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0 pointsturquoisevar2y ago0 comments

Mainly two ways.

One is by tracking outgoing links via a specific framework that needs to be used, the ruling only provides for Apple having to allow linking out, no restrictions on Apple’s part for requiring a certain way of doing it.

The other is the courts explicitly affirming Apple’s right to audit as a part of them stating that the commission will still be owed regardless.

The latter is important because it allows Apple to claim a legitimate interest in defense if somehow a case is brought specifically about Apple’s requirements on how to link to a URL outside the app.

Think: “Judge you said the commission would still be owed and you stated we can audit, you even lamented on how cumbersome it would be for all parties involved to settle the commission owed to us if third party payment options would be used, us requiring a specific framework to be used to link outside the app alleviates some of that. We have a legitimate interest in imposing these requirements because it helps us measure links to external purchase flows, which in turn helps us automate measuring these external transactions.”

If you read the appellate court’s judgment, the annoyance towards the district court is palpable. Because the district court both stated the unlawfulness of the anti-steering provision under California statutes as well as stating how cumbersome after the fact collection is of the commission as well as stating that the commission is still owed.

All of this is marginally contradictory, but because the district court didn’t err in sufficient ways for the appellate court to step in and all of it ultimately is in line with the law and standing jurisprudence, the appellate court’s hands were tied, because the appellate court isn’t for do-overs, it’s merely there for significant errors that cause harm.

SCOTUS refused to take up the case, so until further notice the law of the land is that a) developers are allowed to steer users away from the the app while b) Apple remains entitled to their commission regardless because c) there's nothing inherently illegal about Apple's commission because d) it primarily is a payment mechanism for usage of Apple's IP by virtue of how it's structured in the developer agreement and e) as such it's legal because Apple can't be forced to give away their IP for free.

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NoPedantsThanks2y ago

Thanks for the rundown. What's the basis of the perceived annoyance though? What was the district court supposed to do differently?

turquoisevarOP2y ago

Honestly, I’m not entirely sure.

I’ve read enough case law to notice when jabs are made between the lines, but it’s not always clear what the desired alternative is by the writer.

In this case the repeated mentioning by the appellate court that the district court brought up an alternative scenario of… well exactly this, that developers use alternative payment methods and that Apple would have to audit them, only for the district court to brush it aside because it’s too complicated, conveys an annoyance.

These alternative options were brought up by the district court on their own initiative. Normally courts only consider what parties bring up in arguments, but it’s not disallowed or anything for a court to come up with their own suggestions. I think the appellate court didn’t like the fact that the district court brought it up on her own and that it added a bit of complexity as a result.

The real issue or weirdness if you will, is that 99% of the case that is based on federal laws says that everything is kosher on Apple’s side, it’s only the California statute that bans anti-steering and in doing so, creates a bit of a schizophrenic outcome in which anti-steering isn’t allowed (the California part) but commission is still owed because all the rest is fine (federal law).

Here are some quick examples from the appellate judgment of what I’m talking about in terms of the appellate court’s annoyance:

> On its own initiative, the district court floated the idea of Apple permitting multiple in-app payment processors while reserving a right to audit developers to ensure compliance with the 30% commission. But it quickly rejected that as an alternative because it "would seemingly impose both increased monetary and time costs."

> Apart from any argument by Epic, the district court "presume[d]" that Apple could "utilize[e] a contractual right to audit developers... to ensure compliance with its commissions. But the court then rejected such audits as an LRA because they "would seemingly impose both increased monetary and time costs."

Quick translation: LRA = less restrictive alternative.

It’s pretty common terminology in antitrust cases, when one party complains about the other party’s actions but those acts are argued to be legitimate or necessary (e.g., we have App Review for safety reasons) the complaining party tries to counter that by offering up an LRA (e.g., well they can ensure safety by doing X, Y or Z instead and it would be less restrictive to us).

Here the district court recognized that IAP are a legitimate way of collecting the commission that due for using Apple’s IP, but instead of Epic bringing up an LRA to collect the commission, it was the district court that brought it up. I think that annoyed the appellate court because it highlighted the cumbersome outcome.

Here’s their entire judgment by the way if you’re interested in reading it: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/04/24/2...

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