The Justice Department asks the Supreme Court to reverse Apple's contempt finding on the 27% commission

Apple has never conceded that the injunction required it to take nothing. Its opening merits brief, filed last week, argues that the text of the order did not prohibit a commission and that the lower courts leaned on the "spirit of the injunction" instead ^[5][6]. Apple also told the justices that letting the contempt finding stand would raise the risk of judicial overreach and leave companies unsure what an order actually forbids ^[7]. On a $10 sale made through an external link, the 27% Apple charged before the contempt ruling works out to $2.70 ^[3][1].

The government's brief splits the case. "[c]ivil contempt is [...] appropriate only if the defendant's conduct is clearly covered by the injunction's express terms," the Department of Justice argues, and it concludes that the Supreme Court "should reverse the contempt finding as to the 27% commission" ^[8][9]. In the same filing it defends the lower courts on the plain button restriction, because the injunction covered buttons, external links and other calls to action, and Apple's implementation effectively permitted only links ^[10][15].

That leaves the two things developers got in different positions. The button is the part the government calls clearly covered by the order ^[10]. The commission on the sale that follows is the part it wants reversed ^[9].

The placement questions are unsettled even in the government's preferred outcome. On restrictions such as where an external purchase link may appear, the Department of Justice asks the justices to set the existing rulings aside and return them to the lower courts under the "fair ground of doubt" standard ^[11].

Six other filers, among them the Chamber of Commerce of the United States, Chamber of Progress, the International Center for Law and Economics and the Computer & Communications Industry Association with NetChoice and the Software & Information Industry Association, support the general position that contempt cannot rest on conduct an injunction did not clearly prohibit ^[12][16]. The ICLE brief puts the principle in one line: "choosing a profitable way to comply is still compliance" ^[13].

Epic Games has until November 13 to file its response, roughly seven weeks after this week's amicus filings ^[14][2]. Apple has not said what it would charge on external purchases if the contempt finding is reversed.

For anyone modelling an external checkout, there are two lines to price separately. One is the entitlement to put a button and a link in the app, which the government's brief treats as clearly required by the order ^[10]. The other is the commission on the sale that follows, which is zero today ^[4] and 27% in the version of the case Apple is arguing ^[3][5]. A checkout that only got approved internally because it is free depends on that commission staying at zero, and the Department of Justice has asked the court to unwind that ^[9].