September 18, 2020

September 24, 2020

  • Epic Games, Spotify, Tile, and other companies create the “Coalition for App Fairness” to take on Apple’s and Google’s digital storefront policies.

September 28, 2020

October 7, 2020

  • Judge rules that the court battle between Apple and Epic Games will resume in May 2021.

November 5, 2020

  • Fortnite returns to iOS thanks to GeForce Now game streaming service, and only available via Safari.

December 17, 2020

  • Judge orders both Tim Cook and Craig Federighi to testify in the legal battle between Apple and Epic Games.

December 21, 2020

January 14, 2021

February 1, 2021

  • Apple’s CEO, Tim Cook, is ordered to sit through a 7-hour deposition

February 10, 2021

February 22, 2021

February 25, 2021

  • After some delay, a judge ruled that Valve has to hand over requested documentation to Apple

March 1, 2021

  • Apple and Epic Games’ trial may be in person, and it is set to start in May

April 5, 2021