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.
Bornstein: There is not substitution there to restrain Apple.
YGR: "Your formulation seems to ignore the reality that customers choose an ecosystem. There's a lot of evidence in this trial that in the foremarket of devices it is Apple's business strategy to create a particular ecosystem that is incredibly attractive to its purchasers."
YGR: "If those consumers choose to enter into that ecosystem, then your economic substitutes as you define them destroy the ecosystem into which they have made a choice to enter.
YGR: That's like if you buy the xBox or you buy into a variety of these particular walled off gardens... you know what you are buying into and you choose to make that decision.
Bornstein: Once you buy into one of these ecosystems you are locked in.
YGR: Let's talk about knowledge and whether consumers know that.
Bornstein: when there are information costs and switching costs it is harder for the competition in the foremarket to discipline the aftermarket. When people buy an iPhone, they don't know what they are going to spend on apps.
YGR: We don't know that. Where is that in the record.
Bornstein: There is evidence. Eddy Cue said in his deposition that they do not measure that or inform consumers that.
YGR: There is no difference in the aftermarket cost if you choose to buy Apple or Android. The costs are the same. That's why I asked if they make an informed choice in the beginning.
Bornstein: Most people don't know. People are not focused on these downstream costs. If we were in a world with competition, we would not expect there to be the same cost structure downstream. There would be competition between Apple and Android.
YGR: The cost of the games they are getting on the Android versus what getting on iOS, aren't distinctly different. There isn't much movement across either platform. From a consumer perspective, they don't think about it because it's the same.
Bornstein: People don't think about it because it's opaque. Those numbers also pale in comparison to cost of the phone. The issue is if there were to be a change in those prices, if Apple were to say 35%, there is little reason to believe that would cause switching.
Bornstein: Because there isn't switching, it shows that the aftermarket doesn't discipline the foremarket.
Swanson: None of this is in the record. And this ecosystem has existed for 10 years. This is not a case where there is one device is out there and you are out of luck unless you get a part for that machine.
Swanson: when Apple chose the 30% that was a competitive price. It was the price on Steam.
Swanson: Apple offers quality competition. iPhone can hold its own with consoles and PCs. And price has never gone up. In Amex, the court said you have to look at both sides. There are a ton of benefits.
Swanson: it's the nature of two-sided platforms that someone always gets a better deal. That may not seem fair that an enormously well resourced company would like to pay less, that doesn't mean there's not competition.
YGR: Well Apple is not just being sued by Epic. It is also being sued by a class of developers. It's not just Mr. Sweeney.
YGR: What you're saying is qualitatively prices have gone done. But it hasn't gone down enough to justify supracompetitive profits.
Swanson: the profit issue has been "fully ventilated." Epic is using accountant numbers. This is an ecosystem case. The App Store helps incentivize people to buy iPhones. All of these things are joint matters.
Bornstein: The record is clear that there is nothing, literally nothing, where there are people at Apple saying 'we need to do something in order to stay competitive on price'. The only exception is Schiller's 70/30 email
YGR: You can't ignore the quality issue. There's an enormous amount of innovation on the iPhone that is allowing these games to be played and developers are benefiting from.
Bornstein: There is innovation on the iPhone. There is not innovation on the App Store. There is consistent dissatisfaction with developers and Apple doesn't fix the problem because they don't feel the incentive to do so
Bornstein: Consumers and developers benefit from innovation in the iPhone. But we are talking about the App Store. There is no way onto the iPhone except through Apple App Store.
YGR: What about the reader rule?
Bornstein: The reader rule is not a decrease in price. Amazon Kindle had books could buy on the iPhone.
YGR: It happened before 2010. I don't see why you focused on that.
Bornstein: It's an example of how they brought people in and then changed the rules. The reader rule exists past 2010. There is no evidence it was the result of competition.
Bornstein: There is no evidence that Apple felt the need to change price or terms based on changes in consoles or PCs. Mr. Cook said he didn't even know Steam.
YGR: What about a market that was mobile gaming as opposed to games in general?
YGR: Games on mobile devices: iOS, Android, Switch.
Bornstein: We would exclude Switch because it has no cellular connection.
YGR: You would put iPads in the same category as Switch.
Bornstein: I don't know where I'd put iPads. They have the same apps as iPhone.
Bornstein: Mobile games would make more sense than a market that includes consoles and PCs. If we had a market limited to games on iOS and Android, Apple would still have substantial market power.
