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Week 2 of Epic v. Apple begins in 10 minutes. We’ll start with Epic marketing VP Matthew Weissinger, then two of Epic’s expert witnesses. Check out last week’s writeup from my colleague @mslopatto, plus my last tweet thread:
https://www.theverge.com/2021/5/7/22425774/epic-apple-roblox-fortnite-store-game-trial-day-5 https://twitter.com/thedextriarchy/status/1390688458658652165
https://www.theverge.com/2021/5/7/22425774/epic-apple-roblox-fortnite-store-game-trial-day-5 https://twitter.com/thedextriarchy/status/1390688458658652165
We’re on with Weissinger, talking about Epic’s work running promotions now, including big Microsoft/Sony crossovers with characters like Master Chief and Kratos, which Weissinger describes as “the Mickey Mouse of PlayStation and Xbox."
“How was Fortnite doing overall when it launched on iOS?” lawyer asks.
“Fortnite was doing incredible. It was basically a cultural phenomenon at the time,” Weissinger says.
“Fortnite was doing incredible. It was basically a cultural phenomenon at the time,” Weissinger says.
How was Epic from a marketing perspective?
"I felt like it was transactional, impersonal, it always felt like in some sense it was fly-by-night.” There were strings attached or caveats attached. “These requests would come in late in the process.”
"I felt like it was transactional, impersonal, it always felt like in some sense it was fly-by-night.” There were strings attached or caveats attached. “These requests would come in late in the process.”
Weissinger says it was a “different experience from the console partners,” and Apple’s support was “opportunistic.” Epic’s team would scramble to work with late requests.
“It was around opportunities when they had something else in their ecosystem to promote,” Weissinger says of Apple’s cross-promotion. I.e., Apple Music collaborations around the Fortnite Marshmello and Travis Scott concerts.
Judge jumps in and asks: weren’t the Sony and PlayStation relationships also transactional? “They were promoting their products, weren’t they? Whenever you did collaborations with them? How is it different that Apple is trying to benefit both?”
“It just seemed opportunistic, the times they wanted to support us. It was around content in the other parts of the business, rather than helping to support the Fortnite business,” says Weissinger.
The gist of Weissinger’s argument is that Apple was focused on promoting services that weren’t mutually beneficial with Epic — i.e., attracting “consumers who may not be looking for gaming apps."
(We’re leaving aside for now that Epic has previously made a big deal of Fortnite not being just a game.)
Bindersssssss
We’re looking at binders
We’re looking at binders
This is an email between Apple and Epic. Apple sender's requesting assets promoting Chapter 2 launch, says “I know we’ve had issues in the past with a significant art leak,” but he promises it won’t happen again. Spoiler: Apple apparently did leak the Chapter 2 assets.
“Is there a platform on which Fortnite has the biggest growth potential?”
“Mobile.”
“Why?”
“We’ve reached pretty much full penetration on console,” and everybody has a mobile device, while “not everybody has a console, and not everybody has a gaming PC."
“Mobile.”
“Why?”
“We’ve reached pretty much full penetration on console,” and everybody has a mobile device, while “not everybody has a console, and not everybody has a gaming PC."
Weissinger says Fortnite saw 2.5 million daily active users on iOS when it was on the platform, something like 2.86 billion hours of playtime on iOS.
“There’s a portion of our population that only plays on iOS, and they disappeared, because they only had iOS.” There’s also specific timeframes when people only have access to a phone. “It also severed friend connections, social connections."
Judge: “Are you tracking people’s connections?”
“Correct.”
“You track that? You have that data?”
It’s basically your friends list, says Weissinger.
“And people know you were tracking them?”
Weissinger reiterates it’s drawn from chat records/friend lists.
“Correct.”
“You track that? You have that data?”
It’s basically your friends list, says Weissinger.
“And people know you were tracking them?”
Weissinger reiterates it’s drawn from chat records/friend lists.
It’s fascinating hearing the judge apparently come fresh to the sheer volume of quantification of social connections online and decide it’s actually super weird.
Weissinger on consoles, which are sold at a loss: “They make their money back when Fortnite and other apps have sold on those platforms. They’re only making money when we’re making money, and they are aligned and invested in securing the success of the titles on their platforms."
"You contrast this with Apple, they actually generate profit on their hardware sales."
