Epic Games, Inc. v. Apple Inc., The Heavyweight Fight Continues

Photo Source: Pamela Hazelton

Epic sued Apple in federal court nearly two months ago. Since then, the lawsuit has ramped up. Epic announced that Apple will be terminating its Apple Developer Program in late August due to Epic’s blatant violation of Apple’s Developer Program License Agreement. This could result in Epic losing access to all of Apple’s developer tools. Without this access, Unreal Engine, the game engine developed by Epic, would eventually come to a halt and could even become a security risk. Fortnite, along with a number of other games, relies on these updates to allow their games to run smoothly and securely. Preventing Epic from updating Unreal Engine could put iOS users at risk. Apple issued a statement saying, “We won’t make an exception for Epic…”

Despite this, Epic is not backing down. They continued their social media attack by hosting a “#FreeFortnite” tournament a few days later. This tournament was marketed as “Celebrate the quest for one more Victory Royale with friends across all platforms in the #FreeFortnite Cup…”

Epic sought a temporary restraining order to prevent Apple from removing its Apple Developer Program. Epic claimed that terminating its Apple Developer Program would be an overbroad retaliation. Epic’s Unreal Engine is so important that Microsoft even got in on the action. Microsoft submitted a declaration in support of Epic. Microsoft argued that removing Epic’s ability to support Unreal Engine for iOS will harm game creators and gamers. Luckily for Epic, Judge Yvonne Gonzalez Rogers granted Epic’s temporary restraining order preventing Apple from blocking Epic’s access to development tools for its Unreal Engine. However, in that same decision, Judge Rogers did not force Apple to allow Fortnite back onto the App Store.

As a result of Judge Rodgers’s ruling, Epic had to let its iOS Fortnite fanbase know that they would not be receiving the Season 2, Chapter 4 update. Instead, all iOS and Mac players will be stuck in a twilight zone playing Season 2, Chapter 3 for the foreseeable future. This setback didn’t stop Epic. On September 4, 2020, Epic filed a preliminary injunction that sought to allow Fortnite back on the App Store. Epic’s argument was now that the new season just began, they can see the actual harm Apple has caused. As a result of Fortnite’s removal from the App Store, Epic has lost over 60% of their player base! Not one to stand by, Apple filed a countersuit against Epic seeking damages for a breach of contract claim. Apple is claiming that Epic is a wealthy corporation that doesn’t want to pay anything despite the value and attention they receive through the App Store.

On September 28, 2020, Epic and Apple met in the (virtual) courtroom. While Judge Rodgers has not issued a decision on the preliminary injunction, she is not too happy with Epic. Judge Rodgers believes that Epic acted shady in its dealings with Apple. Furthermore, Judge Rodgers recommended that both parties agree to a jury hearing. She believes that it is important to find out what real people think. However, Epic and Apple didn’t feel that same way. The day after hearing Judge Rodgers’s recommendation, both Epic and Apple agreed to a bench trial on both of their claims. While Judge Rodgers will be issuing her written decision to both parties in due time, things do not look good for Epic. Fortnite will most likely remain unavailable on the App Store until this lawsuit is resolved, Epic will continue to lose iOS players, and the bench trial isn’t slated to begin until at least July 2021. Epic isn’t the only party that has something at risk. If Apple is found liable under the Sherman Antitrust Act, then Apple would be on the hook for treble damages. Both parties are going to fight this lawsuit tooth and nail, and there doesn’t appear to be an early end insight.

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