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Judge confirms Apple can ban Fortnite but not cut off the Unreal Engine in Epic dispute

By Chris Cooke | Published on Wednesday 26 August 2020

A US judge has formally confirmed that Apple can continue to block ‘Fortnite’ from its App Store as part of its ongoing beef with Epic Games, but it can’t instigate sanctions that impact on the Epic company in general, including its all-important Unreal Engine. For now at least.

‘Fortnite’ maker Epic has, of course, gone to war over Apple’s App Store policies, in particular the rules relating to in-app payments. It argues that Apple forcing app makers to use its propriety payment system – where the tech giant gets to charge a 15-30% commission – and other rules banning the inclusion or sign-posting of other payment options are anti-competitive.

As well as suing over those policies, Epic also went out of its way to break the rules 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 goes through the motions.

Apple quickly responding, arguing that any harm Epic might experience as a result of the ‘Fortnite’ app ban and other sanctions were entirely self-inflicted. After all, the gaming firm could have begun legal proceedings over the App Store rules without first breaking them.

In a court hearing on Monday, judge Yvonne Gonzalez Rogers basically concurred with Apple, although she said that its sanctions should only really affect the app that had broken the rules, not the wider Epic business, and certainly not the Unreal Engine.

The wider business, and that Unreal Engine, would all be affected if, in addition to any App Store bans, Apple went through with a threat to cut off the gaming company’s access to its developer tools.

And if the Unreal Engine was affected, that would impact the countless third party developers that utilise that platform for their own products. Meaning, all in all, those other sanctions looked like an “overreach” on Apple’s part, Rogers said.

Confirming all that in a speedily drafted written ruling, the judge has now confirmed that she will not issue any order preventing Apple from excluding ‘Fortnite’ from its App Store.

However, effectively immediately, “Apple and all persons in active concert or participation with Apple, are temporarily restrained from taking adverse action against Epic Games with respect to restricting, suspending or terminating any affiliate of Epic Games, such as Epic International, from Apple’s Developer Programme, including as to Unreal Engine, on the basis that Epic Games enabled in-app payment processing in ‘Fortnite’ through means other than [Apple’s payment system] or on the basis of the steps Epic took to do so”.