We’re getting cross-examination now from Apple’s lawyer. Talking about the business model of Xbox, PlayStation, Switch. “Have you ever seen any internal documents … that prove to you that consoles are sold at a loss?”
“I have not."
“I have not."
Apple’s lawyer hammering on Weissinger’s lack of “first-person knowledge” that consoles are sold at a loss. Xbox’s Lori Wright has testified that this is true of the Xbox, but Apple has moved to strike her testimony, saying it’s not credible. https://www.theverge.com/2021/5/7/22424668/epic-apple-antitrust-lawsuit-microsoft-xbox-profitability-lori-wright
Apple is pulling up Fortnite and asking Weissinger to describe different parts of the interface, specifically the game modes. Again, would really prefer this was printed in a binder.
Apple’s describing the Save the World mode, which it characterizes as players teaming up to shoot zombies.
“That’s a good summary,” says Weissinger.
“That’s a good summary,” says Weissinger.
Now Apple’s lawyer citing the Battle Royale mode, which it calls the “game that made Epic Games both rich and famous.” In fairness, Epic did have a *few* other things going on already.
Apple lawyer: “We have a large yellow banana here, in a tuxedo?”
Weissinger: “Yes, that’s Peeley."
Apple: [light paraphrase: “And in the tuxedo he’s known as Agent Peeley."
Weissinger: “Yes, that’s Peeley."
Apple: [light paraphrase: “And in the tuxedo he’s known as Agent Peeley."
“We thought it was better to go with the suit instead of the naked banana, because we are in federal court right now.”
pretty sure Apple read all our tweets about Itch’s unspeakable games and is just messing with us now, because what
We’re showing another Fortnite video.
“I take it there are going to be words?” judge asks.
“There are not going to be words, your honor."
“I take it there are going to be words?” judge asks.
“There are not going to be words, your honor."
Judge: “The record should reflect there was some song playing in the background, with words, and the court reporter was relieved of her duty to transcribe these words.”
Apple’s lawyer is defining a third-person shooter, which he does by essentially saying it’s a shooter where the camera is over your shoulder. This is depressingly logical and not ridiculous.
“The avatar is running toward a skydiving activity, is that correct?”
“Yes.”
“You know this game, sir? The skydive time trial?”
“Yes.”
“Your avatar is going through hoops, correct?”
Now in about minute 10 of lawyers describing Fortnite
“Yes.”
“You know this game, sir? The skydive time trial?”
“Yes.”
“Your avatar is going through hoops, correct?”
Now in about minute 10 of lawyers describing Fortnite
I am deliberately not putting anything in quotes that’s not direct or at least paraphrased, becuase otherwise this would be like half the trial https://twitter.com/ChrisBarnewall/status/1391785010806632450
Lawyer: “A death run is where the player has to make it across the island without getting killed, correct?”
this testimony is way more fun if you imagine it’s a mad scientist getting put on trial for war crimes
this testimony is way more fun if you imagine it’s a mad scientist getting put on trial for war crimes
Normally I would try to give some context for why this line of questioning is relevant to the larger argument, but tbh I’m just drifting here.
Describing another mode:
Lawyer: "Escape prison and cause mayhem in the city, correct?”
Weissinger: "Correct."
“Or you can be a guard [and keep order].”
“Correct.”
“Now, is this an experience or a game, sir?”
“This looks like a game to me."
Lawyer: "Escape prison and cause mayhem in the city, correct?”
Weissinger: "Correct."
“Or you can be a guard [and keep order].”
“Correct.”
“Now, is this an experience or a game, sir?”
“This looks like a game to me."
Okay, here we are. Lawyer is introducing various creative modes and asking Weissinger whether they’re games or not. Weissinger says they are indeed games.
We’re playing a video. Lots of people are screaming.
The screaming is in the video, not the courtroom, to be clear.
This is apparently the trailer promoting Creative Mayhem
Lawyer: “If anyone was to state that creative mode had no competitive gameplay, that would be inaccurate, correct?"
Weissinger concedes that’s true.
Weissinger concedes that’s true.
Oh no Apple’s lawyer learned the term “game mechanics.” (I don’t have his exact definition transcribed sadly.)
“There are plenty of game mechanics in Creative Mode, aren't there?”
“There are plenty of game mechanics in Creative Mode, aren't there?”