YGR: What does Apple think of that market.
Swanson: We don't think that works. Our expert's study showed that the intro of Switch took market share from other places where people played Fortnite.
YGR: Well if I decided the market was mobile games, how would that impact your analysis?
Swanson: I would be rather sad. But the monopoly power would go away. We think other devices that iPhone owners have would come into play.
YGR: If I decide the relevant market is gaming, there's not a monopoly but there is evidence showing anticompetitive conduct.
Bornstein: We are a competitor as a distributor and a customer for distribution services. California's Unfair Competition Law is broader than the Sherman Act. It's a balancing test. We think that's an important part of the analysis for the court.
YGR: There is some law in California that conduct that seems to be incipient antitrust violations can fall under the UCL.
Swanson cites YGR a previous UCL case. She says he's interpreting it wrong.
Swanson: Apple has legit business justifications for its conduct.
YGR: I understand that. I want to make sure I get your legal argument. A violation of antitrust law is not required for a UCL violation.
YGR wants to move on to "less restrictive alternatives."
Bornstein: The law has two pieces: some 9th Circ precedent said there is no least restrictive alternative in Section 2. Apple by focusing on this, is avoiding the larger issue of procomp justification and how its achieved.
Bornstein: There is a balancing that is supposed to be done. You don't just look and see if the defendant has offered a justification and put your pencil down. The court has to assess that justification and how it is achieved versus the harm.
Swanson: There is no less restrictive alternative under Section 2. The Supreme Court says the courts aren't supposed to restructure markets they think could be more competitive.
YGR: Are you equating balancing with less restrictive alternatives?
Bornstein: I think they are largely the same. You are looking to assess whether the restraint is on balance a problem.
YGR: Qualcomm says if a monopolist asserts a procompetitive justification, the burden shifts back to the plaintiff. That sounds like a balancing test. What it doesn't give is a lot of guidance on the balancing.
Swanson: I don't think that the Supreme Court has held that. Though SCOTUS has a case on balancing right now (NCAA v Alston).
Bornstein: That's a Section 1 case, so not sure it will matter.
YGR: Well, I guess they don't call us the Wild West for nothing.
Bornstein: You don't look at who the plaintiff is to determine the market. It would be "passing strange" to define one market here and a different in the class action.
YGR: I'm bound by the evidence in the record.
Bornstein: We offered testimony from Down Dog.
YGR: It's an assessment of evidence.
Bornstein: We offered testimony from Match and Down Dog. There's also the survey is based on all developers.
YGR: I will have to decide what it means. I haven't had a chance to investigate it yet.
Swanson: Epic has decided to lump non-substitutes together without any basis under the law. Mr. Sweeney testified he is not familiar with the competitive conditions of other app developers. It is Epic's burden to define the market and it failed to define a proper market.
Bornstein: Here we are dealing with the App Store and it sells transactions.
YGR: It has free apps which you consistently ignore.
Bornstein: Absolutely not. They are also stuck.
YGR: I haven't heard any complaints from entities who are benefitting.
Bornstein: There are tons of complaints in the survey.
YGR: There are 1.8 million apps in 27 categories. As a practical matter, if you have 100K apps in a category and someone complains they are not at the top of a list?
Bornstein: If someone types in Down Dog and don't get their app, that's a problem with the search feature.
YGR: When I typed them into mine, it came up as the first thing. But it's not unreasonable when have 100K apps in a category, there's going to be paid ads.
Bornstein: One of the things the App Store is supposed to provide is useful search and discovery features. And they are not.
Swanson: Down Dog made an enormous amount of money on iOS while he's been complaining. But developers are overwhelmingly happy with the App Store.
Bornstein: The App Store only provides one thing: transactions. That's just like Amex where hardware stores and restaurants get transactions even though they don't sell the same thing.
Bornstein: We don't think people should have to make these choices. There's no evidence that Apple has felt the need to lower it (the commission) in response to developers and that's very telling.
YGR: It may not a logical way to look at their business.
Bornstein: Well, they did actually do it with the P&L statements. That work got done multiple times and it was used. It was done for a reason. To point to the fact that no one has done it at Epic is false equivalence.
Swanson: With respect to profit, if those numbers mean what Epic says they do, Mr. Cook should sell off the device business and double down on the App Store. That doesn't make any sense.
Apple is switching lawyers now. Veronica Moye is up now.
