The Ninth Circuit Court of Appeals panel, with three judges, upheld a ruling from April that Apple did not comply with Judge Yvonne Gonzalez Rogers’s 2021 directive enabling app developers to direct users to external payment methods, which Sweeney remarked “… is really fantastic for all developers.”
One noteworthy aspect of the appellate court’s decision is that the panel is requesting Gonzalez Rogers to explore methods for Apple to impose reasonable fees on developers for purchases facilitated in apps through external payment links. In her April ruling, Gonzalez Rogers prohibited Apple from collecting any fees from external payments partly because of practices like applying a 27 percent fee on outside payments and requiring developers to format their payment links in plain text.
However, the appellate court indicated that Apple “should” have the right to charge a fee based on “the expenses that are genuinely and reasonably necessary for its management of external links for linked purchases, but no more” and affirmed that Apple is “entitled to some compensation for the use of its intellectual property that is directly utilized in permitting Epic and others to complete linked purchases.”
“If you intend to have an app approved with customized linkouts, perhaps there are several hundred dollars of fees attached with that every time you submit an app, which is totally reasonable because there are actual employees at Apple carrying out those tasks and Apple compensates them, and we ought to be contributing to that,” states Sweeney. However, he mentions that the decision “totally dismantles, in my view, forever, Apple’s stance that they should be able to levy arbitrary extraneous fees for access.”
With these two areas where Apple may charge, Sweeney expresses that “I can’t think of any justification for a percentage of developer revenue being charged here.”
Several weeks following the April decision, Fortnite made its return to the US App Store — almost five years after Apple initially removed it when Epic introduced its bespoke in-app purchase system for Fortnite. Moreover, there are global initiatives pushing Apple to permit third-party app stores on iOS, such as the Digital Markets Act in Europe, which is why Fortnite can be accessed from the mobile Epic Games Store in that area.
“Up to now, Apple has followed a strategy of imposing extraneous fees everywhere until they are compelled by legal authorities or regulators to cease,” Sweeney notes. “I’m unsure if they plan to persist with that until they’ve lost every single legal challenge worldwide, or if they will eventually standardize their global policies. I truly hope that Apple would, at some juncture, seek to reach a soft resolution and establish a single global policy that accommodates everyone.”
Sweeney anticipates that the Ninth Circuit’s ruling will clear the way for “a lot” of regulatory actions worldwide. “Why would any self-respecting nation permit Apple to charge fees that a US court has determined to be unlawful in the United States?” he asks.
The ruling was not the only significant update for Epic and Fortnite on mobile today: the game also rejoined Google Play in the US after also being removed by Google when Epic implemented the in-app payments system for Fortnite. Epic and Google announced last month that they have reached a settlement, and while both parties still seek court approval for their settlement, it resolves their disputes globally.
“I’ve been very impressed by the new leadership within Android,” Sweeney remarks. “They’ve turned over a new leaf.”