“If someone were to have said that there is nothing resembling a game mechanic at all in Fortnite Creative, that would be incorrect, true?”
“It depends on the experience."
“It depends on the experience."
Apple lawyer: If someone were to say Fortnite Creative is "Barbie Fashion Designer for the Fortnite Universe, that person would be incorrect, true?”
Weissinger: “I’m not sure what goes on in Barbie Fashion Designer.”
“Fair enough.” Turns out lawyer doesn’t know either.
Weissinger: “I’m not sure what goes on in Barbie Fashion Designer.”
“Fair enough.” Turns out lawyer doesn’t know either.
We’ve moved on to how V-Bucks work. Apple’s lawyer asks if there’s a limit to how many V-Bucks there are. There might be, but it’s extremely high, says Weissinger.
Okay we’ve been hearing testimony for an hour and most of it has been devoted to a Fortnite tutorial.
Lawyer notes that Weissinger complained not enough people in App Store wanted stuff like Fortnite.
Lawyer: “You’re looking for people that want to play games, right?”
Weissinger: “I’m looking for people who want awesome entertainment experiences."
Lawyer: “You’re looking for people that want to play games, right?”
Weissinger: “I’m looking for people who want awesome entertainment experiences."
Lawyer’s asking for demographic data Weissinger says he can’t provide. Fortnite is “more male than female,” he concludes. Apple says “core demographic” is boys/men from 13-25, Weissinger agrees.
We’re doing more questioning intended to establish Fortnite as a “youth brand."
Now pulling up a doc called “Fortnite 2018 by the numbers.”
In November, Epic did an NFL promotion where you could get player skins. Notes 3.3 million units sold in November/December of that year.
In November, Epic did an NFL promotion where you could get player skins. Notes 3.3 million units sold in November/December of that year.
To oversimplify, Apple wants to establish Fortnite is for young people specifically interested in games, because the companies are arguing over whether the scope of the discussion over antitrust should be limited to gaming. https://twitter.com/cpnYarhar/status/1391792558271909894
Apple’s lawyer asking if Weissinger ever heard people at Epic say they were failing to attract/retain more iOS users because of Apple’s 30% cut. Weissinger says he wasn’t party to a conversation like that, as far as he remembers.
Lawyer: “As the VP of marketing at Epic, you have never discussed whether your marketing efforts would be more effective or successful if Epic could distribute iOS apps outside of the App Store, correct?”
Weissinger: “Correct."
Weissinger: “Correct."
Now citing an email about promo efforts for Fortnite: “Epic will be the first to take over the latest iteration of the App Store [after a 2017 redesign], we will also be given creative control over what we want to display and how."
Minus the extended tutorial, today is a lot of back-and-forth over whether Apple sufficiently marketed Fortnite.
Lawyer: “During the Marshmello concert, people couldn’t shoot each other, right?"
“But they weren’t disabled until the concert began, were they?”
Weissinger says “probably they were disabled at some point in the leadup to the concert.”
But until then, they were shooting each other “or clubbing each other, or putting arrows in each other."
Weissinger says “probably they were disabled at some point in the leadup to the concert.”
But until then, they were shooting each other “or clubbing each other, or putting arrows in each other."
“You’re familiar with the publication The Verge?”
“It’s some kind of entertainment type [“website", I think]?”
yesss
Citing this: https://www.theverge.com/2020/4/23/21233637/travis-scott-fortnite-concert-astronomical-live-report
“It’s some kind of entertainment type [“website", I think]?”
yesss
Citing this: https://www.theverge.com/2020/4/23/21233637/travis-scott-fortnite-concert-astronomical-live-report
Weissinger specifies that the Travis Scott preshow was not technically a “bloodbath” because there is no blood in Fortnite.
I had a non-game-playing roommate shortly after college, and at one point after I got off the phone he asked me why I’d been talking about running out of hand grenades or something similarly bloodthirsty. This entire exchange is basically that phone call under legal oath.
Lawyer: “It’s a fact, isn’t it, that every partner of Epic has leaked a Fortnite season at some point?”
Weissinger: “I wouldn’t be surprised.”
Weissinger: “I wouldn’t be surprised.”
Lawyer is taking on Epic’s earlier complaints about Apple leaking Fortnite assets. He notes Weissinger wrote that relatively speaking, he had “great confidence about Apple’s ability to keep Epic’s secrets."
