Judge Issues Split Decision in Epic v. Apple

Posted on August 25, 2020 by Paul Thurrott in Apple, Games, iOS, Mobile, Mobile gaming with 50 Comments

Tim Sweeney, CEO and founder of Epic Games. Source: Travis Dove for The New York Times

A U.S. District Judge has handed legal victories—and corresponding legal defeats—to both Apple and Epic in their App Store feud. Put simply, Apple is temporarily free to ban Fortnite from its store, but it cannot kill Epic’s developer account or ban its Unreal Engine.

In the words of the judge, neither side got the “slam dunk” they had each respectively hoped for.

“Having carefully reviewed the parties’ briefing, and the parties’ oral arguments, the Court grants in part and denies in part Epic’s motion for a temporary restraining order,” U.S. District Judge Yvonne Gonzalez Rogers wrote in the ruling. “Apple … are temporarily restrained from taking adverse action against Epic Games with respect to restricting, suspending[,] or terminating any affiliate of Epic Games … from Apple’s Developer Program, including as to Unreal Engine. This temporary restraining order is effective immediately and will remain in force until the Court issues an order on the motion for preliminary injunction.”

However, the judge also ruled against granting a temporary restraining order based on “Epic Games’ requests as to Fortnite.” That is, Apple can continue banning Fortnite from the App Store until or unless Epic returns it to its pre-ban condition in which it no longer tries to bypass Apple’s in-app purchasing fees.

For those interested in this case or in the recent groundswell of complaints by developers against Apple in recent months, there are some interesting notes in the analysis portion of the ruling. Judge Gonzalez Rogers was unable to determine the likelihood of Epic succeeding in its ten antitrust claims against Apple given the “limited record before the Court” and the “high burden” of demonstrating that abuse. But the judge also noted that “there are overlapping questions of facts and law” Epic’s complaints, “including substantively similar claims based on the same Apple App Store policies: namely, the 30 percent fee that Apple takes from developers through each application sale and [in-app purchase] in … application[s].”

The judge also confirmed my concern with Epic’s second filing, which is that the company had found itself in an emergency of its own making. “Epic Games remains free to maintain its agreements with Apple in breach status as this litigation continues,” she writes, “but as [was decided in a similar previous case], ‘[t]he sensible way to proceed is for [Epic to comply with the agreements and guidelines] and continue to operate while it builds a record. Any injury that [Epic Games] incurs by following a different course is of its own choosing’.”

The preliminary injunction is in effect until at least September 28, at which time the two sides will confront each other in court at a hearing.

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