Fortnite unlikely to be forced back into App Store as Apple and Epic clash

Apple and Epic met over Zoom in a digital version of court Monday, following nearly two weeks of public squabbling over an increasingly dramatic legal battle between the companies over payments and power in the App Store. Judge Yvonne Gonzalez Rogers, who oversaw the hearing with a virtual backdrop of a courtroom, was deciding whether to force Apple to allow the popular Fortnite battle game back into its App Store while it fights the case in court. But she also said Epic’s Unreal Engine developer tools may be spared, while hinting at larger antitrust questions against Apple may be at play too.

The suit began on Aug. 13, when Epic turned on undisclosed code buried in its popular Fortnite battle royale game for iPhones and iPads. The game, which pits up to 100 players against one another in a cartoonish but complex last-man-standing shootout, counts more than 250 million players. And that Thursday, Epic circumvented Apple’s payments systems for the app, allowing customers to buy items like new looks for their characters directly from Epic, rather than through Apple’s payment system that charges up to a 30% commission.

Apple booted Epic from the App Store shortly after, and in response Epic sued and released a marketing video mocking Apple as a power-hungry company.

Rogers, a federal judge for the northern district of California, spent much of the hearing challenging Epic and Apple’s lawyers over aspects of both their respective arguments. But, she warned, she’s unlikely to force Apple to allow Epic’s popular Fortnite online battle game back into the App Store without removing offending code that breaks Apple’s App Store rules.

When either company would raise concerns about whatever financial hit they may take as a result of her ruling either way, Rogers scoffed.

“We’re talking about a company worth billions versus a company worth trillions,” she said.

The hearing marks the first signs of the challenge both companies will face as their public battle, held through press statements, transitions to the courtroom. Epic garnered worldwide attention when it initially sued Apple, encouraging players to tweet the hashtag #FreeFortnite in response Apple booting its game for circumventing its payments schemes. Epic sued Google too that day, after the search giant also kicked Fortnite from its Google Play store for the same behavior. Epic said it’s not seeking money, but rather the right to avoid outside control over its apps.

While Epic’s suit with Google is still in its preliminary stages, its suit with Apple held its hearing Monday in order to decide Epic’s request that the court force Apple to allow Fortnite back in its store. Apple’s also threatened to remove Epic’s access to its developer tools, effectively cutting off its Unreal Engine game development tools too that are used by game makers across the industry. Epic argued that Apple’s moves threatened outside developers, while also leaving iPhone and iPad players unable to play with other gamers when new game updates arrive likely in the fall.

“The Fortnite game is a social environment, it’s not just a game,” Katherine Forrest, representing Epic, said during the hearing. “In the context of a world in which we live, which is a strange world indeed, with socially distant everything, these kinds of social connections become incredibly important.”

Short-term fixes

While the case between the two companies appears complex, Rogers also suggested relatively easy temporary fixes while the companies duke it out in court. Epic, she said, could remove the offending code that got it booted from the App Store while still continuing to fight Apple in court. Apple, meanwhile, she said overreached by threatening to remove the Unreal Engine from its App Store, likely impacting even more third party developers who build their apps with its tools. 

“This is not something that’s a slam dunk for Apple or Epic Games,” she said.

Epic argued that its move to break Apple’s App Store guidelines by quietly inserting code that allows customers to circumvent Apple’s payments systems was the beginning of a battle over antitrust issues, which it will raise at trial. Apple, meanwhile, argued that its move to kick Epic, its Fortnite game and its popular Unreal Engine game coding tools from its app store was a reasonable response. And it’s still offering Epic to return to the App Store if it removes the offending code.

“Epic’s attempted to, and so far has succeeded in putting Apple customers in the middle, to essentially hold them hostage,” said Richard Doren, representing Apple. “We have offered Epic a path back that would eliminate any impact on consumers and any impact on developers, if they simply go back to the status quo.”

Rogers is expected to issue a ruling soon, while the companies are expected to argue more pre-trial issues in September. The case is expected to be ruled by Rogers, rather than a jury.