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Apple again insists Fortnite ban should stay in place

By Chris Cooke | Published on Thursday 17 September 2020

The back and forth between ‘Fortnite’ maker Epic Games and Apple over the latter’s App Store policies continues. Apple has again urged the court to refuse to issue any injunction forcing the Apple-rule-breaking version of ‘Fortnite’ back into the tech giant’s App Store.

Epic, you will remember, says that Apple’s rules over in-app payments on iOS devices are anti-competitive. That’s on the basis that app-makers are forced to use Apple’s own commission charging payments platform, and are forbidden from including or even sign-posting alternative payment options. Plenty of other app owners have made similar complaints, of course, not least Spotify.

As well as suing Apple for an alleged breach of competition laws, Epic also deliberately broke the App Store rules by adding an alternative payments option to the iOS version of ‘Fortnite’. That resulted in the game being banned from the App Store, which allowed Epic to launch a high profile advertising and PR campaign telling ‘Fortnite’ users everywhere how evil Apple is.

Legally speaking, there are at least three elements to this dispute.

First, there is Epic’s lawsuit accusing Apple of breaking competition laws. Then there’s Apple’s countersuit accusing Epic of breach of contract for sneaking a rule-breaking version of ‘Fortnite’ onto its platform. And then there’s the side debate over the sanctions Apple has instigated against Epic, and whether those should be halted while the various lawsuits go through the motions.

Epic argues that Apple shouldn’t be allowed to ban ‘Fortnite’ from its App Store while there is still a legal dispute over the rules that caused the ban. Apple counters that Epic could have sued over its rules without first breaking them and then – if it is successful in its competition law action – seek damages for any commissions it paid to the tech giant while the litigation was ongoing.

Last month the judge overseeing the dispute, Yvonne Gonzalez Rogers, basically concurred with Apple on that point, though in a temporary restraining order sought to restrict the other sanctions Apple was instigating that went beyond Epic’s apps being in its App Store.

Responding to that, earlier this month Epic filed new papers with the court again arguing that Apple should be forced to reinstate ‘Fortnite’ in its App Store while the legal dispute proceeds.

That legal filing mainly presented all the same arguments about how Apple is a monopolist and competition law breaker. Although it did also say a little about the more important argument that, because Epic came to court with ‘unclean hands’ having broken Apple’s App Store rules, it shouldn’t get an injunction in its favour restoring ‘Fortnite’ to the Apple platform. Epic said that argument is flawed.

Apple has now responded to that response, again stressing that Epic could have sued over its rules without breaking them, and again insisting that therefore any harm the games firm suffers from ‘Fortnite’ being banned from the App Store is “self-inflicted”.

Arguing that Rogers made the right ruling regarding the ‘Fortnite’ ban last month, Apple says in its latest filing: “Epic’s asserted harm is the self-inflicted and self-fixable result of its own cheating and breach and thus not irreparable”.

Meanwhile, it adds, forcing Apple to allow a version of ‘Fortnite’ with alternative payment options into its App Store “risks harming the iPhone ecosystem and around a billion iPhone users around the world”, so “the balance of hardships and public interest favour Apple”.

In many ways, both sides are still presenting more or less the same arguments as they did last month regarding Apple’s sanctions against Epic. It remains to be seen if the court therefore rules the same way when it considers this element of the big ‘Fortnite’ dispute once again later this month.