1

“We’re trying to do two diametrically

opposed things at once - provide an
advanced and open platform to
developers while at the same time
protect iPhone users from viruses,
malware, privacy attacks, etc.
This is no easy task.”

Steve Jobs, 2007

DX-4254.001; DX-4566.001 32
Apple Executive Witnesses

TIM COOK PHIL SCHILLER CRAIG FEDERIGHI

3
Developers Have Tremendous Access to iOS, the App Store,
and Apple’s IP

StoreKit ResearchKit GameplayKit SpriteKit CareKit ARKit

SceneKit CloudKit RealityKit HealthKit HomeKit CoreML

Reality Metal Swift iOS SDK

Composer
4
Developers Have Tremendous Access to iOS, the App Store,
and Apple’s IP

“A fast, agile, feature-rich API like Metal is exactly

StoreKit ResearchKit GameplayKit SpriteKit CareKit ARKit
what we need to bring a game designed for
modern consoles and desktops to the battery-
powered iPhone and iPad. As a developer, it blows
SceneKit
away CloudKit
OpenGL in every
RealityKit
way.” HealthKit HomeKit CoreML
DX-3098.001

Reality Metal Swift iOS SDK

Composer
5
 Apple’s Integrated Ecosystem Exponentially Exceeded Expectations
Apps
(Billions)
200
180B +
App downloads by 6/2017
180

160

140

120

100

80

60

40

20

0
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Malackowski Report, Fig. 8; Malackowski DWT ¶ 21; DX-4841 6

 Apple’s Integrated Ecosystem Ensured Security,
Privacy, and Reliability
Malware Infections

26.64% 1.72%
Android platform iOS platform

38.92%
Windows/PC platform
32.72%
Other

Rubin DWT ¶ 6; DX-4975.008 7

Apple Innovation Unlocks the Freemium Model with IAP

FREE In-App Purchases PAID

8
Freemium Made Fortnite’s Success on iOS Possible

9
Epic Launched “Project Liberty” Against the 30%

DX-3774.002
10
 Epic Asked for a Special Side Deal from Apple

DX-3641.001

DX-4477.001
11
August 13, 2020: Epic Launches Its Hotfix on the App Store

DX-5317.003

12
Epic Deceived Apple But Gave Microsoft a Heads-Up About an
“Extraordinary Opportunity” for Consoles and PCs

TIM
SWEENEY
Epic CEO
DX-4579.001

13
Tim Sweeney: Too Many Platforms . . . and They All Compete

“We have a lot of platforms coming together, there are the tablet
platforms, there are the smartphone platforms, then computers, you
know PC and Macintosh, and then there are consoles, Xbox 360,
PlayStation 360, Wii, and some new handheld dedicated gaming
devices, and god knows what else. This is too many platforms….
Over time, these platforms will be winnowed down into a much
smaller set of competing platforms – there might be 1 or 2, maybe 3
TIM
SWEENEY
winners worldwide across everything – computers, game platforms,
Epic CEO smartphones, so we should expect a lot of consolidation here, and
DX-3768 at 26:31 winners and losers, according to who picks the right directions and
executes successfully on them.”
- Technology and Gaming in the Next 20 Years, D.I.C.E. Summit, February 9, 2012

14
 Epic Created The “Coalition for App Fairness” For This Litigation

https://appfairness.org/issues/30-app-tax/ (DX-4167.002) 15
 Competitors Before Apple Entered the Market Charged 30%

Typical
Publisher Royalty

30%

1990s 2003 2004 2005 2006 2007 2008 2009 2010 2011

Schmalensee DWT Ex. 1; Sweeney Dep. Tr. 22:5-21 16

Epic Cannot Prevail

Epic is Wrong On Relevant Market

Epic Cannot Show Anticompetitive Conduct

Epic Cannot Show Anticompetitive Effects

Apple Can Show Procompetitive Justifications

Epic Cannot Prove a Tie

17
Relevant Market

18
 Epic’s “iOS App Distribution” Market is Both Too Broad
and Too Narrow

A proposed market definition is:

• Too broad if it includes products that customers are unlikely

to substitute—all non-game apps; and
FRANCINE
LAFONTAINE, PhD • Too narrow if it excludes alternatives that customers are likely
Fmr. Director of the FTC’s
Bureau of Economics,
to substitute—digital gaming transactions on other platforms.
Apple Expert
LaFontaine DWT ¶ 22
The Court’s PI Order at 14:
“The determination of a ‘relevant market’ is a highly factual
question. See Eastman Kodak, 504 U.S. at 482 (‘The proper market
definition in this case can be determined only after a factual inquiry
into the “commercial realities” faced by consumers.’).” 
19
 Too Narrow: Many Substitutes for Digital Game Transactions

iPhone Android PC Mac Nintendo PlayStation Xbox

Sideload Sideload Sideload

Purchase Android Store PC Store Mac Store

App Web on other (Google Play, (Steam, Epic (Mac App Store, Nintendo PlayStation Xbox Live
Store Apps platform; Galaxy Store, Games Store, RealArcade, Store Store Marketplace
play on iOS Amazon, etc.) etc.) etc.)

