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Apple versus Epic Games 'Fortnite' App Store saga — the story so far

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The removal of Epic Games "Fortnite" from Apple's App Store has triggered a lawsuit and countless discussions about Apple's App Store policies. Here's what you need to know, updated on October 25 with Epic's latest declaration of innocence.

Within the space of a few weeks, a disagreement between the ambitions of Epic Games and the intention to main the App Store status quo by Apple has courted considerable controversy. The affair commenced with little warning to consumers, but quickly led to international interest, as the battle sought to change one of the fundamental elements of the App Store: how much Apple earns.

The dominance of Apple has already led to an antitrust probe by the U.S. Justice Department into the App Store's fees and policies, but the disagreement between Apple and Epic is being made in a more public way, and is more directly affecting younger customers.

While the fight is mostly between Epic Games and Apple, it has already seen other parties wading in with their own observations and opinions on the matter, including developers of other apps included in the App Store. At the same time as Apple receiving close scrutiny over its policies, Epic itself has also come under fire for how it handled the situation, including forcing it to happen and orchestrating a premeditated response.

Here's how it all came about.

Epic updates Fortnite, Apple pulls it down

The main triggering event occurred on August 13, when Epic updated the Fortnite app with a new feature, one that allowed consumers to pay Epic directly for in-app currency at a discount, rather than paying traditionally via Apple's App Store payment mechanism. Offering the option enabled Epic to skirt App Store rules that demanded payments go through the App Store payment system, paying a 30% fee in the process.

The fee is a non-negotiable element for the vast majority of apps, but there are some exceptions. For a start, the rule pertains to digital goods, with exceptions made for physical goods, such as those from online retailers and restaurants, while subscriptions can pay a smaller cut of the transaction fee in many situations.

The change was not limited to just the iOS version of the game, as it was similarly applied to the Android version, again going against the Google Play Store's similar policy and fees.

The Fortnite update added a second direct payment option.
The Fortnite update added a second direct payment option.

As was to be expected, Apple pulled the game from the App Store for violating the App Store guidelines within hours of the update's appearance. Similarly, Google also pulled the game from the Google Play Store, though on Android the game is still available via third-party stores and from Epic directly.

Lawsuit and Marketing

The same day as the removal, Epic filed a lawsuit against Apple in the U.S. District Court for the Northern District of California, in retaliation for pulling the game. Another lawsuit was also laid against Google for its own removal.

The complaint from Epic took an accusatory stance, declaring Apple had become a "behemoth seeking to control markets, block competition, and stifle innovation. The suit also went as far as to alleged Apple's size and reach "far exceeds that of any technology monopolist in history."

An important part of the suit is that it isn't attempting to argue whether or not Epic was abiding by App Store guidelines at all, but instead fought against the guidelines themselves. Its objections to the guidelines primarily includes Apple's "exorbitant" 30% commission for in-app purchases.

It also argues that the same policies are anticompetitive by forcing developers to use the App Store. If the rules weren't there, Epic states it would have released its own competing app store.

Epic's argument disregards the fact that Apple's App Store and ecosystem is relatively similar to those of Sony's Playstation and Microsoft's Xbox platforms, with each forcing the use of a single digital storefront, the usage of specific payment systems, and the taking of a 30% cut of transactions.

At this time, Epic has yet to file lawsuits against either Sony or Microsoft demanding transaction fee cuts or the ability to operate its own digital marketplace.

The filing seeks an injunction to prohibit "Apple's anti-competitive conduct" and any "equitable relief necessary."

At the same time as the lawsuit was filed, Epic Games attempted to raise support in the court of public opinion, by releasing a video parody of Apple's famous "1984" Super Bowl commercial. In this version, a Fortnite character smashes a screen displaying a cartoon talking apple complete with a worm.

While the original framed Apple as the breaker of the aging oppressive IBM's grasp on computing, the parody seemingly puts Apple in IBM's place, with Epic instead being the breaker of Apple's App Store control.

As of August 22, the video has been viewed 5.6 million times. Epic is also attempting to get the social media hashtag #FreeFortnite trending.

The timing of the lengthy lawsuit and the sudden marketing blitz within a few hours of Apple's takedown of the game strongly suggested at the time Epic had prepared them beforehand, anticipating the app's removal.

Developer account threat

On August 17, Apple made an offensive move against Epic, which was revealed to the public by Epic over Twitter. Epic alleged that Apple had informed Epic it would be terminating all developer accounts and cutting Epic off from iOS and Mac development tools on August 28.

