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Apple says it helped Epic grow into a gaming behemoth through its presence in the app store and the Fortnite developer is breaking the rules it agreed to play by, according to a Friday filing in their heated legal fight.
Epic on Aug. 14 sued Apple and Google, claiming the tech giants were operating monopolies and engaging in unfair anticompetitive actions. The fight started after Epic launched a direct payment system for in-game purchases that circumvents Apple’s typical 30 percent fee, and Apple responded by kicking Fortnite out of its app store.
Now, Apple is responding in court and its legal moves are no less severe. The opposition, filed by a team of heavy-hitters from Gibson Dunn & Crutcher, opens by painting a picture of a burgeoning Epic taking full advantage of the app store’s benefits, which Apple says it puts forth “tremendous resources” to provide.
“Over time, in part because of the opportunities Apple made available, Epic grew to a multi-billion dollar enterprise with large investors like the Chinese tech giant Tencent pouring hundreds of millions of dollars into the company,” states the filing. “Now, having decided that it would rather enjoy the benefits of the App Store without paying for them, Epic has breached its contracts with Apple, using its own customers and Apple’s users as leverage.”
Epic is seeking a temporary restraining order to prevent Apple from removing the game, and Apple argues such emergency relief isn’t justified because Epic created this problem by violating the rules app developers agree to.
“TROs exist to remedy irreparable harm, not easily reparable self-inflicted wounds,” argues Apple. “Here, Epic executed a carefully orchestrated, multi-faceted campaign, complete with a parody video, merchandise, hashtag, belligerent tweets and now a pre-packaged TRO. All of the injury Epic claims to itself, game players, and developers could have been avoided if Epic filed its lawsuit without breaching its agreements.”
Apple also argues that Epic can’t show it’s likely to succeed on the merits of its antitrust claims because its app store “has exponentially increased output, reduced prices, and dramatically improved consumer choice” and it ignores that players can still access Fortnite on numerous platforms without Apple’s support.
The tech giant says it wants Epic back in the app store and all it has to do is remove the “hotfix” that allows the app to bypass Apple’s payment system and app review process.
“Apple clearly informs developers wishing to sell their apps through the App Store that if ‘you attempt to cheat the system (for example, by trying to trick the review process, steal user data, copy another developer’s work, manipulate ratings or App Store discovery) your apps will be removed from the store and you will be expelled from the Developer Program,’ states the filing.
Those agreements protect users, Apple argues pointing to a hack of the Android version of Fortnite that distributed malware in the game.
“If the App Store were a brick-and-mortar store, it would be obvious that Apple could choose which products to distribute, which customers to sell to, and on what terms,” argues Apple. “The antitrust laws cannot condemn Apple for following the terms and conditions in place since 2008 upon which it made its App Store available to Epic and other developers.”
Epic hasn’t issued an official statement on the filing, which is posted below, but CEO Tim Sweeney has been tweeting his thoughts.
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