Tim Hardwick, reporting for MacRumors:

Apple has filed an emergency motion asking the Ninth Circuit Court of Appeals to pause key parts of a recent ruling that dramatically changes how the App Store operates, following a contempt finding in its long-running legal battle with Fortnite maker Epic Games.

In court documents filed Wednesday, Apple called the district court’s order “extraordinary” and argued it unlawfully forces the company to permanently give up control over “core aspects of its business operations.”

“A federal court cannot force Apple to permanently give away free access to its products and services, including intellectual property,” Apple’s lawyers wrote in the motion.

Apple’s argument here might go along the lines of Ben Thompson’s theory (in a subscriber-only post last Friday) on the “Takings Clause” of the 5th Amendment. Thompson wrote:

My use of the word “took” is deliberate, because I am referring to the Takings Clause of the 5th Amendment (the clause is emphasized):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It seems to me that Judge Gonzales Rogers just did exactly that: her latest ruling basically says that companies like Spotify are entitled to iOS APIs and App Store distribution without having to pay Apple anything.

If this sounds like a new addition to the case, it is! The Takings Clause has not come up in any previous litigation precisely because Judge Gonzales Rogers’ original opinion acknowledged that Apple had the right to charge a commission; the issue under the California Unfair Competition Law was that Apple’s commission was much higher than was justified precisely because Apple foreclosed competition. To that end, what would have made much more sense would have been if Judge Gonzales Rogers lowered Apple’s proposed 27% commission to something significantly lower; to simply wipe it out completely is what prompts this discussion.