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Scott Coulthart

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Epic Won the Battle. Now Developers Want Their Refunds.

When Epic Games went head-to-head with Apple, the Federal Court found that Apple misused its market power by locking iOS developers into the App Store and its payment system. That was big. But the Anthony v Apple class action takes it a step further: what if Apple has been overcharging Australian developers and consumers for years?

From liability to dollars

In Epic v Apple [2025] FCA 900, Justice Beach held that Apple’s restrictions substantially lessened competition in two markets:

  1. iOS app distribution; and

  2. iOS in-app payment solutions.

That case was about liability — whether Apple broke the law.

In Anthony v Apple Inc [2025] FCA 902, the Court applied those findings in the context of a class action by developers and users. This time, the question wasn’t just “did Apple misuse its power?” but “what should Apple have charged if competition had been allowed?”

The counterfactual commission

Apple famously takes up to 30% of in-app revenue. The class action alleges that this cut was inflated by Apple’s anti-competitive restrictions.

Justice Beach accepted that the key issue was whether commissions exceeded the “counterfactual” level — i.e. the rate that would have prevailed in a competitive market.

That’s not just a legal puzzle. It’s an economic modelling exercise: estimating what rival app stores and payment processors would have charged, and how Apple’s fees distorted prices across the app ecosystem.

Why this matters

  • Developers: If successful, they may recover damages for inflated commissions they’ve paid over years. That could mean real money back into the hands of Australian app makers.

  • Consumers: If commissions were inflated, those costs were often passed on through higher app and in-app purchase prices. Compensation claims could extend to end users.

  • Apple (and Google): The damages bill could be eye-watering. Liability findings are one thing; being ordered to pay back billions is another.

A coordinated strategy

Justice Beach emphasised that his reasons in Anthony v Apple should be read together with Epic v Apple and Epic v Google. This isn’t three random cases — it’s a coordinated litigation front against the app store model.

First, establish liability (Epic).
Then, pursue compensation (Anthony).
Finally, broaden the net (Epic v Google).

The bigger picture

Globally, regulators and courts are converging on the same theme: Apple and Google can’t use security or convenience as a shield for overcharging.

Australia’s twist? Class actions have a way of turning abstract competition law into concrete refunds.

⚖️ The takeaway

Epic v Apple broke open the wall. Anthony v Apple asks whether Apple should hand back the gold it’s been collecting inside.

This isn’t just another round in the same fight — it’s the damages phase of the app store wars. And it could hit closer to home for Australian developers and users than anything Epic ever fought for.

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Copy That, Part 10 – Copyright Myths Busted: Top Misunderstandings

The most dangerous thing about copyright? What people think they know.

Myths abound, and they can land creators and businesses in hot water. Let’s bust a few of the biggest.

Myth 1: “If it’s on the internet, it’s free to use.”

Nope. Online doesn’t mean ownerless. Copyright applies the moment a work is created and uploaded.

Myth 2: “I gave credit, so I can use it.”

Attribution is important, but it’s not a substitute for permission. Unless a licence or exception applies, copying is still infringement.

Myth 3: “I changed it, so it’s mine.”

Derivative works—like remixes, adaptations, and mash-ups—still require permission from the original copyright owner.

Myth 4: “It’s educational, so it’s fine.”

Education has some specific statutory licences and exceptions, but they’re limited and tightly regulated. “I used it in class” doesn’t automatically mean fair dealing.

Myth 5: “I bought it, so I own the copyright.”

Buying a book, CD, or digital download gives you the copy—not the underlying rights. Only the copyright owner controls reproduction, adaptation, and distribution.

Myth 6: “The 10% rule – if I change 10%, I’m safe.”

There’s no such thing. Courts look at whether a substantial part of the original work has been copied, not a percentage. Even a small portion can infringe if it captures the essence of the work.

Myth 7: “I added a little to the program, so now we both own it.”

Not true. Adding a minor change or tweak to software (or any work) doesn’t automatically give you joint ownership. You might own the copyright in your new contribution, but the original creator still owns their part—and you can’t exploit the combined work without permission.

IP Mojo tip: get advice, not assumptions

Relying on myths is a shortcut to infringement. When in doubt, check the licence terms, rely on fair dealing only where it clearly applies, or get legal advice.

