Thread by @thedextriarchy

Apple/Epic trial Day 3 starts in 30. We’ll hear more from Nvidia’s Aashish Patel, then Lori Wright of Xbox, Epic’s Andrew Grant and Thomas Ko — and then our first Apple exec, Matthew Fischer. Here’s what happened yesterday theverge.com/2021/5/4/22419…

https://twitter.com/thedextriarchy/status/1389595740519940101

If this week’s pattern holds, there’s a good chance we won’t get to Fischer today. And per an earlier tweet, I’ll be on around 45 minutes late to livetweet, with my colleague @tomwarren listening in before that.

@tomwarren Alright — back just in time to hear Lori Wright of Xbox for Apple/Epic, apparently. I’ll be livetweeting the rest of the day, thanks to @tomwarren for the assist.

Wright is vice president of Xbox business development at Microsoft — confirms that she does have an “understanding” of the console and xbox store business, although she doesn’t directly oversee it.

Like Patel, Wright is talking about streaming — in this case a failed attempt to bring cloud gaming to iOS as a native app. Microsoft finally ended up bringing xCloud to iOS, but through a browser. theverge.com/2021/4/20/2239…

Wright’s going through a line of questioning meant to establish the Xbox as not a competitor to a smartphone — you have to plug it into a TV, etc. “We certainly don’t view the iPhone as a competing device. We do not see the iPad as a competing device,” Wright says.

Ludic definitions alert! Lawyer asks Wright to define the difference between AAA and other types of game.

AAA games are “games where the developers have taken a design choice that they want to have [the game] rendered with all the compute power that the Xbox provides. So there are a lot of immersive games, very [“impactful”, i think] long storyline games,” says Wright.

Lawyer uses Halo as a definition of a AAA game whose storage capacity is too big for iOS.

Why would a developer only develop for the iPhone and not the Xbox, lawyer asks? (He rewords the question in response to an objection.) “I don’t have the best understanding. I know there are design choices and platform choices.” Like an “easier” game that’s free-to-play.

Judge asks how many Xbox games are first-party vs. third-party (doesn’t use those exact words.) Wright says around 3,500 games, “less than 100” are developed by Microsoft.

I’m not falling down the rabbit hole of figuring out whether you could play various Halo games on an iPhone. Suffice to say it was news when Microsoft added the series to xCloud for iOS. appleinsider.com/articles/20/02…

The apparent point of all this is establishing that Apple wasn’t going to get typical AAA games on iOS except through a system like xCloud. (Which, I mean, debate that all you want.)

“Does the Xbox store compete for transactions with the Apple App Store?” lawyer asks. “No,” Wright says.

“If you want to buy a game on iOS, wonderful,” says Wright. Comparatively, if you’re buying for the PlayStation, “then you’re buying games from Sony, and that’s taking away” from the odds you’ll buy an Xbox or spend money on Xbox.

Lawyer points to Minecraft (acquired by Microsoft in 2014) as an example of Microsoft encouraging cross-platform sales of its first-party games.

“If Microsoft sells consoles at a loss, why does it keep selling them?” lawyer asks. Because the business model is set up to deliver an “end to end consumer experience,” and they make money in the long run over sales/subscriptions.

“Has Microsoft ever earned a profit on the sale of an Xbox console?” lawyer asks.

“No,” Wright says.

If Microsoft didn’t take its 30% commission from developers, Wright concurs, Microsoft couldn’t make money off the Xbox.

Wright notes the recent drop of Microsoft’s store commission on Windows from 30% to 12%, which @tomwarren wrote about before. theverge.com/2021/5/1/22411…

@tomwarren Is there any plan to change the commission on Xbox? No.

Does Xbox allow competing stores? No.

Has it let developers distribute games directly? No.

Why is Microsoft treating the platforms differently?

Xbox market is “much smaller” than Windows. And “the Xbox store is this curated custom-built hardware/software experience. The Windows world is an open platform with lots of scenarios that people use these devices for,” Wright says.

Judge goes into a brief aside asking about the distinction between a general-purpose and a special-purpose device. Wright basically says a general-purpose device can do lots more stuff and has more possibility for new, emergent uses.

Lawyer tries to ask whether Apple has a business model or market that makes it comparable to a general-purpose device. There’s an objection and the judge sustains it — says there’s no reason someone from Microsoft should have insider knowledge of Apple’s financials.

Lawyer tries to argue that Apple financials have been reported in the press. “Just because something’s in the press doesn’t make it true,” judge says. They're moving on.

“Please don’t read any specific numbers on the page,” lawyer instructs on a redacted exhibit. Asking what percent of revenue for developers comes from direct distribution on Windows — very high percent. Apple, obviously, doesn’t allow this on iPhone.

This trial makes me wanna have so many arguments about gaming and narrative theory, I love it.

https://twitter.com/loudmouthjulia/status/1389980286407036930

somebody said “publisher versus platform”in a totally non-230-related context about devs vs. consoles and a little rubber band just snapped inside my brain

We’re back on xCloud. “What did Microsoft have to do to develop the xCloud product?” lawyer asks. Wright says they had to find data centers and “we effectively had to make our own streaming stack."

