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Judge refuses to postpone order lifting App Store restrictions

A federal judge said Apple can't skirt an injunction requiring changes to its anti-competitive App Store policies.

OAKLAND, Calif. (CN) — The federal judge overseeing a number of squabbles between Apple and developers said she won't delay an order requiring Apple to change its policies around external links and buttons that can direct consumers to other payment options outside the App Store.

Apple attorney Mark Perry pleaded with U.S. District Judge Yvonne Gonzalez Rogers at a hearing Tuesday to grant a stay that would indefinitely extend a Dec. 9 deadline for Apple to comply with her injunction, which says Apple must stop "prohibiting developers from (i) including in their apps and their metadata buttons, external links, or other calls to action that direct customers to purchasing mechanisms, in addition to in-app purchasing and (ii) communicating with customers through points of contact obtained voluntarily from customers through account registration within the app.”

Gonzalez Rogers took arguments under submission, then promptly issued a ruling denying Apple's motion.

She found the injunction, while inconvenient for Apple, will not cause the harm that the tech giant predicts.

"The court can envision numerous avenues for Apple to comply with the injunction and yet take steps to protect users, to the extent that Apple genuinely believes that external links would create issues," she wrote.

"The court is not convinced, but nor is it here to micromanage," she added. "Consumers are quite used to linking from an app to a web browser. Other than, perhaps, needing time to establish guidelines, Apple has provided no credible reason for the court to believe that the injunction would cause the professed devastation. Links can be tested by App Review. Users can open browsers and retype links to the same effect; it is merely inconvenient, which then, only works to the advantage of Apple."

Perry said Apple has already satisfied the second part of Gonzalez Rogers’ order via a settlement with developers in a different case, but that adding external links and buttons to alternate payment mechanisms would introduce unknown security and privacy risks that threaten Apple’s entire ability to operate.

“These have never been allowed for digital content and allowing them now would permit bad actors to hijack the links, to take children and other users to places that none of us wants them to be, to steal their money, and to steal their data,” he said. “It takes someone from within an app to the outside wide world without controls and restrictions.”

This “wild west” scenario was one championed by Epic Games, maker of the popular game Fortnite, in its lawsuit challenging Apple’s tight control of its App Store and the 30% cut it takes on all in-app purchases.

Following a three-week bench trial in May, Gonzalez Rogers issued a ruling that found Epic had breached its developer agreement with Apple by introducing a “hotfix” to the iOS version of Fortnite, allowing users to pay it directly for in-app purchases instead of going through Apple.

But she also found Apple’s anti-steering provisions barring developers from communicating directly with customers to be anticompetitive. Both sides are appealing aspects of her decision.

Noticeably piqued, Gonzalez Rogers asked Perry why Apple needed a stay that could take three to five years. “You didn’t ask for a few months, you didn’t ask for six months, you didn’t ask for a limited amount of time. You asked for an across-the-board stay, which could take three, four, five years.”

“Yes,” Perry said. “We believe these changes, if Apple is forced to implement them, will upset the platform.”

Gary Bornstein, an attorney representing Epic Games, said the judge shouldn’t trust Apple to keep its word on changing restrictions in the App Store. “There is no evidence, and your honor has found that Apple does nothing unless they are forced to do it,” he said.

He said that while Apple claims its settlement with small developers puts it in compliance with Gonzalez Rogers’ injunction regarding outside communications between app developers and users, the agreement actually restricts the circumstances under which developers can obtain user emails.

"Even when they are purporting to comply with the injunction they are playing games,” he said.

Perry said Apple is working on a “global solution” spearheaded by head of App Review Trystan Kosmynka, that could obviate the need for the injunction. He noted one recent settlement with a Japanese regulator to allow a small number of reader apps to include an in-app link to their own websites. “It's going to take more time between now and before Dec. 9 to do that, that's just reality,” Perry said.

Gonzalez Rogers' ruling expressed terse disagreement. While Apple could have requested more time to comply with order, she noted instead that: "It wants an open-ended stay with no requirement that it make any effort to comply. Time is not irreparable injury."

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