Naturally, Epic filed a request for a temporary restraining order to prevent Apple from taking "any adverse action against it." This also included a request for the court to prevent Apple from "removing, de-listing, refusing to list or otherwise making unavailable the app Fortnite, including any update thereof, from the App Store on the basis that Fortnite offers in-app payment processing through means other than Apple's IAP or on any pretextual basis."

Fortnite played on an iPhone
Fortnite played on an iPhone

The court filing published by Epic includes the letter sent by Apple to the company, which noted "several violations of the Apple Developer Program License Agreement" by Epic, and that access would be terminated unless the violations were dealt with within 14 days.

To Epic, the removal of developer tools extends far beyond Fortnite, as the company provide the Unreal Engine to thousands of developers for use in their own games. By not being able to use developer tools to maintain the macOS and iOS elements of the game engine, it effectively cannot provide support to third-party developers who licensed the technology.

The lawsuit declared "Apple is attacking Epic's entire business in unrelated areas."

Sweeney before and after the takedown

Epic Games CEO Tim Sweeney has been a public critic of the App Store and its fees structure. In an interview in July, Sweeney outlined his insistence that Apple and Google stunt innovation with their respective app store policies.

In the case of Apple, Sweeney called the App Store an "absolute monopoly," and that Apple "has locked down and crippled the ecosystem by inventing an absolute monopoly on the distribution of software, on the monetization of software." At the time, Sweeney added that if developers were able to take their own payments instead of paying the "30% tax," the savings could be passed on "to all our consumers and players would get a better deal on items, and you'd have economic competition."

Sweeney has railed against the transaction fee for quite some time, with comments from 2017 declaring the models "pretty unfair" and that companies like Apple are "pocketing a huge amount of profit from your order - and they aren't really doing much to help [developers] anymore."

Epic Games CEO Tim Sweeney
Epic Games CEO Tim Sweeney

Epic also operates its own app store on PC, as a competitor to Steam and others. While it is beneficial to developers in taking a smaller 12% cut from transactions, the company has also performed its own activities some may deem as anti-competitive, including paying developers for exclusive game launches that are available only through its storefront and not rivals.

In a June interview, Sweeney also suggested an Epic Games Store could arrive on mobile platforms in the near future, including an iOS version.

"We think it's a good way to help the industry forward and it's another way where Epic as a game developer had built up this audience around Fortnite and learned how to operate a distribution platform on PC and Android," said Sweeney.

On August 15, after the takedown and launching of legal action, Sweeney then made the case for the lawsuit in a series of tweets. Characterizing it as one for consumer and developer choice rather than a fight for more lucrative financial deals, Sweeney suggested it was a fight for the "freedom of people who bought smartphones to install apps from sources of their choosing, the freedom for creators of apps to distribute them as they choose, and the freedom of both groups to do business directly."

Sweeney also acknowledges the argument that some may see the fight as "just a billion-dollar company fighting a trillion-dollar company about money," before admitting "there's nothing wrong with fighting about money."

He qualifies it by declaring "You work hard to earn this stuff. When you spent [sic] it, the way it's divided determines whether your money funds the creation of games or is taken by middlemen who use their power to separate gamers from game creators."

"The fight in't over Epic wanting a special deal, it's about the basic freedoms of all consumers and developers," Sweeney proposed.

It is worth remembering that Sweeney's position may not necessarily be entirely altruistic. Fortnite is an extremely high earner for Epic, including through in-app purchases on iOS, and has been ever since it first appeared on the App Store in 2018.

As for Epic itself, Chinese tech giant Tencent has a 40% stake in the company. Tencent has been in disagreements with Apple in the past regarding payment processing, with a 2018 spat involving WeChat money transfers between individuals outside of Apple's payment systems resolved with a "mutual understanding."

Courting allies

To try and strengthen its position, Epic reportedly sought to find other companies with a similar opinion of the App Store. Epic allegedly got in contact with other companies over a matter weeks to try and create a so-called "coalition" of Apple critics.

The list of companies supposedly included Spotify, who did come out in support of Epic's legal action shortly after it was filed. Spotify is already engaging Apple via an antitrust complaint since 2019.

While it is neither clear if a coalition exists nor what its specific purpose would serve, Epic has seemingly received what it wants, in the form of multiple hot-takes criticizing Apple from various corners of the tech industry.