20
 Multi-Homing: Survey of iOS Users

95%
regularly used or could have regularly
used devices other than their iOS device

Hanssens DWT ¶ 16 & Ex. 7

 Multi-Homing: Developers Offer Games on Multiple Platforms

27.5%
Fortnite revenue across platforms
(March 2018 – July 2020)
46.8%
PC
9.6%

8.4%
7%

Hitt DWT Fig. 12 0.5%

Dr. Hitt: The Majority of Fortnite User Accounts Are Not on iOS

LORIN
HITT
Hitt DWT Fig. 6

23
Epic Recognizes Substitutability Across Game Platforms

https://www.epicgames.com/fortnite/en-US/news/freefortnite-cup-on-august-23-2020, DX-3724.002 & .006

24
Cross-Platform Play:
Consumers Play the Same Game at the Same Time on Different Platforms

XBOX iPhone

Nintendo PC
Switch

25
Cross-Wallet Play:
Consumers Buy Game Currency On One Platform, Spend on Another

iPhone Android

PC XBOX
26
With a Two-Sided Transaction Platform, the Product
Is the Transaction

Two-sided transaction platforms exhibit “pronounced indirect

network effects and interconnected pricing and demand” and
are thus “best understood as supplying only one product –
transactions – which is jointly consumed.”
Ohio v. Am. Express Co., 138 S. Ct. 2274, 2286 & n.8 (2018).

27
Too Broad: Epic’s Market Includes All Apps Without Proving They
Are Subject to the Same Competitive Conditions

The Court said “underlying these questions is a significant and

unresolved dispute over clustering” PI Order at 20.
But Epic’s Conclusions of Law do not mention a cluster market.

The App Store is a store with products that are not interchangeable substitutes.

The key question is are the items subject to the same competitive conditions. Thurman
Industries, Inc. v. Pay 'N Pak Stores, Inc., 875 F.2d 1369, 1375 (9th Cir. 1989); FTC v. Staples,
Inc., 190 F. Supp. 3d 100, 123 (D.D.C. 2016).

28
Apple Internal Documents Show Evidence of Switching
Smartphone Owners Who Did Not Change to Another
Smartphone By Quarter; All Others Did

In 2019 and 2020, Apple’s Market

Research found meaningful switching
quarter over quarter when iPhone
owners purchased a new phone:
19%, 14%, 26%, 26%, and 12%

Apple Market Research and Analysis, (Q3 ‘20) DX-3084.022

29
The Relevant Market is Gaming Transactions and Apple Does Not
Have Monopoly Power in that Market
Gaming Transactions

Apple Share
LORIN 23.3% - 37.5%
HITT
Hitt DWT ¶ 8
Others
62.5% - 76.7%

30
No Anticompetitive Conduct

31
Epic Challenges Apple’s Technical Design and Contracts That Block and Prohibit
Third Party Native Apps, App Stores, and Payment Systems—a Refusal to Deal

• Apple generally prevents the distribution of iOS-compatible apps to users of iOS devices
except through its App Store. Evans DWT ¶ 38.

• The app-distribution restrictions block all channels of distribution, other than the App
Store, for all iPhone users and iOS app developers. Evans DWT ¶ 159.

• Apple imposes a set of technical and contractual restrictions that block the emergence of
middleware. Athey DWT ¶ 55.

• Apple prohibits developers from distributing their apps through a third-party app store.
Evans DWT ¶ 38.

• What’s been foreclosed from the relevant market are the payment solutions that would
have been developed and used if Apple did not mandate use of IAP, and the Apple
payment solution. Evans DWT ¶¶ 220, 289.

