Our hybrid closings in #epicvapple start in a bit. Today's in-court reporters are @doratki and @mslopatto. I'll be following along again today in case YGR gives some more clues about her thinking.
For Epic, Gary Bornstein will be doing all the talking. For Apple, Richard Doren will discuss remedies; Daniel Swanson will talk about market definition; and Veronica Moye will talk about conduct and effects.
YGR asks each side to give her their top two areas: Bornstein says market definition and remedy; Doren says those are good for Apple to start.
Both sides have slides. YGR doesn't want to switch the tech back and forth so she's making them use the ELMO. "It's old-school," she says. Her courtroom operator is now explaining how to use this ancient piece of tech. "It's not like Mr. Schiller's wheel on the iPod."
Bornstein starts: Developers tend to write for both Android and iOS because they have to.
Swanson says there is no foremarket. The term duopoly has been thrown around but Apple faces lots of competition from Samsung, LG, Huawei.
Swanson, the issue to focus on is what are the restraints. YGR: so are you saying I'd have to find a monopoly in both the foremarket and the aftermarket? Can we agree there can be a foremarket and only a monopoly in the aftermarket?
Swanson says no. You have to look at what the brands restrict Apple and mentions consoles, PC game stores. Device competition can be a constraint. Operating system competition is a distraction for the court.
Bornstein: Apple didn't say anything about developers. Developers don't write for Samsung/Huawei. On the developer side, there is a smartphone operating market.
Bornstein: There are significant switching costs for consumers in switching between operating systems. The foremarket/aftermarket framework is the right one because there is a purchase of a durable good or a developer decision to write for a particular OS
Bornstein: You need to look at the first decision that consumers and developers make. You look at the commercial realities.
YGR: Who specifically are the developers competing?
Bornstein: The operating systems compete. Developers and consumers decide between iOS and Android when they purchase their device, or writing their apps. The developers aren't competing with one another. Developers are customers of the operating system.
Swanson: This is a digital game transaction market. It is defined by substitution options for developers and consumers. It's a "red herring" if we ask the question about device substitution.
Swanson: If you take Epic's definition, Apple is a monopolist. xBox is a monopolist. Everyone is a monopolist.
Swanson: Developers write across these devices. The question is did Apple raise prices in the App Store. You have to look at the ability to switch. Can consumers and developers switch somewhere else?

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More from @leah_nylen

24 May
YGR: the market has to include some substitutes.
Bornstein: It's critical to decide what the product is before you can decide substitutes. The market we defined is the market for app distribution. It's not the in-app purchase.
Bornstein: It's getting the app on your phone.
YGR: Is there any definition that gets to the problem where the market has economic substitutes.
Bornstein: Our view is there is no economic substitute for getting an app on the phone. There are substitutes for the App Store.
YGR: Your market definition doesn't include substitutes because that doesn't reflect reality.
Bornstein: The substitutes would be direct distribution or alternative app stores. We do not believe that distribution of an app on Android or console is an economic substitute.
Read 162 tweets
21 May
"The lack of competition on the 30 percent is something that is troubling," YGR says.
The media line went dead for a few minutes but is now back. Tim Cook is now coming up to be sworn in.
Apple's Veronica Moye is doing the questioning. Cook is getting some water before he begins.
Read 230 tweets
21 May
Day 15 (and our last trial day) for #epicvapple. MLex's @MActon93 and Law360's @doratki are in court today.

Apple CEO Tim Cook will be up first. After he's done, Aviel Rubin, Apple's security expert from Johns Hopkins, will finish his testimony.
Going through our morning introductions now.
Epic has roughly 2 hours left (YGR gave both sides 45 hours each and has been timing them)
Read 5 tweets
20 May
Day 14 of #epicvapple. I feel a bit like a marathon runner entering the last few miles. The end is in sight, just have to get there.
Today's reporters are @mslopatto and @Siliconlaw. We're getting a few more expert witnesses from Apple today: UCLA's Dominique Hanssens; James Malackowski, CEO of Ocean Tomo; and Aviel Rubin from Johns Hopkins
YGR says she felt "too much stress" to watch the Warriors-Lakers game last night.
Read 229 tweets
19 May
Welcome to Day 13 of #epicvapple. @joshua_sisco and @BobbyAllyn are doing double duty and are back in court again today.
Apple’s Michael Schmid, who works with game developers, will be back up on the stand this AM. After he’s done, Craig Federighi, senior vice president of software engineering at Apple, will testify followed by Dominique Hanssens, Apple’s marketing/survey expert
YGR says she works every weekend during trial because she has "hundreds of other cases" and those do not end at the end of the trial day.
Read 221 tweets
18 May
Doren returns to the sexual terms. There are categories of things we don't want on our store like pornography, Schiller says. When you have categories of apps, like dating apps, developers will try to find where the line is. "It's not an easy task," he says.
It would be inappropriate for Apple to reject dating apps because of the people who use them, Schiller said.
Nudity is allowed for medical apps, but pornography is not permitted, Schiller says. "It's been a very difficult topic," he says of porn. Apple sets rules like the display of genitalia to help the app reviewers, Schiller says.
Read 58 tweets

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