Moye: Starting with developer satisfaction. The survey was done in 2017. That slide reported results on satisfaction with discovery of apps. If you look at App Store developer satisfaction overall, 64% said they were satisfied and 22% were dissatisfied.
Moye: If you look at the same survey in 2018, 65% were satisfied with the App Store and 19% were dissatisfied. Developers are highly satisfied and Apple has listened to and responded to developer feedback.
Moye: Developers said that app review was taking too long so Apple made investments and most apps are reviewed within 24 hours. There was a significant overhaul in 2016-2017 where Apple was responding to developer feedback.
Moye: It isn't true that Apple hasn't reduced price in response to competition. Apple introduced the multi-platform rule in response to game developers so they could sell in-app content without paying Apple. That's a remarkable price decrease.
Moye: Apple has also reduced other prices since the creation of the App Store. (She is showing a slide on the history of price reductions in the App Store). 2011: Reader Rule. The Multi-Platform Rule. 2016: Subscription reductions for second year and video partner program
Moye: And this year the small biz program. "It is a real reduction that has had real impact"
YGR: Does that mean we have to wait for people to sue Apple? As a federal court I don't want to encourage litigation. How can you say that's a competitive driver?
Moye: Cook testified that is was because of the pandemic. The conduct exists regardless of the motivation and has spurred competition. Google now has a small business programs.
Bornstein: Will respect to the survey, it is interesting to see as an overall assessment of satisfaction. (He is now showing another slide on satisfaction) There is satisfaction with some aspects of the App Store, like software tools.
Bornstein: In other areas, satisfaction is in the 30% level for search and discovery, and profitability. To say, 'we've done a good job overall' masks various vectors of competition that could be improved if there were other stores out there.
YGR: Are you saying a store would be able to develop the tools to build on the iOS platform?
Bornstein: Those aren't part of the App Store. That is part of the platform. You can look at the Mac to see that.
Bornstein: Where are the developers coming forward to say 'We love the App Store.' There are none. On competition on price, Moye said the conduct exists. There's no evidence these things were because Apple faced pressure from competition.
YGR: What specific direct evidence of anticompetitive effects exist? Output and quality don't seem to apply.
Bornstein: Higher prices. There are higher prices for app distribution that would be if there were competition. There would be more innovation for app distribution.
Bornstein: We would see more innovation of in-app payment solutions. Once you have lower prices and better innovation, there would be more output. You can't just say we have good output, it could be more, particularly in a dynamic market like this.
YGR: How do you define better?
Bornstein: Price and quality. Those are the two classic vectors for antitrust.
Moye: Bornstein used a 2016 survey, but there was a huge effort to improve the App Store that year, so the later data gives a better idea of the current state. Bornstein says the tools aren't part of the store. That's interesting but Apple testified they are.
Moye: Apple invests enormous amounts in developer tools to enable them to have wonderful offerings on the App Store. The idea is those are separate is not supported.
Moye: Anybody who wants sideloading and third-party stores can go buy an Android phone. Epic is trying to remove a differentiated product from the market.
Bornstein: There is no reason to link software tools to create a program and the store. Apple wrote its own apps before the App Store even existed.
Moye: Developers cannot make apps without using Apple's IP. Both sides recognize that. And as to why developers didn't testify at the trial, Apple didn't jump through hoops to find them. Apple didn't engage in theatrics
YGR: That's not quite true. They had Down Dog and Match
Moye: 30% is the set rate across the market. It is competitive and there have been price decreases over time. There has been an "explosion" in output in game downloads and in-app purchases on the App Store.
YGR: Let's talk anti-steering provisions. They are anticompetitive. In Amex, the market reality was not the market reality here, which is that people don't know. "Apple's hiding that information... seems to be anticompetitive"
Moye: There is nothing unusual about anti-steering provisions.
YGR: It's not for efficiency here. It's a method of being compensated for IP. I understand that Apple has a right to be compensated for its IP. But efficiency is not the reason.
YGR: Why not allow the information.
Moye: It would be like the Nordstrom's example.
YGR: When I go to the Nordstrom's checkout, I see Amex, Visa, Mastercard.
Moye: There are only two narrow limitations.
YGR: I don't think you can say its narrow given how profitable it is.
Moye: The limitations on developers are narrow.
YGR: The way Ms. Moye has described mass marketing. I went back and read some of the testimony from Down Dog that suggested they couldn't send e-mail to customers. I want to hear Epic's perspective here.
