back to article Apple's expert witness grilled by Epic over 'frictionless' spending outside the app

Epic Games' lawyers had a chance to put Apple's expert witness through the wringer in the latest from its California bench trial. Counsel for Apple called to the stand Lorin Hitt, an academic from the prestigious Wharton Business School in Pennsylvania. Hitt – who had been selected as expert witness for Apple – questioned …

  1. redpawn Silver badge

    Never let truth

    get in the way of a good story. Appleland is just a garden of generous unicorns, swear to God.

    1. JWLong Bronze badge

      Re: Never let truth

      AppleLand is a garden of fertilizer.

  2. Duncan Macdonald Silver badge

    How many appeals ?

    If Apple loses which on the reporting so far seems probable, expect them to appeal it all the way up through the legal system in the hope that Epic will run out of money before the appeal process concludes.

    My own opinion is that the Apple store and the Google Play store should be limited to a commission of no more than 20% on the purchase of games and apps

    and that developers should be free to use outside payment methods for in app purchases. I also think that it should be possible to load apps from outside the Apple store as can be done on Android.

    1. Aitor 1 Silver badge

      Re: How many appeals ?

      If walled garden, no more than 0%, if they allow other stores without hiccups, then yes, charge.

    2. Pascal Monett Silver badge
      WTF?

      20% ?!?

      Are you out of your mind ?

      5% and not a cent more.

      It's code Apple didn't write and hardly bothers vetting, sitting on a hard disk waiting for a customer to click on a button that has already been coded a decade ago.

      The Apple Store has paid for itself already, maintenance costs are next to nothing.

      5% is already generous.

      1. 2+2=5 Silver badge

        Re: 20% ?!?

        > Are you out of your mind ?

        > 5% and not a cent more.

        And how did you decide that 5% was better than 4.93% or 5.2%?

        The free market way is not to pick a number but to allow more than one store operated by more than one operator: each store being free to set its own markup rate and the customer being free to choose the store they prefer.

        So Apple can continue to charge a markup for apps that conform to its guidelines e.g. include icons for all screen resolutions for all supported models, however trite and irrelevant they are to you. Gucci would be free to set up a store which could charge a premium for special Gucci-branded versions of apps. And lastly - to satisfy Epic - there could be a Poundland store at bargain basement prices with bargain basement checking of the apps.

        Epic can sit in there and have fun working out how much money they're saving from not paying the Apple markup versus the reputational damage cost from being alongside the cesspit sellers. After all - and this is a key point - Epic want change but there is no guarantee when the dust settles that any of the new stores will provide a natural home for Epic and its customers.

        What I don't want is for Epic to win the case in such a way that the bargain basement store is then forced on everyone.

    3. Horst U Rodeinon

      Re: How many appeals ?

      "If Apple loses which on the reporting so far seems probable, ..."

      That's wishful thinking coloring your view of what's going on.

  3. LDS Silver badge
    Facepalm

    "with dating app Tinder cited as an example"

    Really? Just like their example using Financial Times to tell the web experience is identical to that of a native app? Maybe to show that people willingly to change partner easily are also OK to change their platform as well?

    What will they show next? Parler to show that apps outside the Apple walled garden do exist?

    1. Anonymous Coward
      Anonymous Coward

      Re: "with dating app Tinder cited as an example"

      Just _cited_, as he has no proof himself for anything in his script testimony:

      "...admitted he had not seen the PC equivalent first-hand."

      How hard is it to go through the list of titles you're about to put into legal evidence? Dude just risk perjury, why miss tee-off for this?

      "You're honor, I'm here to swear in as a second hand witness for plausible deniability in this joke of a courtroom."... "Please take a seat."

  4. Chris G Silver badge

    Hitt's hit

    I hope Appoo haven't paid their expert witness too much as he was figuratively knocked out of court due to not having bothered too much to get his testimony rock solid.

    1. JetSetJim Silver badge

      Re: Hitt's hit

      Shouldn't apple's lawyers have prepared him better? All the high powered legal dramas I've seen on telly have witnesses put through grueling mock cross examinations. Even accounting for TV dramatisation, surely that's a sensible thing to do with so much at stake.

