Apple claims Epic is only suing to boost interest in Fortnite

To answer your first question: yes, this nonsense is still going on. Grab your fizzy drink of choice and a fresh tub of buttered kernels, because it’s going off again between Epic Games and Apple. This time, Apple has completely ditched its facade of pacificism and is going straight for the jugular, accusing Epic of using the lawsuit to boost flagging interest in Fortnite.

Oh. No. They. Didn’t.

As always, if you need some background on the case, start here, then read this, this, and this. Like 2020 in general, it feels like this little spat has been going on roughly half of my lifetime, but it’s actually only been about a month. At the current juncture, a judge has ruled that Apple can’t penalize developers using Epic’s Unreal Engine by removing Epic’s access, but that Epic cannot demand that Fortnite be reinstated at no cost. The two companies are still sniping at each other, filing motions left and right. Apple’s suing for damages while Epic’s trying to force it to put Fortnite back at no cost.

It’s important to note Apple started this whole thing as the passive party. While Epic was out throwing anti-Apple tourneys and airing parody “Nineteen Eighty-Fortnite” videos, Apple was saying this was all just a something that could be worked out with a little communication. Now that’s right out the window as it goes after Epic with some serious attitude. I probably wouldn’t even be updating all of you on this were it not for the language Apple uses in its latest filing. If there’s any truth to its accusations, it’d certainly add a new wrinkle to their legal battle.

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For context, Epic’s asked the judge to reinstate Fortnite onto the App Store on Apple’s sufferance, and Apple obviously doesn’t want to do that. Apple’s latest filing contends that, “For reasons having nothing to do with Epic’s claims against Apple, Fortnite’s popularity is on the wane… This lawsuit (and the front-page headlines it has generated) appears to be part of a marketing campaign designed to reinvigorate interest in Fortnite.”

I’m not going to say it surprises me that Epic might have ulterior motives (or that Apple would accuse them of such) — that’s always been an understood part of this filing. But up to now Apple’s defense is that Epic’s just trying to duck paying Apple a fair shake for using their store — and has broken the rules to try and get its way. The argument that Epic is attempting to use the courts to get what it wants rather than to correct an injustice is certainly present and accounted for, with some added venom this time:

Epic started a fire, and poured gasoline on it, and now asks this Court for emergency assistance in putting it out, even though Epic can do so itself in an instant by simply adhering to the contractual terms that have profitably governed its relationship with Apple for years… Epic is a saboteur, not a martyr. It neither needs nor is equitably entitled to the extraordinary relief it seeks from this Court.

But it adds the accusation that Epic’s suing and creating a media circus just to boost Fortnite‘s flagging fortunes, as interest in the game has decreased by nearly 70% since July (presumably it means on iOS). It adds that Epic’s calculated media campaign means that, if anything, Epic has profited from this whole ordeal, not suffered harm:

Epic has engaged in a full-scale, pre-planned media blitz surrounding its decision to breach its agreement with Apple, creating ad campaigns around the effort that continue to this day. If Epic were truly concerned that it would suffer reputational injury from this dispute, it would not be engaging in these elaborate efforts to publicize it. From all appearances (including the #freefortnite campaign), Epic thinks its conduct here will engender goodwill, boost its reputation, and drive users to Fortnite, not the opposite. That is not harm.

As much as I love this legal volleying, this one smacks of Apple trying to confuse the real issue. When it’s just insisting that Epic’s done this to itself, it at least has the illusion of higher ground. But this argument? I’m not sure this is quite as strong, and to me it looks like Apple is trying to redirect attention from the broader antitrust implications of the lawsuit. Whether Epic’s lawsuit has merit to it or not, it’s not the only entity that has accused Apple of something like that. I expect mudslinging, but I think Apple had to reach a bit for this particular bit of mud.

Regardless, the full court hearing is scheduled for September 28.