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Judge denies Epic’s motion to force Apple to restore Fortnite to App store

But does require Apple to restore developer accounts for Unreal Engine

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We’ve had a bunch of exciting buildup in the legal spat between Apple and Epic, but last night was the first actual court action to occur. Up until now, both parties have been firmly in the sending each other strongly worded letters phase of their legal tussle, but now we’ve got a judge and a court involved, and we’re starting to get the first signs of how the court case might play out.

The most recent development had been that Apple said that they planned to terminate Epic’s developer accounts, meaning that not only would Fortnite no longer be available to new players on iOS but also that Apple would not support Epic’s operations relating to Unreal Engine. This left developers using Unreal Engine on iOS or macOS in a precarious spot, where the future of the engine their games are running on is in question. Unreal Engine hasn’t achieved anywhere near the level of adoption on Apple platforms compared to Windows or Consoles, but there are some big games that use Unreal Engine on mobile, including PUBG Mobile, Pro Evolution Soccer, and Forza Street.

Whether Epic or Apple is more to blame for these developers potentially being thrust in the middle of this dispute is a matter of opinion. Epic says that their breach of contract terms relating to the iOS App Store and Fortnite has no bearing on their breach related to Unreal Engine, and it’s two completely separate entities under the Epic Games banner responsible for each contract. Apple says that the distinction between these different entities is negligible, that the different entities are just shell companies, and that they are ultimately the same organization. It feels to me like given how clearly Epic was prepared for their deliberate breach of contract terms that they had agreed to with Apple, and their legal action, perhaps instead of spending time and money preparing a corporate propaganda short film and merchandise to promote their lawsuit, they should have perhaps spent time thinking about their licensed developers who could have been caught in the crossfire.

After weighing up several of the claims on either side, the judge ultimately made a ruling on this initial hearing, which could perhaps give us some insight into how the rest of this case may play out. Judge Rogers said the following in her ruling on this first stage of the trial:

“In sum, the Court finds that based upon the record before it, the Winter factors weigh against granting a temporary restraining order based on Epic Games’ requests as to Fortnite and other games and in favor of granting a temporary restraining order based as to the Unreal Engine and other effected developer tools.”

If you want to get into all the detail, the full court document relating to this ruling is accessible here. Essentially this is somewhat of a compromise, where on this initial temporary restraining order, both sides get a little of what they wanted. Epic was denied a court order that would force Apple to restore Fortnite to the App Store whilst it includes the payment mechanism that bypasses Apple’s IAP mechanism, but was granted a court order that mandates Apple do not cut off Epic’s access to Apple’s developer program for the purpose of maintaining Unreal Engine. It’s a middle ground that perhaps neither party will be entirely satisfied with, but also not entirely unsatisfied with.

Developers using Unreal Engine can at least relax in the short term, they won’t be prevented from releasing games for Apple platforms by the actions of the company they licensed their engine from, but I do have to wonder to what extent this might affect developers future decisions about what engine to use. Unreal is a very competent game engine, but if Epic can initiate court actions against a major platform holder at the drop of a hat, you’re potentially going to be in real trouble if Epic decides to take legal action against another platform holder. What might happen if Epic decided they want the Epic Game Store to be hosted for free on Steam? Xbox Live? PlayStation Network? Nintendo eShop? This is what they’re seeking from Apple, the right to put their own app store on Apple’s iOS App Store, without paying Apple a cut. It’ll be up to the courts to decide whether that’s a reasonable request, but who knows which other platforms Epic might have in their target for the future.

How the rest of the case might play out is unclear, but my reading of the comments made by the judge during this case could perhaps indicate that things will not be going Epic’s way. Alluding to the premeditate and calculated nature of this lawsuit from Epic, and the surrounding media circuit they have generated, the judge said:

“Your client created this situation. Your client does not come to this action with clean hands. In my view, you cannot have irreparable harm when you create the harm yourself.”

We don’t know when exactly this case will be concluded, it certainly has the potential to go on for years to come. The next court date is September 28th, when there will be a Preliminary injunction hearing. Assuming that Apple complies with the order to allow Epic to retain access to their platform for the purposes of Unreal Engine, there shouldn’t be too much additional drama between now and the next court date, but with a case like this, curveballs can come from any direction. We’re fascinated to watch this continue to unfold, and we’ll be sure to bring you any new major developments as they happen. There’s still the ongoing parallel spat between Epic and Google going on, which is grappling with many of the same issues.

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Lewie Procter

Lewie skews Chaotic Good where possible, and loves pressing buttons, viewing pixels and listening to sounds. He's written for publications like Rock Paper Shotgun, Eurogamer, VG247 and Kotaku UK, and spent 13 years running Savy Gamer. If you ever get the chance you should ask him to tell you the story about that time he had a fight with a snake on an island off the coast of Cambodia.