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Epic and Apple are now fighting over a naked banana

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“It’s just a banana, ma’am”

Fortnite

As the trial for Epic v. Apple entered its second week, both parties took a break from antitrust law to argue over whether bananas should wear clothes in court.

The banana in question is Peely, a humanoid fruit avatar from Epic’s game Fortnite. Fortnite, as you may remember, is at the center of the huge lawsuit between Apple and Epic. The trial’s sixth day began with testimony from Matthew Weissinger, Epic’s VP of marketing. And Apple used its cross-examination to offer the court an exhaustive tutorial on Fortnite, beginning with its title screen and one of its skins. Hence the banana:

Apple attorney: We have in front of us a new set of images, and what is this screen showing?

Weissinger: This is your matchmaking lobby.

Attorney: And we have a large yellow banana here, don’t we? In a tuxedo?

Weissinger: Yes. That is Peely.

Attorney: And that’s Peely, did you say?

Weissinger: Yeah.

Attorney: And in fact, in the tuxedo, he’s known as Agent Peely, correct?

Weissinger: That’s correct.

Attorney: We thought it better to go with the suit than the naked banana, since we are in federal court this morning.

Peely’s nightmarish existence is barely related to Apple’s case. And the “naked banana” comment would probably have passed for a throwaway joke, but for one very important fact: Apple slammed Epic last week by claiming that it hosted porn.

On Friday, an Apple attorney went after indie storefront Itch.io, which Epic lets users install through the Epic Games Store. The attorney noted that Itch.io included “so-called adult games” whose descriptions were “not appropriate for us to speak in federal courts,” calling them “both offensive and sexualized.”

Epic Games Store manager Steven Allison defended Itch.io, but the exchange may have stung Epic. Or at least, that’s the best explanation I can imagine for what happened two hours later — when Epic’s attorney decided to revisit Peely during her own questioning of Weissinger:

Epic attorney: A little bit of a digression. We talked about Peely? Our banana? Remember that?

Weissinger: I do.

Attorney: And there might have been an implication that to show Peely without a suit would have been inappropriate. Do you recall that?

Weissinger: Yes.

Attorney: Is there anything inappropriate about Peely without a suit?

Weissinger: No, there is not.

Attorney: If we could just put on the screen a picture of Peely — is there anything inappropriate about Peely without clothes?

Weissinger: It’s just a banana, ma’am.

This does, somewhat astonishingly, relate to the core issues in Epic v. Apple. Epic is suing to make Apple open up iOS to alternative app stores like the Epic Games Store. Apple claims this would expose users to malicious and low-quality apps. It used Itch.io to paint Epic as a sloppy guardian of its users’ safety, and Judge Yvonne Gonzalez Rogers seemed to take Apple’s concern at least somewhat seriously. It’s unclear whether Rogers actually thought there was a graphically naked banana-person in Fortnite, but Epic’s attorney clearly didn’t want to take that chance.

But the Peely exchange still epitomized just how rambling and off-topic some of today’s testimony felt. Apple’s tutorial was clearly aimed at showing that Fortnite is mostly a game and not an “experience” or “metaverse” — encouraging the judge to weigh the App Store’s game-related policies against similar rules on consoles, rather than scrutinizing the whole iOS ecosystem. Still, the result felt like a college freshman padding an English essay with a blow-by-blow plot summary — or in this case, a blow-by-blow description of how to complete a skydiving challenge.

And despite Apple and Epic’s often very funny debate over the definition of a game, the case will probably hinge on drier-sounding questions like those discussed by Epic’s first expert witness, the economist David Evans.

Evans argued that Apple is running an unfair single-brand monopoly: basically, it sells pricey devices that lock users into an ecosystem with no reasonable alternatives for getting certain apps, beyond tossing their phone or tablet and spending hundreds or thousands of dollars on a new one. Developers can offer cheaper in-app purchases on the web or a different platform, but Apple won’t let iOS apps direct users to these savings.

Judge Rogers asked some skeptical questions about Evans’ testimony, and Epic will almost certainly try to hammer his points harder. Hopefully, both parties will let Peely slip — but who knows, maybe the banana clothing issue will remain a split in the days to come.

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