US Court injunction prevents Apple’s Epic developer access block, but not Fortnite iOS App Store removal

The US courts have provided injunctive relief for Epic in their court case against Apple over direct payments in Fortnite on iOS, halting the termination of Epic’s developer access to iOS and macOS for Unreal Engine, but not forcing Apple to allow Fortnite back onto the iOS App Store.

The ruling means that Unreal Engine will continue to be a viable platform for developers to use on iOS, but means that if Epic want Fortnite to return to the iOS App Store while this case remains in the courts, they will have to roll back the direct payment system that they implemented and resubmit it to Apple.

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The Court quite plainly lay out what injunctive relief is for, as an “extraordinary and drastic remedy” intended to avoid irreparable harm from actions taken surrounding the court case. To succeed, the plaintiff (Epic in this case), must demonstrate four points:

  1. They are likely to succeed on the merits
  2. They are likely to suffer irreparable harm in the absence of preliminary relief
  3. The balance of equities tips in their favour
  4. An injunction is in the public interest

With regard to Fortnite’s removal, the court says that “Epic Games has not yet demonstrated irreparable harm. The current predicament appears of its own making. […] Epic Games remains free to maintain its agreements with Apple in breach status as this litigation continues.” By choosing to break the terms that they agreed to in order to list Fortnite on the iOS App Store in the first place, Epic have caused this situation themselves. Additionally, ” Epic Games admits that the technology exists to “fix” the problem easily by deactivating the “hotfix.” That Epic Games would prefer not to litigate in that context does not mean that “irreparable harm” exists.”

Further more, the Court seem a bit confused over why the hell this all apparently so urgent right now. There is already a lawsuit against Apple in the Court – Donald Cameron, et. al. v. Apple Inc., filed in June 2019 – which contests that Apple’s policies are monopolistic and anti-competitive:

The battle between Epic Games and Apple has apparently been brewing for some time. It is not clear why now became so urgent. The Cameron case which addresses the same issues has been pending for over a year, and yet, both Epic Games and Apple remain successful market players. If plaintiffs there, or here, prevail, monetary damages will be available and injunctive relief requiring a change in practice will likely be required.

However, with regard to removing all of Epic’s developer access and effectively blocking the Unreal Engine from iOS going forward, the Court saw this differently. While Apple citied this was an “historical practice”, the Court recognised that this would affect far more people and companies that just Apple and Epic – Microsoft’s statement of support here will surely have helped.

The record shows potential significant damage to both the Unreal Engine platform itself, and to the gaming industry generally, including on both third-party developers and gamers. […] Epic Games and Apple are at liberty to litigate against each other, but their dispute should not create havoc to bystanders. Certainly, during the period of a temporary restraining order, the status quo in this regard should be maintained.

Not only this, but figuring out the damages for so many additional parties would be incredibly messy and difficult to do.

What’s perhaps most interesting is that the Court also weighed up the likelihood of Epic’s success in the full suit as part of its determination on whether to offer injunctive relief:

Epic Games moves this Court to allow it to access Apple’s platform for free while it makes money on each purchase made on the same platform. While the Court anticipates experts will opine that Apple’s 30 percent take is anti-competitive, the Court doubts that an expert would suggest a zero percent alternative. Not even Epic Games gives away its products for free.

Obviously this is not the final judgement or ruling, and different judges will have different opinions that can then be appealed and relitigated up to the highest courts in the land. It could be years before the case is settled – the aforementioned Cameron case hasn’t really moved since last June – so now we just have to wait and see what Epic decide to do.

The company made a big splash with their calculated decision to add direct payments to Fortnite, fully aware that there would be immediate repercussions. That was part of their plan, of course, releasing an in-game trailer that slammed Apple and kicking off a hashtag #FreeFortnite to rile up their fans against the company.

So now it’s up to Epic. Do they back down and let this go through the US courts, content that their marketing stunt will have raised awareness amongst Fortnite players that a new season is about to start? Or do they decide to keep their iOS and Google Play Store customers cut off from the new content, which would, as the Court says, be entirely their fault.

Source: Court Listener

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9 Comments

  1. So good news for any developers using the Unreal engine on Apple hardware then? They’ve now got several years to move to a different engine before Apple break it instead of a couple of weeks.