Newspaper pushback

On August 20, a group of major newspaper publishers contacted Tim Cook to urge a change to subscription fees, spurred on by the Epic fight. Current policy has the App Store commission fee set at 30% for the first year's subscription to a publication via an app, but for subsequent years it reduces down to 15%.

The group of publications, including the Wall Street Journal, the New York Times, and the Washington Post, instead want the 30% charge removed in favor of a reduction down to 15%.

As part of the letter written by trade body Digital Content Next, the group refers to a deal Apple made with Amazon in 2016 that would take a 15% cut of transactions for customers signing up for a Prime Video subscription as an in-app purchase. The letter asked that Apple "clearly define the conditions that Amazon satisfied for its arrangements so that DCN's member companies meeting those conditions can be offered the same agreement."

Korean investigation demands

Meanwhile in Korea, a group of companies have petitioned the Korean Communications Commission, claiming Apple and Google's in-app purchase rules are illegal. The group, the Korea Startup Forum, objected to how much Apple and Google charge, and the lack of alternative payment options.

"While the 30 percent commission rate is too high in itself, it is more problematic that they force a specific payment system for the app markets," said the consortium. Furthermore, this is said to be more unfair to smaller companies who are unable to try and negotiate different commission rates with the app storefronts.

It was also suggested both Apple and Google had the ability to raise their fees without consultation, potentially reducing profits for developers or making apps more expensive to consumers.

Apple's first statement

Apple's initial public salvo in the battle on August 18 was a relatively straightforward affair, consisting of a plainly-written statement that accuses Epic of being in the wrong, by not rectifying "the problem Epic has created for itself."

The statement starts with Apple assuring the reader the App Store is "designed to be a safe and trusted place for users and a great business opportunity for all developers."

Apple then mentions how Epic is "one of the most successful developers on the App Store, growing into a multibillion dollar business that reaches millions of iOS customers," and that Apple wants to keep Epic in the Apple Developer Program and offering apps in the App Store.

"The problem Epic has created for itself is one that can easily be remedied if they submit an update of their app that reverts it to comply with the guidelines they agreed to and which apply to all developers," reminds Apple.

The statement concludes "We won't make an exception for Epic because we don't think it's right to put their business interests ahead of the guidelines that protect our customers."

More public marketing

In a further bid to capitalize on the anti-Apple sentiment of part of its player base, Epic launched the "FreeFortnite Cup" tournament"FreeFortnite Cup" tournament that starts from August 23. The tournament offers a selection of prizes, including digital items such as the "Tart Tycoon" skin resembling the Apple character from the parody ad.

Physical prizes are also offered by Epic, though again with a decidedly anti-Apple leaning. Approximately 20,000 "Free Fortnite" hats in a design reminiscent of Apple's "Think Different" merchandise are being given away, while 1,200 other prizes include consoles and computers that are also platforms players can play Fortnite on, without going down the Apple route.

Epic's giveaways included clothing parodying Apple's marketing.
Epic's giveaways included clothing parodying Apple's marketing.

Epic has also made its "Free Fortnite" graphic available to players to print onto their own clothing and other items, in the event they didn't win. The asset pack does however require users to confirm they will leave the text "Free Fortnite" in place on the graphic when used, and not to edit it out to leave the rainbow-colored llama head.

Email chains and Apple's filing

Apple's first legal response to the Epic lawsuit on Friday was lengthy and interesting for a number of reasons. It chiefly urged the U.S. federal court in San Francisco to deny Epic's claims for an "emergency" restraining order that would put Fortnite back in the App Store.

At its core, Apple called out Epic's behavior of adding its own proprietary payment system that allowed it to bypass the 30% fee as being similar to that of a shoplifter. "If developers can avoid the digital checkout, it is the same as if a customer leaves an Apple retail store without paying for shoplifted product: Apple does not get paid," the filing states.

The complaint goes on to state Sweeney contacted Apple's executives asking for a "side letter" from Apple that it would create a "special deal for only Epic that would fundamentally change the way in which Epic offers apps on Apple's iOS platform," said Apple App Store chief Phil Schiller.

Specifically, Epic said it wanted to bypass App Store fees by gaining permission to implement direct payment systems. When denied, Sweeney responded informing Apple that Fortnite "will no longer adhere to Apple's payment processing restrictions."

