As a process for Epic vs Apple entered its second week, both sides have taken a break from the antitrust law to discuss whether bananas should wear clothing in court.
The banana in question is Peely, a human-like fruit avatar from Epic’s game Fortnite. Fortnite, as you may recall, is central to the massive lawsuit between Apple and Epic. The sixth day of the trial began with testimony from Matthew Weissinger, Epic’s VP of marketing. And Apple used its cross-examination to offer the court a comprehensive tutorial Fortnite, starting with the title screen and one of the skins. Hence the banana:
Apple attorney: We have a new set of images before us, and what does this screen show?
Weissinger: This is your matchmaking lobby.
Lawyer: And we have a big yellow banana here, don’t we? In a tuxedo?
Weissinger: Yes. That’s Peely.
Lawyer: And that’s Peely, you said?
Lawyer: And in fact, in the tux, he’s known as Agent Peely, right?
Weissinger: That’s correct.
Lawyer: We thought it was better to go with the suit than the naked banana as we are sitting in federal court this morning.
Peely’s nightmarish existence is hardly related to Apple’s case. And the “ naked banana ” comment would likely have passed off as a throwaway joke, but for one very important fact: Apple turned down Epic last week by claiming it was organizing porn.
On Friday, an Apple attorney went after the indie storefront Itch.io, which lets Epic users install through the Epic Games Store. The attorney noted that Itch.io contained “so-called adult games” the descriptions of which “were not appropriate for us to speak in federal courts,” calling them “both insulting and sexualized.”
Epic Games Store manager Steven Allison defended Itch.io, but the exchange may have stung Epic. Or at least that’s the best explanation I can imagine for what happened two hours later – when Epic’s attorney decided to revisit Peely during her own questioning of Weissinger:
Epic Lawyer: A bit of a digression. We were talking about Peely? Our banana? Remember that?
Weissinger: I do.
Lawyer: And there could be some suggestion that it would have been inappropriate to show Peely without a suit. Do you remember that?
Lawyer: Is there anything inappropriate about Peely without a suit?
Weissinger: No there is none.
Lawyer: If we could just put a picture of Peely on the screen, is there anything inappropriate about Peely without clothes?
Weissinger: It’s just a banana, ma’am.
This, somewhat surprisingly, relates to the core issues in Epic vs Apple. Epic is suing to open up Apple iOS to alternative app stores such as the Epic Games Store. Apple claims this would expose users to low-quality malicious apps. It used Itch.io to portray Epic as a shoddy guardian of its users’ safety, and Judge Yvonne Gonzalez Rogers seemed to be at least somewhat taking Apple’s concerns seriously. It’s unclear whether Rogers really thought there was a graphically naked banana person inside Fortnite, but Epic’s attorney clearly didn’t want to take that risk.
But the Peely exchange still epitomized how confusing and off-topic some of today’s testimonials felt. Apple’s tutorial was clearly intended to show that Fortnite is usually a game and not an ‘experience’ or ‘metaversion’. It encourages the judge to weigh up the App Store’s game-related policies against similar console rules, rather than scrutinizing the entire iOS ecosystem. Still, the result felt like a freshman filling out an English essay with a plot summary – or in this case, a description of how to complete a skydiving challenge.
And despite Apple and Epic’s often very funny debate over the definition of a game, the matter will likely hinge on drier-sounding questions like those discussed by Epic’s first expert witness, the economist David Evans.
Evans argued that Apple has an unfair monopoly on one brand: in fact, it sells expensive devices that lock users into an ecosystem with no reasonable alternatives to getting certain apps, other than throwing away their phone or tablet and spending hundreds or thousands of dollars on one. new one. Developers can offer cheaper in-app purchases on the web or another platform, but Apple doesn’t let iOS apps lead users to these savings.
Judge Rogers asked some skeptical questions about Evans’ testimony, and Epic will almost certainly try to hammer his points harder. Hopefully, both sides will let Peely slip – but who knows, the banana dress issue might remain a split in the coming days.