32
Epic Demands Forced Interoperability and a Compulsory License
on Epic’s Preferred Terms

“Apple has over 250,000 application programming

interfaces that are available to developers and it is
virtually impossible to develop an app for, or a toolset
for development on, iOS or macOS without them.”
Epic’s Response to Apple's First Set of Interrogatories,
Response to Interrogatory No. 6, DX-3691.015

33
The Law Prohibits Epic’s Proposed Remedies

Required Required Forced

to Deal to License Interoperability

Sideloaded Apps

3rd Party App Stores

3rd Party Payment
Processors

For example:
Epic asks the Court to prohibit Apple from “Restricting, prohibiting, impeding or deterring users
of iOS devices, through technical, contractual, financial, or other means, from downloading,
executing, installing and/or updating iOS apps and app stores from a distribution channel other
than the App Store.” Epic’s FOF & COL, App’x. 1, pages 161-62
34
No Anticompetitive Effects

35
 The Number of Apps in the App Store Has Dramatically Increased
Title 1,800,000
Apps (Millions)

500

2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Today

Malackowski DWT ¶ 21 36
 The Number of Users in the App Store Has Dramatically Increased
1B
App Store Cumulative Users (Millions)

650M

500M

100M

2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Today

DX-4593.039; DX-3734.022; DX-4526.027 37

 Developer Revenue Has Dramatically Increased

Hitt DWT Fig. 54 38

 The App Store’s Effective Commission Has Decreased

Today, 84% of apps are free

Hitt DWT Fig. 55 39

 The App Store Has Reduced Commissions
Commission rate

Developer Apple Video Apple Small

subscriptions Partner Business
after first year Program Program

2008 2016 2021

DX-3421.001; DX-4096.001; DX-3256.003-.004 40
 Epic’s Estimates of the App Store’s Margins Are Misleading

“Mr. Barnes’ estimate of the App Store’s operating margin is

unreliable because it looks in isolation at one segment of the
iOS ecosystem in a way that artificially boosts the apparent
operating margin of that segment. When one looks at Apple’s
RICHARD device and services ecosystem as a whole, the operating
SCHMALENSEE, PhD
Apple Expert margin falls to an unremarkable level.”

Schmalensee DWT ¶ 13 41
Epic’s Lead Economist: Apple Created Value

“Apple has obviously made enormous profits and seen the market
value of the firm increase because of the success of the iPhone and
its application store. iPhone users have done very well also as a
result of the tens of thousands of applications they can choose
from, some of which enable them to do things that were not possible
before. New markets have opened for entrepreneurs that use the
DAVID iPhone, and some of them are earning significant profits or obtaining
EVANS fame. By bringing developers and users together the iPhone has
Epic Expert
Witness
served as a catalyst which has created value—and profit—out of
thin air.”
David S. Evans, Platform Economics: Essays on Multi-Sided
Businesses 378 (2011)
Epic’s Lead Economist: Apple Created Value

“There isn’t much controversy that Apple’s rules have

enabled it to create a high-quality app ecosystem for
the iPhone.”
DAVID David S. Evans et al, Vertical Restraints in a Digital World 29 (March 22, 2020).
EVANS
Epic Expert
Witness

43
Procompetitive Justifications

44
Apple’s Procompetitive Justifications

Consumer Trust

Security and Privacy

Reliability

Quality

User Experience

Consumer Choice

Protecting Intellectual Property

45
Apple Refused to Sacrifice Security, Privacy, and Reliability

When we started working on iPhone, we thought about it as a

product that would be different than the PC and Mac.  We
thought about the fact that the iPhone is a phone that you're
carrying around, you need it to work for you as a phone, and we
PHIL
SCHILLER cared deeply about the security of that device so it would be
Dep. Tr. Vol. I,
56:8–18; 57:5-14
more protected and more reliable than PCs were at the time.

46
 iOS Devices Face An Extraordinary Threat Model

Number of
1.5 billion active devices almost always on
Devices

CRAIG
FEDERIGHI
Senior Vice President, 1.8 million apps available for download; users who
Software Engineering Number of
frequently download apps; users who engage in
Opportunities
financial transactions

Value of Camera/microphone/GPS hardware that follows the

Access user everywhere; storage of sensitive data
AVIEL
RUBIN
Rubin DWT ¶ 3
47
 iOS Devices Face An Extraordinary Threat Model

App Review uses computer-automated and human

review on every app and update to ensure:

App performs as App won’t damage

TRYSTAN
KOSMYNKA represented the user’s device
Head of App Review

App requests App doesn’t contain

appropriate entitlements known malware

App does not contain App is not pirated

objectionable content or a copycat

48
App Review Protects Security, Reliability, and Functionality

Buggy apps Insecure apps

DANIEL
RUBINFELD Apps that harvest user’s
Apps that install malware
DWT ¶ 46 private data

Apps that drain battery life Apps that hog bandwidth

Dr. Evans’ Response:

Apple “simply asserts that there is a rogue developer who lacks incentives
AVIEL
RUBIN to protect users or developers from harm.” Evans’ Rebuttal Report ¶ 377.
DWT ¶ 87
49
 App Review By The Numbers

1,800,000
apps available
worldwide

150k+ 1M+ 40% 100% 10,000

submissions rejected last year apps removed submitted apps automatically apps use health
for violating privacy guidelines for objectionable apps screened for known malware technology to protect
or illegal content rejected patient privacy