The filing, which included a selection of emails between Apple and Epic, refutes Sweeney's earlier claim of not wanting a "special deal," as he is seemingly shown to be asking for one.

The email chain starts with a June 30 message from Sweeney to Tim Cook Phil Schiller, Craig Federighi, and Matt Fischer outlining Epic's intention to use a competing payment processing option. The email also states a wish to create "a competing Epic Games Store app available through the iOS App Store and through direct installation that has equal access to underlying operating system features for software installation and update as the iOS App Store itself has, including the ability to install and update software as seamlessly as the iOS App Store experience."

Epic gave Apple two weeks to confirm "in principle" to permit the competing app store and payment processing. "If we do not receive your confirmation, we will understand that Apple is not willing to make the changes necessary to allow us to provide Android [sic] customers with the option of choosing their app store and payment processing system," Sweeney's message concludes.

On July 10, Apple Vice President & Associate General Counsel Douglas G. Vetter contacts Epic's general counsel Canon Pence about the "disappointing" email, with a lengthy message outlining why Epic is wrong on this occasion. Pointing out how Epic has earned great success with the App Store, including earning "hundreds of millions of dollars from sales of in-app content," Vetter outlines "Epic could not have achieved this success without great apps, but it nonetheless underscores the value Apple brings to developers like Epic."

Vetter points to the security and trust of consumers with the App Store, in his argument against the creation of an Epic Store app, including Apple's investment in significant resources to ensure app "privacy, security, content, and quality" standards. Apple doesn't allow other app stores to be offered as Apple would have "no reliable way" to maintain its commitments to consumers over the four areas, and consumers would "hold Apple to account for any shortfall in performance."

Despite assurances the Epic Store would offer protections on device security and consumer privacy, Apple "cannot be confident that Epic or any developer would uphold the same rigorous standards of privacy, security, and content as Apple."

Referring to a tweet from Sweeney on June 16 about how it is "up to the creator of a thing to decide whether and how to sell their creation," Apple agrees with the sentiment. "It seems, however, that Epic wishes to make an exception for Apple and dictate the way that Apple designs its products, uses its property, and serves its customers."

One week later, Sweeney acknowledges the clear answer to Epic's requests, while also taking a swipe at the decision for the response to be handed over to Apple's legal team to create "such a self-righteous and self-serving screed."

Almost a month later on August 13, Sweeney again emails Apple's executive team and Vetter, advising Epic will "no longer adhere to Apple's payment processing restrictions," by introducing direct payments in the Fortnite app.

"We choose to follow this path in the firm belief that history and law are on our side," writes Sweeney. "smartphones are essential computing devices that people use to live their lives and conduct their business. Apple's position that its manufacture of a device gives it free rein to control, restrict, and tax commerce by consumers and creative expression by developers is repugnant to the principles of a free society."

Sweeney signs off by claiming Epic will "regrettably, be in conflict with Apple on a multitude of fronts - creative, technical, business, and legal" if Apple takes "punitive action" by blocking the app or future updates.

Apple's last two emails in the chain are from Apple, with one explaining how the Fortnite app is in violation of the App Store Review Guidelines in multiple ways, while the other is the email advising of a termination of Epic's access to the Apple Developer Program, again for several violations.

Epic counter-argues and Microsoft agrees

On August 23, Epic filed a rebuttal to Apple's court filing, attempting to poke holes in Apple's arguments against Epic's injunction motion the day before it takes place.

Epic's reasoning included calling Apple's argument Epic's requested relief to prevent the revocation of tools as "mandatory rather than prohibitory" as incorrect. Epic stated it wanted to "preserve the status quo."

On how Apple believes revocation is authorized by contracts, Epic says this is wrong, as Apple "fails to acknowledge the multiple contracts between Apple and Epic affiliates and programmers," namely licensees.

Arguments about how the "balance of equities tips" in Apple's favor and the motion's harm to "the public interest" are both dismissed by Epic as they don't include actual claims that apply to revoking access to developer tools to work on Unreal Engine.

Fortnite played on a MacBook Pro
Fortnite played on a MacBook Pro

For Apple's claim Epic hasn't provided evidence its Unreal Engine business would be "significantly harmed," Epic refers to multiple declarations included with the original motion, as well as other elements that surfaced since the filing.

This includes a declaration from Microsoft, where it confirms it has an "enterprise-wide, multi-year Unreal Engine license agreement," and that it has put significant resources into customizing the engine for its own products, including for iOS devices.

