Fortnite Ban On iOS App Store Continues As Court Denies Epic’s Preliminary Injunction Asking Apple To Unban The Game
A judge last night denied Epic’s request for a preliminary injunction that would have seen Apple forced to allow Fortnite back into the App Store. They did, however, prevent Apple from banning Epic’s developer account which in turn means that Unreal Engine is fine to continue development.
Epic had previously claimed that it shouldn’t have to follow App Store rules because they are anti-competitive, but the court wasn’t having it.
Epic Games cannot simply exclaim “monopoly” to rewrite agreements giving itself unilateral benefit. Its other identified bases: damage to its reputation and the Fortnite gaming community cannot constitute irreparable harm where such harm flows from Epic Games’ own actions and its strategic decision to breach its agreements with Apple. Yet, Epic Games has never adequately explained its rush, other than its disdain for the situation. The current predicament is of its own making.
Epic Games remains free to maintain its agreements with Apple in breach status as this litigation continues and ignore what the Seventh Circuit recognized in Second City Music: “[t]he sensible way to proceed is for [Epic Games to comply with the agreements and guidelines] and continue to operate while it builds a record.” Id. There is no loss of face if one’s goal is to protect its consumers, the Fortnite player base. To assist, the Court even offered to require the 30% be placed in escrow pending resolution of the trial which Epic Games flatly rejected.
That final point is important. Epic could get Fortnite back into the App Store by removing the payment system that bypasses Apple’s own in-app purchase processing. That would then mean the game no longer breaks Apple’s App Store rules and gamers would be able to get back to playing Fortnite.
Another important point highlighted by Apple reads:
Even reviewing the record before the Court, the Court is not persuaded that Epic Games has suffered reputational harm. Epic Games unleashed a pre-planned and scorching marketing campaign against Apple following its breach of the operating agreements and guidelines. As the Court noted at oral arguments, if anything, it appears Epic Games’ actions have only increased its reputation in the wider community.