Day 5 of Epic v. Apple! Today we’ve got more testimony from Trystan Kosmynka, Apple marketing VP, followed by Epic’s Steven Allison and Matthew Weissinger. Coverage from yesterday here
Kosmynka was called by Epic yesterday for questions about Apple’s App Store review. We’re picking back up today. My colleague @mslopatto is also in the courtroom today, getting to see all those binders live!
We’re back to talking about Roblox, which I may remind you Apple’s review group determined is *not* a game with games inside it, but a game with “social experiences” inside it.
Kosmynka is reiterating that Roblox makes “experiences,” not games. “These are configurations that enable a particular experience or world. It’s akin to something like a Minecraft map.”
Isn’t Minecraft a game, though? Yes, Kosmynka says. judge steps in: "I don’t understand the distinction you’re making.” ooh Judge Rogers has entered the “what is a game” discourse
In Minecraft, you enter a map that is a "particular world or a canvas.” But it’s "not capable of doing dynamic things beyond what the creator of the experience has already programmed into that."
Kosmynka compares a Minecraft map or Roblox experience to a Snapchat lens, “rather than software that’s downloaded that changes the entire construct of the app."
Okay, but is Roblox itself a game, Apple lawyer asks? "We look at Roblox as an app.” Because it’s listed as an app in the App Store. And what is Fortnite listed as? A game.
To recap: Apple’s definition of a game is something a developer categorizes as a game.
I’m being snarky, but Kosmynka's claim with “programmed” experiences is basically that Apple understands the technical capablities of Roblox, and Roblox experiences don’t introduce new code that could be malicious, just new assets and scripting
Scripting is my word — basically, idea is there’s an engine with a specific set of functions, and people can work within those rules, but not heavily modify the basic functions. Which isn’t a foolproof distinction but I think it’s fair to argue it matters.
This is hilarious nonsense if you care about “game” as an aesthetic or philosophical term but the thing Apple cares about is whether you can execute malware from it.
I think Apple has always been explicitly fine with this. The problem is Apple wants 30% of the money and Tim Sweeney is not cool with that
This was actually my first thought and while an actual programmer would probably tear the idea apart I find it a very funny possibility
This is also a good question!
Anyhow, we’re talking about categories of objectionable content that Apple rejects from the App Store.
Thinks like this, and also “challenge” apps that tell people to do dangerous dares like putting an inflated condom over your head, which “could cause some serious physical harm,” Kosmynka says. Says he saw that left up on Google Play.
There are “hundreds” of developers that run scams claiming they’re official Fortnite apps or say you can get free V-Bucks or similar thing. Apple plays a “game of whack-a-mole,” but stops them “as proactively as possible,” Kosmynka says.
Alright, I have to drop off in a couple minutes to record a Vergecast about the trial with @tomwarren. Reminder that @mslopatto is live in the courtroom, so you can find updates from her, and Verge alums @nickstatt and @Shannon_Liao are livetweeting too.
Okay, Vergecast is finished, I’m back. @mslopatto tells me we are doing testimony from Kosmynka still.
We’re talking about a note suggesting Apple will increase automated review. “All apps go through the same review,” but Kosmynka says that they want machines to carry out certain parts of the process to notify developers. Rather than groups of devs getting shunted to machines.
more from the doc
Talking about criticims that there were a “ton of scam apps” in the store. Lawyer raises this Wandera report citing 17 apps that had clicker trojan malware for click fraud:
They’re citing an email involving EMI Calculator & Loan Planner, one of the malicious apps — an Apple email says that it “looks like we took it down, it came back to review, two folks ignored the note (not hard to do) and they approved the app."
“We are making critical errors,” Kosmynka wrote per the email.
Now citing a third-party email about a “serious scam being perpetrated through the Apple App Store.” Kosmynka says he doesn’t recall knowing about the apps before the email.
The contents of the email was “shocking,” Kosmynka wrote. “We need to think about how to stop this from happening.”
Kosmynka says he doesn’t recall if the scam actually made money. “Are you aware of instances of scams that are not making money?” lawyer asks. He says yes.
“I don’t know how successful their scam was."
Epic’s being a lot more specific about App Store problems than it was yesterday, when it relied a lot on citing out-of-context negative quotes from surveys.
Another email from a developer about a “fraudulent and life-threatening app” that could misldead users about their blood pressure. Phil Schiller forwarded the email to Kosmynka.
Kosmynka reported that app was removed, but said “there was no evidence of fraudulent IAP … and it was clear to customers what they were getting.” Still he said “the app is still nonsense and should not be on the store.”
In testimony Kosmynka says he was saying that the app promised functionality that wasn’t possible. Apple later (he says) clarified its guidelines to specifically ban that kind of app.
Kosmynka’s being asked now about copycat apps, specifically Headspace clones. “Is a copycat app only a problem if it’s copying an app that is currently on the iOS App Store?” lawyer asks? Kosmynka says no, non-iOS developers can also go through a dispute process.
Epic lawyer is asked specifically about Fortnite clones. So if I told you an app called “Battle Survival was on the App Store, you’d go investigate it?” lawyer says.
Kosmynka says she could file a complaint and they would investigate the app.

