Judge might protect Epic’s Unreal Engine from Apple, not Fortnite

The judge sitting on the bench during the legal squabble between game developer Epic and Apple says that she isn’t “inclined” to order Apple to reinstate popular game Fortnite to the App Store without the developer removing the workaround it created that bypasses Apple’s in-app payment system. Apple takes a 30% cut of in-app payments that go through its system, but it also requires apps offering subscriptions and in-app purchases to go through only its system if it wants to keep an App Store listing. When asked whether Apple’s 30% in-app cut was monopolistic, Epic considered it to be akin to travel app Expedia taking a 30% cut of a hotel room rate and room service charges.

The judge said that Epic can remedy the problem itself by removing its direct payment option for Fortnite

Epic got into trouble this month by adding a screen to Fortnite that allows users to pay for the game and in-app extras through Epic’s own system. This would allow Epic to keep all of the money spent on the game by consumers without having to give up 30% to Apple. But for its troubles, Apple kicked Fortnite out of the App Store and told Epic that it would close its developer account on August 28th. At the same time, Epic would lose access to the developer tools for iOS and Mac; this would allow iPhone users who had previously bought Fortnite to continue playing it, but would block them from receiving any updates to the game. Eventually, Fortnite would become obsolete on the iPhone and no one would want to play it.

According to AppleInsider, during a hearing today over Zoom, U.S. District Judge Yvonne Gonzalez Rogers didn’t appear to be moved by Epic’s argument that it was going to suffer great harm from having Fortnite kicked out of the App Store. However, the judge did seemed to be swayed by Microsoft’s declaration that Apple’s punishment will hurt game developers and players. If Apple is allowed to close Epic’s developer account, the company will be unable to offer its Unreal Engine. This is a game engine for developers and helps them create 3D graphics.

Microsoft filed a declaration Sunday night and Kevin Gammill, Microsoft’s general manager for Gaming Developer Experiences, said in the declaration that “If Unreal Engine cannot support games for iOS or macOS, Microsoft would be required to choose between abandoning its customers and potential customers on the iOS and macOS platforms or choosing a different game engine when preparing to develop new games. Apple’s discontinuation of Epic’s ability to develop and support Unreal Engine for iOS or macOS will harm game creators and gamers.” And perhaps that is why Judge Rogers said that she might take action to force Apple to reinstate the Unreal Engine. The judge called Apple’s attack on that platform “an overreach.”

We also mentioned over the weekend that Apple’s strategy in court would be to show that Epic brought on this crisis itself and that Epic’s problem could be remedied by following the developer agreement that Apple has all developers with an app in the App Store sign. The judge seemed receptive to this plan when she told Epic’s attorney, Katherine Forrest, “In my view, you cannot have irreparable harm when you create the harm yourself.”

The judge also pointed out that instead of issuing a Temporary Restraining Order (TRO) blocking Apple from removing Fortnite from the App Store and closing Epic’s developer account until the case can be adjudicated, Epic can remedy the problem by removing its direct payment option. But Epic’s attorney said that the reason it created its own direct payment option was to “break the chokehold that Apple has on its payment system and the prohibition that it has on competition.” And the developer adds that it refuses to return to an anti-competitive contract.