A Bite at Apple: Why the Technology Giant is Being Scrutinized by Developers

*Kayla York

I. Introduction    

As of late, Apple has been publicly criticized by application (app) developers and regulators due to its App Store practices.[1]  The technology company, which has a two trillion-dollar market value, receives a fifteen to thirty percent commission on certain purchases made within an app sold on the App Store.[2]  Apple’s developer guidelines provide that apps may allow users to access services and/or content that were previously purchased, but “cannot ‘directly or indirectly target iOS users to use a purchasing method other than in-app purchase.’”[3]  Further, the guidelines specify “that apps can’t offer access to new, paid features within the app they must offer in-app purchases.”[4]

II. The History of Epic Games

Epic Games, a video game company founded in 1991, has perhaps become the most profound critic of Apple’s practices in recent months.[5]  Epic Games suggests that Apple has become a hypocritical monopoly while taking over the technology industry.[6]  Apple introduced its first Macintosh computer in 1984 through an advertisement suggesting that IBM was a monopoly taking over the technology market.[7]  The advertisement evoked sentiments similar to those created by the themes in George Orwell’s novel, 1984.[8]  Epic Games claims Apple is now more like IBM was in 1984 because of its use of a “series of anti-competitive restraints and monopolistic practices in markets” for app distribution, and due to its “processing of consumers’ payments for digital content used within iOS mobile apps.”[9]  Tim Sweeney, CEO of Epic Games, has said that “[t]he iOS App Store’s monopoly protects only Apple profit, not device security” and that Apple has “crippled the ecosystem by inventing an absolute monopoly on the distribution of software, [and] on the monetization of software.”[10]

Epic Games created Fortnite, which became a “global phenomenon,” amassing over 350 million players.[11]  Epic Games also created and runs the Epic Games Store, which allows players to purchase and download various games developed by Epic Games and other third-party game developers.[12]  However, when Epic Games requested Apple to put the Epic Games Store on the Apple App Store, Apple rejected the request.[13]  Epic Games claims that it would create an app store of its own on iOS if Apple did not employ anti-competitive tactics.[14]

III. Other Competitors’ Fights with Apple

However, Apple is not only excluding Epic Games, but Microsoft, Google, and Facebook as well.[15] Microsoft’s new mobile gaming service, xCloud, recently launched on many different platforms, but is notably absent from Apple’s App Store.[16]  Apple claims it denied Microsoft’s request to be included in the App Store on the basis that the gaming service would be in violation of App Store guidelines, since Apple cannot individually review xCloud.[17]  Apple App Store guidelines also exclude Google’s gaming service, Google Stadia, from the App Store.[18]

Further, Facebook has been unable to receive Apple’s approval of a new Facebook gaming app that allows users to play online games and watch livestreams of the same.[19]  Facebook ultimately had to remove gameplay functionality from the app to receive approval for the App Store.[20]  Mark Zuckerberg criticized Apple’s power, calling the company a “gatekeeper” that has the “power to decide if [Facebook] can even release [Facebook’s] apps in [Apple’s] app stores to compete with [Apple].”[21]   In August 2020, Facebook wanted to notify users purchasing tickets of online events—through a new Facebook feature—that Apple takes thirty percent of in-app purchases.[22]  But Apple did not allow Facebook to inform users, claiming the information was irrelevant.[23]  Facebook had to remove the notification before Apple would allow the new feature.[24]

IV. Epic Games Sues Apple

On August 13, 2020, Epic Games introduced a direct payment option in the Fortnite iOS app, which allowed players to purchase in-game currency at a twenty percent discount by maneuvering around Apple’s in-app purchase mechanism.[25]  This option was in direct violation of Apple’s guidelines, which prohibit use of in-app purchase mechanisms developed by other business entities.[26]  Apple immediately removed Fortnite from the App Store stating, “Epic Games took the unfortunate step of violating the App Store guidelines that are applied equally to every developer and designed to keep the store safe for our users.”[27]

