But win or lose at the trial, Epic, which has pursued an aggressive public relations campaign against Apple alongside its court pleadings, may have already accomplished a major goal: Drawing Apple squarely into the global debate over whether and how massive technology companies should be regulated.
Epic Games faces an uphill legal battle against Apple Inc (AAPL.O) in an antitrust trial starting Monday, and a defeat for the maker of “Fortnite” could make it harder for U.S. government regulators to pursue a similar case against the iPhone maker, legal experts said.
Apple has mostly succeeded in staying out of the regulatory crosshairs by arguing that the iPhone is a niche product in a smartphone world dominated by Google’s (GOOGL.O) Android operating system. But that argument has become harder to sustain with the number of iPhone users now exceeding 1 billion.
Epic alleges Apple has such a strong lock on those customers that the app store constitutes a distinct market for software developers over which Apple has monopoly power. Apple is abusing that power, Epic argues, by forcing developers to use Apple’s in-app payment systems – which charge commissions of up to 30% – and to submit to app-review guidelines the gaming company says discriminate against products that compete with Apple’s own.
“It’s not a super-strong suit – I don’t think they are likely to win,” said Rebecca Haw Allensworth, a law professor at Vanderbilt Law School. “But it has already achieved a lot of its purpose, which is drawing attention to some of Apple’s practices that many developers see as abusive.”
Epic’s arguments draw on major antitrust cases against Microsoft (MSFT.O), Eastman Kodak (KODK.N) and American Express (AXP.N), but apply those precedents in new ways that have not been tested in U.S. courts, legal experts said.
For example, in arguing that iPhones are a software market unto themselves, Epic relies partly on a 1992 U.S. Supreme Court decision that rejected efforts by Kodak to force owners of its copying machines to use Kodak repair services.
Spencer Waller, a competition law professor at the Loyola University Chicago School of Law, said the Kodak decision has had mixed success in subsequent cases.
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