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The game industry has been buzzing about the Apple v. Epic Games antitrust lawsuit since testimony in the three-week trial began on Monday. The arguments arent surprising, but much of the material coming out of the trial extends far beyond the battle between these two companies.
I remain interested in it for three reasons. First, I believe the case is an important conflict between a platform owner and a powerful game company that could set the rules of engagement and competition in an era that will be filled with giant tech and game companies. A lot of money is at stake here. A second reason is that interesting details about how the game industry really works are accidentally leaking out.
Lastly, the trial has had some occasional hilarious moments, like when gamer kids took over on Monday morning screaming as if they were in the lobby of their favorite game when they learned their microphones to the trial were live. Another moment was when I saw the 2015 email Epic Games CEO Tim Sweeney sent Apple CEO Tim Cook asking for iOS to be more open. Cooks reply to his executive team was, Is this the guy who came to one of our rehearsals? This show of cluelessness is an indication of the companys level of appreciation for the game industry.
When I sort through files available in the evidence, I never know what Im going to find. Im sure many companies in the secretive game industry consider the disclosures to be disastrous, but this information can surely benefit those who have been operating in the dark.
The federal court of Judge Yvonne Gonzalez Rogers of the Northern District of California in Oakland accidentally shared documents publicly that were supposed to remain private. Many documents in the file have very little to do with whether either party has the better argument in the dispute, in which Epic contends that Apple has used illegal monopoly power to close off competition in the distribution of apps and the payment systems for those apps. But Epic is powerful enough to challenge Apple in court, while many smaller developers wouldnt dare.
The evidence that matters
Lets start with the evidence related to the case itself. In opening statements, the lawyers laid out each sides argument.
Epic pulled out statements referring back to former Apple CEO Steve Jobs intentions to lock in consumers in Apples ecosystem, in opposition to rivals such as Google.
Epic said Apple no longer earns the 30% fee it has charged since the launch of the App Store. Epic compared this to Apple getting a share of the purchase price of a car and then getting a 30% share of money paid for gas for the car every time the driver refuels. Epic also noted that Apples profit margin on its App Store is 78%.
Epic has also said Apple controls payments through its own payment system, even though rival payment systems work perfectly well. And it noted Apple does not uniformly enforce its policies, as it allows Uber to use a different payment system because it is in a different app category from Epic.
In testimony yesterday, an App Store executive struggled to define activities on Roblox a platform for user-generated games as something other than games. If Apple isnt able to define the experiences on Roblox as something other than games, that would suggest Apple treats one game maker (Epic Games) differently from the way it treats another (Roblox).
The case will live or die on how the court defines the relevant market for evaluating anticompetitive behavior. If that market is just the App Store, Apple could be declared an illegal monopoly. But if it is the whole games market, Epic has no case, as Apple has less than 50% of the global smartphone market and only accounts for 7% of global Fortnite revenue, compared to 46.8% for Sonys PlayStation platform.
Epic said Apple has behaved as a monopolist by erecting barriers within its App Store, freezing out other payment systems that could lead to lower prices for consumers. Epic also says Apple has a lock on a billion users who spend a lot of money on games and that switching costs are high enough to leave consumers effectively without much choice in the market.
Apple argues that it has plenty of rivals in PCs, Android, Sony, Microsoft, and Nintendo. And Apple notes all of those platforms erect their own walled gardens and charge 30% royalties. (Microsoft changed to 12% royalty for its Windows store but not its Xbox store, which remains at a 30% royalty.) Apple also said internal data showed the cost of switching phones can be as high as 26%.
But Epic has a good counter. Since its launch on iOS on March 16, 2018, Fortnite has generated 88 million downloads and $631 million in revenue. On Android, Fortnite has generated 80 million downloads and $47 million in revenue since August 13, 2018. That shows a huge difference in how willing iOS users are to spend money compared to Android users and means Android isnt really that viable a competitor to the iOS App Store.
Recodes Peter Kafka opined that its OK for Apple to have a monopoly on content distributed on its devices and that it should retain that control, as should companies like Sony, Microsoft, and Nintendo. But he argued that Apple should not have the freedom to push developers around with rules that stop them from mentioning other retail options for things sold in Apples App Store. The judge could very well change the industry by ordering Apple to stop such practices even if she ultimately rules in Apples favor on most matters.
I think whenever Epic argues in this case that it should gain an advantage over Apple for itself, it will lose. Apple should not be forced to cut a special royalties deal with Epic simply because Fortnite is a popular app.
