April 20, 2021

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Apple can block Fortnite but not Epic’s Unreal Engine, judge says


A judge late Tuesday evening, through a temporary restraining order, denied Apple’s move to revoke Epic Games’ developer accounts. But, the judge also said Apple can continue to ban Fortnite from the App Store for breaking the store’s rules.

An Apple spokesperson was not immediately available to comment.

On Aug. 17, Apple threatened to cut off Epic Games’ developer accounts effective Aug. 28, which meant Epic would be unable to develop or sell any games through Apple’s App Store, not just Fortnite. That game broke Apple’s rules after Epic Games added a new in-app payment system that cut Apple out of revenue sharing.

Apple’s threat also meant Epic Games would be unable to develop for the Unreal Engine that Epic Games offers to other developers who build games on the platform. At the time, Epic Games said the move was “attacking Epic’s entire business in unrelated areas.”

The court, at least for now, agrees on that front.

In the temporary restraining order, Judge Yvonne Gonzelez Rogers said that, “with respect to Epic Games’ motion as to its games, including Fortnite, Epic Games has not yet demonstrated irreparable harm,” and that “the current predicament appears to be of its own making.”

An Epic Games spokesperson was not immediately available to comment.

But, the court said that Epic Games has been able to show that a revocation of its developer tools would cause irreparable harm. “Epic International appears to have separate developer program license agreements with Apple and those agreements have not been breached,” the court said of Epic’s broader accounts used for Unity and other development.

“The parties’ dispute is easily cabined on the antitrust allegations with respect to the App Store. It need not go further,” the court said. “Apple has chosen to act severely, and by doing so, has impacted non-parties, and a third-party developer ecosystem.”

“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,” the court argued. “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 quot in this regard should be maintained.”

The lawsuit is expected to continue for many months, if not years. A full hearing is set for Monday, Sept. 28.



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