Series Wrap-Up: Copy That

Over 10 instalments, we’ve explored the world of copyright in Australia—what it protects, who owns it, how long it lasts, when you can use someone else’s work, and how to share and enforce your own. Along the way, we’ve debunked myths, unpacked rights, and hopefully shown that copyright isn’t just a legal technicality—it’s a practical toolkit for protecting creativity and powering business.

If there’s one takeaway, it’s this: don’t rely on assumptions. Copyright law is full of nuance. A quick check, a clear agreement, or a simple licence can save years of disputes.

👉 That’s a wrap for Copy That: The IP Mojo Guide to Copyright in Australia.

But IP Mojo isn’t stopping here. Stay tuned for our next series, where we’ll dive into another corner of intellectual property and digital law—because your ideas, brands, and content deserve more than protection. They deserve strategy.

Follow along at IP Mojo for what’s next.

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Epic Down Under: How Australia Took a Bite Out of Apple’s Walled Garden

When Epic Games took on Apple in the US and Europe, the headlines practically wrote themselves – it was billed as a David-and-Goliath showdown between the Fortnite maker and the Cupertino colossus. Now, the same fight has reached Australian shores — and the Federal Court has bitten into Apple’s walled garden.

When Epic Games v Apple erupted in the US in 2020, Fortnite, the global gaming juggernaut, had been punted from the App Store after Epic tried to sneak in its own cheaper payment system. Cue a legal battle royale over whether Apple’s “walled garden” was innovation, exploitation, or both.

Fast forward to August 2025, and the fight has gone local. In Epic Games, Inc v Apple Inc [2025] FCA 900, Justice Beach of the Federal Court handed down a sprawling 6,347-paragraph judgment — and while not everything went Epic’s way, the headline is clear: Apple misused its market power under s 46 of the Competition and Consumer Act 2010 (Cth).

Australia has officially joined the global chorus questioning how far Big Tech’s gatekeeping power can go.

The legal frame: two markets, one gatekeeper

Epic’s case hinged on market definition — the first battlefield of any competition law fight. Epic said there were two relevant markets:

  1. The iOS app distribution market – how apps get onto iPhones and iPads.

  2. The iOS in-app payment solutions market – how digital content is paid for inside apps.

Apple argued for something broader: a market for “app transactions”, with plenty of alternatives. Justice Beach wasn’t buying it. He sided with Epic’s narrower framing, recognising that Apple was the sole gatekeeper in both distribution and in-app digital payments.

From there, the logic snowballed: Apple’s rules preventing sideloading (direct downloads) and banning alternative payment systems substantially lessened competition. That, in turn, triggered contraventions of s 46 (misuse of market power) and s 47 (exclusive dealing).

Epic didn’t get everything it wanted — some claims under s 21 of the ACL (unconscionable conduct) fell flat, and Apple’s ban on rival app stores inside the App Store was upheld. But the central wins are seismic.

Apple’s defence: “But security!”

Apple leaned heavily on security as a justification. Its argument: a centralised, curated App Store keeps users safe from malware, fraud, and scams.

Justice Beach accepted there were genuine security benefits — Apple’s model really does provide higher baseline quality and safety compared to the Wild West of sideloaded apps.

However, crucially, he ruled that security doesn’t trump competition law. A legitimate purpose (protecting users) doesn’t erase the anti-competitive effects (locking out rivals) – or as the Court put it: “The existence of a security purpose says little about the effect or likely effect of Apple’s restrictive conduct in terms of competition questions.”

What this means for…

Developers

Epic signalled it would jump into iOS distribution if given the chance.

Others will follow. Think Spotify, payment processors like Stripe, or even local players offering niche app stores.

The judgment cracks open a door that’s been locked since 2008.

Consumers

If remedies flow, users could see lower prices and more choice.

Developers paying Apple’s 30% cut have long argued they’re forced to inflate in-app purchase prices.

Alternatives could push those costs down — though don’t expect Apple to give up without a fight.

Regulators

The decision aligns with the ACCC’s Digital Platform Services Inquiry, which has repeatedly flagged Apple’s and Google’s control over app ecosystems.

Australia may now move closer to Europe’s Digital Markets Act, which mandates interoperability and alternative app stores.

Apple

Even if remedies are still pending, the finding of liability alone is a reputational hit.

Apple’s “we know best” stance has always traded on consumer trust. Now it must reckon with courts telling it that choice matters too.

The global context

This ruling doesn’t exist in a vacuum. It follows:

  • The US: where Epic’s case against Apple produced a mixed bag — Apple largely won at trial, but Epic clawed back some ground on appeal.

