In Epic v Apple, we found out there is no particular definition for a “Game”

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In Epic v. Apple on 7 May, a bunch of mumbly nerds struggled to define what constitutes a “game”. Well, what is the difference between an “app” and a “game?” This sounds like a question you wouldn’t really think about a lot but instead this occupied a fair amount of the morning in Epic v. Apple.

Apple’s marketing manager Trystan Kosmynka explained that Roblox was an app. See, games have a beginning, an end, and challenges. “There’s experiences within Roblox that we did not look at as a game,” Kosmynka said. It’s nice for Microsoft that Apple established Minecraft as a game.

This screenshot of the App Store clearly shows that Roblox is classified as a “game” — despite what Kosmynka testified.

This screenshot of the App Store clearly shows that Roblox is classified as a “game” — despite what Kosmynka testified.
A screenshot of Roblox on the Apple App Store, as of May 7 at 8PM ET. Image: The Verge
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Judge Yvonne Gonzalez Rogers did not understand this distinction but here’s the issue created by Apple for itself: if Roblox is a game, then it’s fairly easy for Epic to compare Fortnite to it. 

Roblox is free, with in-app purchases. Scrolling through, there are a number of small squares where you can join a game, and each appears to have different rules. (The app calls these “worlds.”) Is this the definition of a “game?”

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“I’VE ALWAYS LOOKED AT FORTNITE AS A GAME.”

Anyway, Kosmynka noticeably shrank when Lauren Moskowitz from Epic’s side began asking questions on the redirect. Were Snapchat’s bunny ear filters games? What about TikTok challenges? Things got worse for Kosmynka during a speed run of questions. Had he used Fortnite? Yes. Had he attended a concert there? No. “Fortnite is a virtual world where you build a character, correct?”, asked Moskowitz.

“I wouldn’t refer to Fortnite as a world. I’ve always looked at Fortnite as a game,” Kosmynka replied. Had he done Battle Royale? Yes. Party Royale? No. Creative mode? No. He knew a few things about Fortnite but didn’t know other things. In the context of “What is a game,” it made Kosmynka sound like he didn’t know what he was talking about. It was a tense, and rather devastating, line of questioning.

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At one point, Judge Gonzalez Rogers said she did not get the point as to why Minecraft was a game and Roblox was not so she asked Kosmynka for an industry definition for a game. Turns out, there isn’t one.

IT SEEMED LIKE EPIC WAS ATTEMPTING TO ESTABLISH THAT APPLE IS INCONSISTENT

Later, Matthew Weissinger, VP of marketing at Epic Games, explained that Fortnite is a metaverse. “It’s one of the remarkable things about Fortnite, we’re building this thing called the metaverse, a social place,” he murmured softly. (All of the men we heard from today would benefit greatly from elocution lessons.) “One of the ways I’ve tried to explain it is, think about all of us in lockdown, and how we try to stay socially connected. Some of the most meaningful experiences I’ve had were logging into Zoom and we had our friends and parents and we celebrate grandpa’s birthday.”

We also discover that Roblox has a “battle royale” mode, just like Fortnite.

Throughout this line of questioning, it seemed more and more like Epic was making attempts towards establishing that Apple is inconsistent — and passing the buck. Kosmynka made his Roblox digression even weirder by testifying that developers get to pick what category they belong to, not Apple. The Roblox thing made Apple look slipshod, and the further testimony about the App Store review didn’t help.

As explained by The Verge’s Elizabeth Lopatto, “the process behind App Store review is unbelievably boring unless you are a developer who is trying to pass review. We went through it in exhaustive detail. Apple gets 100,000 app store submissions per week, Kosmynka testified. But only 500 people actually do the “human review” — a lot of the rest of the work is automated. It’s impossible to judge how good an automated process is by listening to someone describe it in abstract in the courtroom. Kosmynka seemed confident when he was being questioned by Apple’s attorney, but when Epic got a crack at him, his voice got softer and softer.”

“ONE OF THE PROBLEMS WITH LIMITING COMPETITION IS THAT YOU DON’T GET INNOVATION.”

Apple had mistakenly allowed on a few controversial apps on the store including ones that that copycatted Headspace, carried malicious ad fraud code, a “school shooting game,” and several inappropriate apps (the funniest of which was “Ganja Farm: Weed Empire”). In emails, Kosmynka said, “We are making critical errors.” In reference to the school shooting game, Kosmynka said he was “dumbfounded at how this could be missed.” These specifics were more damning than the abstract walk-through of the app review process.

At one point, Kosmynka delayed in answering Judge Gonzalez Rogers’ query that was if anyone was doing better than Apple at app store moderation. “One of the problems with limiting competition is that you don’t get innovation,” said Judge Gonzalez Rogers. “One of my concerns is that if you aren’t letting parties compete on these topics, things won’t improve.” She then asked if Apple hired third-party reviewers. Apple replied negatively.

VP and General Manager of the Epic Game Store, Steve Allison, testified that on the Epic Game Store there have been no known instances of malware or pirated content, however, there has been some fraud. It was hard not to notice the contrast.

Apple’s lawyer, who did not introduce herself, took us through an excruciating narration of the Epic Games website, which informed us that there were a lot of games in the Epic Games Store. The first non-game app, Spotify, came to the store in December 2020, but what we couldn’t collect is how this was to make Epic look bad? Or at least, not the way she’d been hoping.

“ARE YOU AWARE THAT ITCH.IO INCLUDES SO-CALLED ADULT GAMES SUCH AS A GAME CALLED “SISTERLY LUST?”

She then came up with some more understandable points about the store-within-a-store on Epic Game Store: Itch.io, a store for indie games that Epic added to its store in April. You can download itch.io’s store from Epic. “Are you aware that itch.io includes so-called adult games such as a game called “Sisterly Lust?” Apple’s lawyer asked. Some of the games on itch.io are “so offensive we cannot speak about them here,” she sniffed. This line of argument essentially explained why Apple didn’t want stores within its own store.

Of course, economics is the big contrast between the Apple App Store and the Epic Game Store. The 30/70 split that Epic finds so objectionable began with retail and as retailers moved away from PC games in favor of console games, Valve created Steam, which mimicked the 30/70 split from traditional retail. However, it was viewed as an improvement among developers, since they didn’t have to pay for discs and packaging, and so on.

In 2018, Epic launched the Epic Games Store, which took only a 12 percent cut. (In order to assuage developers who might fear losing revenue from Steam when they took exclusive deals with Epic, Epic agreed to pay them a minimum guarantee.)

Another important detail, developers don’t have to use the Epic in-app payment system — they can use their own. Theoretically, this means that Epic gets no money on in-app purchases. Wizards of the Coast, the publisher of Magic the Gathering Arena, and Ubisoft, with multiple titles, use their own payment systems.

In the end, we do come back to the question that began the day: What is a game? It’s shocking to find out that so many people who specialize in apps and games can’t really answer this question. But as Elizabeth Loppatto explains, “I guess in some sense, you could imagine the trial is one (answer)— it’s got a beginning, a middle, and an end. Lots of money at stake. A winner and a loser. Plus, when the verdict is appealed — as it almost inevitably will be — we’ll get a sequel. Sure, Epic played well today, but you need more than one good turn to win.”

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