      1. razza

        Re: Hitt's hit

        It's rarely like the movies in my experience of suing. Expert witnesses mostly don't care. Theirs is a numbers game. Most cases, most solicitors, most barristers will do a little as they can get away with and as such are not really Sherlock Holmes-like but more admin-like.

        I knew one expert who used to deliberately add small mistakes/misinterpretations to see if the other side picks them up. If not, then he knows it's an easy near cut-and-dried case going through the motions.

        Some experts really are - they transcend the pull of money, client-pressure etc. I even seen the other side's expert destroy their own case.

        Anyway, hoping Epic win and really enjoy this battle. If they win, then it's a PWA future for all!

        1. Curtis

          Re: Hitt's hit

          That's actually the case in the US with the ATF. Their expert witness (Dan O'Kelly) has repeatedly testified in court that the AR-style lower is not a firearm as defined in the law.

          https://www.cnn.com/2020/02/07/us/ex-atf-agent-ar-15/index.html

          1. Anonymous Coward
            Anonymous Coward

            Re: Hitt's hit

            That's a really interesting case. The *intent* of the law is clear, but the *letter* of it is such that a manufacturer can claim that no individual piece is a "firearm". Seems like one easy path would be to have a manufacturer declare which piece is the "firearm", but then they could pick some small part easily purchased elsewhere...

          2. Malcolm Weir

            Re: Hitt's hit

            Just a clarification: a _former_ ATF agent who is willing to testify as an expert witness; this is not the same as the ATF's expert witness!

            I'd also note that the issue with the AR's is a _legal_ one, and applying purely _technical_ standards is sometimes problematic (cf tomatoes are vegetables legally, fruits botanically).

            In general, courts (especially appellate ones) tend to look at the intent of the law, and it seems entirely possible that, even if the part doesn't perfectly meet the verbiage, it is the best fit, and the bill's introduction allows for some latitude even if the specific language appear not to.

    2. Fruit and Nutcase Silver badge
      Thumb Up

      Re: Hitt's hit

      Which reminds me...

      https://www.youtube.com/watch?v=0WGVgfjnLqc

      Das ist gut, c'est fantastique

  5. Red Ted Silver badge
    Unhappy

    Is it bad…

    …that I want both sides to lose?

    There is also the issue that both sides probably have enough money to keep the re-trials and appeal process going for *years*.

    So the only winners in the short term will the lawyers.

    1. Psmo
      Mushroom

      Re: Is it bad…

      Yeah but, I also want the lawyers to lose.

      1. Pascal Monett Silver badge

        The lawyers always win.

        Sometimes, they're the only ones that do.

    2. KBeee Bronze badge

      Re: Is it bad…

      The whole thing reminds me of Oscar Wildes comment about fox hunting

      "The unspeakable in pursuit of the inedible"

  6. JWLong Bronze badge

    The twit is .....

    an economist.

    Fancy name for a bean counter.

    Now what does that tell you.

    Maybe you really can't trust a thief.

    \ not that I ever did

  7. Pascal Monett Silver badge
    FAIL

    "Hitt blamed the error on his research team"

    Nope.

    You're the "expert". You can blame no one but yourself.

    If your research team didn't do its job, you're supposed to be the one to control and double-check and make them do it right.

    You're just a lazy slob who went before a judge without doing the job properly, but accepted the money to do so.

    You will forever be associated with failure.

  8. Snake Silver badge

    It shouldn't matter

    Apple is attempting to make a case, which has been legally discounted previously, of "Separate but Equal". That is, Apple is attempting to make a claim that an "equivalent" user experience may be acquired through completely different available technologies - but this is 100% legally flawed.

    Apple's claim of equivalence is exactly equal to a claim by Ford that, once you purchase one of their automobiles, you absolutely must buy everything from gasoline to oil to parts exclusively from Ford...but this isn't monopolistic because GM can offer you the same experience of sitting behind the wheel and driving down a road. Apple's claim is that is doesn't matter what we do to our customers in our locked-down system, because they can just ( temporarily) stop using our locked-down system and try something else.