“Did I just throw Battle Survival under the bus?”

“Yes, you did.”

(Referencing the “Under The Bus” or UTB review, done after someone complaiend about an app.)
Epic lawyer continuing to reiterate that violating apps get through Apple’s review process. “Even with that human review, a number of offensive apps do get through.” Kosmynka agrees. He sounds deeply tired.
Now an email from a 14-year-old app developer who endured the school shooting in Parkland. “He was saying that he had just written an app and had been rejected because he didn’t do the right sign-in mechanism."
Epic lawyer notes there’s a school shooting game with reviews like “the best school shooting game by far #killkids"
If you got to this thread through the “kill kids” hashtag, um, I’m sorry and also what on earth are you doing.
Kosmynka says in an email that “I’m dumbfounded with how this could be missed,” particularly because a human would have to review it and put it up. Later, lawyer says, another shooting app got on the store.
In another case, “the entire premise of the app was shooting cannons at protesters.” Person wrote and said it was “very insensitive and tone-deaf in light of current events.”

Schiller sent an email to Kosmynka: “WTF"
Okay we are continuing to go over apps that are not good. Including one that is “NSFW,” a concept defined in court as “something you would not want your employer to see” unless you’re on a moderation team I guess in which case it is literally your job.
“Dope Wars: Weed Edition Light"
Kosmynka: “Cards Against Hunanity, a game that people play" that certainly contains NSFW stuff.

Lawyer: “Have you played Cards Against Humanity?”

Kosmynka: “I’ve played some, sure.”

Kosmynka: “I have not memorized the cards in Cards Against Humanity."
TBF if I had memorized the cards in Cards Against Humanity I would perjure myself to avoid admitting it.
this looks like a minigame from cruelty squad
back in, um, non illuminati land
People can game systems, Kosmynka says. But without a system to game, it would “be a free for all” and “dangerous” for users. That’s what would happen if there were stores-within-stores without a review process.
Epic’s lawyer is back and redirecting to macOS — pointing out that people can directly download apps from outside Apple’s store there, but it’s still considered safe for kids etc.
“I think there’s safety on Mac that’s superior” when downloading from App Store. “The threats that we see on iOS even within the App Store, I can’t say that a user outside the Mac App Store has a safe and trusted experience."
Says they’re “taking additional risks.” Says operating systems across the board with Apple “work really hard” to keep people safe, but the “curated element” still provides “really critical” safety elements.
Judge asking about Testflight (Kosmynka’s old app, before Apple acquisition.) How, judge wants to know, did the acquisition happen?
Kosmynka says that Testflight had gone to WWDC for a long time and interacted with Apple. “The initial conversation was probably an outreach by us but I don’t recall the specifics.”
Judge notes that in terms of, say, Android — “do you look at the results that Android is having on issues with respect to security and privacy fraud scams all of that in terms of comparison with what Apple is doing?” Yes, Kosmynka says.
“Which platforms do you look to?” Primarily Android, but also when it comes to a takedown or compliance request, looks at app stores in China, for instance.
Judge asks if they offer a bounty for “finding things your process hasn’t” in the app store. “No, we don’t do that,” Kosmynka says.
Judge is now asking Kosmynka why Roblox isn’t a game but Minecraft is. “I looked at Roblox and it looks like an electronic version of Duplo … that doesn’t make sense to me."
“I’m trying to understand the distinctions you’re making, because I didn’t think there was some industry word for the word game,” judge says. “I’m not sure if there is” a word, Kosmynka says. “I’m not an expert in gaming.”
"Roblox has classified itself as an app, other games classify themselves as games."
In any case, Kosmynka says the thing he was trying to talk about was that experiences inside Roblox are not games, not whether Roblox itself is. And it’s because those experiences use a technical "template” set by Roblox. “A template doesn’t turn into something that changes.”
Okay now Epic lawyer (I believe) is pointing out that Roblox has a battle royale game (sorry, “experience” I guess?) inside it.
People have been pointing this out to me and honestly I have no idea what is going on with Kosmynka’s testimony sorry
I really wish Kosmynka (who was unaware Roblox battle royale existed) had come out with saying how DARE you call the battle royale mode in Roblox a “game,” it is *serious interactive fiction about WAR, man*
Steve Allison of Epic is being called to the stand now. VP and general manager of the Epic Games Store.
Allison (who’s been in the games industry since the ‘90s) is discussing the process of game revenue sharing and publishing in past decades under a physical media-based model.
Getting a little games industry history here: “The PC market was abandoned by retail more or less” between 2000 and 2006-2007, says Allison. “PC developers in particular were left in a lurch with limited distribution options.”
Valve launched Steam in 2003 during this period around Counter-Strike, then they opened it to select developers in 2005. “We’re upset with what's happening” in the PC game market, wanted to give developers an option and took the standard 30% cut.
Judge notes you could go to GameStop during that period, asks more about the reason for PC game retail collapsing. “Was that also because the PC couldn’t handle the amount of power required for these games?” Safe to say Judge Rogers does not know any vocal PC gamers.
(Compared to console games, is what she’s asking.)
Judge is asking Allison to not talk so fast.
Allison discussing how the Epic Games Store was founded and the thinking behind it
Many developers were “uncomfortable” with Steam because they were so dependent on it, says Allison.
Incidentally earlier this week Tim Sweeney said he expects Epic Games Store to be hundreds of millions of dollars a year in the hole for the near future.
“Over 14 projects” in development with Epic Games Publishing at the moment.
you and the judge both!
If you ranked EGS among PC game stores, it would be a “clear and strong #2,” Allison says. (#1 presumably Steam.)
Epic wants to differentiate itself from Apple, talking about how it’s more open and lets people use third-party processing
Some more game store numbers
“Does the Epic Games Store do anything to protect account security?”