"Denying Epic access to Apple's SDK and other development tools will prevent Epic from supporting Unreal Engine on iOS and macOS, and will place Unreal Engine and those game creators that have built, are building, and may build games on it at a substantial disadvantage," writes Microsoft.

Epic also goes as far as to declare "The breadth of Apple's retaliation is itself an unlawful effort to maintain its monopoly and chill any action by others who might dare oppose Apple" in the filing.

Even-score hearing

On August 24, Apple and Epic met with U.S. District Court Judge Yvonne Gonzalez Rogers for the first legal hearing of the affair.

In the ruling, Epic was found to be unable to demonstrate irreparable harm from Apple's ban of Fortnite, and that it was a situation of Epic's own making. Epic's arguments failed to outweigh "the general public interest in requiring private parties to adhere to their contractual agreements or in resolving business disputes through normal, albeit expedited, proceedings."

Apple argued that Epic's integration of direct payments was intentionally made to kick off the legal scrum, which Epic's lawyers later admitted was true, as it was necessary to force Apple's hand.

While Fortnite is off the App Store and will remain so for the immediate future, Apple was ordered to not take action against Epic Games International's developer account. The SARL entity is responsible for licensing Epic's Unreal Engine, and a ban on that account's access would restrict updates to the engine, and would hurt developers licensing the software by extension.

"Apple has chosen to act severely, and by doing so, has impacted non-parties, and a third-party developer ecosystem," wrote Rogers. "In this regard, the equities do weigh against Apple."

"Epic Games and Apple are at liberty to litigate against each other, but their dispute should not create havoc to bystanders. Certainly, during the period of a temporary restraining order, the status quo in this regard should be maintained," the motion states.

Apple applauds court

Following the California court ruling, Apple issued a statement to AppleInsider and other venues applauding the decision.

"We thank the court for recognizing that Epic's problem is entirely self-inflicted and is in their power to resolve. Our very first priority is making sure App Store users have a great experience in a safe and trusted environment, including iPhone users who play 'Fortnite' and who are looking forward to the game's next season," Apple said.

"We agree with Judge Gonzalez-Rogers that 'the sensible way to proceed' is for Epic to comply with the App Store guidelines and continue to operate while the case proceeds. If Epic takes the steps the judge has recommended, we will gladly welcome 'Fortnite' back onto iOS. We look forward to making our case to the court in September."

A hearing on a motion for preliminary injunction against Apple is scheduled for late September.

Epic says it won't make changes

On August 26, Epic Games told players of "Fortnite" not to expect updates to the app, as Apple was "blocking" updates and new installations via the App Store. While true, the statement avoided mentioning how the situation arose after Epic baited Apple.

The season update on August 27 would be available on all other platforms the game can be played on, but not iPhone, iPad, nor Mac.

The addition to the game's support pages suggests Epic will continue to refuse to comply with Apple's guidelines for the foreseeable future, leaving the future of the game in doubt until after legal activities between the two companies cease.

New volleys between the two companies

On the same day that Apple was set to terminate Epic Games' developer account, the Cupertino tech giant highlighted a prominent "Fortnite" competitor in a piece of editorial content for the App Store.

The editorial content touts a "new era" of "PUBG Mobile," and is especially ironic amid the ongoing legal battle because "PUBG Mobile" is created using Epic Games' Unreal Engine. Apple was also set to shut down Epic Games' Unreal Engine developer account, which is separate from the one that maintains "Fortnite," but a judge blocked that supposed retaliation.

Epic Games on the previous night had also sent out emails to macOS and iOS "Fortnite" players that accused Apple of being the sole reason that the popular battle royale title was not on the App Store. In fact, a court declined Epic's request for a TRO because the situation appeared to be one of its own making.

German antitrust interest

On September 2, it was reported Germany's Federal Cartel Office were keeping a close eye on the Apple-Epic legal wrangling, with a view to potentially launch an antitrust probe.

"This has most certainly attracted our interest," said office chief Andreas Mundt. "We are at the beginning, but we are looking at this very closely." Mundt went on to point out that the existence of the App Store and the Google Play Store represent "an interesting habitat, because they are the only two worldwide."

Though it is possible for the Federal Cartel Office to impose fines, it is more likely that officials would try to force changes in the ways the app stores functioned instead.

"Incalculable harm to users"

Epic made a second attempt to convince the court to force Apple into keeping Fortnite available to download on September 5. While the initial attempt was an emergency measure by the company, the new version was a more formal petition to the court.

