Thread by @FOSSpatents

(1) For the reasons I explained in my latest post, I have to focus on my own #AppStore issue and other priorities and obligations, so to my dismay can't follow the #EpicGames v. #Apple trial in real time because it's huge. This is likely my final thread on the topic for a month.

(2) #Antitrust has a vivid and at times "sensationalist" side, but the actual decisions are based on rather abstract elements -- and the rulings tend to be dry. #Apple won't look good when all the evidence is presented, but that doesn't necessarily mean they'll lose the case.

(3) #EpicGames is heroic. I really mean it. I'm not saying I agree with them, their priorities, jurisdictional choices etc. 100%--the issue is too complex for that. But probably > 95%. I can't read minds, but an #antitrust plaintiff can't be more principled than @TimSweeneyEpic.

(4) #Apple isn't unethical, but their success may have gotten to their heads and the leadership of large corporations has a duty to maximize shareholder value, not the greater good for innovation, competition, and society. That's why #antitrust enforcement is so critically needed

(5) Judge Gonzalez Rogers just wants to get her decision right. "Right" in this case means she doesn't want to be overruled, at least not in a humiliating way. She'd rather have left the decision to a jury and urged the parties last year to stipulate to a jury trial (in vain).

(6) Unfortunately for #EpicGames, the more "conservative" approach for the trial judge is to acquit #Apple, simply because there's no level playing field in U.S. #antitrust law and the chain is as strong as its weakest link. Epic mus overcome each of multiple hurdles.

(7) However, the overall political climate and the sentiment of the legal community is more favorable to Epic's case today than it was when they embarked on their "Project Liberty". #Techlash is a reality now, and there's more bipartisanship in this field than in a very long time

(8) With the greatest respect for #Apple, the largest part of their defenses is pretextual crap, and significant parts are even an insult to human intelligence, such as (just one example of many) the claim that web apps are a competitive constraint on the (native) #AppStore.

(9) By contrast, I haven't seen a single claim in the findings of fact proposed by #EpicGames that struck me as nonsensical. They could even have made some additional strong points, such as the ones I raised in my latest blog post (App Store tax > 30%, web app IP issues).

(10) This case went from the filing of the complaint to trial in record time given its magnitude and significance. Since the closing of the factual record, additional facts have surfaced that strengthen Epic's case, such as Apple damaging the in-app ad business w/ tracking rules.

(11) The facts overwhelmingly favor #EpicGames. Policy, too (unless one buys a privacy/security pretext that doesn't withstand scrutiny). As they say, if the facts (and policy) are not on your side, argue the law. That's what #Apple will do. Didn't help in EU, but may in the US.

(12) When #Apple will say "IP" during the trial, they mean "FTC v. Qualcomm". When they say "two-sided market", they mean "Ohio v. American Express". Precedent in which the higher courts found no #antitrust violation--and that's what Judge YGR in Oakland will worry about here.

(13) As for the lawyers, #EpicGames has even higher-profile ones than #Apple on balance. Christine Varney--most amazing #antitrust career in federal government. Katherine Forrest--former district judge, S.D. N.Y. And Gary Bornstein and Yonatan Even: amazing work for Qualcomm.

(14) Market definition is the most fundamental battle that #EpicGames must win. But #Apple has put up some other hurdles beyond that, and while its factual representations are unconvincing, some of their legal arguments won't be easily overcome. Gotta be realistic about that.

(15) Alternative app stores would still have to get enough traction to make an impact, but they'd be far more of a competitive constraint on #Apple than any "softer" remedies. Apple is a TERRIBLE gatekeeper. @keleftheriou has exposed their shortcomings with respect to curation.

(16) I'm already looking past this trial and will read the trial court's opinion with great interest in a few months. The trial is not just a warm-up exercise, but not the most important part either. This will most likely go all the way up to the Supreme Court. Go @EpicGames!

(17) This thread's final tweet: never forget about the greater scheme of things. Numerous cases around the globe. #Antitrust investigations (not even all of which have become known publicly). And the situation for #Android apps isn't really better (and keeps deteriorating)!