By Jay S. Burgin
When mobile app developers like Epic Games—creator of the massively popular online video game Fortnite—make their product available on Apple’s App Store, they enter the “walled garden,” a closed digital ecosystem wherein iPhone and iPad users cannot download games through other digital marketplaces. They also agree to Apple’s “antisteering“ provision: developers cannot attempt to steer consumers away from the App Store to purchase the same game on the developer’s website, often for lower prices. In 2023, the Ninth Circuit held in Epic Games v. Apple that antitrust challenges to digital download tying arrangements like these should be judged under the defendant-friendly rule of reason standard, rather than by categorical presumptions. Though Apple ultimately evaded antitrust liability, the court struck down antisteering provision as “unfair” under California state competition law. This (minor) equitable relief did little to unseat the tech giant’s continued dominance over digital marketplaces. Yet the ruling in Epic Games accomplished what may prove to be significant: the circuit court held that trial courts applying rule of reason analysis must apply the underutilized—even neglected—balancing stage of the rule of reason.
This Note argues that the Ninth Circuit’s ruling in Epic Games reflects an emerging quagmire in antitrust law. As courts become more comfortable in applying the rule of reason standard in software industry tying claims, demonstrating clear anticompetitive practices may not be enough to prevail where, not only are there ever-ready procompetitive justifications for such practices, but the rule of reason as a process does not allow plaintiffs to pass go—regardless of the merits. The requirement that courts engage in fourth-stage balancing may relieve the doctrine of its implausible propensity to find non-liability and resolve inherent contradictions between findings of fact and outcomes as a matter of law. Post-Epic Games, if antitrust law is to remain salient in regulation of the platform software industry, courts must engage more seriously in balancing—or rather, re-balancing—a broader set of non-economic considerations and redirect courts toward the original conception of antitrust law as protector of the competitive process.