2M+ 500 100k+ 100k+ 500K+

apps removed because they haven’t dedicated apps reviewed rejected for misuse or developers’ accounts were
been updated or don’t work on the expert each week unnecessary use of personal terminated in 2020 for fraud or
latest OS release reviewers information in 2020 distribution of illegal content

DX-3351 50
 Epic Concedes: App Review Provides An Extra Layer of Security

Malware Infections

26.64% 1.72%
Android platform iOS platform

Epic concedes:
“At most, App Review provides an additional
38.92% layer of security by filtering out obviously
malicious or otherwise dangerous apps.”
Windows/PC platform
32.72% Epic COL ¶ 149
Other

Rubin DWT ¶ 6; DX-4975.008 51

Tying

52
There is No Tie: IAP is Neither a Product Nor Required

A tie exists only if the defendant actually requires the plaintiff to “take the defendant’s
product B in order to get its A.”  Philip E. Areeda & Herbert Hovenkamp, Antitrust Law: An
Analysis of Antitrust Principles and Their Application ¶ 1752c (4th ed. 2020).

A tie requires a “condition linked to a sale.” Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., 836
F.3d 1171, 1178 (9th Cir. 2016) (“A tie only exists where the ‘defendant improperly imposes
conditions that explicitly or practically require buyers to take the second product if they want
the first one.’”).

A B
53
IAP is a Set of APIs Integrated with the App Store, Not A Separate
Product
“Here, the IAP system appears to be integrated with the App Store and,
historically, to have never been a separate product. If so, the construct of the
IAP appears to reinforce the notion that the App Store is a digital marketplace
where developers on the App Store are able to structure their business
models however they choose. . . . The IAP system appears to have been
created, in part, to capture the value of a developer being on the digital shelf
of the App Store which is owed to Apple - either on the initial download, or in
subsequent IAPs.”  PI Order at 23–24.

Apple has never charged separately for IAP.

Apple has never marketed IAP.
Apple has never offered to sell IAP separately.
54
There is No Tie: Developers Are Not Required to Use IAP

Ways Developers Can Monetize Their Apps IAP

Optional in-app purchases of digital content

Paid downloads + in-app purchases of digital content

Subscriptions for sale in app

In-app purchases of physical goods and services

In-app ads

In-app promotions/events

55
Epic’s Requested Relief Will Harm
Consumers & Developers

56
 Apple’s Integrated Ecosystem Exponentially Exceeded Expectations
Apps
(Billions)
200
180B +
App downloads by 6/2017
180

160

140

120
Apple acquires
100 substantial
market power
80
DAVID EVANS Epic Expert
60

40

20

0
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Malackowski Report, Fig. 8; Malackowski DWT ¶ 21; DX-4841

 What If This Had Never Happened?
Title 1,800,000
Apps (Millions)

Apple acquires
substantial
market power
DAVID EVANS Epic Expert

500

2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Today

Malackowski DWT ¶ 21 58
 What If This Had Never Happened?

Apple acquires
substantial
market power
DAVID EVANS Epic Expert

Hitt DWT Fig. 54 59

If Epic Prevails, Other Integrated Ecosystems Will Fall Too

“Sony, Nintendo and Microsoft all operate similar walled gardens or closed platform models
as Apple . . . . As such, a final decision should be better informed regarding the impact of the
walled garden model given the potential for significant and serious ramifications for Sony,
Nintendo and Microsoft and their video game platforms.” PI Order at 18.

Q: And do you consider the console manufacturers to be monopolists

within their product?
A: Without reference to all or any legal opinion or conclusion and with
a number of exceptions, the console-makers generally do exercise
TIM a monopoly on distribution of purely digital games with respect to
SWEENEY
Dep. Tr. 79:14-80:1 their platforms, and there are various exceptions.  

60
If Epic Prevails, Other Integrated Ecosystems Will Fall Too

Prohibition on
Commission Sideloading and/or In-App Purchases
3rd Party App Stores
30% Yes Yes
30% Yes Yes
30% Yes Yes
30% No Yes
30% No Yes

“My preference would be that all stores were open.”

TIM
SWEENEY
Dep. Tr 70:20 61
62
 Some of the Many, Many Flaws in Dr. Evans’ SSNIP “Tests”

Dr. Evans performs no quantitative analysis with Apple

consumer data showing actual substitution.

DAVID Dr. Evans conducts a SSNIP on operating systems which

EVANS
Epic Expert
are not commercially available.
Witness

Dr. Evans fails to analyze indirect network effects.

Schmalensee DWT ¶ 61; LaFontaine DWT ¶¶ 61, 84–85 63

Epic’s Theory is Based on a False Premise

Web Native
App App

64