> So how can Epic now argue that they have standing for harm caused by Apple’s plan for compliance that affect the way they do business with developers in their developer program when they are no longer in Apple’s developer program?
Maybe they want to be the competing payment processor for third party developers who are in Apple's developer program, but don't have the resources to litigate against Apple themselves.
Eh well, that’s an angle for standing I suppose, but it’s a bit hard to argue a harm against a service they don’t actually offer. It’s especially hard to argue it before a Judge that already ruled that even under California’s anti-steering law, Apple has a right to collect their commission (that 12 or 27% after the 3 percentage point discount payment processing discount). Apple’s argument would then also be easy: Epic can offer payment processing if they want, that’s between developers and Epic, but Apple is still going to collect their commission no matter what deal Epic does with iPhone developers.
Maybe the argument would be that Apple is actually charging more than 3% for payment processing and is continuing to charge the difference even when you use a third party payment processor, to discourage anyone from doing so. Which could provide a new chance to raise the issue of their high fees, if this is the first time Apple has tried to declare a split.
And doesn't Epic Games Store already do payment processing for third party game developers? We know they want to offer the whole store on iOS but if that isn't yet possible then you do what you can.
> And doesn't Epic Games Store already do payment processing for third party game developers?
Yes, but they don’t currently offer it for iPhone apps and games. Just to reiterate, I think this is the best argument for standing I’ve seen, but it’s not an easy sell and if Epic does get into this business, it leaves them in a position of basically trying to undercut the 3 percentage points that Apple is valuing their payment processor at.
> Maybe the argument would be that Apple is actually charging more than 3% for payment processing and is continuing to charge the difference even when you use a third party payment processor, to discourage anyone from doing so. Which could provide a new chance to raise the issue of their high fees, if this is the first time Apple has tried to declare a split.
Judges don’t usually want to get into the business of setting prices for private businesses. Judge Yvonne Gonzalez Rogers has already determined that Apple has a right to collect their commission, and Apple has already had to define the value of what the payment processing portion of what that is in the Netherlands. ~3% is also generally what you can expect to pay a payment processor to begin with which is why it never, even from the beginning of the App Store, for people to interpret “30%” as Apple’s payment processing fee because even back then, that’s not what any reasonable payment processor charged. If needed, Apple could probably produce documentation showing what they pay a processor.
> Yes, but they don’t currently offer it for iPhone apps and games.
Isn't the whole premise that they want to be in that market and Apple precludes it?
> ~3% is also generally what you can expect to pay a payment processor to begin with
But that's kind of the point. If Apple is charging more than that for payment processing but then only refunding the ordinary amount when you don't use their service, it precludes anyone else from competing with them on price because the customer is still paying Apple the remainder of Apple's payment processing fee which isn't refunded.
The way to evaluate this isn't to look at what payment processors charge, it's to look at what the rest of what Apple ostensibly charges for would cost in a competitive market.
At which point the first thing you'd have to ask is, why is this still a percent of revenue? It is for payment processors because their fee has to account for fraud risk, which scales with the amount of the payment being processed.
Fees as a percent of revenue are quite unusual for providing any kind of hosting services or marketing or development tools etc. Even sales commissions are a percent of the sales attributable to the salesperson, not a percent of all sales including the ones via other sales channels.
Charging a percent of revenue is a strong indication of a monopoly rent because it's so hard for anyone but a monopolist to get away with it. Even when Visa does it, the fraud risk is more of a fig leaf and the truth is a big chunk of that amount is going to fund credit card rewards programs intended to get people to prefer credit cards to other payment alternatives and the credit card networks only get away with charging it because of the weak competition.
And in any event the balance of what Apple provides is typically extremely inexpensive. Development tools are widely available for free, search engines don't charge to be included in search results (and the fee can't be for search advertising when it's paid by everyone), the per-download hosting cost for an average-sized app on Amazon S3 rounds to zero cents. What are they doing that could explain 27% if it isn't a monopoly rent? Why is it 12% for smaller entities, when economies of scale go the other way?
> Judges don’t usually want to get into the business of setting prices for private businesses.
Which is why the better solution is to prevent this kind of tying of products and services together, so the prices can be set individually by the market instead of trying to disambiguate the price of each service when they're all tied together.
Maybe they want to be the competing payment processor for third party developers who are in Apple's developer program, but don't have the resources to litigate against Apple themselves.