Later that same day, Epic Games filed a ten-count complaint against Apple in California, requesting that the court issue an injunction “prohibiting Apple’s anti-competitive conduct,” mandate Apple put an end to its allegedly unlawful conduct, and provide remedies to help restore competition within the iOS App Distribution and iOS In-App Payment Processing markets.[28]  Further, Epic Games requested that the Court deem the contractual and policy restraints between Apple and developers unlawful and unenforceable.[29]

Epic Games then released a video that mocked Apple’s Macintosh advertisement from 1984.[30]  In Epic Games’ video, Apple is portrayed as the “dominant power” that has complete control.[31]  Epic Games claims to have “defied the App Store Monopoly” and “[i]n retaliation, Apple is blocking Fortnite from a billion devices.”[32]  Soon after, Google removed Fortnite from its Google Play Store.[33]  In response, Epic Games filed a similar lawsuit against Google.[34]  To prepare for trial, Epic Games has reached out to other technology executives about “forming a coalition of companies critical of Apple’s business conduct.”[35]

On August 24, 2020, the Honorable Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California granted a temporary restraining order against Apple.[36]  The order prohibits Apple from terminating Epic Games’ other developer accounts that are unrelated to Fortnite.[37]  Apple, however, is not required to bring Fortnite back to the App Store.[38]  Nonetheless, on August 28, 2020, Apple terminated Epic Games’ Fortnite developer account, blocking Epic Games’ access to Apple’s software and developer tools that would allow it to develop future versions of software.[39]

V. The Future of Antitrust for Potential Technology Monopolies

On October 9, 2020, Judge Gonzalez Rogers denied Epic Games’ request for a preliminary injunction requiring Apple to put Fortnite back on the App Store.[40]  However, Apple will be required to allow Epic Games to operate the Unreal Engine developer account.[41]  No updates are expected on this case until the parties will be back in court in early 2021.[42]  While this case will likely take many years to conclude, it may finally answer the question: how much control of the app industry will Apple be able to maintain?

*Kayla York is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Kayla serves as the Publications Chair for the Women’s Bar Association, Public Relations Coordinator for UBSPI (University of Baltimore Students for Public Interest), and Secretary for the Criminal Law Association. This past summer, Kayla was an intern for both The Law Offices of Evan K. Thalenberg, P.A. and the Office of the State’s Attorney for Baltimore City, where she continued her internship through the fall semester. In the spring, Kayla will be an intern for the Office of the Attorney General for the State of Maryland in the Organized Crime Unit. 

[1]           See Joe Rossignol, Epic Games vs. Apple: Timeline of Events Surrounding Fortnite’s Removal from App Store, MacRumors (Sept. 10, 2020, 5:22 PM), https://www.macrumors.com/guide/epic-games-vs-apple/.

[2]           See Jack Nicas, Apple Reaches $2 Trillion, Punctuating Big Tech’s Grip, N.Y. Times (Aug. 19, 2020), https://www.nytimes.com/2020/08/19/technology/apple-2-trillion.html; see also Isobel Asher Hamilton, Apple is Facing Rage and Insurrection from Developers Over the Commission It Charges Apps on the App Store, Bus. Insider (June 17, 2020, 6:08 AM), https://www.businessinsider.com/apple-developer-rage-30-percent-app-store-tax-2020-6.

[3]           Hamilton, supra note 2.

[4]           Id.

[5]           About Epic Games, Epic Games, https://www.epicgames.com/site/en-US/about (last visited Nov. 9, 2020); see Rossignol, supra note 1.

[6]           See Complaint for Injunctive Relief at 2, Epic Games, Inc. v. Apple Inc., 2020 WL 4698967 (N.D. Cal. 2020) (No. 3:20-cv-05640).

[7]           Id. at 1.

[8]           Id.

[9]           Id.

[10]         Reed Albergotti & Tony Romm, Tinder and Fortnite Criticize Apple for Its ‘App Store Monopoly’, Wash. Post (June 16, 2020, 9:38 PM), https://www.washingtonpost.com/technology/2020/06/16/apple-antitrust-european-commission/; Kif Leswing, Apple Sued by Fortnite Maker After Kicking the Game Out of App Store for Payment Policy Violations, CNBC, https://www.cnbc.com/2020/08/13/apple-kicks-fortnite-out-of-app-store-for-challenging-payment-rules.html (Aug. 13, 2020, 9:09 PM).