Bornstein: Look at the App Review guidelines 3.1.1 and 3.1.3. The language says that you cannot within the apps or through communications of email or text gotten through account registrations direct to alternate payment. It means they need to get an email through some other way
YGR: Fortnite sends emails to Mr. Schiller who signed up. If someone has the email, then they can send that information?
Bornstein: there are different categories of apps under the rules. 3.1.1 and 3.1.3 cover different apps and apply slightly differently.
Bornstein: For 3.1.3, those are restricted.
YGR: What are the categories?
Bornstein: 3.1.1 is the general rule and 3.1.3 carves out a narrower set of categories. I can read them out loud if you want.
YGR: If the anticompetitive effects impact certain categories of apps, then maybe clustering would be appropriate.
Bornstein: The ones that fall under 3.1.3 are the multi-platform services, includ Fortnite, reader apps and Netflix, person to person services, and enterprise.
YGR: What does account registration mean?
Bornstein: That means signing up with an app.
YGR: Is that in the guidelines?
Moye: Under 3.1.1 if you offer in-app purchasing, you cannot link out. The 3.1.3 that applies to Epic is multi-platform rule.
Moye says Epic hasn't claimed that it was harmed by the anti-steering provisions and there isn't a "scintilla" of evidence they were harmed by that.
YGR: The Down Dog developer certainly indicated he was harmed by it.
Moye: his testimony was his subscriptions remained the same.
YGR: He said there was a measurable difference for those who signed up on Android. I thought there was some evidence with respect to that. I will check.
Bornstein: I disagree. In our interrogatories we made a point this was a provision we were challenging. With respect to Down Dog, there was a vast difference with respect to Apple and Android. They conducted an experiment to make the Android app mimic iOS and it resulted in drop
YGR: other platforms use anti-steering.
Bornstein: None of those other platforms have market power. It's a different situation when you have an entity with market power and without. Apple is making a false equivalence.
Bornstein mentions Apple's "conspiracy theory" that Epic is a shadow plaintiff for Microsoft.
Bornstein also mentions that Moye showed the 2020 app review guidelines, but the 2021 are the ones in the record. This provision only has bite where you have people who sign up, like on a multi-platform service like Netflix. One-off apps are less likely to ask for an email
YGR: The developer could ask for the email. There's no restriction from asking.
Bornstein: True. It's an extra step that the developer needs to go through.
YGR: Others might say its for privacy.
Bornstein: It's not privacy, the developer HAS the email already.
YGR: They could say welcome to the app, here's some marketing that might be interesting to you.
Bornstein: Yes, though they couldn't do that in the app. They have to do it outside.
Bornstein: If we're going to do a shopping analogy, a better way of looking at it is going to the mall. You can shop at a chain store like Under Armor. The store will have a sign that says we have stores elsewhere. We have an outlet downtown.
Bornstein: Under Armour pays some money to the mall. But the mall doesn't keep its from saying that customers can shop at its other stores elsewhere.
Moye: They haven't pointed to any evidence that the anti-steering provision harms Epic.
Moye: There's no evidence in the record that there's harm to Down Dog either.
Bornstein gives YGR some other citations in the Down Dog testimony.
Moye: The fact that Apple has an anti-steering provision proves that Apple believes there are other platforms to which customers can be steered.
Bornstein: That is "economic nonsense"
15 minute recess.
We're back and moving on to remedies. YGR says she has concerns that Epic doesn't seem to want to pay Apple for its intellectual property.
Bornstein says that Epic doesn't oppose Apple charging, but it can't charge in anticompetitive way. There are anticompetitive effects in in-app payment. The issue is not can Apple charge, the issue is can they structure their business in a way that artificially increases price.
Bornstein says Epic wants to get rid of those particular anticompetitive restrictions.
YGR: But Epic would pay Apple nothing.
Bornstein: That is not correct. Apple can charge in a non-discriminatory way. They can charge some developers more than others depending on how they use the platform. They can't charge in a way that has anticomp effects.
Apple's Richard Doren is now up. Epic wants access to Apple platform without having to pay for it. They want access for third-party stores and enjoin Apple from requiring in-app purchases
Doren: What they want right now is to put the Epic Game Store on the App Store and they want to do business without IAP. Nothing would be paid to Apple for its IP or use of the platform. Apple would not have an opp to review what it is in those stores
Doren: They want to avoid Apple's commission and put their own app store on iPhone and then charge a commission.
