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Fortnite maker again asks a judge to force Apple to reinstate the game in its App Store

By Chris Cooke | Published on Tuesday 8 September 2020

The big bust up between ‘Fortnite’ maker Epic Games and Apple continues. Epic has filed new court papers again asking a judge to issue an injunction that would stop Apple from enforcing sanctions against the gaming firm while a lawsuit over the tech giant’s App Store rules continues to go through the motions.

Epic has, of course, gone to war with Apple over those App Store rules, and in particular what they say regarding in-app payments. Like Spotify before it, 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.

As well as suing over those allegedly anti-competitive rules, Epic also went out of its way to break them by adding an alternative payment option to its ‘Fortnite’ iOS app, knowing that doing so would result in said app being kicked out of Apple’s store. Once that had happened, Epic went back to court seeking an injunction preventing Apple from banning the ‘Fortnite’ app and instigating any other sanctions while the competition law dispute proceeds.

A judge considered that injunction request last month. Apple countered that Epic could have sued over its App Store rules without first breaking them, and therefore any negative impact caused by the resulting App Store ban was the gaming company’s own fault. In legal terms, Epic did not have “clean hands” in this dispute, making its request for an injection less compelling.

Having heard both sides’ arguments, the judge made a short-term temporary decision that was something of a compromise. She agreed that Epic had basically brought the App Store ban upon itself, so said that could stay in place for the time being. However, she said that Apple shouldn’t implement any more wide-ranging sanctions that could impact on Epic beyond its apps, in particular in relation to the Unreal Engine that a multitude of other third party software developers rely upon.

At the same time though, another hearing on the matter was put in the diary for 28 Sep. Which is why Epic has now submitted new papers to the court, again seeking a wider preliminary injunction that would ban all Apple bans while the wider competition law litigation progresses.

Most of the latest legal filing goes back through why the big bad evil monopolist that is Apple is big and bad and evil and a monopolist, and how its sanctions against Epic are a further example of how big and bad and evil a monopolist Apple really is. With that in mind, and given Epic will definitely win the wider legal battle against Apple, the gaming firm should get the wider preliminary injunction it wants, it argues.

Although, of course, the real issue here is Apple’s counter-argument that Epic could have sued over the App Store rules without breaking those rules. And, if it ultimately won that lawsuit, then seek damages to recoup any commissions it had paid Apple – via payments taken through its iOS app – in the period between the lawsuit being filed and any judgement being made.

There is a relatively small section on that point in the new legal filing, in which Epic’s lawyers cite various legal precedents that say having “unclean hands” in a competition law dispute isn’t sufficient to stop you from getting an injunction to stop allegedly anti-competitive practices. Or something like that. It remains to be seen if the judge accepts those crucial legal arguments, while also processing all the ways in which Epic argues Apple is big and bad and evil and a monopolist.

For its part, Apple is, unsurprisingly, standing its ground, with its most recent statement on the dispute declaring: “The court recommended that Epic comply with the App Store guidelines while their case moves forward, guidelines they’ve followed for the past decade until they created this situation. Epic has refused”.

“Instead they repeatedly submit Fortnite updates designed to violate the guidelines of the App Store”, Apple goes on. “This is not fair to all other developers on the App Store and is putting customers in the middle of their fight. We hope that we can work together again in the future, but unfortunately that is not possible today”.

And so the dispute continues!