The Morning Dispatch: A Ruling in Epic Games v. Apple

Happy Monday! The Chicago Bears are tied for first place in their division, Patrick Mahomes scored four touchdowns, and the Green Bay Packers lost by 35 points. The NFL is back.

Quick Hits: Today’s Top Stories

• After a multi-week standoff, the Iranian government agreed over the weekend to permit officials from the United Nations’ International Atomic Energy Agency to install new memory cards in surveillance equipment meant to monitor the progression of Iran’s nuclear capabilities.

• The Russian energy company Gazprom announced Friday that construction of its Nord Stream 2 pipeline had been formally completed  that morning. The pipeline—which will allow Russia to bypass Ukraine and Poland and ship gas directly to Europe—now awaits approval from Germany’s energy regulator.

• A new CDC study published Friday found that, even after Delta became the dominant COVID-19 strain, fully vaccinated people were five times less likely than unvaccinated people to be infected with COVID-19, 10 times less likely to be hospitalized with the virus, and 11 times less likely to die from it. An additional CDC study found that post-Delta, full vaccination’s effectiveness against hospitalization was about 95 percent for those 18 to 64, and 76 percent for those 65 and over.

• President Biden spoke with his Chinese counterpart, Xi Jinping, late last week for the first time in seven months, the White House said. A senior administration official told Axios that the purpose of the call was to advance U.S.-China relations beyond CCP subordinates and “have a broad and strategic discussion about how to manage the competition between the United States and China.”

• Taliban higher education minister Abdul Baqi Haqqani said Sunday that women will be allowed to continue studying at universities under the new regime, but all classrooms will be segregated by gender and traditional Islamic dress—including hijabs—will be required.

• Following President Biden’s executive order last week, the FBI declassified a document Saturday related to the federal government’s investigation into Saudi Arabia’s alleged role in the 9/11 attacks. Based on a 2015 interview, the document shows that two Saudi hijackers contacted Saudi individuals in the United States in the lead up to the attacks, but does not prove senior Saudi officials were involved in the plot.

• U.S. Capitol Police announced Saturday that the force recommended six officers face disciplinary action following an investigation into the January 6 Capitol riot: Three for “conduct unbecoming,” and one each for “improper remarks,” “improper dissemination of information,” and “failure to comply with directives.” The U.S. Attorney’s office reviewed each case and “did not find sufficient evidence” that any of the officers committed a crime.

A Battle Royale Decided

Back in May, we wrote to you about a David v. Goliath legal battle between Epic Games and Apple. The issue? Payment processing and in-app purchases:

Apple removed Fortnite from its App Store last August when Epic Games implemented an update allowing users to access discounts on in-app purchases if they made said purchases through Epic’s direct payment feature rather than the App Store itself. Why? Because Apple charges developers a 30 percent fee on every app and in-app purchase—except for small businesses generating less than $1 million in annual revenue, which pay a 15 percent commission—and Epic was looking for a way to circumvent it.

Epic, which knew Fortnite would get the boot if it went through with the update, used Apple’s action as a pretext to file a civil antitrust lawsuit against the tech behemoth, arguing it was time to “end Apple’s unfair and anti-competitive actions that Apple undertakes to unlawfully maintain its monopoly in two distinct, multibillion dollar markets: (i) the iOS App Distribution Market, and (ii) the iOS In-App Payment Processing Market.” Nearly four months later, U.S. District Judge Yvonne Gonzalez Rogers reached her verdict.

Ultimately, the lawsuit was going to hinge on how Rogers defined the relevant market. Does it matter, as Epic argues, that Apple maintains a 100 percent market share for iOS applications? Or is Apple right to point out that users can play Fortnite on many different platforms: PlayStation, Xbox, Nintendo, Windows, and so on?

Friday’s ruling tried to split the difference. “The Court disagrees with both parties’ definition of the relevant market,” Rogers wrote. “The relevant market here is digital mobile gaming transactions, not gaming generally and not Apple’s own internal operating systems related to the App Store.” Using that definition—mobile gaming—Rogers found Apple to have carved out a roughly 55 percent market share and “extraordinarily high” profit margins.

But that wasn’t enough for the judge. “Given the trial record, the Court cannot ultimately conclude that Apple is a monopolist under either federal or state antitrust laws,” she wrote. “These factors alone do not show antitrust conduct. Success is not illegal.”

The App Store—along with the accompanying 30 percent commission fee—could stay, and Rogers agreed that Epic breached its agreement with Apple when it injected its alternative payment system into its app. “We consider this a huge win for Apple,” Apple’s general counsel Katherine Adams wrote, quoting heavily from the ruling. “As the Court found ‘both Apple and third-party developers like Epic Games have symbiotically benefited from the ever-increasing innovation and growth in the iOS ecosystem.’”