Bornstein: We do think there needs to be a restriction that makes App Store the only store and that IAP be the only payment method. We do not say Apple is prohibited from charging for its intellectual property.
Bornstein: Apple can say they don't want to license their IP. But if they do they cannot impose conditions in ways that are anticompetitive. Conditions on the licensing of IP are routinely scrutinized under the antitrust laws.
Bornstein: You cannot place conditions on things if they have anticompetitive effects.
Doren: The FTC/DOJ IP guidelines the incidents that have anticompetitive effects eliminate competition that would exist but for the license.
Doren: Apple could have only offered its own apps. But it chose to make third-party apps available to the benefit of all. We are talking about a compulsory license.
YGR: If there were anticompetitive effects, do you concede that IP is not a defense?
Doren: If there are anticompetitive effects but-for the license, the court should take that into effect.
Bornstein: Apple is not answering the question.
Bornstein: If there are anticompetitive effects, IP is not a defense. Apple is arguing that it can license in a way that has anticompetitive effects and there's nothing you can do about it because I did it with my IP.
Doren: A company has no duty to assist it's competitors. That remains the law today. Apple retains its IP to compete in the business model it has designed.
Bornstein: There is not general duty to assist its competitors. That's beside the point here. The point here is does the existence of IP keep the court from remedying the anticompetitive effects found. The answer is no. IP is not a defense.
Doren: Apple does not claim IP is a "vaccine" to anticompetitive conduct. What Epic seeks here is a compulsory license without compensation.
YGR: Courts do not run businesses. In cases where courts have found antitrust conduct how have the courts fashioned remedies to deal with the antitrust conduct? Have they in fact said you billion dollar company you must fundamentally change the business model on which you operate
YGR: Have they ever done that?
Bornstein: The court will issue a prohibition on anticompetitive conduct.
YGR: Give me an example.
Bornstein: You can look at Qualcomm.
YGR: That doesn't help me. It was overturned. Give me an example that has survived appellate review where the court has engaged in such a way to prohibit something or change the economic model of a monopolistic company.
Bornstein: Microsoft. The court identified anticompetitive conduct and upheld prohibitions on Microsoft's licensing and bundling of Windows. It subsequently settled but there is a DC Circuit opinion on the remedy there. That is the signal example.
YGR: Let's assume liability.
Doren: Ok. That was a gov case not a private party case. Injunctions should be as narrow as possible to address the parties. Microsoft involved discrete prohibitions. Enforced sharing requires courts to act as central planner (Trinko)
Doren: Epic admitted that truly bad apps should not be allowed on the App Store. Evans said that Apple could have objective criteria on apps, but said porn was a tough question.
Doren: Mickens said there is a spectrum. And the court should consult with moderation and computer experts.
Doren now re-reading portions of the record where Mickens and Evans (Epic's experts) said it was up to the court. Doren: This isn't about prohibitions. It's about the difference where we don't have third-party channels and when we do we have absolute mayhem where anything goes
Bornstein: the strategy here is to scare the court and say this is so complicated to say this will be on your desk for the next 20 years. That is just a strategy.
Bornstein: Apple asked Mickens, a computer science expert, and Evans, an economist, a lot of legal and policy questions. We are not completely at sea between lock down situation and absolute mayhem. We have something: it's called the Mac.
Bornstein: This very company has said it is safe and people can go there and download things with assurance. The Mac is a safe model for people to use.
YGR: Epic has sued Google and that is pending in front of my colleague. On Google's platform, there are many stores. Epic sued them anyway. One of the argument in this case is the iPhone should be like Android. How does that address anything given that Epic has also sued Google?
Bornstein: We are not arguing that iOS should be just like Android. There is a feature of Android which we think is appropriate: getting rid of the restriction the App Store is the only path on the iPhone. That does not mean we want to turn iOS into Android.
Bornstein: The reason there is a lawsuit against Google is it has anticompetitive restrictions of its own that have similar anticompetitive effects by limiting the ability of developers to access apps outside Google Play. It is not exactly the same.
Bornstein: Google Play is not the same as the App Store, but also restricts in-app payments.
Doren: Bornstein's primary citations come from his cross that app review could stay in place. They presented no witness on what remedy they want or why it would be workable. On-device security will not prevent suicide apps or targeting children, fake review, etc.
Doren: As to MacOS, Federighi testified that the threat model for Mac is different and why there are differences between MacOS and iOS. To the extent Epic tells that treat like MacOS, they want to strip out the alerts that would let Apple tell users they aren't using App Store.
