App Store dispute reaches the Supreme Court Apfelpatient

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In the years-long legal battle over the App Store, the ball is back in Epic Games' court. After Apple appealed to the US Supreme Court, the Fortnite developer is now urging the justices not to even hear the case. Its new brief reads like a dress rehearsal for the arguments Epic would present should a hearing take place.

The conflict between Apple and Epic Games has revolved around a single question for years: whether and how much Apple can charge a commission on purchases made by users through external links outside the App Store. A US court ruled that Apple could neither charge fees on external purchases nor control the design of purchase prompts. Apple then appealed to the Supreme Court to overturn two lower court rulings. On June 4, Epic responded with its own brief, requesting the court to dismiss Apple's request.

The two decisions Apple wants to overturn

Apple's petition, filed in May, seeks two separate rulings. The first concerns a civil contempt ruling: A court had found that Apple violated an existing injunction. This injunction dates back to 2021, when Judge Yvonne Gonzalez Rogers ordered Apple to allow developers to link to purchase options outside the App Store.

Apple formally complied with the order, but interpreted it narrowly: The company charged a 27 percent commission on such external purchases, dictated how the buttons could look, and displayed a warning message—the so-called "scare screen"—that warned users of the supposed dangers of purchases outside the App Store. In subsequent legal proceedings, Apple was able to argue that the wording of the original order did not preclude a commission per se—but this did not negate the overriding finding of contempt of court.

The dispute goes back further: It began in 2020 with the removal of Fortnite from the App Store after Epic Games implemented its own payment system in the game to circumvent Apple's commission. The second ruling Apple is appealing concerns the scope of the injunction. Apple argues that extending the Epic decision to all developers in the US App Store exceeds the limits set by the Supreme Court in Trump v. CASA. In that case, the court held that court orders should generally only provide relief to the parties directly involved in the proceedings—and not to everyone affected by a challenged rule.

Epic's counter to contempt of court

In its written submission, Epic dismantles Apple's arguments based on Apple's own submissions as well as previous proceedings with similar premises. Apple's petition raises two questions, both based on a misrepresentation of the lower court decisions, neither of which warrants a review.

In alleging contempt of court, Epic argues that Apple violated not only the spirit but also the letter of the injunction – and not merely the spirit, as Apple claims. The appeals court did not rule against Apple on the grounds that the text of the injunction permitted the commission while its spirit prohibited it. Rather, the court found that the commission violated the express provisions of the order.

Epic also points to a principle from a similar case: If a defendant plans a measure that borders on the unlawful, they can request clarification or interpretation of the order from the court beforehand. According to this view, Apple should have sought legal recourse before introducing the 27 percent commission. Instead, the company violated the injunction and subsequently argued that punishment was not possible because the specific implementation was not explicitly prohibited. Epic argues that such logic amounts to a license to initially disregard court orders and only later assess the risks.

Epic's counter to the scope of the order

Epic also rejects Apple's reliance on Trump v. CASA. The lawsuit, Epic argues, is not solely aimed at disadvantaging Epic, but at competition within the App Store as a whole. Only if the ruling applies to all developers will Epic receive the full remedy it seeks.

Epic bases its case on the reasoning of the appeals court, which had already rejected Apple's objections to the scope of the injunction. The decisive factor is whether an injunction provides the plaintiffs with complete relief. The injunction is consistent with the fundamental principle of CASA because its scope is tied to Epic's own damages as a developer and game distributor – and not to the damages of other developers. A restriction along the lines proposed by Apple would not promote competition.

What happens next

Epic's submission appears to be a blueprint of the arguments the company is likely to present should the Supreme Court actually accept the case - much like Apple's petition already indicates what its legal team would argue in the event of a hearing. It remains unclear when the Supreme Court will rule on Apple's request. However, it is expected that the justices could decide whether to hear the case at all before their summer recess - possibly at the end of June or the beginning of July.

Why far more than Epic is at stake

The outcome of this case extends beyond the two parties involved. Should the Supreme Court accept Apple's argument regarding reach, not only the permissible commission rate would be at stake, but the entire opening of the US App Store: Competitors like Spotify, Microsoft, and Amazon, who have benefited from the order so far, could then be excluded. If, on the other hand, the court rejects this argument, the determination of a specific fee would again fall to the competent district court – and this fee is likely to be significantly lower than Apple's original 27 percent. Either way, the proceedings will determine how much control Apple can retain over its App Store's business model, and a rate set in the US could serve as an international benchmark. (Image: Shutterstock / Sutthicha Weerawong)