Apple vs Epic may go to jury; Google finally speaks on Fortnite ban

You thought the Apple vs Epic Games battle had cooled, or maybe blown over? You thought wrong. Now not only might the case have to go before the jury, but Google’s finally breaking its silence. So sit down, grab a bubbly beverage and a plate of nachos, because the show is back on.

Today was the first day of the case in court, for a hearing. Everything up to now has been the two companies sniping at each other in legal filings, but now the two companies had to present themselves (virtually, of course) to Judge Yvonne Gonzalez Rogers. In summary, she didn’t alter her previous decision, in which she upheld Apple’s ban of Fortnite. So it looks like the game is staying off the App Store for the time being. She also added that the antitrust case should go to a jury, as it means the outcome is less likely to be overturned on appeal.

While Judge Rogers merely upheld her previous position, and didn’t dismiss Epic’s case outright, she was very obviously skeptical of their claims. Actually, that might be an understatement — she outright said that Epic lied, and, regarding the separate payment apparatus Epic insists on calling a “hotfix,” she said, “Lots of people use hotfixes. That’s not the issue. The issue is that you were told, and you knew explicitly because of your contractual relations, that you could not have that, and you did. It’s really pretty simple.” She was also rather unimpressed with Epic’s repeated claims that they were being denied access to large market of gamers who play Fortnite only on iOS, saying there are many other avenues through which those players can access the game.”

This is a brutal hearing for Epic. The judge is very skeptical.

— Brian Fung (@b_fung) September 28, 2020

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So not much was accomplished today, but I will say that Judge Rogers was the star of the show. Agree with her or not, her thoughts on the industry are fun to hear. She pointed out that the term “walled garden” that has been used against Apple could also apply to Nintendo, Sony, or Microsoft, and that every platform collected the 30% pay cut Epic seemed to find so restrictive. She said, “It’s hard to ignore the economics of the industry, which is what you’re asking me to do.” She also added, in response to Epic lawyer Gary Bornstein’s assertion that iOS users had no other options because “you can’t play an Xbox when you’re on a bus,” that this was a flawed argument because there’s always the Nintendo Switch.

Meanwhile, Google, which also banned Fortnite over Epic’s contentious hotfix, is finally starting to get involved in its own way. It’s announced that it would be making it easier for users to install third-party app stores on Android, starting with the release of Android 12. That might seem like a concession, but it’s also not going to back down on the 30% paycut it takes for Play Store apps. It directly references the Fortnite kerfuffle on its Android blog: “This openness means that even if a developer and Google do not agree on business terms the developer can still distribute on the Android platform. This is why Fortnite, for example, is available directly from Epic’s store or from other app stores including Samsung’s Galaxy App store.”

Either Epic or Apple will have to request a jury trial for there to be one. The full case is set to be heard in July 2021.