Doren: the injunction sought would take the App Store far beyond where Google's Android is right now. Android has some review. It's not as good as Apple's but basically what Epic wants to do is to tell Apple to drop its arms to its sides.
Doren: The one thing we know is that there are many threats today and tomorrow there will be all the threats today and more. Epic wants Apple to drop its gloves and stand in the middle of the arena and take what comes.
Bornstein: Apple is trying to scare the court. We hold up the Mac as example of what Apple could do. We are asking the court to prohibit anticompetitive conduct. Apple can still have app review and the App Store.
Bornstein: People who value what Apple is doing can continue to shop at the App Store. People who want other things can make a choice to go elsewhere. There is nothing that would prevent Apple from curating or protecting consumers or imposing guidelines for its store.
Bornstein: The problem is they are the only store in town. That restriction is at issue and consumers, once they have choice, developers once they have choice, can make determinations if they value what Apple is providing or perhaps Apple could compete.
YGR: Can you find me a single antitrust case where the type of relief you are requesting has been granted by a court? It is a pretty significant step that courts haven't done.
Borenstein: I don't have an example where a private party has had precisely the same impact. There's Microsoft and AT&T. We are dealing with a company with the size and scale of Apple.
YGR: There's nothing stopping the United States government from doing something. Epic isn't doing this from the goodness of its heart.
Bornstein: It would be to Epic's financial interest and every other developer. It is unfair to say that is the only motivation.
Doren: Apple has offered witnesses about how this would harm consumers (Federighi and Kosmynka). Because it is an attractive platform, people come here to do business. We don't know what will happen when it is "polluted"
YGR: How is that even possible when Android exists and has a bigger market share?
Doren: Apple's brand and trade is on protecting people's privacy and information. It is its niche. Here the proposal would turn iOS into something resembling more Android. Those people who depend on Apple, who have chosen Apple, will be confronted without the choice they have
Doren: iOS will be turned into a poor imitation of Android. If Epic offers Epic Games Store, Apple has no relationship to all those developers. Itch.io would be a store within a store within a store.
Doren: It has no way to do malware scans or even improper social engineering. The idea that Apple can do app review on those who choose to send their code blows right by the main issue. Consumers would have to go to untrusted stores
YGR now giving each side a couple minutes to make closing remarks.
Bornstein: the fact that Fortnite is not on the App Store shows that they think the restrictions are unlawful and they should come to the court to decide.
Bornstein: there is a lot of discussion about store within a store within a store. The primary remedy is to have stores outside the App Store. Customers will be able to know when they are downloading something from another store as opposed to Apple.
Bornstein: People who value what Apple offers can continue to buy from it. Having the App Store be the only store was based on policy not security. Apple's security experts made clear at the time it was a policy decision. There are other ways "to turn off the spigot" for bad apps
Bornstein: Epic acknowledges this is an important case and a remedy that will be entered will be significant. That is because the issue affects a large number of consumers, developers and has persisted for such a large period of time. Remedying that conduct is a necessity.
Doren: the strategy is to make the court aware of what Epic is asking. If that is scary for iOS users, the developer community and the court, that is a consequence of what Epic is asking for.
Doren: their injunction request demands Apple not discourage users from other app stores. Epic is talking out of both sides of its mouth.
Doren: Rubin (Apple expert) found more than 90% of attacks are based on social engineering. And Epic wants Apple to do nothing more than malware scams.
Doren: the law protects technological incompatibility. Qualcomm was decided on an absence of a duty to deal. Apple's business model was developed long before it had anything close to market power.
Bornstein: In earlier filings, Epic said it could take up to three years to get competition onto Apple. What I continue to hear from Apple is 'We're doing a good job. "We're the benevolent overlord of this ecosystem" That is not a defense under the antitrust laws.
YGR: I find the lawyers in this action have really been a terrific example of what lawyering is and can be.
YGR: I am not promising to have this by August 13. That was a joke about the hotfix. But I will try to get to this while memories are fresh. But I do have thousands and thousands of pages to review.
YGR: My decision will be in writing. Opening arguments show you the cover of a puzzle box. During the trial, the box is being filled with evidence, which are puzzle pieces. In this case, it's up to the court to figure out how the pieces come together.
YGR: It will take me awhile to do that. It's been tiring but a real pleasure.
And with that, we are adjourned.

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More from @leah_nylen

24 May
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.
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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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