[11]         Complaint for Injunctive Relief, supra note 6, at 10.

[12]         Id at 6.

[13]         See id. at 22.

[14]         Id at 23.

[15]         See Ben Gilbert, Apple Refuses to Allow Major Gaming Apps From Microsoft, Google, and Facebook Onto the App Store, and the Fight Just Went Public, Bus. Insider (Aug. 9, 2020, 11:10 AM), https://www.businessinsider.com/apple-refuses-to-allow-major-apps-from-microsoft-google-facebook-2020-8.

[16]         See Nick Statt, Apple Confirms Cloud Gaming Services Like xCloud and Stadia Violate App Store Guidelines, The Verge (Aug. 6, 2020, 5:55 PM), https://www.theverge.com/2020/8/6/21357771/apple-cloud-gaming-microsoft-xcloud-google-stadia-ios-app-store-guidelines-violations.

[17]         Id.

[18]         Id.

[19]         Seth Schiesel, Facebook Gaming Finally Clears Apple Hurdle, Arriving in App Store, N.Y. Times (Aug. 7, 2020), https://www.nytimes.com/2020/08/07/technology/facebook-apple-gaming-app-store.html.

[20]         Id.

[21]         Id.

[22]         See Pranav Dixit & Ryan Mac, Mark Zuckerberg Said Apple Has a “Stranglehold” on Your iPhone, BuzzFeed ), https://www.buzzfeednews.com/article/pranavdixit/zuckerberg-apple-monopoly (Aug. 28, 2020, 3:19 PM).

[23]         Id.

[24]         Id.

[25]         Rossignol, supra note 1.

[26]         Id.

[27]         Leswing, supra note 10.

[28]         See Complaint for Injunctive Relief, supra note 6, at 34.

[29]         Id.

[30]         See Fortnite, Nineteen Eighty-Fortnite – #FreeFortnite, YouTube (Aug. 13, 2020), https://www.youtube.com/watch?v=euiSHuaw6Q4.

[31]         Rossignol, supra note 1.

[32]         Fortnite, supra note 30.

[33]         Brian Fung & Shannon Liao, Fortnite’s Maker Sues Apple and Google After the Game Was Removed from Both App Stores, CNN Bus., https://www.cnn.com/2020/08/13/tech/fortnite-apple-store-removed/index.html (Aug. 14, 2020, 9:21 AM).

[34]         Id.

[35]         Nick Wingfield & Alex Heath, Epic Games Seeks to Form Coalition of Apple Critics, The Info. (Aug. 17, 2020, 5:53 PM), https://www.theinformation.com/articles/epic-games-seeks-to-form-coalition-of-apple-critics.

[36]         Russell Brandom et al., Epic Judge Will Protect Unreal Engine – but Not Fortnite, The Verge (Aug. 25, 2020, 1:01 AM), https://www.theverge.com/2020/8/25/21400240/epic-apple-ruling-unreal-engine-fortnite-temporary-restraining-order; Order Granting in Part and Denying in Part Motion for Temporary Restraining Order at 1, Epic Games, Inc. v. Apple Inc., 2020 WL 5073937 (N.D. Cal. 2020) (No. 4:20-cv-05640-YGR).

[37]         Brandom et al., supra note 36.

[38]         Id.

[39]         Stephen Nellis, Apple Terminates ‘Fortnite’ Creator’s App Store Account As Lawsuit Proceeds, Reuters (Aug. 28, 2020, 5:18 PM), https://www.reuters.com/article/us-apple-epic-games/apple-terminates-fortnite-creators-app-store-account-as-lawsuit-proceeds-idUSKBN25O2YM.

[40]         Epic Games, Inc. v. Apple Inc., No. 4:20-cv-05640-YGR, 2020 WL 5993222, at *1 (N.D. Cal. Aug. 24, 2020); see Juli Clover, Epic Games Denied Preliminary Injunction for Fortnite, but Apple Can’t Block Unreal Engine, MacRumors (Oct. 9, 2020, 4:40 PM), https://www.macrumors.com/2020/10/09/apple-denied-fortnite-preliminary-injunction/.

[41]         Clover, supra note 40.