After being accused of antitrust violations for misusing its power, Apple then "used that same power to try and coerce Epic to abide by its unlawful restrictions," Epic submitted. It followed up by suggesting Apple's actions will "cause irreparable harm to Epic, as well as harm to countless third parties and the public interest."

This apparently included the Fortnite community, in that removing the game from the App Store "cleaved millions of users from their friends and family" and prompting "deafening" user outcry. As of the filing, Epic claimed it had seen a 60% decline of daily active users on iOS.

Epic also reasoned that the "balance of harms tips strongly in Epic's favor, in that it stood to lose considerably more than Apple, which would "at most lose some commissions from Epic."

The filings included numerous declarations from key Epic staff, communications between the two companies, a document from a co-executive director of the Jevons Institute for Competition Law and Economics at University College London about Apple's antitrust issues, and a selection of consumer emails.

Apple fires back at Epic, seeks damages for breach of contract

In a counterclaim on Sept. 8, Apple called the Epic Games lawsuit "nothing more than a basic disagreement over money." The Cupertino tech giant added that "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."

Apple reiterated that Epic fired the first volley in the legal saga with its direct payment system in "Fortnite." The counterclaim, filed in the U.S. District Court for the Northern District of California, calls Epic Games' behavior "willful, brazen, and unlawful," adding that Epic has made more than $600 million from the App Store.

Additionally, Apple alleged that Epic's implementation of a direct payment system bypassing its App Store comissions was a "sneak assault" on the app marketplace.

The filing asks the court to hold Epic liable for breach of contract, and seeks restitution of the revenue that "Fortnite" made through its direct payment system. It also asks for a permanent injunction banning the direct payment system across all of Epic's apps on the App Store.

Goodbye "Sign in with Apple" — or not

On September 9, Epic Games told consumers Apple "will no longer allow users" to authenticate using Sign in with Apple for Epic Games accounts as soon as September 11, warning consumers to update their accounts to move away from it.

The following day, Epic advised Apple provided an "indefinite extension" to Epic Games' access to Sign in with Apple. However, it still recommended users update their accounts anyway.

In a statement, Apple said it wasn't actively seeking to disable compatibility with Sign in with Apple.

Sweeney Twitter Thread

On September 9, Epic Games CEO Tim Sweeney wrote about how Apple was missing the bigger point of Epic's actions. The thread, which suggested Apple was oversimplifying Epic's actions in its countersuit, attempts to sway the court of public opinion over the matter.

Sweeney claims Apple has overextended its reach over consumer devices, that all users should be able to install software freely, and developers should be able to create and share apps as they wish.

After poking at Apple's famous 1984 commercial and insinuating the current situation is "exactly what" the ad spot was about, he goes on to say Epic's parody was striking back against an unfair system. Apple allegedly erodes the rights of consumers and developers by being an intermediary to "exert control and extract money."

App Store guidelines massaged for gaming services

On September 11, Apple adjusted some of its App Store guidelines to make it possible for online game streaming services to exist on iOS, such as Microsoft Xcloud and Google Stadia. Though not directly connected to the Apple and Epic fight, they are covering similar territory.

Apple doesn't allow an Apple Store within the App Store, as Epic wanted to implement, but does allow for the games on such streaming services to be submitted to the App Store as an individual app, including having its own App Store product page, appears in charts, can be reviewed, managed with ScreenTime, and comply with other App Store rules.

The "catalog app" must also comply, including providing an option for users to "pay for the subscription with an in-app purchase" and use Sign in with Apple, as well as linking to games on the service by pointing users to App Store listings instead of its own website.

Crucially, the rules still allow a service to enable off-app purchase confirmations, allowing access to content without using Apple's payment mechanisms, but that must be done outside the app completely, and not how Epic implemented it as a separate in-app payment option.

Apple says Epic using dispute as "Fortnite" marketing tool

In a filing on September 16, Apple accused Epic of using the whole App Store "Fortnite" dispute as promotion for the game, which Apple thought was declining in popularity on iOS.

"For reasons having nothing to do with Epic's claims against Apple, Fortnite's popularity is on the wane," says Apple's filing. "By July 2020, interest in Fortnite had decreased by nearly 70% as compared to 4 October 2019. This lawsuit (and the front-page headlines it has generated) appears to be part of a marketing campaign designed to reinvigorate interest in Fortnite."

