In an order issued Monday night, a U.S. district judge blocked Apple from revoking Epic Games’ developer accounts as the legal battle between the two companies moves toward trial.
The move protects Unreal Engine, Epic’s software suite that is widely used by other game developers, from becoming collateral damage in the high-profile legal battle.
However, U.S. District Judge Yvonne Gonzalez Rogers also said she will allow Apple’s App Store ban on Fortnite to stand, despite Epic’s claim that doing so will cause “irreparable harm” to the game.
Cupertino booted the wildly popular battle royale game from the App Store earlier this month after Epic surreptitiously added a direct-payment option that circumvents Apple’s system, in direct violation of Apple policies. Then Apple threatened to revoke Epic’s developer accounts, which would remove the company’s access to development tools for iOS and Mac.
Epic subsequently requested that the court block Apple’s hardball moves.
“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,” wrote U.S. District Judge Yvonne Gonzalez Rogers in an order issued late Monday (.pdf) following a hearing with lawyers representing Epic Games and Apple.
After saying Apple acted “sternly,” Rogers concluded her order by granting Epic’s request with regard to Unreal Engine.
“Apple and all persons in active concert or participation with Apple, are temporarily restrained from taking adverse action against Epic Games with respect to restricting, suspending or terminating any affiliate of Epic Games, such as Epic International, from Apple’s Developer Program, including as to Unreal Engine.”
Epic antitrust lawsuit against Apple
Epic’s activist fight against Apple comes as the iPhone-maker faces increasing antitrust scrutiny both at home and internationally. When Congress grilled Apple CEO Tim Cook and other tech CEOs last month, App Store policies drew the most negative attention for Apple.
With regard to Epic’s request for a restraining order, Rogers said during Monday’s hearing that she viewed things through “two separate lenses.” The first regards Fortnite itself. The second deals with Epic’s developer tools like Unreal Engine.
She said Epic cannot claim irreparable harm with relation to the Fortnite ban. She said the developer made a “calculated move” to breach Apple’s rules, and did so right before the game’s upcoming new season.
“Your client created the situation,” she said. “Your client doesn’t come to this court with clean hands.”
Does App Store ban hurt Fortnite?
Epic’s lawyer Katherine B. Forrest said the harm to Fortnite comes from the fact that is more than a mere game.
“We call it a game, but in fact it’s a social environment,” Forrest said. “What’s going to happen at the end of this week with Fortnite … is that there’s going to be shortly updates that are going to in fact break the ability of users across a number of different platforms to actually play these games.”
The judge pointed out that Epic can avoid harm with regard to Fortnite simply by removing the update that resulted in Apple’s ban.
“All Epic has to do is … take it back to the status quo, and no one suffers any harm,” the judge replied. “That’s all.”
However, Rogers said during the hearing that the revocation of Epic Games’ Apple developer accounts looked “retaliatory.”
“I don’t see any harm to Apple to restrain you from not impacting the Unreal Engine on that platform,” the judge said. “It looks like overreach to me.”
Epic Games lawsuit background
Monday’s hearing is the first in the high-profile legal battle between Apple and Epic Games. The Fortnite-maker ignited the fight on August 13 by introducing an update to the game that violated Apple’s policy regarding in-app purchases.
The update gave users a way to pay Epic directly for digital goods. That allowed the developer to skirt Apple’s traditional 30% cut on in-app purchases.
Apple quickly booted Fortnite from the App Store. (Google did the same for the Android version after a similar update.) Epic almost immediately filed a lawsuit accusing Apple of being a monopoly. It also released a parody video comparing Apple to the soul-crushing Big Brother from the famous 1984 Macintosh ad.
Then, Apple responded by threatening to revoke Epic Games’ developer account within 14 days if the developer did not comply with App Store policies.
“In the wake of its own voluntary actions, Epic now seeks emergency relief,” Apple wrote in a court filing. “But the ‘emergency’ is entirely of Epic’s own making. Developers who work to deceive Apple, as Epic has done here, are terminated.”
Revoking Epic’s developer account would eliminate the company’s access to Apple’s tools necessary for making software for the iOS and Mac platforms. And that would have a major impact on Unreal Engine, Epic’s gaming engine that is widely used by third-party game developers (and in movies and TV).
High-profile showdown over App Store policies
The case continues to whip up conversations — and animosities — in the game developer world. Some chime in to say Apple acts capriciously and takes too big a cut from digital sales. Others call Cupertino’s policies and pricing justified.
Meanwhile, Epic reportedly tried to recruit Sonos and Spotify to back its position. And the company even handed out anti-Apple swag in Fortnite over the weekend.
On Sunday, Epic filed a court document (.pdf) in which a Microsoft exec supported the call for a temporary restraining order that would get Fortnite back in the App Store — and keep the legal battle from sidelining Unreal Engine.
Kevin Gammill, Microsoft’s general manager of gaming developer experiences, said Apple’s threat to remove Epic’s access to developer tools for iOS and macOS would hurt game developers and gamers alike.
“Denying Epic access to Apple’s SDK and other development tools will prevent Epic from supporting Unreal Engine on iOS and macOS, and will place Unreal Engine and those game creators that have built, are building, and may build games on it at a substantial disadvantage,” Gammill said.
Epic Games vs. Apple: Next steps
The judge set September 28 for the next hearing between the two sides. Rogers said she will issue a written order with her final decision regarding the temporary restraining order soon.
How is it likely to play out? In her order, Rogers wrote: “Based on a review of the current limited record before the Court, the Court cannot conclude that Epic has met the high burden of demonstrating a likelihood of success on the merits, especially in the antitrust context. However, the Court also concludes that serious questions do exist.”
She also referenced Cameron v. Apple (.pdf), a class-action lawsuit brought last year that alleges Apple harms consumers by operating the App Store like a monopoly.
As for when the trial will commence, Epic’s lawyers said they could be ready in four to six months. Apple lawyer Richard Doren called that time frame “a little tight,” suggesting his team would need 10 months to prep.
