Epic pushes to overturn App Store ruling in opening appeal brief

Epic Games submitted his opening letter to the Ninth Circuit Court of Appeals, seeking to overturn an earlier ruling that Apple’s control of the iOS App Store is not considered a monopoly. The company first reported the appeal in September, but Thursday’s filing marks the first time it has set out its argument in detail.

“Epic in the trial proved that Apple is diverting trade…by contractually requiring developers to exclusively use Apple’s App Store to distribute apps and Apple’s IAP for payments for in-app digital content,” the filing reads. “If it isn’t knocked over, [the district court] decision would overturn the established principles of antitrust law and…undermine good antitrust policy.”

Epic’s first legal challenge over Apple’s App Store restrictions came to an end in September, when a district court ordered Apple to roll back some restrictions on in-app payments, but further exempted the company from antitrust charges. A separate appeal has been filed with Apple to overturn the new rules for in-app payments.

In her ruling, Judge Gonzales Rogers was particularly ambiguous about whether Apple had monopoly power over the mobile game market. “The evidence suggests that Apple is on the brink of substantial market power, or monopoly power, with its significant market share,” she wrote in the decision. “Apple will only be saved by the fact that its share is not bigger, that competitors from related submarkets are entering the mobile gaming submarket, and perhaps because [Epic] not focused on this topic.”

In the appeal, Epic appears determined to reconsider that question and establish a clearer link between the iPhone’s success as a mobile gaming platform and a potential monopoly lawsuit against Apple. “The court’s factual findings make it clear,” the filing said, “that Apple’s conduct is exactly what the antitrust laws prohibit.”

Comments were requested, and Apple highlighted the broad scope of economic activity taking place in the App Store, as evidence of its continued competitive value. “In its ruling last year, the court affirmed that Apple is not a monopolist in any relevant market and that its agreements with app developers are legal under antitrust laws,” said Apple spokesman Marni Goldberg. “We are confident that the rulings challenged by Epic will be upheld on appeal.”

Update 4:05 PM ET: Includes statement from Apple.

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