Epic Games has filed its opening brief to the Ninth Circuit Court of Appeals, seeking to overturn the previous ruling that Apple’s control over the iOS App Store does not qualify as a monopoly. The company first gave notice of it appeal in September, but Thursday’s filing is the first time it has laid out its argument at length.
“Epic proved at trial that Apple retrains trade…by contractually requiring developers to exclusively use Apple’s App Store to distribute apps and Apple’s IAP for payments for digital content within apps,” the filing reads. “If not overturned, [the district court] decision would upend established principles of antitrust law and…undermine sound antitrust policy.”
Epic’s first legal challenge to Apple’s App Store restrictions came to a finish in September, when a district court ordered Apple to roll back some restrictions on in-app payments, but otherwise cleared the company of antitrust charges. A separate appeal from Apple has been filed to reverse the new in-app payment rules.
In her ruling, Judge Gonzales Rogers was particularly ambiguous on the question of whether Apple held monopoly power over the mobile gaming market. “The evidence does suggest that Apple is near the precipice of substantial market power, or monopoly power, with its considerable market share,” she wrote in the decision. “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.”
In the appeals brief, Epic seems determined to revisit that question, and draw a clearer link between the iPhone’s success as a mobile gaming platform and a potential monopoly case against Apple. “The district court’s factual findings make clear,” the filing alleges, “that Apple’s conduct is precisely what the antitrust laws prohibit.”
Reached for comment, Apple emphasized the broad scope of economic activity taking place on the App Store, as evidence of its ongoing competitive value. “In its ruling last year, the district court confirmed that Apple is not a monopolist in any relevant market and that its agreements with app developers are legal under antitrust laws,” said Apple spokesperson Marni Goldberg. “We are confident that the rulings challenged by Epic will be affirmed on appeal.”
Update 4:05PM ET: Included statement from Apple.