“I know Apple can keep [Epic’s] secrets, I’m not as sure about Google,” Weissinger wrote in July 2020, even after various Apple leaks.
Apple poking holes in Epic’s claims about its weak security.
Apple poking holes in Epic’s claims about its weak security.
Citing another email: “Do you know how long it would take to make a build of Fortnite that would function on Google Play that would only support our own payment methods?” Referring to Epic’s payment method, which it added to iOS and got summarily banned for.
We’re going over a Project Liberty strategy to “draw Google into a legal battle over antitrust” in addition to Apple. If Google makes a big deal out of Epic using its own payment method, “the battle begins, it’s going to be fun."
Google kicked Fortnite off its store around the same time as Apple, for context, but you can sideload apps so Fortnite remains available on Android. Epic did still sue, though: https://www.theverge.com/2020/8/13/21368363/epic-google-fortnite-lawsuit-antitrust-app-play-store-apple-removal
We’re going over Project Liberty’s goal of making Epic seem sympathetic by, among other things, helping establish the Coalition for App Fairness https://www.theverge.com/2020/9/24/21453745/spotify-epic-tile-match-coalition-for-app-fairness-apple-app-store-policies-protest
Lawyer’s noting that Weissinger took notes involving a “nuclear option” that can “dimensionalize the battle [?] for us.” The nuclear option was implementing the hotfix with in-app payments with Google.
There’s a consulting firm document for the Coalition for App Fairness, noting that “consultants will help to establish a reason for it to exist, either organic or manufactured.”
Apple/Epic disagree over which side Fortnite’s ban falls on.
Apple/Epic disagree over which side Fortnite’s ban falls on.
If Apple had given in to Epic, the coalition would have evaporated, lawyer says.
Weissinger disagrees: “Google’s still around too. There’s other stories that have the same issues in principle."
Weissinger disagrees: “Google’s still around too. There’s other stories that have the same issues in principle."
But the document doesn’t reference any company other than Apple, lawyer notes.
“That looks to be the case,” says Weissinger.
“That looks to be the case,” says Weissinger.
We’ve got a 20-minute recess now. Back around 1:35.
Couple people have asked about this — not sure what it means that we’re not seeing testimony folders. https://twitter.com/AlfredLameche/status/1391807901837180928
This is plausible — last week was a (delightful for journalists!) total mess https://twitter.com/Reilly0523/status/1391809285273837568
We’re back.
It has come to my attention that I misspelled Peely. We apologize for the error.
We’re continuing to talk about Project Liberty — Apple lawyer hitting on the fact that it was a coordinated effort with a “virtual war room” designed to provoke Apple.
Establishing whether there were communications to console partners about Project Liberty. That includes communications about the impending price drop on V-Bucks, per a strategy document.
For context, Epic discounted V-Bucks on console despite the fact that console makers hadn’t dropped their 30% cut. Compared to mobile, where it specifically offered the higher/lower prices side by side to highlight the savings of using Epic’s payments https://www.theverge.com/2020/8/13/21366259/epic-fortnite-vbucks-mega-drop-discount-iphone-android
Apple’s going after the fact that Epic referred to the price drop as a “lock-in tactic.” Epic says it just means trying to make Fortnite more attractive, not make it difficult to leave.
“You would not use the term ‘lock-in’ if you saw anything wrong with it, would you?” lawyer asks. Notes Weissinger went to MIT (he originally says Harvard incorrectly, possibly because you would carefully refer to either at a cocktail party as “going to school around Boston”).
And we’re finally through cross-examination, back to Epic’s lawyers. She’s noting that Apple didn’t show lots of non-game-related experiences in Party Royale and so forth.
Epic’s lawyer brings up the aforementioned “game mechanics” from Apple’s questioning. “When a user is using those tools to create in creative mode, is there any gameplay happening?”
oh boy
(Epic says no, ofc.)
oh boy
(Epic says no, ofc.)
Judge asks how much of Party Royale is games.
“Is there a percentage? 50-50?”
Weissinger says it can depend on events like concerts; judge notes the concerts are only around 15 minutes.
“So you don’t have any way to quantify games vs. experience?”
Not offhand.
“Is there a percentage? 50-50?”
