In defending Apple’s position, counsel Mark Perry argued that the company’s restraints on iOS app distribution were put in place from the beginning to protect iPhone users. Based on its experience managing software security and privacy on Macs, Apple decided it “did not want the phone to be like a computer. Computers are buggy, they crash, they have problems. They wanted the phone to be better.” If the Mac App Store was the equivalent of a lap belt, the iOS App Store, with its costly human review system, is “a six-point racing harness,” Perry said. “It’s safer. They’re both safe, but it’s safer.” While Epic argued that the iPhone’s walled garden “only keeps out competition,” Perry shot back that “what’s kept out by walled gardens is fraudsters and pornsters and hackers and malware and spyware and foreign governments…” Providing superior user safety, Perry said, is a key “non-price feature” that helps set the iPhone apart from its Android-based competition. Users who want the more open system that Epic is fighting for can already buy an Android phone and choose from a variety of App Stores, Perry said. By doing so, though, those users “open themselves up to more intrusion” compared to an iPhone, he argued. Those kinds of “pro-competitive” security features Apple offers with its App Store restrictions legally outweigh the “minor anti-competitive effects” iOS app developers face on the platform, Perry said.
[…] Apple’s Perry argued that Epic presented “no data or empirical evidence” to show that users felt locked in to Apple’s app ecosystem. Epic failed to commission the usual survey that would show users were worried about switching costs or information costs in a case like this, Perry said, a “failure of proof” that he said obviates all other technical legal claims. At the same time, Perry said Epic carefully “crafted a market definition only fitting Google and Apple” in arguing its case and has not been able to bring in other developers to support a class action. Epic “didn’t want to pick a fight with the consoles, didn’t want to pick a fight with Microsoft,” he said, despite similarities in the “walled garden” approaches in those markets. The three-judge appeals panel betrayed little as to which arguments it favored during Monday’s hearing, offering pointed questions for both sides. A ruling in the appeals case is expected sometime next year.