Here's a short follow-up to my take on Epic's opening brief in its Ninth Circuit appeal of Apple's App Store antitrust acquittal. The previous post focused entirely on the legal issues, but I did also want to highlight that Epic Games has hired the man who may have been the most successful Supreme Court attorney in recent history: Thomas C. "Tom" Goldstein of Goldstein & Russell.
The profile on his firm's website mentions the two cases in which I saw him achieve major victories for his clients: FTC v. Qualcomm and Oracle v. Google. In the Qualcomm case, I predicted a reversal even ahead of the hearing, and was amazed at Mr. Goldstein's performance. Qualcomm was represented by Cravath--Epic's firm against Apple (and Google)--at trial. The combination of Cravath and Mr. Goldstein was dynamite. I view his work on Google's behalf much less favorably on the truth-o-meter, and agree with the dissent by Justices Thomas and Alito to a far greater extent than with the per curiam opinion.
The question is now whether he can do it again. I very much hope for the sake of competition, innovation, and essential app developer freedoms that he will indeed convince the judges of this being one of those rare cases in which a single-brand market--and only a single-brand market--is warranted. Then Google and Qualcomm are not only way bigger but also a lot more sophisticated than Epic when it comes to high-stakes litigation. There were success factors in place--which are not meant to downplay the brilliance of Mr. Goldstein's lawyering--that may be missing this time around.
In FTC v. Qualcomm, Mr. Goldstein was able to benefit not only from the state of affairs of U.S. antitrust law in general but also from the defendant-friendly stance of Republican judges. In that case, even the lone Democrat on the panel was philosophically a Republican. For Epic it would be best to have at least two Democrats on the panel.
Arguably, Makan Delrahim--then the Antitrust Assistant Attorney General--deserved no less credit for Qualcomm's antitrust acquittal than Mr. Goldstein. His Antitrust Division's amicus briefs combined with national security arguments raised by other departments of the federal government got the FTC's injunction stayed, and the court agreed with his position that patent issues should be addressed under patent law if they can be. Qualcomm also got a number of other amicus briefs in support of its cause.
It would be terrific if the Biden Administration could now side with Epic against Apple, but I wouldn't hold my breath.
In Oracle v. Google, the Supreme Court made a decision that went beyond what Google was looking for (Google just tried to prevent Oracle from winning judgment as a matter of law (JMOL) against its fair use defense, but emphasized deference to the San Francisco jury rather than seriously believing it was entitled to JMOL). That fair use JMOL is grossly consistent with the entire body of fair use case law in the United States concerning transformative use and the impact of a derivative work on the original creator. Justice Thomas correctly pointed out that the majority of the court didn't even want to take an explicit position on copyrightability because it would have run into fundamental inconsistencies with its fair use finding.
With the greatest respect for Mr. Goldstein, I consider it highly unlikely (less than a 3% chance) that he could have achieved this result--even with the falsehoods and fallacies I criticzed--if the Supreme Court majority had not simply made a political and institutional decision: Google had mobilized software developers and industry players (on fair use--unlike on copyrightability--even Microsoft supported Google, though I'm sure Microsoft made that decision without being influenced by Google), and academics. The Supreme Court majority feared that the sky would fall down on the software developer community and therefore turned fair use law on its head. Only Justices Thomas and Alito were not going to buy the crap. Let's face it: all software developers access APIs, but the fewest of us clone APIs. Oracle's case was only about the latter, not at all about the former, but Google's supporters conflated the two, either intentionally or incompetently.
Google and Mr. Goldstein prevailed on FUD and alarmism. And on falsehoods and fallacies, as I mentioned more than once before.
They manipulated the majority of the Supreme Court for their purposes, but they couldn't have done so with their own written and spoken words alone. They needed a massive outpouring of support, and Oracle's management had clearly made the strategic mistake not to understand that the case might be--as it ultimately was--decided by 100% extralegal considerations. What makes Oracle's strategic mistake even worse is that they actually did run a very successful campaign (lots of customer engagement included) to obtain regulatory clearance of the acquisition of Sun Microsystems, without which they'd never have owned Java (it was, however, MySQL and not Java that threatened to scupper the deal). While complainants (in one case against my explicit advice) very much relied on facts, Oracle played the kind of game that worked out for Google against Oracle more than a decade later.
Epic may find it hard to orchestrate a comparable groundswell. First, it's really difficult for companies who are at Apple's mercy each and every time they upgrade an existing app or submit a new one to take an aggressive stance against Apple in this context. Second, Epic will need far, far broader--and even more impressive--support than its Coalition for App Fairness alone. That is tricky. They need a mix of app developers of all sizes who are not afraid to speak out (and academics and consumer organizations). But without comprehensive mobilization, Mr. Goldstein will lack the single most important success factor that enabled Google to defeat Oracle.
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