Epic v Apple (2): market power and foreclosure in the app distribution market(s)

Epic, Fortnite, Apple, battle royale, competition law, antitrust, district court, monopolization, monopoly, essential facilities, refusal to supply, tying, abuse of dominance

Epic’s battle against Apple has been extensively covered in media in the past month. This attention is undoubtedly due to Epic’s explicit move against Apple’s terms and conditions as well as Apple’s fierce reaction to cut all ties with Epic. Epic’s legal dispute is, however, not only against Apple but also against Google who has removed Epic from its Play Store for similar reasons. Epic’s claims against Apple and Google paint a grim picture for all app developers that consider taking the highway instead of Google and Apple’s way. Given that last week’s blog post introduced and contextualized Epic’s complaint, this post takes a closer look at market power in the app economy and how it may factor into a refusal to supply assessment in Epic’s claims against Apple and Google.

Market power and the current bottlenecks in the app distribution market(s)

Epic’s two complaints share a lot of common ground when it comes to its dependency on the app stores as the main or only mode of app distribution. Epic’s approach is that is Apple and Google’s ecosystems operate on separate markets for app distribution avenues for developers. This is not surprising as Apple’s App Store and the existing Android distribution channels cannot be used interchangeably. In the EU, the Dutch competition authority (ACM) reached a similar conclusion in its market study of app stores. Once this market segmentation is made, the significant market power of the incumbent app stores becomes quite evident.

With Apple, the App Store is the only mode of app distribution because iOS is a closed ecosystem fully controlled by Apple, which bans other methods of distribution (e.g. side-loading). Accordingly, when it comes to the iOS app distribution market, Apple controls the entire market. By contrast, in the case of Google Android, which is an open source OS, alternative distribution channels exist including third party app stores like Samsung’s Galaxy Store and Aptoide. Similar to the approach taken by the ACM in its study, Epic also acknowledges alternative distribution avenues such as direct downloads and/or side-loading. Nevertheless, Google’s Play Store is evidently by far the leading distribution channel for android apps.

Of course it is possible that the courts in the US and/or the various authorities in the EU find that there is only one market for app distribution including both iOS and Android ecosystems, as is expected to be claimed by both Google and Apple. Such a finding in the case of Epic would be problematic as both claims include multiple counts under Section 2 of the Sherman Act, which traditionally requires market shares (well) above 50% for antitrust intervention. Nevertheless, even in such a scenario, antitrust scrutiny cannot be categorically excluded. While the market shares in such a scenario would be reliably low by Section 2 standards the substantive definition of monopoly power under Section 2 may be met i.e. ‘ the power to control prices or unreasonably restrict competition’. Furthermore, several of Google and Apple’s practices relating to their terms and conditions are framed under Section 1 of the Sherman Act that does not require such significant market shares. Which way the relevant market is defined in these proceedings, it is clear that the current structure that iOS and Android app distribution market(s) is characterized by (self-created) competitive bottlenecks that convey significant market power to Apple and Google.

In the case of Apple, the setting in the app distribution market is one of single-homing. Once consumers acquire an iOS device they are locked in the ecosystem and can acquire apps only via Apple’s app store that is also the only distribution channel open for developers to offer their apps. Generally speaking, single homing scenarios are considered indicating that markets are very competitive when such outcome results from competition on the merits. With Apple, however, this end result is due to Apple’s closed system rather than an explicit consumer or developer preference for Apple’s distribution channel. Consequently, Apple possesses significant market power with regard to both consumers and developers as the gatekeeper for transactions between the two.

In the case of Google, due to the open source nature of its OS, the situation is one of (potential) multi-homing on both sides of the app distribution market. Accordingly, both consumers and developers have, in principle, multiple avenues through which they can conduct transactions. In practice, however, Epic’s claim as well as the recent decision by the EU Commission in the case of Android show that Google seems to aim for the same goal like Apple. Through its contracts with OEM’s, which ensure preferential treatment of its Play Store (e.g. through pre-installation and prominent placing on the main screen of Android devices), Google is able to tilt the scale in its favor and lead to single-homing by both consumers and developers. Here too, the (sought-after) outcome of single-homing is not a result of intense competition in the market for app distribution. It is simply the consequence of Google’s strategies.

Accordingly, while Google and Apple have different approaches for their ecosystem from a technical perspective, their business strategy seems to lead to very similar outcomes in terms of market power in the app distribution market(s). In the case of both iOS and Android apps it would appear the main if not only distribution channel is that of the incumbents. It now remains to be seen whether such market conditions are sufficient for Apple and Google to fall under the scope of Section 2 of the Sherman Act. Although the technical difference between iOS and Android has limited consequences for the finding of significant market power in practice, such differences have led to diverging approaches by Epic in its claims when it comes to access to the app distribution market(s).

Essential facility vs. foreclosure

In the case of Apple, Epic’s claim starts with a refusal to supply access to an essential facility. Since iOS is a closed system fully controlled by Apple access to the (iOS) app distribution market is in the hands of Apple. Since such access cannot be achieved without Apple’s approval, the constant refusal of Apple to grant it gives rise to question of whether it controls the access to an essential facility. In the EU, the ACM study seems to hint that the answer to this question is yes due to the lack of alternative app distribution channels. It now remains to be seen if US courts reach the same conclusion. In the case of Google that designed an open source system, Epic’s claim is not focused on getting access to the ecosystem. Since Android is open source, alternative app distribution channels can and do exist. Accordingly, the claim of Epic with regard to the (android) app distribution market is one of foreclosure of access rather than a refusal of access.

Although both practices can give rise to antitrust scrutiny the difference between the two should not be underestimated. Proving that an undertaking has control of an essential facility and wrongfully denies access to it requires meeting a difference standard of proof than that of foreclosure. Reliance on the essential facility doctrine is known to be one of the most difficult claims against alleged monopolists or dominant undertakings. In the US the department of justice for example does not even support the use of this doctrine in the context of Section 2.

The two parallel approaches taken by will be interesting to follow since it is likely that similar claims will come up also in the EU (e.g. in the case of Spotify v Apple). In the EU, however, choosing the form of abuse in the context of access to app stores and the app distribution market will likely require quite some complex legal maneuvers. The recent AG opinion in Solavak Telekom that provides guidance on the application of the EU version of the essential facility doctrine (i.e. the Bronner case law) created quite a few grey areas in this context (that will be addressed in a different post!).

In practice, however, it is clear from Epic’s claims that the commercial harm experienced by developers that do not abide by Google or Apple’s app store rules is rather identical. The different technical characters of iOS and Android do not appear to translate into different opportunities for app developers. A ban or removal by either party means in both cases that developers have no other realistic channels to rely on. The competitive bottlenecks in both ecosystems allow Apple and Google to call the shots even when dealing with other tech ‘giants’ like Facebook or Amazon that had their apps denied or removed as well.

With the above matters in mind it is safe to conclude that Epic’s claims will do justice to the company name as these cases are bound to be game changers with regard to the questions of market definition/power in multi-sided markets and access to platforms. For a more extensive discussion on the EU perspective concerning the abuse of dominance in the case of app stores see our recent paper.

However, Epic’s claims cover a lot more ground and we intend to follow suit! Stay tuned for the next post in this mini-series to read more on what may become the seminal case(s) of our times, at least on one side of the Atlantic.

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Daniel Mandrescu

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Ph.D. Fellow, Europa Institute, Leiden University

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