Apple vs Epic Games court case yielded comedy and existential questions
Since the curtain closed last week on the court hearing between Apple and Epic Games, in which Epic accused the iPhone maker of operating an illegal monopoly, industry analysts have been scurrying to decipher what the complex case might mean for the future of app stores, antitrust legislation, and two of the biggest tech companies around. Yet beyond the main arguments of the case, the three-week trial also provided plenty of absurdist entertainment and provoked existential questions for anyone with an interest in gaming and tech. Much of this came from court documents brought out as evidence that revealed some of the conversations happening behind the scenes within gaming companies, which are generally notorious for their lack of transparency.
Some of these documents confirmed suspicions that I had already: Epic Games has made a fortune from Fortnite, more than $9bn in its first two years. Microsoft does not make a profit on its Xbox consoles, selling them at a loss in order to recoup costs on sales of games and digital services. In more surprising news, we heard about Walmart’s plan to launch a cloud gaming service code-named Project Storm, currently MIA, and that Nintendo specifically stipulates in its contracts that its Japanese publishers and developers cannot have ties to organised crime groups such as the Yakuza.
The trial also offered moments that bordered on unscripted comedy. As the court fumbled with its technology on the first day, the public audio feed was unmuted, allowing children watching online to shout out “Free Fortnite!” over the opening arguments. Lawyers lingered on the topic of obscenity, as Apple argued that the tight controls around its App Store (which Epic is seeking to loosen) keep it safe and child-friendly, leading an Epic lawyer to prove that lewd content was indeed available on iPhones by searching the term “BDSM” on TikTok in front of the judge and showing apps such as “Sex Positions 3D” and “Fingering Secrets” on the App Store.
Most ludicrous was the debate reported by the tech news website The Verge around Peely, a humanoid banana who is something of a mascot for Fortnite. Apple’s lawyers displayed an image of the figure in his “Agent Peely” guise wearing a tuxedo, saying, “We thought it better to go with the suit than the naked banana, since we are in federal court this morning,” implying that a banana without clothes is somehow obscene. Hours later Epic’s attorney returned to this ridiculous proposition by asking Epic’s VP of marketing whether Peely without clothes would be “inappropriate”. His response was a firm “no”: “It’s just a banana, ma’am.”
The question that particularly caught my interest was a long debate over the definition of a video game. This was relevant because Epic wants this case to encompass all App Store purchases, while Apple wants to restrict its purview to just digital game sales. Apple therefore argued that Fortnite was a video game, while Epic CEO Tim Sweeney stated it was “a phenomenon that transcends gaming”, calling it instead a “metaverse”, a buzzy term in gaming today which loosely defines a virtual world people inhabit as avatars which might include games but also in-game concerts, film screenings or retail. The judge asked for an industry definition of a video game, but was told that there isn’t one.
Is this simply a question of legal definitions, or does the question “what is a video game?” actually matter more broadly? Many of today’s biggest games are complex constructions: part social network, part virtual event space, part digital store, part traditional game. Does this make them more than a game, or can all these features nestle comfortably inside the category? Video game academics have spent a great deal of time poring over this question and there is a vague consensus that video games are products with players, rules and goals. They are defined by their interactivity — the player makes choices and the game reacts — as opposed to passive entertainment such as TV, film and books.
This question struck me because it feels as if, despite their economic heft and cultural ubiquity, video games still nurse an inferiority complex when it comes to cultural legitimacy. Outside of this trial, we are used to hearing new releases touted as “more than a game”, as if just being a game is not enough. Perhaps this is because there is still a perception among non-gamers that games are trivial because they are not “real”, though the lines between real and unreal are rapidly dissolving as people live more of their lives online.
Instead of latching on to buzzwords such as “metaverse”, perhaps we should simply agree that “game” is an expansive, versatile term, that it contains multitudes. While we await the result of the trial, due in a few weeks, the gaming world has a lot to chew on.