The lawsuit by Epic Games against Apple, challenging Apple’s strict controls on developers and the App Store’s percentage take from game revenue, shows the power of theme and coordinated message. When I read the first news accounts of the filing, they all referenced Apple’s market power and control. In Epic’s messaging, Apple is portrayed as a market behemoth — which of course it is, from a revenue standpoint — but more than that, using its power to stifle innovation and exploit the developers who depend on the App Store. Apple, in other words, is just too big and isn’t playing fair.
The message, I feel certain, hits home with Apple. Apple’s core self-image Is that of an innovator and a creative renegade. Epic is casting now Apple in the opposite role — the strict monopolist — an attack that, in the past, Apple has leveled at Microsoft. Recognizing the dispute’s very public dimensions, Epic is using the power of its millions of dedicated users to amplify public pressure. It launched a #FreeFortnite campaign on social media. It even released a parody of Apple’s own famous “1984” commercial, with Apple as the new Orwellian villain.
The immediate impetus for the suit was Epic’s enabling a means for players to make in-app purchases without going through the App Store. In response, Apple shut off Epic’s access to its various development tools. That hobbled Unreal Engine, Epic’s gaming engine, so that future updates to Fortnite (or new purchases of Fortnite) are not available through the App Store.
Because Unreal Engine is also used by other companies to develop games for OS and iOS, the universe of affected users and developers extends beyond just Fortnite. Epic was thus able to enlist allies, including Microsoft, which provided an affidavit in support of Epic from one of its gaming executives. It emphasizes the widespread impacts from Apple’s shutting out Unreal Engine.
The District Judge is considering a request for temporary injunction against Apple, and reading Microsoft’s submission, which is compelling, I suspect that motion may be granted. Here too, Epic sets up a bigger thematic contrast — an open and free cross-platform gaming system, versus a strictly controlled and fragmented set of silos.
The power of a theme is that it immediately carries with it information and emotional resonance, priming any reader or evaluator for what is to come. With dockets piling up and judicial time more limited than ever, filings need to be memorable, and the shorthand that a theme provides helps accomplish that. The reality of the Apple-Epic dispute is complex. It involves very technical aspects of how third-party developers interact with and inside of the Apple ecosystem. There are very good reasons, as Apple has pointed out, for many of its strict controls, including consistency in user experience and security. But the theme — using power to abuse and exploit — provides an easier way to process that information.
Winston Churchill famously returned a dessert at his club, complaining that “this pudding has no theme.” Talk to any judge, and he or she will confirm how often they are served up similar unappetizing fare. Without at theme, which will carry through the case not just at trial but into intermediate filings, a complaint or brief risks overloading the reader with too many allegations or details. Context is critical.
Apple’s challenge will be developing more compelling counter-themes of its own. That Apple has played a role in enabling Epic’s success is one point that has the makings of a potential theme: Apple might characterize Epic’s motivations as greed winning out over gratitude. Apple will also want to point out that Epic charges its own fees, albeit at a lesser percentage, and certainly that given its 350 million users and the runaway success of Fortnite, no one is David to the other’s Goliath. So far, though, what I have seen in Apple’s releases has been fairly standard corporate-speak.
The temporary injunction motion was argued August 24, and given the urgency of the issues raised, a ruling should be imminent. How the court decides that issue will be a bellwether for the case—and some indication of who has advanced their theme more effectively.