Apple also denied that Epic had suffered its claimed reputational harm, suggesting "Epic has engaged in a full-scale, pre-planned media blitz surrounding its decision to breach its agreement with Apple, creating ad campaigns around the effort that continue to this day."

"If Epic were truly concerned that it would suffer reputational injury from this dispute, it would not be engaging in these elaborate efforts to publicize it," it continues. "From all appearances (including the #freefortnite campaign), Epic thinks its conduct here will engender goodwill, boost its reputation, and drive users to Fortnite, not the opposite. That is not harm."

Epic denies marketing exercise

In a rebuttal, Epic counters Apple's claims as it had "cherry-picked" the data. Apple's 70% claim apparently was sourced from Google Trends data for search volumes, which started with a spike in interest caused by a popular in-game event.

In reality, Epic insists it saw increased daily user figures over the same ten-month period of "more than 39%."

The filing fired back by refuting Apple's claim "it is no monopolist," due to a comparison where smartphones were "interchangeable" with computers and gaming consoles for the comparison of digital stores. Epic declared "that assertion is contrary to basic antitrust principles and common sense: a Sony PlayStation does not fit in your pocket but a smartphone does."

The Coalition for App Fairness

On September 29, the Coalition for App Fairness was formed by a number of big-name app developers. The non-profit aims to highlight issues developers face when developing for the App Store.

The group of developers includes Epic Games, Spotify, and Tile among its founding members, as well as Deezer, Match, News Media Europe, and ProtonMail, among others.

The creation of the group occurs at a sensitive time for Apple, due to it also being under multiple antitrust investigations over its App Store dealings.

It published a list of ten principles that should be followed by app stores, and include many gripes mentioned previously by Apple's critics. They include a decentralization of app hosting, a prevention of self-preferential practices, and a lowering of Apple's commission cuts.

The Next Hearing

Apple and Epic Games are due to attend a court hearing at the US District Court for the Northen District of California over the affair. AppleInsider will report on arguments and rulings that take place.

Hearing 2

During a lengthy and animated hearing on September 28, Apple and Epic took turns trying to argue their case to Judge Yvonne Gonzalez Rogers. Epic was seeking a reinstatement of the Fortnite app in the App Store and for accounts linked to the Unreal Engine be protected from any further harm from Apple.

Judge Rogers was seemingly unconvinced by Epic's arguments throughout the two-hour hearing. Among the issues was Rogers highlighting it was a matter of Epic's own doing during times when Epic's lawyers were urging there was harm suffered by Apple's actions against it, and that Epic had forced Apple's hand in the matter.

Rogers also pushed back against Epic's repeated claims Apple was a monopolist, and admonished Epic for not being "forthright" with Apple itself. The judge even took time to call out Epic's odd argument that Apple couldn't compare a smartphone to a game console due to its size and portability, which Rogers countered by referencing that the Nintendo Switch exists in such a form.

The Judge made the suggestion the trial should be held in front of a jury, as it is a matter that are "important cases on the frontier of anti-trust law." Rogers also proposed the opinions of a federal judge may not be as useful as those of the general public, since "it is important enough to understand what real people think."

Rogers set a deadline of January 6 for the filing of data for the trial, but the trial itself would take place sometime in July 2021, on a date to be determined.

A decision on Epic's demands was to be declared at a later time.

Another still from Epic's parody of Apple's '1984' Super Bowl commercial
Another still from Epic's parody of Apple's '1984' Super Bowl commercial

Hearing 3 without a jury

On September 30, both Apple and Epic filed with the court that, after conferring, the decision should be made by the court itself and not the public.

Apple was originally pushing for a jury trial but withdrew its request to streamline proceedings. Mentioning Judge Roger's admittance in a preliminary hearing that she didn't want to "try two cases" and was "inclined to try both cases at once," Apple said it was willing to forego a jury trial to get the ball rolling.

'Fortnite' stays out of App Store

On October 9, a ruling from Judge Rogers was published, with results mixed for both Apple and Epic. While Epic was able to protect the Unreal Engine-linked developer accounts, it was denied a request to force Apple to reinstate 'Fortnite' to the App Store.

"While consumers are feeling the impact of this litigation, the fact remains: these are business disputes," said Rogers in the ruling about 'Fortnite.' "A punitive class action on behalf of all developers on these exact same issues was already in progress when Epic Games breached the agreements. Yet, Epic Games has never adequately explained its rush, other than its disdain for the situation. The current predicament is of its own making."