Epic founder Tim Sweeney criticized the verdict on Twitter and vowed not to return Fortnite to the iOS App Store until it can offer its own in-app payment system. “Today’s ruling isn’t a win for developers or for consumers,” he wrote. “Epic is fighting for fair competition among in-app payment methods and app stores for a billion consumers.”

Still, Apple wasn’t entirely off the hook, as Rogers took umbrage with the company’s anti-steering provisions that prevent app developers from pointing users to alternative forms of payment through which Apple’s 30 percent fee can be avoided. The judge issued a separate injunction mandating that Apple cease this practice within 90 days. It’s not everything Epic wanted—developers still can’t park their own payment system within their iOS apps—but it’s a lasting blow for Apple that could, as tech analyst Will Oremus points out, force the company to cut its commission rate down the line.

But this was far from the worst-case scenario for Apple, and—by some accounts—a pretty solid one. “Certainly compared to what could have been the results, what Epic was pushing for, Apple got a lot of victories out of this,” Boston College Law School Professor David Olson told The Dispatch. ”Overall, Apple and its iPhone ecosystem are safe.”

Don’t tell that to the markets. Apple’s stock tumbled by more than 3 percent on Friday following the judge’s announcement, while gaming stocks rose dramatically. Companies like Zynga, Roblox, and AppLovin should theoretically now be able to dramatically increase their revenue and cut costs. Shares of Spotify, Duolingo, and several other companies that pay in-app operators also soared Friday.

Olson said an appeal from Apple on certain parts of the decision is likely and Epic Games has already said it will appeal the decision. 

Some lawmakers saw this result as all the more reason to pass new anti-trust legislation in Congress. “This ruling reaffirms what we heard in our Senate hearing last spring: App stores raise serious competition concerns,” Sen. Amy Klobuchar, a Democrat from Minnesota, said in a statement. “While the ruling addresses some of those concerns, much more must be done. We need to pass federal legislation on app store conduct to protect consumers, promote competition, and foster innovation.”

Evacuated Afghans Worry About Those They Left Behind

Speaking after the United States completed its withdrawal from Afghanistan last month, President Biden said that his administration “completed one of the biggest airlifts in history,” adding that “no nation has ever done anything like it in all of history.” Setting aside the reason   such a mass evacuation was necessary, it’s true: Airlifting more than 120,000 people out of a country conquered by a jihadist movement in just a couple of weeks is quite a feat.

But as Charlotte details in a piece for the site today, we didn’t get everyone. Thousands of vulnerable Afghans remain behind Taliban lines, and those who made it out are racked with worry for their countrymen and women who did not.

When Shinwari took a position with the U.S. Special Forces in 2008, he saw the work as an opportunity to reconstruct Afghanistan for the better in the aftermath of Taliban rule. Short of that, he thought his service might afford his family security in exchange for much needed Afghan assistance. 

“They needed help,” said Shinwari, who requested to be identified by his surname. “Because they were new to this country and they didn’t know the culture or the language.”

“I’ve seen a lot of bad situations. I’ve been blown up two times—one of our trucks that was going out on a mission was hit by an IED, so I have a back injury,” he added. “And one time in our base, seven suicide bombers came to our camp and just blew themselves up. In my mind, I have still that explosion.”

In total, Shinwari was deployed with U.S. forces for more than six years. He and his two sons qualified for U.S. citizenship in 2019 and his wife, also Afghan-born, is a green card holder. But when the Taliban swept Afghanistan earlier this year, swallowing provincial capitals in rapid succession, Shinwari’s connections up the ranks of the U.S. military lent his family little favor as thousands scrambled to evacuate at once. 

After narrowly evading several Taliban checkpoints, Shinwari’s wife, two sons—one of whom suffers frequent seizures—and diabetic mother queued outside of the airport for nearly 15 hours overnight. “My sick mom and my sick son were just sleeping on the ground, and there’s nothing. There is no food, no water, nothing,” Shinwari, who had come to the U.S. a year earlier, told The Dispatch. When his family finally reached the airport’s bottlenecked entrance, guards turned away Shinwari’s mother, even with a personal letter from his Army unit and her immigration case number.

“They told my wife and two sons: ‘If you want to go inside, go. If not, give us your passport and green card and go home.’ And I was really mad—this is my reward for my service? They’re U.S. citizens, they’re not illegal or undocumented,” he said, exasperated. “Why are you guys doing this to her?” 

Ten minutes after Shinwari’s wife and children passed through the airport gates,  a suicide bombing took place among the crowds outside. His mother miraculously avoided the blast, but remains stranded in the country, alone, in deteriorating health. 

“My kids are already missing their grandmother. My son, when he wakes up in the morning, he says ‘where’s grandmother? I want to go to her,’” Shinwari said. “I’m worried about my son because he’s six-and-a-half years and has a speech delay and walking problems. I saw improvement with my son when he was with my mother, because she tried to help him talk and try to walk. She treats my son like her own son.” 

