By: Inyoung Cheong
Why Did Epic Games’ CEO Claim to be South Korean?
As a South Korean, it felt surreal to see Oli London, a British YouTube influencer, claiming to be Korean following multiple plastic surgeries. Although Korean culture has been well-promoted by the band BTS (and more recently by the Netflix show, Squid Game), I never imagined that a non-Korean would ever want to be Korean. Soon after, more astonishing news came out. Tim Sweeney, the CEO of Epic Games, one of the most influential video game companies in the world, tweeted “I am a Korean!” Why is this high-profile figure so thrilled about my home country?
How Epic Games Was Treated in the U.S.
Epic has been involved in a serious dispute with Apple since 2015 when Tim Sweeny questioned the necessity of digital marketplaces, like Apple’s App Store for iOS devices and Google Play, taking 30% of app-generated revenue. To avoid the 30% charge, Epic released an installer in mid-2020 for its massively popular video game, Fortnite “Season 4,” with a feature, codenamed “Project Liberty,” that offered a 20% discount for in-game money when users chose to directly purchase the game from Epic. Apple took down the app Fortnite for violating its App Store’s terms of service within hours, leaving iOS and macOS users unable to update their video game. Apple has claimed that in-app purchase policies “ensure that iOS apps meet Apple’s high standards for privacy, security, content, and quality.” However, app developers view this system as monopolistic and exploitative, one that allows companies like Google and Apple to make a quick profit without providing value to developers or consumers.
Interview with Tim Cook on Sway, April 5 2021
In the United States, the U.S. District Court for Northern California did not fully agree with antitrust claims brought by Epic Games against Apple regarding this issue. While Judge Yvonne Gonzalez Rogers issued a permanent injunction in this case in September 2021 that requires Apple to allow app developers to communicate with users about alternative payment systems, Epic Games suffered a pyrrhic victory. Judge Rogers rejected the allegation that Apple’s App Store is a monopoly and ordered Epic Games to pay Apple 30% of all revenue collected through the system since it was implemented for breach of contract. This award amounts to a sum of more than $3.5 million. On Twitter, Tim Sweeney expressed his disappointment, saying “[t]oday’s ruling isn’t a win for developers or for consumers.”
It’s important to also note that while the lawsuit was still ongoing, Apple lowered its commission from 30% to 15% for developers that make under one million U.S. dollars per year.
The World’s First Law Directly Regulating In-App Purchase Systems
In contrast to the United States District Court for the Northern District of California, South Korean lawmakers turned out to be more empathetic to app developers. In an exceptional move, South Korean lawmakers made the practice of forcing app purchases through particular virtual storefronts illegal. In August 2021, South Korea’s National Assembly enacted amendments to the country’s Telecommunications Business Act that commits the Korea Communications Commission (KCC) to preventing online platforms from requiring certain payment methods, unfairly delaying the review of mobile content, and unfairly deleting mobile content from the app market. In Apple’s case, an app-developer whose app was removed from Apple’s App Store can simply file a complaint with the KCC and seek an administrative penalty against the App Store instead of bringing a time-consuming lawsuit. Currently, it appears that South Korea is the only country on the planet to enforce this type of legislation, hence Time Sweeney’s jubilant cry, “I am a Korean!”
Debates Over the New Law in the South Korea’s National Assembly
Predictably, both Google and Apple recently worked with local major law firms in appealing to the legislature to block passage of the bill. Global business organizations including the American Chamber of Commerce in Korea, NetChoice, Asian Trade Center, and Asia Internet Coalition also filed objections to the bill. All of these groups argued that compliance with in-app purchase policies contributes to creating safe, secure, and credible digital platforms that have enabled developers to sell their products abroad.
Affected tech companies even turned to the U.S. government and accused the bill of being a non-tariff trade barrier in violation of a joint trade agreement, but the Biden administration did not take official action other than briefly mentioning the issue in the U.S. Trade Representative National Trade Estimate Report in March 2021. According to the New York Times, this inaction reflects the Biden administration’s critical attitude towards these tech giants’ incredible power over commerce.
In addition, legislative documents demonstrate disagreement between various Korean government agencies. The Korea Fair Trade Commission (Korea FTC) initially opposed this bill because “forcing payment systems” could be regulated by antitrust authorities as predatory conduct without introducing new telecommunication regulations. In the end however, Korea FTC reluctantly agreed to the KCC’s jurisdiction into this area after weathering President Moon and lawmakers’ relentless concerns and rebuke concerning the current disparity in app markets.
Google and Apple Took Different Approaches
Just after the enactment of the new law, Epic Games requested that Apple restore Fortnite to operational condition in South Korea, but Apple declined. Apple said, “we would welcome Epic’s return to the App Store if they agree to play by the same rules as everyone else.” The KCC then requested that Apple and Google submit compliance plans by October 2021. Both companies’ initial plans were, however, turned down by the KCC.
Before submitting a new plan, Wilson L. White, Google’s public policy and government relations senior counsel, had a conference with a KCC chairman on November 4th. White committed to giving developers “the option to add an alternative in-app billing system alongside Google Play’s billing system for their users in Korea.”
In contrast to Google’s move, Apple remains resistant. Apple is holding its ground, stating that its current policy is already compliant with the law, even though a KCC official made it clear that Apple’s position “goes against the law.” The South Korean local newspaper ETNEWS reported that Apple CEO Tim Cook ordered “we should not step back in South Korea.” It was also announced that Apple’s Korea unit chief Brandon Yoon resigned from his position. A South Korean lawmaker, Jo Seung-rae, opined that neither Apple nor Google are doing enough to comply with South Korea’s new law and called Apple’s claim that it complied with the law “nonsensical.”
Tim Sweeney’s Push and KCC’s Remaining Tasks
Tim Sweeny gave a speech in South Korea on November, 15, 2021, saying “Apple is ignoring laws passed by Korea’s democracy. Apple must be stopped.” He also expressed his strong support for South Korea’s anti-monopoly push during a video conference with the Korea Communications Commission’s Chair, Han Sang-hyuk, on November 17. Chair Han said, “[f]or a platform ecosystem where everyone coexists, not only the government, but also platform companies, content producers, creators, and users need to participate in making changes.”
Last month, the KCC initiated notice-and-comment rulemaking procedures. The KCC notified the public about the implementation of an ordinance that allows the KCC to impose monetary penalties of up to two percent of a company’s revenues on companies that do not comply, although the precise definition of “revenues” has not been settled and it remains to be seen whether “revenues” applies to South Korea alone or the global market. While there are still shortcomings in the law and complexities to iron out, it is undeniable that this new Korean law has ignited meaningful policy discussions over mobile app market practices around the world.
Inyoung Cheong is a Ph.D. Candidate at the University of Washington School of Law and former Deputy Director of the Korea Communications Commission.