Judge rules Apple can block Fortnite but not Epic’s Unreal Engine

You know, as much as I love a petty legal pissing contest, I really didn’t want Epic vs Apple to become my thing every morning. But here we are, and at the very least someone sensible has finally come in and given judgement — on part of the case, anyway.

Just to recap, this is part of the delightful Epic Games vs Apple (and, to a lesser extent, Google) war, which began when Epic activated a payment option on the mobile Fortnite app which bypassed Apple’s built-in payment system. Apple banned Fortnite from the App Store, then promptly set about blocking Epic’s access to developer tools, including those that would allow it to update the Unreal Engine on iOS. Epic, which has been using the ban to call for a change to Apple’s 30% standard paycut, filed an injunction to stop Apple from cutting it off. Apple spit back that the issue was entirely of Epic’s own making, meaning they have no grounds to beg for help.

breaking: as expected, the Judge in Epic vs Apple has denied Epic's motion to temporarily restore Fortnite to the app store, but has ordered Apple to not block Unreal Engine access

— Rod Breslau (@Slasher) August 25, 2020

Now a judge has ruled on the injunction (which, by the way, also asked that Fortnite be reinstated to the App Store for free). The judgement, rendered by Judge Yvonne Gonzales Rogers, is very middle of the road. To quote the legal document, “the Court grants in part and denies in part Epic’s motion for a temporary restraining order.”

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Specifically, it’s granting that Apple cannot cut Epic off from supporting the Unreal Engine on its platform, as the contract Epic is in violation of has nothing to do with its developer agreement, and Apple cannot simply go full scorched-earth on its legal opponent. As there are many other developers that use the Unreal Engine, “it could be too late to save all the projects by third-party developers relying on the engine that were shelved while support was unavailable” once the legal case is settled. 

So while Apple and Epic have the right to their battle over Fortnite, “their dispute should not create havoc to bystanders.” That’s that with regard to the Unreal Engine-based dramatics. It’s worth noting that this was the specific part of the case that Microsoft was apparently siding with Epic on. It’ll be interesting to see if the former continues supporting the latter, as it does have a vested interest in getting the formerly-denied Xbox Game Pass app on the App Store.

Judge Rogers adds that Epic has not demonstrated that its antics with regards to Fortnite have caused any harm — or at least, not as much harm as cutting off the Unreal Engine would do. Epic made a “calculated decision” to mess with the Fortnite app in such a way that Apple would have to remove it, thus starting the whole roller coaster to begin with: “Epic Games strategically chose to breach its agreements with Apple which changed the status quo. No equities have been identified suggesting that the Court should impose a new status quo in favor of Epic Games.”

Judge in Epic vs Apple case says she is “inclined” to NOT grant relief for the Fornite removal (as in, to not force Apple to put it back on the App Store,) but IS “inclined” to not let Apple block Epic from developing/distributing Unreal Engine. Inclined is not a decision.

— Mark Gurman (@markgurman) August 24, 2020

Epic’s also apparently been asking the court to grant it free access to Apple’s platform while it continues to make money from Fortnite, and the court says it obviously can’t do that: “While the Court anticipates experts will opine that Apple’s 30 percent take is anti-competitive, the Court doubts that an expert would suggest a zero percent alternative. Not even Epic Games gives away its products for free.”

Judge Rogers also added that Epic’s “current predicament appears of its own making” and pointed out that it could easily fix this by just complying with Apple’s rules. We already know it’s probably not going to do that. Still, Apple thanked the judge in a statement to CNBC: “We thank the court for recognizing that Epic’s problem is entirely self-inflicted and is in their power to resolve.”

It’s nice to finally hear from a third party in all this, and to hear them gently rebuke the companies for making this bigger than it needed to be. The judgement even reads, “The battle between Epic Games and Apple has apparently been brewing for some time. It is not clear why now became so urgent.” It remains to be seen if the core issue is going to be resolved any time soon, but at least third-party developers won’t get caught in the crossfire.