Two Decades Later, W. Remembers September 11

Former President George W. Bush delivered remarks at the 9/11 memorial in Shanksville, Pennsylvania on Saturday to commemorate 20 years since that fateful day.

The whole nine-minute speech is worth your time, but in case you’re in a rush, here are some highlights:

• “In those fateful hours, we learned other lessons as well. We saw that Americans were vulnerable, but not fragile. That they possessed a core of strength that survives the worst that life can bring. We learned that bravery is more common than we imagined, emerging with sudden splendor in the face of death. We vividly felt how every hour with our loved ones was a temporary and holy gift. And we found that even the longest days end.”

• “Many Americans struggled to understand why an enemy would hate us with such zeal. The security measures incorporated into our lives are both sources of comfort and reminders of our vulnerability. And we have seen growing evidence that the dangers to our country can come not only across borders but from violence that gathers within. There’s little cultural overlap between violent extremists abroad and violent extremists at home. But in their disdain for pluralism, in their disregard of human life, in their determination to defile national symbols, they are children of the same foul spirit, and it is our continuing duty to confront them.”

• “On America’s day of trial and grief I saw millions of people instinctively grab for a neighbor’s hand and rally to the cause of one another. That is the America I know. At a time when religious bigotry might have flowed freely, I saw Americans reject prejudice and embrace people of Muslim faith. That is the nation I know. At a time when nativism could have stirred hatred and violence against people perceived as outsiders, I saw Americans reaffirm their welcome to immigrants and refugees. That is the nation I know. At a time when some viewed the rising generation as individualistic and decadent, I saw young people embrace an ethic of service and rise to selfless action. That is the nation I know. This is not mere nostalgia, it is the truest version of ourselves. It is what we have been, and what we can be again.”

Worth Your Time

• Trying to fully comprehend a massive two-decade event like the War in Afghanistan is a nearly impossible task. You can get a sense of what things were like at the beginning—why we went in, what our goals were—and a sense of what’s come to pass, but the conflict itself is endlessly more complex. Which makes pieces like this one from Politico so useful. The magazine spoke at length to five veterans of the war, each of whom served at different times and in different branches of the conflict. The snapshots it provides are fascinating. 

• Writing at Reason, Walter Olson digs into President Biden’s newly proposed order mandating that large companies require their employees either to get vaccinated against COVID-19 or to submit to weekly tests for the virus. “Some backers of Biden’s action seem to think waving in OSHA’s general direction, together with citing COVID-19’s high death toll, is all the answer needed to questions about legality,” he writes. “But it isn’t. Courts have frequently struck down OSHA actions, especially when the agency has tried to issue the type of peremptory decree it calls an emergency temporary standard (ETS).”

Presented Without Comment

Presented Without Comment

Toeing the Company Line

• In his latest Vital Interests (🔒), Thomas Joscelyn explores a recent Taliban propaganda video that argues the U.S. deserved the 9/11 attacks and excoriates the U.S. policymakers who, over the last decade, adopted “apologetic and revisionist views” of the terror group. “It is clear that America’s leaders not only lost the war, they’ve lost their bearings completely,” he writes. “It is absurd that any American official could look the other way as the Taliban gloats over al-Qaeda’s deadliest day. That is exactly what they are doing.” 

• In Friday’s G-File, Jonah turned a cynical eye toward the Biden administration’s recent announcement of a (again, kind-of sort-of) vaccine mandate after months of insisting there would be no such thing. “Hard-hearted cynics might say that Biden reversed course to change the subject from the debacle in Afghanistan and his sagging poll numbers,” he writes. “Well, the hard-hearted cynics are right.” 

• Sunday’s French Press concerns the virtue of empathy: When it’s good, when it’s bad, and how it’s all too often deployed selectively based on our prior understanding of who’s on whose political team. “America is experiencing an empathy crisis,” David writes. “But it’s not quite the crisis you might think. Our empathy can overflow for the people we love, for the people within our tribe—even when they make grave errors. But what about our empathy for ‘them,’ the people we distrust? Then empathy is in short supply.”

• In Friday’s episode of The Dispatch Podcast, Sarah and Steve talk with Sen. Ben Sasse about the United States’ Afghanistan withdrawal and what comes next. Stick around for Steve’s conversation with Peter Wehner—former speechwriter for President George W. Bush—about the 9/11 attacks themselves and the two decades since.

• For the weekend culture section, Declan reviewed the latest offering from another son of Chicago: Kanye West. “Kanye is likely too far down the path of celebrity to ever truly embrace modesty,” Declan writes. “He’s built himself an ego-driven prison over the years from which it’s difficult to escape. But with Donda, he’s at least trying, and it’s heartbreaking.”

Let Us Know

Have you ever played Fortnite? What smartphone app do you use most frequently?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@charlotteUVA), Audrey Fahlberg (@AudreyFahlberg), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).