    Not sure how they decided Apple could win though. Is 30% a bit unfair? Quite possibly. Anti-competitive? Not really. There are plenty of other options available, and most people go for those other options.

    • While it’s obviously a worry and could see devs choosing Unity over Unreal going forward, it’s very unlikely that Unreal will be cut off from Apple forever. The Court says that, while Apple have cited their previous strict implementation of rules for why they decided to cut off Epic’s developer access as a whole company, there are separate contracts and agreements for Unreal Engine development and for Epic’s game development and publishing.

      And in making the injunction, the court has to weigh up the likelihood of either side winning. They say it’s likely that experts will say that 30% is too high, but also recognise that there are costs to running the app store, so there will be some kind of fee.

      It’s all brinksmanship. Epic are gambling they can push the courts to open up Apple’s payments and platform, but at the very least expect that Apple will be forced or decide to reduce their cut of sales. On the other side, Apple have shown that they are willing to be absolutely ruthless with applying their terms. Apple will not back down at all, so it’s just how far Epic are going to push in order to make a point before waiting for a legal rulings.

      • I’m sure Epic can find some “experts” who will say 30% is too high. But is it? If that’s a normal rate, and Epic previously agreed to pay that rate, what grounds do they have for getting a court to declare they should pay less? Other than “we want to make more money”?

        And as you say, Apple won’t back down. All Epic are going to achieve for the next 5 or 10 years (or however long it takes) is to make sure that 30% rate isn’t going to change. And if Epic somehow win, maybe the 12% Epic think is reasonable might become the normal rate. How does that work out for anyone else wanting to launch some competition to Epic and Steam without enormous bags of money to do it?

        Apple or Epic might win (both companies with enough money that it doesn’t matter to them either way). Some lawyers will definitely win. Smaller developers and consumers are going to lose out somehow.

      • Well, the Epic Games Store runs at 12% (though with a lesser role on global payment structure, certification, etc. etc.), and they can point to Apple offering 15% for subscriptions after the first year, and their willingness to allow for other payment options in different categories.

        Really Epic want to pay 0% to Apple by taking direct payments, and they also want to open their own legitimised app stores on iOS and Android. That was made clear from the demands they emailed to Apple in the run up to this spat.

        And I agree it’s basically a zero sum game for consumers. You might save 20% on Fortnite skins, but the Epic Games Store charges the same as Steam, it’s just that Epic takes a smaller cut. In theory that helps developers, and there’s growing frustration at Apple’s all-too-regular screw ups in blocking fairly legitimate app updates.

  2. Remind me again, how much is the share we have to pay Microsoft to install software on a Windows PC?

    • Is that relevant? How much do Epic take if you buy something from their store? Or Steam? How much would be taken up in fees if you bought something direct from the developer?

      Wait. That’s a whole bunch of other options instead of paying Apple anything. Which is why this whole thing is a bit stupid. Plenty of other options, Epic pick one of them and demand special treatment. And when that didn’t work, they just went and ignored the terms they’d agreed to anyway.

      • I have to admit I’m getting tired of the discussion and the amount of uninformed or misleading contributions.
        Epic did not demand special treatment, they specifically asked Apple for conditions that should be available to all developers (the respective documents are public).
        Plenty of other options? No, there are hardly any at all, and Apple makes sure there are none. For a consumer, maybe not use a mobile would be one of these options, I presume.

        But all this clearly showed Apple doesn’t care about anything else than their own profit, and it’s good the judges stopped them to ‘create havoc to bystanders’.

      • Well, the email to Apple from Tim Sweeney was a sort of “We want special treatment, and, erm, I guess let everyone else have it too?”. Epic aren’t doing this for any reason other than making more money themselves.

        And how are Apple making sure there aren’t other options? Do they have a monopoly on app stores? No. Google has one too. Amazon has one for Android.

        Clearly Apple’s position on locking down the iPhone and not letting you put anything you want on there is ridiculous. But you could always get one of many other phones. As most people do.

  3. I don’t think any of these companies are moral nor are they looking out for customers, but how does Epic honestly think they can win what is basically a contract dispute when they entered into the contact years ago and openly violated it?

    My guess is that they’ll keep the lawsuit going but submit to Apple’s rules within a few weeks so they can put Fortnite back on the store. They needed a reason to file the lawsuit – which they have because they created it – but at this point their position will only lose them money and shareholders have little patience.

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