Thread by @dsmart

For context, you'd have to do some catching up on my tweets since this fiasco started. To be clear, as a veteran game dev for 30+ yrs, as I see it, this battle was a long-time in the making, and needed to be waged.

Though some of my peers & colleagues in the biz are hesitant to publicly opine given the parties involved, my view is that with all the confusion as to the merits of the matter and what it means to gamers and game devs, this discussion is worth having cuz feelz aren't relevant.

To get started, this is what I said on 08/13 when news of the lawsuit went public, and which goes back to what I just stated in the first tweet of this thread.

https://twitter.com/dsmart/status/1294015380772585472

My 08/15 thread (42+ tweets deep) detailed my opinons on the obfuscation & mixed messaging that was coming out of Epic because in all corners of the biz, it was not only creating confusion, but also misplaced derision at Epic.

https://twitter.com/dsmart/status/1294581359495741440?s=20

Since Epic announced its own digital distribution store (EGS) over a year ago, it has faced significant backlash from both gamers & game devs who, aside from being Steam (Valve's leading digital store) loyalists, felt that Epic's stance then and now was a double standard.

Epic went from claims of freedom of choice, to unfair advertising, to that whole 30% cut thing. Not to mention the whole affair over wanting to host a store inside the store of a competitor's ecosystem. The advertising part was most puzzling to me

https://twitter.com/dsmart/status/1295363383638798353

In discourse like this, first thing people tend to look at is what came before, how double standards are in play etc. It's precisely why when Epic goes on about how a competitor runs its store, anti-competitive behavior etc, people are quick to point out the historical context

Specifically, as I pointed out on 08/19, Epic was talking about Apple potentially ruining its business over unfair biz practices; even though Epic did even worse merely a few years ago.

https://twitter.com/dsmart/status/1296131730575851520

On 08/27 when Epic was lamenting Apple's legal action of kicking it off their ecosystem, I pointed out that even as a retaliatory action, they were right to do it because Epic had knowingly violated a ToS they agreed to.

https://twitter.com/dsmart/status/1299040683253272577

Specifically I said:

"Epic didn't need to violate the ToS in order to show harm - especially since they weren't even seeking damages from the lawsuit. And it's precisely why the judge seemingly agreed with Apple that Epic was responsible for its own harm."

As predicted, Apple did just that on 08/29 and in fact declaring all out war.

https://twitter.com/dsmart/status/1299707473348173826

If you follow McGee's coverage yesterday, you should have seen this part from the judge. Remember when I said that very same thing - back in August?

https://twitter.com/PatrickMcGee_/status/1310646051515236352

Issue here is that by *intentionally* violating Apple's ToS, they put themselves in the defensive and in a massive hole from which, AFAICT, they're not going to be able to climb out of. They didn't have to do that. Now, that's also created a distraction from the core issue.

Apple does a lot of shady, crazy shit on their app store; and it's not just a matter of "their store, their rules"; it's a lot more nuanced than that because that's how anti-competitive practices and monopoly fights emit from. And THAT'S what Epic was supposedly going on about.

What if Epic didn't violate Apple's ToS in order to bring this case? Note: we didn't even *know* what happened behind the scenes - until Apple shoved the emails into their filing; completely upending most of Epic's claims & public stance.

I was personally disappointed in reading them cuz it cast Epic's statements and stance in a poor light that only served to further distract from the core issues that Epic was seemingly pushing for. It also helped Apple bolster their case, and as we now see, to Epic's detriment.

In case you were thinking it, yes you're right - this is why attorneys never want their clients to publicly opine on on-going legal matters. But for someone like me who has been in the industry since the drapes went up, I can understand why Epic (by way of Tim) went public.

I am not an attorney, but I have reviewed and executed many industry contracts of all kinds, from standard publishing & distribution agreements, to one-sided ToS agreements. ALL of them have very stiff conditions which govern their operation as well as remedies for breach etc

That's what gave Apple the ability to take the action that they did - and which Epic has zero ability to override, even with a lawsuit. Why? Because they agreed to it. For YEARS. The key to not being subject to an agreement's terms is to no sign it. Easier said than done.

Long & short of this epic fight (see what I did there?) is that no court is going to tell Apple that their 30% cut (which they made industry standard btw) is unfair. At least not unless and until they are found to be engaged in anti-competitive behavior or are a monopoly.

For that reason, and as I had stated before, I don't see that 30% going anywhere. And yesterday the judge agreed. Note that the 30% issue isn't even the core of the argument as that's a non-starter in every regard.

No, the primary issue here is the fact that a corp (Epic) wants the ability to bypass a competitor's (Apple) store guidelines in order to install it's own store payment system within the competitors ecosystem. Yes - it's hilarious AF, and most of us are still laughing at that.

