4:58am PT by Eriq Gardner
Judge Won’t Order Apple to Restore ‘Fortnite’ to App Store
A California federal judge has rejected an emergency request by Epic Games to have its blockbuster game Fortnite put back on Apple’s App Store. The decision was issued around midnight, several hours after a court hearing concluded on Monday.
In reaching the decision, U.S. District Court Judge Yvonne Gonzalez Rogers noted that Epic hadn’t demonstrated irreparable harm. “The current predicament appears of its own making,” writes Rogers, later adding, “Epic Games strategically chose to breach its agreements with Apple which changed the status quo.”
That’s in reference to the events of Aug. 14, when Epic Games decided that it had enough with Apple taking a 30 percent cut of in-game purchases. That day, Epic bypassed what it called a “tax” by instituting its own payment system. This move resulted in Apple booting many of Epic’s apps from the App Store. Epic quickly filed a lawsuit claiming antitrust violations through Apple’s use of restrictive contracts and technical measures conditioning access to Apple’s app platform on use of Apple’s payment system. Observers expect a huge showdown that could impact competition in the streaming economy.
In Rogers’ order, she largely bypasses an assessment of the likelihood of success of Epic’s lawsuit. At the hearing, the judge noted that the case was an “interesting” one that could turn on how Epic attempted to define a market. “The battle will not be won or lost here on the TRO [Temporary Restraining Order],” she told the attorneys.
While Epic can’t get a judge to immediately put Fortnite back on the Apple App Store because of an absence of irreparable harm, the game company has at least achieved a more limited TRO with respect to the Unreal Engine, the graphics tool that it created for Apple platforms. That tool has been used by others including to create special effects for the Disney Plus series The Mandalorian, and Epic warned that an Apple ban would be disastrous. The judge agrees by saying that not only can Epic show irreparable harm on this end, but that the public interest is served by restoration of the Unreal Engine too.
“The record shows potential significant damage to both the Unreal Engine platform itself, and to the gaming industry generally, including on both third-party developers and gamers,” states the order (read here). “The public context in which this injury arises differs significantly: not only has the underlying agreement not been breached, but the economy is in dire need of increasing avenues for creativity and innovation, not eliminating them. Epic Games and Apple are at liberty to litigate against each other, but their dispute should not create havoc to bystanders.”
The case now moves to its next phase — a judge’s consideration of a preliminary injunction. That will likely have Rogers weighing the merits of the antitrust claims in stronger fashion. A hearing on the injunction motion is scheduled for Sept. 28. Both sides are eyeing a trial by early next year.