But whenever Apples decisions impact the prices consumers pay, I believe Apple will likely lose. Apple has planted the idea that Sweeney was seeking a special deal to cut the royalties Fortnite pays to Apple, which have been stuck at 30% for big game makers. (Apple has pointed out at every opportunity that in the second year of a subscription, the rate drops to 15% and that Apple recently instituted a 15% royalty rate for small business app makers.)
Sweeney pointed out that he hoped Apple would extend any discounted rate Epic got to other developers, and he has also said Epic is suing on behalf of all developers and is not seeking any damages from Apple. But oddly enough, when asked point-blank if he would have taken a special deal, Sweeney said yes. Thats at odds with Sweeneys contention that Epic has brought this lawsuit on behalf of all developers. And such an admission could lead both the judge and the developer community to conclude Epics bluster is just a marketing ploy.
At every chance it gets, Apple has pointed out that Epic is a big company. Epic recently raised $1 billion at a $28 billion valuation. (We wont mention that Apples market value is $2.16 trillion). Apple has painted itself as the victim, saying Epic conducted a sneak attack by launching the antitrust suit. Sweeney testified that Epic generated gross revenue of $5.1 billion in 2020, compared to a plan (in chart below) for $3.8 billion in 2020 revenue. That compares with our own discovery that in 2019, Epic Games reported $4.2 billion in revenue and $730 million in earnings before interest, taxes, depreciation, and amortization (EBITDA, a key measure of profitability).
How the dispute started
In the events leading up to this case, Epic asked Apple for permission to charge and advertise a lower royalty rate, a request Apple turned down. Then Epic performed a hotfix updating its app in the middle of the night on August 13, 2019.
Epic offered its V-bucks virtual currency (which people use to buy things like skins in Fortnite) for $8 on the Epic Games Store and enabled players to conduct that transaction through a link in its app. Players immediately began buying lots of V-bucks on the link to Epics site. After Apple learned about this, it declared Epic in violation of its policy disallowing such sideloading and shut down Fortnite on iOS. Epic implemented the same workaround on Google Play, and Google likewise shut it down. Then Epic filed antitrust suits against both Apple and Google. It also launched a cartoon video explaining why Apple was wrong to do this and unveiled a campaign to Free Fortnite.
It turns out Epic had been planning this move for a long time, according to the Project Liberty slide deck for its entire plan, which was included in the court documents.
While Android allows sideloading, Apple does not, citing security concerns. Apple noted that Epics Android version of Fortnite had such bad results on the security front that Epic was forced to go back into the Google Play store.
Both companies have fired shots at each other over security issues. In emails, Apple executive Phil Schiller complained to his team that Apples security was embarrassing, with numerous security issues and instances of fraud. But Sweeney had a moment of embarrassment in 2019 when he had to apologize to Ubisoft CEO Yves Guillemot because at one point 70% of downloads of The Division 2 game on the Epic Games Store were fraudulent, forcing Epic to halt sales.
In one email, Epic executive Daniel Vogel said payment fraud is an existential threat to our store. Apple will likely point to this as evidence that Epic isnt capable of providing app security in a store.
Apple also noted that its iOS devices accounted for only 1.72% of all malware infections, compared to 26.6% for Android and 38.9% for Windows. Epic pointed out that Apple allows sideloading on the Mac, without being as restrictive as it is about security for the iPhone.
Apple, meanwhile, noted that Sweeney tried to enlist the help of Apple competitor Microsofts games leader Phil Spencer in a scheme to call out Apple on its alleged anticompetitive practices before filing the lawsuit, as a kind of marketing blow even while alleging that Apple was far more powerful than all competitors and that competitors like the PC and the consoles, which Microsoft produces, dont matter.
Both Microsoft and Nvidia testified about the hoops they had to jump through in order to get cloud gaming apps on Apples store. They ultimately chose to go through the Safari web browser through the open web because Apple had put so many restrictions in place. Apple wouldnt let them get away without paying a 30% fee per cloud game played, even though the business model for both services is to charge a monthly fee so players can play as many games as they want.
Apples greatest weakness in this case is the special rules it puts in place that seem arbitrary and capricious what Epic calls the actions of a company trying to preserve an illegal monopoly. But Epics greatest weakness may be the contortions it has gone through to argue Apple has a monopoly when it clearly has competitors.
