Web Excursions 2021-09-13

Reading Dante’s Purgatory While the World Hangs in the Balance

[Dante’s] medieval theology isn’t much consolation to a modern nonbeliever, yet his art and its truths feel more necessary than ever: that greater love for others is an antidote to the world’s barbarities, that evil may be understood as a sin against love, and that a soul can’t hope to dispel its anguish without first plumbing it.

That saga of translation resembles the slopes not so much of Mount Purgatory as of Mt. Everest, littered with the debris of the climbers who have attempted to summit, some coming closer than others. But reaching Dante’s Heaven by following faithfully in his footsteps isn’t possible in English, which lacks the luxuriance of rhyme native to Italian.

A Comprehensive Breakdown of the Epic v. Apple Ruling

  • Epic made 10 claims against Apple.

    • Most of them depended significantly on

      • Apple having an unfair monopoly under either the federal Sherman Antitrust Act or

      • California’s antitrust-focused Cartwright Act.

    • And although the ruling is sympathetic toward several of Epic’s underlying arguments, nearly all its claims were dismissed.

  • “Apple is only saved by

    • the fact that its share is not higher,

    • that competitors from related submarkets are making inroads into the mobile gaming submarket, and,

    • perhaps, because [Epic] did not focus on this topic.”

  • A seventh claim said iOS was an “essential facility” that Apple had unfairly denied access to.

    • But Epic didn’t seriously argue this claim, and

    • for mobile app developers, Rogers says web apps and other digital platformsprovide a reasonable (if not ideal) distribution alternative.

  • [Rogers] specifically calls out a lack of competition as an issue.

    • “The point is not that ... Apple provides bad services. It does not,”

    • “The point is that a third-party app store could put pressure on Apple to innovate by providing features that Apple has neglected.”

  • She’s generally receptive to Epic’s suggestion that Apple could review and notarize iOS apps for security but allow distribution through other sources, similar to macOS.

    • “Even though unrestricted app distribution likely decreases security,

    • alternative models are readily achievable to attain the same ends even if not currently employed.”

  • Rogers admittedly finds “no basis” for the specific 30 percent rate,

    • despite Apple hiring a consultant to testify about the value of its patents.

    • (As mentioned previously, the ruling is full of dunks on the expert witnesses.)

    • But she says Apple is still entitled to license that intellectual property for a fee of some sort, and

      • requiring developers to use Apple’s payment system “accomplishes this goal in the easiest and most direct manner.”


  • She also says IAP isn’t a standalone product,

    • so Apple isn’t illegally tying it to the App Store,

    • which nixes two more Sherman and Cartwright Act claims.

  • The ruling says Apple’s situation is “distinctly different” from another case

    • that let American Express use anti-steering rules for brick-and-mortar merchants,

    • because even in that scenario, merchants can still say they also accept Visa and MasterCard.

  • Even if developers could entirely stop using the IAP system,

    • “Apple could still charge a commission on developers.

    • It would simply be more difficult for Apple to collect that commission.”

    • The Court presumes that in such circumstances that Apple may rely on imposing and utilizing a contractual right to audit developers annual accounting to ensure compliance with its commissions.

  • She also dismisses the claim that Apple’s contract was “unconscionable” —

    • in other words, one-sided enough to “shock the conscience.”

    • (“These are billion and trillion dollar companies with a business dispute,” the ruling notes dryly.)

On what constitutes a “video game”

  • “The court need not reach a conclusive definition of a video game or game because by all accounts, Fortnite itself is both externally and internally considered a video game.”

    • Fortnite markets itself as a game, and even if CEO Tim Sweeney considers it the basis for a larger metaverse

    • (in case you were wondering, “the court generally finds Mr. Sweeney’s personal beliefs about the future of the metaverse are sincerely held”),

    • the metaverse as a product “remains in its infancy.”

  • As for the definitions introduced by witnesses, “unfortunately, no one agrees and neither side introduced evidence of any commonly accepted industry definition.”

    • That includes Sweeney’s claim that a game “involves some sort of win or loss or a score progression,” as well as

    • Apple app review head Trystan Kosmynka’s claim that “games have a beginning, [and] an end,” and “there’s challenges in place.”

  • “The court concludes that video games include a diverse and eclectic genre of games, that are tied together at minimum through varying degrees of interactivity and involvement from a game player.”

  • Ultimately, “the court leaves the thornier further questions of what is properly included and excluded in the definition of a video game to the academics and commentators.”