Last week, Judge Yvonne Gonzalez Rogers heard Epic Games’ argument for preliminary injunctive relief as it prepares for a legal battle with Apple.
The preliminary injunctive relief was Epic Games’ shot at getting Fortnite back onto the Apple App Store and to prevent Apple from terminating access to Epic Games developer tools for applications such as Unreal Engine. This relief wouldn’t insure these applications were permanently available, but would insure they were while Epic prepares for what will surely be a monolithic legal battle.
The bad news is that Fortnite is not coming back to the Apple App Store anytime soon.
“The Court has empathy for Fortnite players regarding the continued unavailability of the game on the iOS platform. This is especially so during these continued difficult times that is the COVID-19 pandemic era, where gaming and virtual worlds are both social and safe. However, there is significant public interest in requiring parties to adhere to their contractual agreements or in resolving business disputes through the normal course. Thus, the public interest factor weighs in favor of Apple as to Fortnite,” wrote Rogers in a ruling via Ars Technica.
Once again, the judge reiterated that the situation Epic finds itself in is of its own doing. More concerning however is the revelation that Epic refused to place the 30 percent “Apple Tax” in an escrow account pending the outcome of the legal battle.
“To assist, the Court even offered to require the 30% be placed in escrow pending resolution of the trial which Epic Games flatly rejected. The refusal to do so suggests Epic Games is not principally concerned with iOS consumers, but rather, harbors other tactical motives. Certainly, no technical issue exists. Epic Games admits that the technology exists to ‘fix’ the problem easily by deactivating the ‘hotfix’. Thus, given the totality of these circumstances, the Court can easily find that the injury Epic Games ‘incurs by following a different course is of its own choosing’,” wrote Rogers.
The good news is that Apple cannot suspend or terminate Epic Affiliates from the Apple Developer program.
Judge Rogers argued that in respect to the developer program, banning Epic Affiliates would unnecessarily impact third parties.
“If anything, the continued ongoing pandemic has demonstrated the imperative for substantial digital and virtual innovation. Epic Games and Apple are at liberty to litigate this action for the future of the digital frontier, but their dispute should not create havoc to bystanders. Thus, the public interest weighs overwhelmingly in favor of Unreal Engine and the Epic Affiliates,” the judge wrote.
With a court case for this matter only expected to take place in July 2021, Epic Games must now make a decision.
Will it stick to its guns and keep Fortnite off of the App Store by refusing to remove the option to make in-app purchases from Epic directly?
Following this ruling, we think Epic’s chances of success are slim to none. Judge Rogers has time and again pointedly remarked that this situation is of Epic’s own doing and could be reversed if it, you know, played by the rules every other app developer plays by.
That doesn’t mean we think that Apple is right to take a 30 percent cut of every purchase made on its App Store but that is a longer conversation we aren’t going to get into right now.
For now though, Fortnite is available on PlayStation 4, Switch, Xbox One and PC.