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Apple hits back at multi-billion dollar Epic Games for masquerading as the underdog in Fortnite app payments dispute

By Chris Cooke | Published on Wednesday 9 September 2020

You know how Apple is a big bad evil monopolist with no respect for competition law or a fair marketplace that will gladly screw over the little guy to in order make a quick buck?

You know that right? Because ‘Fortnite’ maker Epic Games has been very keen to tell us all about it in recent weeks. Well, fuck that. Epic Games is just a penny pinching multi-billion dollar enterprise falsely masquerading as some sort of corporate Robin Hood character in a bid to cover up its blatant breach of contract.

By which, I mean, Apple has responded in its legal bust-up with Epic Games.

As you’ll remember, Epic has gone to war with Apple over its App Store rules and in particular what they say regarding in-app payments. Epic argues that Apple’s insistence that in-app payments on iOS devices are made via the tech giant’s own commission-charging payment platform, and that companies can’t even sign-post alternative payment options from within their iOS apps, is anti-competitive.

It is by no means the first app-making company to make these claims. Spotify went big on its beef with Apple over the App Store rules last year by filing a complaint with the European Commission’s competition regulator and launching a consumer-facing website outlining why those rules are bullshit. Well, I say Spotify went big. It seemed that way at the time. But that was before Epic Games went nuclear on the issue.

For its part, Epic added an alternative payment option on the iOS app version of ‘Fortnite’, knowing that doing so would get the game kicked out of the App Store. As that happened, it launched a PR and advertising offensive in order to ensure that nine years olds everywhere were telling their parents at every available opportunity just how evil Apple is.

Meanwhile, Epic’s lawyers took the matter legal in the Californian courts while also seeking an injunction banning Apple from banning ‘Fortnite’ from its App Store.

For its part, Apple was unsurprisingly disparaging about all this from the off. And now its lawyers have formally responded via a lengthy court filing submitted yesterday.

In it, Apple denies all of the gaming firm’s allegations, presents no less than 27 defences to the legal claims made by the ‘Fortnite’ maker, and accuses Epic of breach of contract, breach of good faith, unjust enrichment and a bunch of other stuff for good measure.

“Epic’s lawsuit is nothing more than a basic disagreement over money”, Apple states. “Although Epic portrays itself as a modern corporate Robin Hood, in reality it is a multi-billion dollar enterprise that simply wants to pay nothing for the tremendous value it derives from the App Store. Epic’s demands for special treatment and cries of ‘retaliation’ cannot be reconciled with its flagrant breach of contract”.

Before getting into all the denials and defences and counterclaims, the legal filing summarises recent events from its perspective, recalling how – after Apple refused various requests from Epic for special treatment on payments – “rather than abide by its long-running contractual agreements pursuant to which it has earned over $600 million, Epic resorted to self-help and subterfuge”.

“On 3 Aug 2020, Epic sent a Trojan horse to the App Store – a new version of ‘Fortnite’ that included what Epic has euphemistically described as a ‘hotfix’ that allows Epic to bypass Apple’s app review process and ability to collect commissions by directing app users to pay Epic instead, cutting Apple out entirely”.

Not only that, but, “unbeknownst to Apple, Epic had been busy enlisting a legion of lawyers, publicists and technicians to orchestrate a sneak assault on the App Store. Shortly after 2am on 13 Aug 2020, the morning on which Epic would activate its hidden commission-theft functionality, [Epic CEO Tim] Sweeney … emailed Apple executives declaring that ‘Epic will no longer adhere to Apple’s payment processing restrictions'”.

“Hours after Mr Sweeney’s 2am email”, it goes on, “Epic triggered the ‘hotfix’ it previously planted in ‘Fortnite’ to push through a new external payment runaround – which Epic had deliberately concealed from Apple’s app review process – that usurped Apple’s commission and brazenly flouted its rules”.

“This was little more than theft. Epic sought to enjoy all of the benefits of Apple’s iOS platform and related services while its ‘hotfix’ lined Epic’s pockets at Apple’s expense”.

After Apple “rightfully enforced its rights under the contractual agreements and the guidelines by removing the non-compliant ‘Fortnite’ app from the App Store”, Epic attempted to “recast Apple’s conduct as ‘retaliation’. But the exercise of a contractual right in response to an open and admitted breach is not ‘retaliation’; it is the very thing to which the parties agreed ex ante”.

“Epic proceeded to launch a calculated and pre-packaged campaign against Apple ‘on a multitude of fronts – creative, technical, business, and legal’, as Mr Sweeney had previously threatened”, it then says. Which meant, alongside the lawsuit, “an animated ‘Fortnite’ short film that mimicked Apple’s seminal 1984 Macintosh campaign and villainised Apple for enforcing its contractual right to remove the non-compliant ‘Fortnite’ from the App Store”.

Fun times indeed. The denials and defences and counterclaims then follow, although they can be pretty much summarised in one single sentence from the legal filing: “Epic’s wrongheaded complaint is fatally flawed on the facts and the law”.

And so the dispute continues.