Microsoft made a native version of xCloud and did beta testing, alongside releasing an Android native app. “Our strategy on xCloud was to release first on mobile, and Android was the platform we were able to do this on."

“Could a user with an iPhone access the Android app?” I think the lawyer is laying this on a little thick.

Did they try to make an iOS native app, lawyer asks Wright? “Yes, we did, over a long period of time.” They consulted with Apple — “the conversations started before I was in the business."

They received direction to “go and follow the Netflix model or the Audible model, which would have been great for us. Then we heard shortly that was not the right model for us."

They were told to go with a gamecloud model where “every single game had to be downloaded individually onto the phone.” This was a major issue in Apple’s policy, i.e.theverge.com/2020/9/18/2091…

Wright says Spotify has many songs and Netflix has many films. "Why could we not have a single app with many games?” Microsoft spent 3-4 months trying to “understand what this was."

Microsoft decided the logistics didn’t work — if you wanted to push an update, for instance, every single game in the catalog would have to update. “All your apps would just be constantly spinning.”

If Microsoft took a game from the catalog, the way Netflix does, “there’d be a dead app on the phone. We thought this was a really inelegant way for players to experience this.”

Lawyer’s citing an email to Apple from Wright, where Wright was trying to explain why the “every game its own app” model was unworkable. Second part involves Apple Testflight — sharing observations that players were excited about the possibility of rolling out the app there.

Apple responds that even though it’s in Testflight, it’s not compliant and needs to be fixed.

Epic lawyer brings up the fact that Apple has interactive stories in it, i.e. Black Mirror: Bandersnatch. Now the “is interactive fiction different from games” crowd gets to fight too!

Was making xCloud a web app a “good outcome or a bad outcome,” lawyer asks. “It was our only outcome to reach users on iOS.” What was the outcome Microsoft wanted? ”A native app on the App Store where users go to get their apps on iOS.” And with that, we’re switching lawyers.

Not a dumb question! Among other things, Epic’s trying to establish that Apple’s App Store locked out innovative services like xCloud, and also answer the claim that iOS and Xbox are comparable.

https://twitter.com/FiercestCheetah/status/1389991442911842320

Court's going to take a 20-minute break, followed by a short sealed session. We’ll pick up with AFAIK more testimony from Wright, not sure precisely when we’ll be back.

it’s extremely frustrating! my colleague @StarFire2258 laid more thoughts out here theverge.com/2020/9/18/2091…

https://twitter.com/DaaaaanielM/status/1389992919222788103

We’re online again, out of sealed session. Back to questioning for Lori Wright of Xbox. Apple’s lawyer is asserting that she’s here for Epic and wants Epic to win. Wright hedges.

This is the second cross-examination where Apple has made a point of trying to establish that a third-party witness is on Epic’s side.

Lawyer cites a deposition saying Microsoft earns annual net revenue of around $6-700 million from Epic. Wright says the number was based on confusion. “Microsoft has a financial incentive to keep Epic happy. Right, Ms. Wright?” “We try and keep all of our developers happy, yes."

“You’re aware Epic is a vocal critic of Apple’s App Store, right?”

“It was certainly followed in the media” alongside Microsoft’s efforts to get xCloud on iOS, Wright says. Acknowledges that Microsoft complained of unfair treatment.

I’m not familiar enough with trial law to know if Apple’s extended questions about whether Microsoft (and Nvidia before) have said mean things about the App Store is a good strategy.

Apple lawyer asking if Wright has reviewed some private Microsoft documents/notes related to its conversations with Apple over the streaming service.

“Did you provide the documents to anybody?” No. “Nobody even asked for them?” No. Then getting at whether she emailed with Phil Spencer about a conversation between Spencer and Tim Sweeney.

The issue is that Microsoft didn’t produce documents it was asked to produce, and court said that would be “factored into the credibility” of related witnesses. I.e. Wright, who says she wasn’t made aware of that. Would she have produced documents if she did? “Probably not."

Apple’s lawyer is not necessarily in the wrong here but is coming off as being pretty snide — asking next if Wright is aware the App Store had guidelines.

“If you just stick to my questions you’ll have a chance to say your thing again.” In any case, we’re now back to comparing the locked-down-ness of iOS versus the Xbox, which doesn’t allow competing streaming services, lawyer notes.

Lawyer’s pointing to Apple amending its guidelines to “meet [Microsoft] halfway” to fix problems with an xCloud app. Wright says that Apple amended streaming guidelines, but not the one that really mattered to Microsoft.

Wright’s being asked whether Apple’s web team accepted a “wishlist” of issues with xCloud on Safari from Microsoft. “Yes, but we would have needed none of that if we’d just built a native app for the App Store."