Yes, Allison describes (more below).

What about external threats?

It’s experienced about “the same” quantity of bad actors as other platforms.
Any issues with fraud on EGS? Describes an issue in which Ubisoft and Epic did a cross-entitlement deal with uPlay, where you could buy on one store and receive game on both. Bad actors started buying game on EGS, getting refunds, and continuing to play on uPlay.
We’re gonna take a break now. I’ll be back at 4:15ET.
Court’s back in session. Steve Allison is back. I have tea.
We’re talking about the Epic Games Store’s profitability. A profit-and-loss statement involving third-party games.
Epic expects third-party game store to first turn a profit in 2024. Including first-party games would move that to 2022 or 2023. Does Allison asked if they expect to recoup investment in third-party games. “Yes, we do."
Third-party business up 100% year over year and first-party business up over 100% year over year.
Have there been discussions of launching on iOS? Yes.

“Current policies around content delivery networks” and payments preclude Epic from launching it.
Tim Sweeney has discussed the idea “at a very high level” with Apple execs.

“Mobile devices have billions of players at the end of the screen … we are a company that’s aggressive at going after growth vectors. We are not able to go after that [market” with Apple’s policies.
They’re going to put the website up in court. Apple’s lawyer is reading out the names of the tabs at the top of the website. Finally an exhibit I can follow along at home.
We’re scrolling down to “New and Trending” games on the Epic Game Store, and then “New Releases.” Reading names of games. “Those are all games, correct?” lawyer asks. “Correct,” Allison says.
Lawyer directs us to the Top 20 games. “I don’t know if you know this, but there’s actually 25 under the Top 20.” Burn.
Gist is we are establishing that the Epic Games Store is a games store, for games, that sells games.
Vivid memories of trying to direct a college helpdesk caller to their webmail.
This exhibit is pretty good but I bet it would be better if they printed the entire website to a binder.
“Are you aware of any data breaches that have happened at Epic?”


“You’re sure.”

“I need more context."
Apple lawyer: “There’s a game category called RPG, which stands for role-playing games. And those are games like Oregon Trail, are the same, and they are not competitive.” What.
I’m not clear on whether she’s saying Oregon Trail is an RPG, or if she’s saying Oregon Trail and RPGs are both are examples of non-competitive games.
Pronunciation of “Oregon Trail” indicates Apple’s lawyer is not from anywhere near Oregon.
Lawyer notes a message that says “we ♥️ games."

“That’s true. You *do* heart games, and you wanted to be sure that consumers knew that about you."
Apple’s lawyer asks if Allison knows that Epic’s 88/12 commission split is “way outside the industry standard.”

“I would not,” says Allison.

Lawyer turns to a previous deposition Allison gave, where he answers the same question with “yes.”

