Sooner than I'd have thought, here's my first follow-up to the publication of the summaries of Apple's expert witness reports in the Epic Games v. Apple App Store antitrust case.
When I read those summaries for the first time, I tweeted about some of the statements I found in them. This is my tweet about the claim that Apple couldn't support alternative app stores without not only software but even hardware changes:
Apple expert: "would include a duty to redesign its hardware and software--[...]--to make the iPhone interoperable with alternative app stores" The software part would be very limited for sure, and the hardware part is inconceivable. Will be interesting to hear this expert in May
— Florian Mueller (@FOSSpatents) April 14, 2021
The quote was from the following paragraph of Dr. Rubinfeld's rebuttal report:
"19. The duty upon Apple is more than the usual duty to deal; it would include a duty to redesign its hardware and software—both of which are covered by Apple’s intellectual property—to make the iPhone interoperable with alternative app stores and with apps that would not qualify under Apple’s app-review guidelines for distribution through the App Store."
My tweet prompted a strong reaction from Tim Sweeney, the founder and CEO of Epic Games:
That's baloney! iOS already has a mechanism for users to install apps from the web - the Apple Enterprise Program. Only contractual limitations prevent it from being used for consumer software distribution.https://t.co/TfUN3rqHTm
— Tim Sweeney (@TimSweeneyEpic) April 14, 2021
(The term "baloney" relates to what that expert said, and fortunately not to my own comments.)
The people who have already liked Mr. Sweeney's tweet include many developers, among them the father of JavaScript.
I added another alternative way of installing apps on iOS devices that clearly works--without requiring new hardware--and is just made unnecessarily cumbersome by Apple:
Also, in my own app projects we used Microsoft AppCenter, formerly known as HockeyApp, to distribute beta versions. The only issue there is that Apple wants us to store a list of UDIDs in the app itself. But that's a restriction they could lift anytime.
— Florian Mueller (@FOSSpatents) April 14, 2021
UDIDs are unique device IDs. In order to find out one's UDID, one has to connect an iPhone or iPad to a MacBook with a USB cable and open the iTunes app; copy the UDID; paste it into a message to the developer; and the developer then has to actually integrate it into the app package. That's obviously not an option for large-scale distribution. Also, some functionality cannot be tested that way: one needs to build a "store app" and distribute it via Apple's TestFlight system. TestFlight comes with other limitations.
I have my doubts that the court will buy Apple's spurious argument about "a duty to redesign its hardware and software."
Similarly underwhelming is the following statement I found in another Apple expert report (authored by Ocean Tomo's Mr. Malackowski):
"The App Store itself is referenced in more than 250 U.S. patents and applications."
That is just meaningless. The fact that the App Store is "referenced" doesn't indicate that the App Store itself is protected by any patents. Apple has to deal with standard-essential patent (SEP) portfolio valuation all the time, where the question of essentiality (i.e., whether a patent covers a technique one needs to implement in order to comply with the specification of the standard) comes up. No one would seriously argue that a patent in which 5G is "referenced" is necessarily a 5G patent, much less that it is a 5G SEP.
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