The Battle Royale of Platform Regulation: Judge,Jury,Regulator—Lessons from the Epic Games Cases

Abstract

This paper examines an antitrust dispute in the mobile gaming sector: Epic Games’ “Project Liberty” challenge to app store restrictions and mandatory in-app payment systems for its game Fortnite. Claims were brought against both Google and Apple in two very similar cases that, despite their parallels, produced completely different outcomes in the U.S. courts. The paper further highlights the contrasting logic of the European Union’s Digital Markets Act (DMA), which establishes proactive obligations for gatekeepers to prevent harm before it occurs. The analysis demonstrates how similar cases may produce divergent results depending on the interaction between ecosystem architecture (closed vs. contractually restricted) and whether they are adjudicated by judges, juries, or proactive regulators. Building on these observations, it contributes to the antitrust debate by examining which model most effectively ensures fairness, fosters innovation, and protects consumer welfare in digital markets, considering the perspectives of developers, platform owners, and consumers.