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Epic’s decision to bypass Apple’s App Store policies were dishonest, says US judge

Epic’s decision to bypass Apple’s App Store policies were dishonest, says US judge

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A court hearing suggests Epic’s arguments aren’t being well received

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Photo by Amelia Holowaty Krales

A US judge hearing arguments in Epic’s antitrust lawsuit against Apple has criticized the game developer’s decision to breach its contract with the iPhone maker by pushing a version of Fortnite with a custom payment system onto the App Store. The decision resulted in Apple removing Fortnite from the App Store.

During a hearing on Monday with both companies, Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California expressed skepticism about Epic’s arguments, particularly its claim that it did not pose a security threat to Apple because it is a well-established company and partner.

Apple vs. Epic: the battle so far

  • August 13th: Epic introduces a new direct-payment system in Fortnite to circumvent Apple’s 30 percent fee. Apple kicks Fortnite off the App Store for breaking its rules. Epic responds with a civil lawsuit against Apple.
  • August 17th: Epic reveals that Apple has threatened to terminate its developer account. This would stop Epic from developing any future games for iOS or Mac.
  • August 24th: Epic wins a temporary restraining order against Apple. Judge Yvonne Gonzalez Rogers rules that Apple can’t terminate Epic’s developer account, but that the iPhone maker does not have to restore Fortnite to the App Store.
  • September 8th: Apple countersues Epic, seeking damages for the company’s breach of contract. In a court filing Apple says Epic has started this legal battle to draw attention to the flagging Fortnite franchise.
  • September 28th: Judge Rogers hears arguments from both Epic and Apple, and recommends a jury trial to settle the case in July.

“You did something, you lied about it by omission, by not being forthcoming. That’s the security issue. That’s the security issue!” Rogers told Epic, according to a report from CNN. “There are a lot of people in the public who consider you guys heroes for what you guys did, but it’s still not honest.”

The three-hour hearing, which took place over Zoom, did not settle any of the open questions in Epic’s ongoing antitrust lawsuit against Apple, including whether or not Fortnite will be allowed to return temporarily to the App Store. A decision on that issue is expected “in the coming days,” according to The New York Times.

Judge Gonzalez Rogers did recommend, though, that the case be taken to a jury trial in July next year to settle these issues permanently. “It is important enough to understand what real people think,” said Rogers. “Do these security issues concern people or not?”

According to CNN, Judge Rogers said she was “not particularly persuaded” by Epic’s argument that Apple has bundled its App Store and in-app payment system together in violation of antitrust law. The judge also said she did not necessarily agree with Epic that Apple has harmed its ability to distribute Fortnite through its control of the App Store.

“Walled gardens have existed for decades,” said the judge. “Nintendo has had a walled garden. Sony has had a walled garden. Microsoft has had a walled garden. What Apple’s doing is not much different... It’s hard to ignore the economics of the industry, which is what you’re asking me to do.”

The lawsuit between Apple and Epic has become a rallying cry for many developers dissatisfied with the iPhone maker’s App Store policies. Last week, companies including Epic, Spotify, Tile, and the Match Group created the Coalition for App Fairness, with the aim to “defend the fundamental rights of creators to build apps and to do business directly with their customers,” according to Epic CEO Tim Sweeney.

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