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Fortnite can remain banned from Apple’s App Store until Epic legal battle reaches court next year

By | Published on Tuesday 13 October 2020

Epic Games logo

The judge overseeing the big bust up between ‘Fortnite’ maker Epic Games and Apple last week pretty much kept in place a previous decision regarding what sanctions the latter can instigate against the former while their legal battle goes through the motions.

Epic is suing Apple, of course, over the tech giant’s App Store rules based on the argument they breach competition laws. Like Spotify, the games firm doesn’t like the fact that when you make an app for iOS devices you are obliged to use Apple’s payment platform and pay the tech giant a 15-30% commission on any transactions. App Store rules even ban you from signposting alternative payment options elsewhere on the internet from within the app.

Before going legal over those rules, Epic added an alternative payment option to the iOS version of ‘Fortnite’, resulting in the game being banned from the App Store. Once Epic had filed its competition lawsuit, Apple also went legal – arguing in a countersuit that the addition of the alternative payment option on ‘Fortnite’ constituted breach of contract and unjust enrichment.

The whole matter will now get some proper court time next year, with judge Yvonne Gonzalez Rogers repeatedly stating that the dispute involves some big competition law questions, the answers to which could impact significantly on the wider tech sector – including Google’s App Store and other gaming platforms.

On top of all that, there is a side dispute to all this regarding Apple’s decision to ban ‘Fortnite’ from its App Store, and the tech giant’s threat of other sanctions against Epic, including declining it access to Apple’s developer tools. That would also affect Epic’s Unreal Engine, which is turn used by a plethora of third party developers.

Shortly after filing its main lawsuit, Epic also sought an injunction banning Apple from instigating any sanctions against it while the main litigation was working its way through the courts. In August, Gonzalez Rogers declined to force Apple to reinstate ‘Fortnite’ to its App Store, concluding that Epic had brought that ban upon itself by adding the alternative payment option. It could, after all, have gone legal but continued to comply with Apple’s rules in the meantime.

However, in a temporary injunction in August, Gonzalez Rogers did rule that Apple should not instigate wider sanctions against Epic and its Unreal Engine. And on Friday last week – with a full court hearing on the wider dispute now scheduled for next May – the judge kept that earlier judgement in place. Which means the ‘Fortnite’ ban remains, but Apple can’t cut off Epic’s access to its developer tools and screw up the Unreal Engine.

On the former part of that decision, Gonzalez Rogers said that – while she realised it was annoying for ‘Fortnite’ players that the game was not currently in the App Store – Epic had breached its contract with Apple, and it’s in the public interest for the courts to respect and uphold contractual agreements.

She wrote in her latest order on the case: “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”, she went on, “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 favour of Apple as to ‘Fortnite'”.