[42]         Id.

Elder Abuse in the Time of COVID: Knowing the Risks and Recognizing the Signs

Eliza McDermott*

I. Introduction

As COVID-19 began its spread across the country in March 2020, public health officials sounded the warning alarm, alerting Americans that older adults faced a heightened risk of contracting the virus.[1]  In a press briefing on March 10, 2020, Dr. Nancy Messonnier—the Director of the Centers for Disease Control and Prevention’s (CDC) National Center for Immunization and Respiratory Diseases—stated as follows: “This seems to be a disease that affects adults. And most seriously older adults. Starting at age 60, there is an increasing risk of disease and the risk increases with age.”[2]  These early warnings were not overstated; the CDC has found that “8 out of 10 COVID-19-related deaths reported in the United States have been among adults aged 65 years and older.”[3]

Most media attention concerning COVID-19 and older adults has rightfully highlighted this distinct impact on elderly individuals.[4]  However, older adults unfortunately face other pandemic related risks that extend beyond their physical health.[5]  COVID-19 also places older adults at a higher risk of abuse,[6] and legal practitioners should equip themselves with information about elder abuse and its signs to protect older clients.[7]  While this knowledge is always important, it is particularly critical during a public health crisis that already makes older adults so vulnerable.[8]

Continue reading “Elder Abuse in the Time of COVID: Knowing the Risks and Recognizing the Signs”

The Unheard Tenant, the Unlicensed Landlord, and the Unmoved Judge: The Court of Appeals of Maryland Provides Some Relief to Renters in Habitability Disputes

Zachary Babo*

I. Introduction

Often, landlords are not held “accountable when they don’t ensure minimum standards of habitability” are met.[1]  As a result, disputes over substandard living conditions may lead to tenants withholding rent as they wait for repairs that often never come.[2]  Instead, landlords respond by initiating summary ejectment proceedings to evict tenants due to their failure to pay rent.[3]  The Court of Appeals of Maryland (Court of Appeals) recently heard a case that encapsulates the frustrating nature of a renter’s ordeal.[4]

Continue reading “The Unheard Tenant, the Unlicensed Landlord, and the Unmoved Judge: The Court of Appeals of Maryland Provides Some Relief to Renters in Habitability Disputes”

“Every Move You Make, Every Step You Take…”: New Legal Concerns Over Facial Recognition and Biometric Technology

*Lisa Blitstein

In 2020, uncovered faces and public outings are a rarity as Americans wear face masks and stay home to prevent COVID-19.[1]  But while people see each other less than ever before, Congress is assessing how government entities collect data on our faces, specifically through federal use of facial recognition and biometric identification technology.[2]

Continue reading ““Every Move You Make, Every Step You Take…”: New Legal Concerns Over Facial Recognition and Biometric Technology”

Last Stand: The Battle Over High-Capacity Magazines Heats Up in the 9th Circuit

*John Chase

I. Setting the Procedural Stage

The struggle over California’s efforts to prohibit high-capacity magazines came to a head on August 14, 2020, when a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion effectively striking down a 2016 statute.[1]  This ruling was the culmination of what has been a long journey beginning in June 2017, when the U.S. District Court for the Southern District of California granted a motion for a preliminary injunction against enforcement of the law.[2]  Following an appeal by California Attorney General Xavier Becerra, the Ninth Circuit affirmed the order of the district court.[3]

A permanent injunction was issued on March 29, 2019 when the district court granted a motion for summary judgment against Attorney General Becerra.[4]  This decision ushered in “Freedom Week” where “hundreds of thousands—if not millions—of magazines capable of holding more than 10 rounds were lawfully purchased by California gun owners.”[5]  This only lasted a week, however, as an April 4 ruling from the district court granted a motion to stay pending the appeal filed by Becerra on April 1.[6]  This back-and-forth caused a lot of confusion on the part of gun owners.[7]  A year later, on April 2, 2020, the case was presented to the Ninth Circuit at oral argument; and then on August 14, the majority opinion continued the momentum when it deemed California Penal Code § 32310 unconstitutional.[8]

Continue reading “Last Stand: The Battle Over High-Capacity Magazines Heats Up in the 9th Circuit”