To zoom out a little, Apple’s relationship with developers is a key part of Epic’s case — it says devs don’t get much from Apple in return for joining its locked-down ecosystem, Apple is countering that.

As with Nvidia yesterday, Apple is now reading out glowing reviews of xCloud on Safari to rebut Microsoft’s claims that it was an inferior alternateive to the App Store. I continue to find it funny.

Talking again about things that Microsoft doesn’t allow on its app store, including the Epic Games Store (on PC). “Do you think it’s unfair for Microsoft to prohibit the Epic Games Store?” “No, because on PC [users’] standard behavior is to go to the URL to access other stores."

Apple’s lawyer is now trying to befuddledly parse the fact that Microsoft calls its entire gaming brand “Xbox” and then the Xbox console is a subset of it, so you can have Xbox games on a PC. As someone who had to cover the “Microsoft Mixed Reality VR Headset,” I sympathize.

Apple's lawyer asks if the cost of manufacturing a console drops over time until selling it at the original price becomes profitable. Wright says the hardware still isn’t profitable — lawyer says if she’d provided the documents he requested, they could have verified it.

Console prices often end up dropping as generations get older, so that’s not particularly unbelievable.

And we’re back *yet* again to the fact that Microsoft locks down the Xbox far more than Windows. Apple’s lawyer doesn’t spell it out, but the clear parallel it’s implying is iOS versus the more open macOS, which Epic says iOS should be more like.

Should I have said the word more more in that tweet

Apple’s lawyer has now asked Wright if Fortnite is a AAA game.

Wright classes Fortnite as “an independent game that grew into what is arguably a AAA game.” She settles eventually on “yes."

Out of context: Wright compares putting an Xbox game on iOS by saying that “it’s like asking Steven Spielberg to go reshoot Jurassic Park.”

More out-of-context, this time from Apple’s lawyer, incredulously: “So it’s a different game with the same title?” Every game reviewer who’s ever had to explain “no, it’s the *new* God of War” just sighed.

We’re almost done with the cross-examination, Apple going with a question about (again, Microsoft-owned) Minecraft.

“Minecraft has its own in-game currency, correct?” You can buy them on the App Store and through Microsoft, and they can be used interchangeably. Wright demurs. Doesn’t really get anywhere.

Now we have redirected examination by Epic. He’s asking whether people buy the Xbox as a media device or mainly for games; Wright says it’s the latter. This is, incidentally, not for lack of trying on Microsoft’s part. theverge.com/2013/11/8/5075…

The judge steps in and says she’s confused by why Apple would require a separate app for every game. "I can use Netflix with a native app and I can see lots of different movies or TV shows or whatever. Is it that you didn’t want to use a subscription model?"

"No, we wanted to use the Netflix model,” Wright says, explaining Gamepass subscription to the judge.

“[Apple] allows Netflix to do what Netflix does, but it does not allow us to do what Netflix does. And it required making a separate application for every gaming title that has to be individually downloaded and put onto your phone.”

Wright just gave what I clock as the first mention of Apple Arcade —  basically the closest thing Apple has to a direct Xbox store competitor.

We just wrapped up Wright. We’re going over to Andrew Grant, engineering fellow at Epic Games.

Grant has worked on porting Fortnite to mobile, among other projects.

Grant is now having to spell out “metahuman creator” while listing Epic products. Court transcriber’s getting a lot of meta words in this trial theverge.com/2021/2/10/2227…

Grant continuing Sweeney’s line on Fortnite: “It’s a game, but it’s also an entertainment and social experience."

Grant is being asked if the Xbox, PlayStation, and Nintendo Switch have “a particular name.” In each case, he’s responding that it’s probably just the name of the device + “OS.” My impression is that Epic is positioning these devices as less computing-platform-y than iOS.

Judge asks what % of a game/app has to be rewritten to port it to a different OS. “It would really vary … it’s not unusual for applications like Slack to have entirely separate apps for different platforms.” Cites the need to adapt for different input systems, for instance.

Judge asks if there are platforms that are particularly difficult to port games to. “Linux has a reputation for being particularly difficult,” Grant says. (Thank god for WINE?)

Grant just went through the concept of an API, so lawyer could introduce StoreKit, Apple’s in-app purchase API.

Why is StoreKit required on iOS? “There’s no technical reason,” says Grant.

And with that, we’re stopping for a break. We’ll be back around 4:15 ET.

Starting up again after the break — talking about Unreal Engine.

Feel like I should note Magic Leap gets a very brief shoutout in court, listed among other platforms that Unreal Engine supports.

“Let’s talk for a moment about the process of writing an app.” What is human-readable code? Grant explains: code that a person can look at and deduce to some extent what’s going on. (i.e. “for” and “while” loops in programming). This then needs to be compiled to machine language.

We’re looping back around to APIs now — “hundreds to thousands” of them can get used while building apps.

Is there typically a cost associated with using an API? “No, there is not.” We just had a Supreme Court decision about this, in fact theverge.com/2021/4/5/22367…