Weissinger says it can depend on events like concerts; judge notes the concerts are only around 15 minutes.
“So you don’t have any way to quantify games vs. experience?”
Not offhand.
Weissinger suggests that Epic does have documents indicating the proportion of games vs. experiences in Party Royale. It doesn’t seem like we’re going to get to see them, sadly.
Epic Lawyer: “A little bit of a digression: we talked about Peely, our banana?"
Epic lawyer: "There might have been an implication that showing Peely without a suit might have been inappropriate. [Lawyer shows a picture of naked Peely in court.] "Is there anything inappropriate about Peely without clothes?”
Weissinger: “It’s just a banana, ma’am."
Weissinger: “It’s just a banana, ma’am."
Apple lawyer: “You talked about creating an item. Is that fun, creating an item?”
Epic lawyer: “Yeah. It’s awesome.”
Epic lawyer: “Yeah. It’s awesome.”
(This is referencing Fortnite Create.)
Minus the digression about the implied obscenity of an unclothed banana, questioning is still along two main lines: whether Fortnite is mostly gaming-related, and whether Apple screwed up its side of the promotional deal.
We just finished Weissinger, and now Epic is calling the first of its expert witnesses: David Evans, chairman of Global Economics Group. Here’s Evans’ testimony (redacted) from earlier: https://storage.courtlistener.com/recap/gov.uscourts.cand.364265/gov.uscourts.cand.364265.527.1.pdf
We’re beginning questioning. Evans is an economist focused on platform economics and antitrust economics.
Lawyer is verifying that Evans doesn’t want to change anything in his earlier testimony based on details that have come out since.
Evans is here to establish the “relevant market” in this case, which (to oversimplify as a non-lawyer) is Epic trying to establish that iOS can be a discrete market that Apple can have a monopoly in, rather than just a device it makes.
The market here is iOS apps — Evans is talking about restrictions in the market, like Apple preventing people from installing apps outside its App Store.
The App Store is a supplier of distribution services, and those customers rely on the App Store for distribution services, Evans says. These apps don’t necessarily compete with each other, but they’re part of the same market.
We’re getting some weird voice bleedover in the conference line — think somebody on the line is unmuted and is talking over the witness.
Evans is trying to establish that you can have a single market where the customers aren’t all competing with each other — talking about a bunch of different companies that all buy steel, or a credit card network that services lots of businesses.
Evans giving his own “phones v. consoles” distinction: “The smartphones can be used anywhere, anytime. And that means a consumer … as long as they have a cellular connection can use that smartphone."
“A game console on the other hand is typically a fixed device that is not something that people carry around,” except the Switch, which still doesn’t have a cellular connection.
“A consumer who is interested in using apps at various times and various places during the course of their lives, there are many many situations in which the game console even if it had the relevant app on it, is simply not a relevant device for them to use in their daily lives.”
Again, this matters because (to Evans) it means that console ecosystems can’t be considered direct competitors to iOS.
Add to the Epic v. Apple drinking game: witness makes tortured attempt to work the Nintendo Switch into a “mobile v. console” definition.
all of us got unmuted for one second and nobody took advantage of it, is this the mitigating effect of civilization
We’re going through the shift in time spent on personal computing: by 2019, 77% of that time is being spent using a smartphone connected to the internet. And 89% of the time people spend online using smartphones is through an app, not a browser.
US adult spends roughly average of 3 hours a day on a smartphone, Evans says. (And, again, 89% of that is apps.) And one hour on a personal computer.
Did you take into account time people spend working on PC, judge asks?
No, this is “consumer use,” says Evans.
Did you take into account time people spend working on PC, judge asks?
No, this is “consumer use,” says Evans.
Not 100% sure what that means or how they parse it, given the blurry line between work and leisure for many heavy computer/phone users.
In personal computers, you’ve always been able to get apps from a “variety” of channels. But with the App Store and Google Play, there are “only two channels” where consumers/developers go through for apps, says Evans. “There are really two gatekeepers, in effect."
The distinction between “general-purpose” and “special-purpose” operating system has come up again — Evans says there’s a “fundamental difference” between them. You may recall this from Day 3: https://www.theverge.com/2021/5/5/22421570/epic-apple-trial-iphone-xbox-console-specific-general-purpose-pc-testimony-day-3
