A court decision unfavorable to Apple and its App Store ecosystem has just fallen. However, the justice system remains incapable of recognizing the monopoly of the Gafam, notably the fault of unsuitable US federal laws.
On May 3, 2021, a long-awaited lawsuit between Epic Games and Apple opened in the United States. The publisher of the game phenomenon Fortnite had decided to fight against the rule of 30% levied on each sale made on the App Store. A percentage on which many other online games and software sales platforms have long aligned themselves, but which many publishers (such as Microsoft, Spotify or even Tinder) now deem too high, lining up behind the grievances of ‘Epic Games.
Epic which, in August 2020, had decided to light the fuse by offering a discount to players of Fortnite who would go through its own payment platform rather than the App Store to purchase items, which was strictly prohibited by the terms of use of the Apple platform. A few hours later, Apple ejected Fortnite of its App Store, the starting point of a legal soap opera with many twists and turns.
A decision unfavorable to Apple …
The latest, and not the least, is a verdict on Friday evening, September 10. Judge Yvonne Gonzalez Rogers estimated that Apple will no longer be able to prohibit the presence of external links or other communications offered by publishers and developers to payment systems external to the App Store.
In other words, if Epic Games, Spotify, or Netflix want to link to a subscription webpage with their own system directly from their iOS app, they’ll need to be able to do so. They will thus avoid having to pay any commission on their sales or subscriptions to Apple. Of course, this is only a first judgment and Apple will have every opportunity to appeal this decision, but it is a new sign that weakens the ecosystem set up by Cupertino for a long time, attacked by all. shares for months.
… whose monopoly cannot be demonstrated
Presented in this way, we see a hard blow for Apple, but there is in the verdict rendered by this judge grounds for satisfaction for the Californian firm. Indeed, Yvonne Gonzalez Rogers rejected one of Epic Games’ main arguments, believing that the prosecution had “exaggerated” by qualifying the control operated by Apple over the iOS ecosystem as “monopolistic”.
Additional proof, as trials against the Gafam multiply, that it is extremely complicated to define and have their monopoly recognized by the courts. Last June, Judge James Boasberg also rejected the complaint by the Federal Trade Commission, the regulator of commerce in the United States, targeting Facebook, on the grounds that the demonstration of the latter’s monopoly on the social media market was insufficient. As indicated by Benjamin Cardozo, former lawyer at the Ministry of Justice and specialist in antitrust to Washington Post : “This is especially difficult in the tech arena, as companies in that industry can argue that competition is just a click away.”
New antitrust laws expected at federal level
Therefore, even if the judge in the Epic case considers that the restrictions imposed by Apple “Are anti-competitive and violate California competition law”, forcing the brand to accept redirects to other payment systems, it recognizes at the same time that Apple “Does not violate any federal antitrust law”. A whole paradox on which lawyers are basing themselves to demand a revision of the antitrust laws imposed on the other side of the Atlantic in order to adapt to the digital age by taking into account the power of the giants of Silicon Valley.
For some parliamentarians like David Cicilline, chairman of the House of Representatives antitrust subcommittee, “This is partly due to the fact that Congress has not done its job of modernizing our laws”. A bipartite bill must also be presented to Congress on these issues in the fall. Many are now waiting for this new legislation to radically change the balance of power, with sprawling technological giants whose power continues to grow.
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