While Epic can claim that it's about "freedom" of choice for gamers and game devs, it fails to address the part where each corp gets to create its own guidelines for an ecosystem they built, curated, and funded. The judge thus far seems to agree.

I mean, even Epic has guidelines for apps on its own stores. Playing devil's advocate, if we're talking about freedom, why don't gamers have the "freedom" to buy some games from Steam as they've done for decades? Because Epic paid devs a lot of money for exclusives.

Why didn't Epic build an app as a store backend on Steam, which then allows gamers to buy Epic games via Steam, thus paying Epic directly? Because Valve would pull the app; and if Epic pulled this stunt they did with Apple, they would be sued into the afterlife.

It's a very slippery slope here, and it's precisely why the community is divided and only clueless bystanders don't fully understand what's at stake when they seemingly take sides. The other issue at play here is this: why now?

It's easy to answer this question by claiming that due to Epic's recent investments (from Tencent, Sony et al), the quest to perform for investors is a clear motivation. Well duh.

Devil's advocate here: what if the motivation for this half-assed, haphazard attempt at poking a rabid grizzly bear was motivated by invested third-parties who didn't want to poke that bear themselves, but instead pushed an otherwise altruistic leader (Tim) to do this?

I mean, look at it this way. Fortnite, the focus here, has been out for quite sometime. It's made both Epic and Apple an insane amount of money. And all this time, Epic - like all of us with apps on Apple's ecosystem - paid their dues without question. Just like the rest of us.

Unreal Engine by Epic, is the industry's leading engine. It was their primary source of income before Fortnite (which btw failed spectacularly out of the gate). Their closest competitor, Unity, recently went public at a valuation of a shocking $11 BILLION.

Just last month Epic was valued at $11b after new private investment. And $250m of that money came from Sony - another industry icon.

cnbc.com/2020/08/06/for…

Chinese conglomerate, Tencent, currently owns 40% of Epic; one of the several game companies in its portfolio.

pcgamer.com/every-game-com…

I know it's farfetched, and I'm not implying (hence: devil's advocate) that investors or unknown actors motivated this move, but it's still part of the discussion because that's how the scientific application of Occam's razor works - when nothing else seemingly makes sense.

I simply can't imagine that Epic actually felt that they stood a snowball in hell's chance of getting Apple to

1) lower it's [industry standard] 30% cut
2) allow a store owner to bypass its security & payment systems to install their own pass-through systems

I don't see it.

In fact, it's precisely why most of us were - even after reading their lawsuit filing - unsurprised that things went downhill quickly. Then the Apple emails hit. And at the point it even made less sense.

Instead of suing Apple for anti-competitive and monopolistic practices - a very high bar to begin with - they opted to breach a ToS they agreed to, then publicly lamented the unfairness of a system they were PERFECTLY HAPPY TO USE & PAY INTO FOR YEARS.

It make no sense. Ralph Emerson said "When you strike at a king, you must kill him". I can't understand how Epic felt that they could take on Apple by immediately putting themselves on the defensive, thus creating their own "self-harm" that affects their primary income.

And it's how they went about all of this, regardless of merit, that's the disappointing part because time and money are now going to be spent litigating a distraction, rather than the core of our collective ire at Apple's business practices.

There are many companies, bigger than Epic and with products on the Apple store, who have happily paid Apple, while putting up with arguably dubious terms. And they're all happily paying 30c on the Dollar without rocking the boat. They too have investors.

Of note, around the same time this Epic v Apple was brewing, Facebook recently had their own run-in with Apple. And they didn't even breach the ToS. Just by notifying people of the "store tax", Apple took retaliatory action. Seriously - they did that.

theverge.com/2020/8/28/2140…

Nobody knows what happened behind the scenes, but mere weeks later, Apple decided to "temporarily" backdown.

theverge.com/2020/9/25/2145…

If there was ever another case to be made for suing Apple, this would have been it because, as we've seen in the Epic v Apple case, such activity is clear retaliatory action. But the question remains: was it legal and/or anti-competitive?

The point of all this is that Epic had one shot at not only creating a precedent but also at shining a spotlight on what most of us have complained about regarding Apple, and I believe that they've blown it. Completely.

Meanwhile, Fortnite is off the Apple store, and Epic can't even publish the game on Mac store either because their account on that platform is also restricted from deploying signed apps; and apparently they don't want to go the unofficial route of deploying there.

Now there is a Summer 2021 trial. For now, once the biggest game in the world, is off the biggest digital games store in the world. Just like that.

It didn't have to be this way. Epic could have sued without breaching the ToS, and it wouldn't have affected their games.

/END

Looks like Twitter mangled the start of my thread. Below is the article that was the impetus for it. Cutting up an article into less than 280 chars is a lot of work. So read it - damn it!

gamesindustry.biz/articles/2020-…