  • The EU: where the Digital Markets Act forced Apple to allow rival app stores and alternative payment methods in early 2024.

  • South Korea and Japan: already experimenting with app store regulation.

Australia is now firmly in the mix. What started as a Fortnite scuffle is becoming a global test of whether digital gatekeepers can keep locking the gates.

Where to next?

Justice Beach has reserved questions of relief for another hearing.

That means the really juicy part — what remedies Apple will face in Australia — is still to come. Options range from structural orders (sideloading must be allowed) to behavioural remedies (Apple must permit rival payment providers).

Whatever the outcome, one thing is clear: the walled garden isn’t as impregnable as Apple thought – and Epic may have just turned its legal battle royale into a global trend of regulatory respawn.

⚖️ The takeaway

For digital lawyers, regulators, and anyone building on someone else’s platform: this case is a reminder that market power is never just a tech problem — it’s a legal one.

When innovation, competition, and consumer choice collide, courts are willing to get out the pickaxe.

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The Rooh Afza Wars: Another Chapter in a Family Feud Over Syrupy Rights

If you thought brand disputes were just about logos and lawyers, think again. Sometimes, they carry the weight of history, partition, and family legacies.

Case in point: Hamdard National Foundation (India) v Hamdard Laboratories (WAQF) Pakistan [2025] ATMO 169 — the latest Australian skirmish in the century-long saga over the famous Rooh Afza drink.

A drink with history (and baggage)

Rooh Afza isn’t just a syrup. It was first concocted in Delhi in 1906 by the Hamdard Dawakhana Clinic. When Partition came in 1947, so did a business split: one son stayed in India (today’s opponent), another went to Pakistan (today’s applicant). Since then, both sides have sold Rooh Afza products in their respective home markets — and fought trademark battles across the globe.

Think Coca-Cola vs Pepsi, but with cousins at the helm.

The fight in Australia

The Pakistani arm applied in Australia for two marks:

  • ROOH AFZA in a fancy script (TM 2279408), and

  • a florid HAMDARD ROOH AFZA SUMMER DRINK OF THE EAST composite (TM 2279409).

Both were opposed by the Indian arm, which already owns the plain word mark ROOH AFZA (TM 1633931) here.

The delegate held:

  • The words ROOH AFZA are the “prominent and memorable” feature of both sides’ marks.

  • That makes the applied marks deceptively similar to the opponent’s word mark under s 44 of the Trade Marks Act 1995 (Cth).

  • The Pakistani applicant’s attempt to rely on prior use (s 44(4)) fell flat — their evidence showed Rooh Afza syrups had trickled into Australia since 2004, but the branding was inconsistent. Multiple trade mark variants were used, social media was directed at Pakistani consumers, and documentation was patchy.

Result: both marks refused, with costs awarded against the applicant.

Why it matters

This is more than a tale of two syrups. It’s a case study in evidence strategy:

  • Inconsistent branding kills your case. The delegate couldn’t be sure which “Rooh Afza” mark was really used in Australia, and when.

  • Records matter. Gaps in invoices and an absence of dated packaging images left the applicant vulnerable.

  • Family feuds spill into IP. The long-running India/Pakistan split over Hamdard’s legacy ensures we’ll see more of these fights around the world.

For Australian brand owners, the lesson is simple: if you’re trading here, make sure you keep consistent, dated, and local evidence of use. Courts and hearing officers won’t give you much sympathy if your story is clouded by multiple logos and poor record-keeping.

Final pour

The Rooh Afza wars are far from over. But in Australia, at least for now, the syrup tilts in favour of the Indian side. The Pakistani arm walks away empty-handed — and a little lighter in the pocket.

⚖️ Case reference: Hamdard National Foundation (India) v Hamdard Laboratories (WAQF) Pakistan [2025] ATMO 169 (Delegate Irgang, 28 August 2025).

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Copy That, Part 9 – International Protection: Does My Copyright Travel?

Copyright doesn’t stop at the border. Thanks to international treaties, Australian works enjoy protection in most countries around the world.

But while copyright travels, enforcing it can be another story.

The Berne Convention

Australia is a member of the Berne Convention for the Protection of Literary and Artistic Works, which has over 180 signatories. The convention requires each member country to give works from other member countries the same copyright protection they give their own.

In practice:

  • An Australian author’s novel is protected in France, the US, Japan, and most other places automatically.