“Fine,” Allison says.
Talk about how Epic Games Store has exclusives, which are designed to attract people to the store and also possibly to Fortnite. The goal was “cross-pollination” between businesses. “You wanted to create stickiness in the metaverse, is that correct?"
We’re now turning to the backlash against EGS doing exclusives, as well as the relative bare-bones-ness of the App Store. Lawyer is quoting this post:
"Maybe we’ll go to hell for this, but I really like taking a playful tone and not letting a bunch of humorless trolls control the message on this,” lawyer quotes Tim Sweeney as saying. Lawyer asks if he’s calling their customers trolls.
Allison disagrees with this. It’s a subset of trolls, which he defines as “people on the internet who go into communities and like to engage in trolling.”
Apple’s lawyer on Epic Games Store: “While there are people who love your business, there are also people who criticize your business, correct?”
Honestly sort of weird to be hearing something that I experienced as overheated game drama in court.
Itch was added to the Epic Games Store shortly before the trial. Allison says Epic just hosts Itch, not the games themselves. These games are “so offensive we cannot speak about them here."
Judge is now trying to parse the process of getting from the EGS to “that other store could be downloaded which has all of that offensive material.” In terms of providing access on mobile, Allison says “I don’t know that we would want to do that with ."
under Apple’s logic I have several games on the Epic Games Store
very forward-thinking of epic to sell so many lyric games
“that slide just says ‘graveyard’ on it” this presentation is extremely goth
if you’re curious “graveyard” is epic’s word for slides it doesn’t use. which now that I say it is still pretty goth
We have once again converged on the date of the Project Liberty hotfix.
“When did you become involve in Project Liberty?” judge asks. Around August of 2020, Allison said.
“I said nothing to Mr. Sweeney about Project Liberty,” Allison says, when asked if he told Tim Sweeney maybe they shouldn’t be deceiving Apple.
“Anything that goes in a graveyard is a slide that is dead.”
Lawyer: “[Do you] support fully the offensive and sexualized content that is found there?”

Allison: “I don’t support sexualized content of any sort.”
wow the trolling community is very happy about these tweets
Allison’s testimony is over. We are now calling Matthew Weissinger, vice president of marketing at Epic Games.
The first line of questioning is about Fortnite’s creative mode, starting with a promo video:

“I can’t believe this was made in Fortnite!”

It’s a recreation of Paris in Fortnite, apparently. I can’t see the video.
Judge is asking why you couldn’t have a separate app with Fortnite non-gaming content. “We have so many people going through Fortnite” that we want to support different modes. Is I think the argument? Judge says “I still don’t understand,” so, same.
“Why not just have four apps?” judge asks.

Weissinger: “Because all of your social connections exist within that one app.”
Judge: "But what about cross-platforming? Why couldn’t you have four apps, and as long as you had an account, your friends would still be there."

Weissinger: That’s a “confusing experience” for user.
“Itch dot eye oh”
told you this case was a big deal!
Weissinger is talking about the creation of non-gaming modes as a response to people who just wanted to show up and hang out in Fortnite, not play the traditional game modes.

Oh god now we’re back on Roblox.
seen a lot of these memes during the trial but i think this one wins
“Where do most users make their purchases” in Fortnite, i.e. in-game versus things like passes you buy with real money.

Most buy content from inside Fortnite, says Weissinger.
What would happen if people couldn’t make in-app purchases in Fortnite?

Weissinger: “It would be devastating."
Boils down to, it’s great to be able to see virtual goods before you buy them, and you’re “immersed” in Fortnite and don’t want to leave it. “If suddenly you then have to leave that experience, you’re totally breaking the immersion of it."
huh so that’s what a kotaku is
“What does Epic do to market Fortnite at a high level?”

Weissinger: “That’s another one of those fun things about Fortnite, at a high level how we try to market is believe it or not the biggest marketing vehicle we have is the game itself."
Weissinger describes Fortnite lore as a marketing tactic to draw people into Fortnite. Helping the user to understand why characters or parts of the world are important, building up to a release/launch/event.
We’re still talking about stuff that will establish that Fortnite doesn’t just do games, it has messenging and concerts and Chris Nolan and so forth.
Alright, we’re wrapping up the first week of Epic v. Apple. Next week we’ll finish testimony from Weissinger, and then we’ll move into expert testimony and more binders — many, many binders. See everybody Monday, I’m off to play unspeakable games.
Postscript to be totally clear about this again: all the silly UNSPEAKABLE GAMES stuff is Apple’s lawyer, not Allison/Epic.
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