For the Unreal Engine, Rogers feels removing access to accounts would be harmful to developers. "Apple's aggressive targeting of separate contracts in an attempt to eradicate Epic Games and its affiliates fully from the iOS platform was unnecessary and imperiled a thriving third-party developer ecosystem," wrote the Judge.

In a statement to AppleInsider, Apple expressed gratefulness on the court as it "recognized that Epic's actions were not in the best interests of its own customers and that any problems they may have encountered were of their own making when they breached their agreement."

Lack of discovery

A joint filing on October 13 ahead of a case management conference scheduled for October 19 had Apple and Epic complaining about how the other party is handling the discovery portion of the lawsuits. Both are claiming the other is being uncooperative, in different ways.

Epic accused Apple of failing to provide all of the needed documentation, with Apple's list of custodians used to collate and supply relevant documents reportedly excluding co-founder and late CEO Steve Jobs and current CEO Tim Cook.

Epic also said Apple "repeatedly relied" on the two men during its earlier motion hearings, but Apple countered by pointing out they were referred to twice, namely Tim Cook's statement to the US House of Representatives Judiciary Committee and "an AppleInsider article quoting Steve Jobs."

Apple says it has provided Epic with "the 3.6 million documents" produced by Apple during its developer class action and consumer class action suits, though Epic believes they could have been provided sooner.

Epic claims it has made "an initial production of more than 16,000 pages from the files of Timothy Sweeney," Epic's CEO, but Apple believes Epic may have "cherry-picked" the documents that may "omit a significant amount of relevant materials."

Apple also claims Epic received a third-party discovery request before it formed its lawsuit against Apple, to which Epic allegedly told Apple to "just wait a bit," then filed the lawsuit before responding to the subpoena.

Epic denies theft

On October 23, Epic made another filing to the court, arguing its actions are a "far cry from the tortious - even purportedly criminal - conduct that Apple's Opposition depicts." This is in reference to Apple's claims that "Epic's flagrant disregard for its contractual commitments and other misconduct has caused significant harm to Apple."

"Simply put, Epic did not 'steal' anything that belonged to Apple. Epic could not and did not 'steal' the proceeds from the sales of its own creative efforts. Nor did Epic interfere with any prospective economic advantage Apple sought to gain from 'Fortnite' users separate and apart from their interest in 'Fortnite," the filing claims.

Epic then accuses Apple's theft accusation of boiling down to the "extraordinary assertion that Epic's collection of payments by players of Epic's game to enjoy the works of Epic's artists, designers, and engineers is the taking of something that belongs to Apple."

Epic was "forced to agree to make Apple its agent" for Apple Store sales as part of the license agreement, then openly admits "by offering 'Fortnite' users the choice of making purchases directly from Epic, Epic breached those contractual provisions (assuming they are legal.)"

Epic credits players

On November 10, Epic issued credits to macOS and iOS "Fortnite" players who bought the V-Bucks in-game currency, allowing them to use their purchases on other platforms while updates to the iOS and macOS versions of the game were effectively blocked.

Players on macOS received a credit the equivalent to unspent V-Bucks bought from Epic directly, while iOS players received the equivalent for the currency bought via the App Store itself.

Apple counterclaims limited to breach of contract

In a November 11 filing, Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted Epic a motion for judgment on tort-based counterclaims leveled by Apple. In effect, this tossed all of Apple's counterclaims, except those relating to a breach of contract.

Apple had defended its arguments by insisting Epic "is stealing money from Apple," and "The victim of theft has always had the right to sue for conversion to get its property back from the thief - irrespective of the technical means by which the conversion is accomplished."

The Judge believed Apple had failed to show any independently wrongful act on Epic's part beyond a breach of contract.

The Fight in Australia

On November 18, Epic filed a complaint with the Federal Court of Australia, bringing the legal fight to a new continent. Apple was accused of "substantially lessening competition" and a "misuse of market power," echoing arguments in its US-based lawsuit.

"Apple has locked down and crippled the ecosystem by imposing an absolute monopoly on distribution and through the restrictions placed on in-app purchases," Epic argues. "They are preventing entire categories of business and software applications from being developed in their ecosystem and this excessive control is bad for competition, choice, and innovation."

Just like the US battle, Epic is not seeking damages in Australia against Apple.

 

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