Perhaps Epics greatest hope is that the European Union, which just sued Apple after Spotify made a complaint similar to Epics, will rule in Epics favor even if the U.S. courts do not. Regulators may eventually change the rules to stop Apple from throwing its power around.
Other surprising facts leaking out
Now lets consider things that arent as relevant to the case. One is a category I would call collateral damage, in which a partner of Epics gets splashed with damage. Sony is friendly to Epic, having invested hundreds of millions of dollars in the company. But under questioning, Sweeney confirmed that Sony is the only platform owner that requires Epic to pay compensation for crossplay, or enabling people to play with friends no matter what platform they are using to play a game like Fortnite. Sony extracted a payment from Epic, while other companies did not. That sounds like anti-competitive and anti-consumer behavior.
But as long as Sony has competition, its not a monopoly, either. And as long as its not a monopoly, it can play with bare-knuckle rules like any capitalist. Apple, on the other hand, has to hold back because it is so much bigger, and its actions can be interpreted as antitrust violations.
Another thing that spilled out was a complete list of the games Epic made available for free in its Epic Games Store and how much Epic paid developers for the right to keep their games exclusive and available in order to increase the number of store accounts.
GameDiscoverCos Simon Carless found documents that mentioned the details of Epics game giveaways in 2018 and 2019. Subnautica had more than 804,000 users when Epic Games gave away the game on its then-new Epic Games Store. Epic gave the developers $1.4 million, and roughly 17% of the players were new to the Epic store. That means the giveaways were a relatively inexpensive way to acquire new users.
For Borderlands 3, Epic paid $146 million in advances to have the game as an exclusive on the PC. Epic recouped the minimum guaranteed fee of $80 million for marketing, bundle deals, and fees. And it got more than 1.56 million players. Of those, half were new to the store. Epic lost around $181 million on the Epic Games Store in 2019 and projected it would lose around $273 million in 2020.
With this evidence, Apple might be able to point out how hypocritical Epics claim is. Epic is buying market share, and rivals like Steam could claim this is anti-competitive behavior. Epics answer is that Steam could lower its royalties from 30% to 12%, as Epic has done, and Epic would stop. But again, Epic can do this because it doesnt have a monopoly.
Apple complained that Epic surprised it by naming Lori Wright, Microsofts vice president of business development, as a witness. One of Wrights comments got picked up internationally, as she articulated a well-known but never officially disclosed fact: Microsoft loses money on every console it sells.
She was there to testify about Microsofts attempt to launch a cloud gaming app, Project xCloud, on the iOS store and confirmed that Microsoft sells its Xbox consoles at a loss. (Microsoft uses a razor and razor blades model, losing money on the razors and making money on the blades with the console the razor and the games the blade.)
An Epic Games lawyer asked, Does Microsoft ever earn a profit on the sale of an Xbox console?
She replied, no.
The documents also show Fortnites budget in 2017, how much Epic paid various vendors for outsourcing tasks, and a redacted copy of Epics agreement with Microsoft to publish Fortnite on the Xbox One game console.
Epic took great pains to enable crossplay on Fortnite on all platforms. It succeeded, but its documents showed that Epic pays money to Sony for allowing crossplay, while Epic doesnt pay any money to others for that purpose.
According to a presentation in June 2020, Fortnite had 81 million monthly active users, the Epic Games Store had 45 million monthly active users, and Epics Unreal Engine had 540,000 monthly active users. Epic is under no obligation to disclose these numbers as a private company, but now they are out in the open.
Sweeney testified that Fortnite transcends gaming, with special entertainment features such as concerts and films. He believes its a contender for metaverse, a universe of virtual worlds that are all interconnected, like in novels such as Snow CrashandReady Player One. He said Apples actions stand in the way of Epics goal of creating a true metaverse.
More funny moments
The court has game consoles in the courtroom for demo purposes. Sweeney was asked to assemble a Switch and its Joy-Con controller. He failed and admitted, As you can see, Im not a Switch player.
Judge Gonzalez Rogers replied, Well, now the world knows.
The companies are treating this as a kind of life-or-death battle when it comes to the future of the game industry, the rights of game and app developers, and the freedom to innovate. But lets hope that the three weeks of the trial produce more funny moments, like when a lawyer asked Sweeney, who has many important things to do, What is a game console?
I dont know if the judge, who will decide this case rather than a jury, really needs that kind of elementary background. But the back and forth has been a bit mind-numbing as we wait for more exciting testimony to surface. Im looking forward to watching Apple executives take the stand soon, and the whole world will be watching.
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