    Apple's claim is that you don't have to buy our exclusive, locked-in tyres for your locked-in car...because you can always ride the bus.

    Of course, from both a legal and consumer protection viewpoint, this is absolutely ridiculous. I chose the automobile as a contrasting metaphor for a reason: car manufacturers tried the same thing, lock-in of support after the main product sale, many many decades ago. And they were legally shot down.

    Just because you manufacture the product that was originally sold does not give you the right to force a lock-in for everything involving that product after the sale. That's the law as applies to everything ELSE, except tech.

    Tech has been allowed to use legal loopholes and fear (right to repair) to get their way.

    Time for that to end.

    1. gnasher729 Silver badge

      Re: It shouldn't matter

      Google will not be happy to you.

      It’s not the choice between a Ford and the bus. According to Google, it’s the choice between a Ford and a BMW, according to me more the choice between a Ford and a Vauxhall.

  9. Anonymous Coward
    Anonymous Coward

    In-App purchases

    No

    Never

    No way

    I’ll pay for an App, no problem.

    But I won’t ever download an App with in-App fees.

    Yes, most are now like this.

    So I don’t engage with Apps much at all.

    1. Kevin Johnston

      Re: In-App purchases

      Out of curiousity I did a count-up and I have installed a whole 9 Apps on my phone not including the OS apps. Of those, 3 are to replace OS items with ones I prefer such as maps/weather etc, 3 are 'loyalty' apps for coffee/shopping/travel, one is an alarm monitoring and one is a game.

      Not much room for in-app fees there :)

    2. Dazed and Confused

      Re: In-App purchases

      Mostly I agree with you, but...

      Perhaps the app I use most on my phone is for audio books, I wouldn't be much use if I couldn't load in books and I don't see why authors should give them to be for free. OK, I love to be able to get the app to play MP3 file based books so I could use it rather a general purpose audio app to listen to the myriad of books I had previously bought on CDs. The audio book app is just much better at playing books than any other audio app I've ever tried.

      Given that I need to buy the books to listen to, how do you suggest this working without in app purchases? OK, I'd pay for a version of the app that supported loading MP3 files so I could buy the books from other sources, such as directly from their producers/publishers as I used to with CDs. But MP3 doesn't seem to be the most efficient format for the spoken word.

      1. MisterHappy

        Re: In-App purchases

        Depending on which app you have, you can purchase the audio books directly from the website & when your app syncs they will show as available.

        One of the issues with buying from the publisher is that many do not make audio versions of their books, however I think Audible does still allow the import of books into the PC version of the app. I have had issues with this in the past though as the books are often not split into chapters correctly.

  10. Potemkine! Silver badge

    Hitt blamed the error on his research team

    Bloody interns. Not even to do the job properly despite the pittance they royally get.

  11. Anonymous Coward
    Anonymous Coward

    Wider ramifications

    Setting aside discussion of the current state of the case, if Epic win, does that mean Sony will have to allow X-Box games on its devices, or Playstation games on Nintendo or X-Box? Let's go further: if I've bought an Epic game designed for iOS, should Apple be forced to give me an iPhone to play it? Or how about insisting they make a version that will run on my Commodore64?

    Probably a step too far, even for left-pondian lawyers, but where does it stop? I may not be a fan of Apple but how far should other companies go to force them to change their products and services. Nobody is forcing iPhone owners to play Epic games, nor forcing Epic game players to use Apple devices.

    1. Jimmy2Cows Silver badge

      Re: Wider ramifications

      This isn't about playing an XBox game on a Playstation. This is about Epic not wanting Apple taking a 30% cut of every single transation in iOS versions of Epic's games, and Apple generally not allowing developers to use payment processors besides Apple, thus forcing all devs to use Apple for all payments.

      This guarantees Apple get their cut, and Apple are using the size of their customer-base as leverage. Do it our way or miss out on hundreds of millions of potential users.

      That's monopolistic behaviour and needs to be stamped out with extreme prejudice.

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