  • No need to register abroad (though some countries, like the US, still require local registration before suing).

Enforcing overseas rights

While protection exists automatically, enforcement depends on local courts and procedures. That means:

  • You may need local lawyers and expertise.

  • Remedies differ country to country.

  • Cultural and practical considerations can affect how disputes play out.

Beyond Berne

Australia is also part of other agreements, including the WIPO Copyright Treaty and various free trade agreements, which extend and harmonise protections.

IP Mojo tip: plan internationally

If your work has export potential—books, software, films, brands—consider international contracts, licences, and partnerships to support enforcement, rather than relying on litigation in a distant jurisdiction.

Next up in our Copy That series:
Part 10 – Copyright Myths Busted: Top Misunderstandings

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When Copying Doesn’t Pay: Lift Shop v Next Level Goes All the Way Up

What happens when copyright infringement is admitted but the “big ticket” remedies fall away?

The recent battle between residential lift rivals Lift Shop and Next Level Elevators shows how hard it can be to turn technical wins into commercial victories.

The Backstory

Lift Shop and Next Level are fierce competitors in the Australian residential lift market. The dispute began when a Lift Shop quotation template found its way into Next Level’s hands in late 2019. Next Level adapted the template and used it for a few months until April 2020.

Lift Shop sued in the Federal Circuit and Family Court, claiming:

  • Copyright infringement of its quotation documents,

  • Breach of confidence over information allegedly supplied by a former employee, and

  • Misleading or deceptive conduct under the ACL in relation to marketing and compliance claims.

Next Level hit back with its own ACL allegations.

The Primary Judgment (June 2024)

Judge Baird found that Next Level (and two of its directors) had indeed infringed Lift Shop’s copyright by using the quotation template. But the win was thin:

  • Additional damages refused: Although infringement was established, the Court declined to award extra damages under s 115(4) of the Copyright Act. The use was brief, not particularly lucrative, and not deemed “flagrant.”

  • Breach of confidence dismissed: Lift Shop couldn’t prove its customer quotes were truly confidential. Some of the same material had even been accessible on its website due to a coding plug-in glitch.

  • ACL claims failed on both sides: The Court wasn’t persuaded that either company had misled consumers about their lifts. Importantly, the judge observed the Court was not an industry regulator.

In short, Lift Shop walked away with a declaration of infringement, but none of the additional relief it wanted.

The Appeal (August 2025)

Unhappy with the limited result, Lift Shop appealed to the Full Court. Its main targets were:

  1. Additional damages – arguing the primary judge was wrong to rule them out before quantum was assessed.

  2. Flagrancy – insisting Next Level’s copying was sufficiently egregious to attract extra damages.

  3. Confidential information – contending the judge erred in finding no breach of confidence and in admitting documents obtained from its website by Next Level’s solicitors.

The Full Court (Feutrill, Neskovcin and Moore JJ) dismissed the appeal:

  • Additional damages can be decided early: The Court confirmed that entitlement to additional damages can be determined at the liability stage, even before election or quantum. Entitlement and quantification are distinct steps. This follows the approach in Redbubble v Hells Angels and Motorola v Hytera.

  • Flagrancy is a matter of degree: The assessment under s 115(4) isn’t binary (“flagrant or not”). It involves weighing the degree of flagrancy along with other factors. The primary judge’s evaluative judgment disclosed no error under House v The King.

  • No confidentiality: A Lift Shop customer quote was not confidential, particularly when similar documents were accessible online. The Court also held that Next Level’s solicitors had not acted improperly in locating documents via the website.

Result: appeal dismissed with costs.

Key Takeaways

  • Copyright is not a lottery ticket. Even where infringement is admitted, additional damages are far from automatic. Courts look for truly egregious, flagrant conduct.

  • Two steps to additional damages. Entitlement and quantification are separate. Entitlement can be determined at the liability stage – and losing that fight early can dramatically weaken a case.

  • Confidentiality must be managed. If “confidential” material can be accessed on a public website, or is too widely circulated, courts are reluctant to protect it.

  • ACL claims cut both ways. Rival traders often throw ACL allegations at each other, but without strong evidence, the Court may simply dismiss both.

Why It Matters

For litigants, this case is a reminder that winning the infringement battle doesn’t always mean winning the war on remedies. Strategic choices about pleading confidentiality, securing websites, and framing additional damages arguments can decide whether a lawsuit delivers real value—or just a hollow declaration.