As the week closed out, a couple of court filings pushed the ongoing litigation between Epic, Apple and Google slowly forward. One filing from Google says the search giant will seek to dismiss Epic’s lawsuit, while a last-minute filing from Epic Friday evening ahead of the long weekend sought a preliminary injunction against Apple’s Fortnite ban.
Let’s start with Epic’s filing. In a 38-page (not including several additions) motion, Epic Games laid out its argument for the court to force Apple to let Fortnite back on the App Store.
You may recall that the courts previously decided to allow Apple to remove Epic’s developer account, which not only prevented updates to Fortnite (which was still accessible on devices that had it installed or had previously installed it before the ban) but also removed other games and software made by Epic.
Courts felt Epic bore some blame for the Fortnite ban
At the time, the courts also decided Apple could not target Epic’s other developer accounts, such as the one for Unreal Engine — a critical part of Epic’s business and used by many to create games, movies and more. The decisions concluded that Epic bore partial blame for the Fortnite ban since it intentionally broke Apple’s App Store rules and so the courts shouldn’t intervene since Epic could remedy the situation itself.
To be clear, that isn’t indicative of how the courts will rule regarding the lawsuit, since the issue at hand isn’t whether Epic broke Apple’s rules, but whether the rules are fair in the first place. For those who haven’t followed the ongoing fight between the companies, Epic updated its Fortnite game with a direct payment system that allowed players to pay Epic directly for content. The company made this available beside Apple’s in-app payment system. Developers who use Apple’s system must give the company a 30 percent cut of every purchase made through it. However, Apple’s App Store rules prevent the use of third-party payment systems, which Apple used as the basis for banning Fortnite.
As such, the courts felt that Epic could remedy its situation by removing the direct payment system. Apple agreed it would let Fortnite back on the App Store if Epic did so. However, the company refused, arguing doing so would support Apple’s monopoly over payments on the App Store.
Epic argues the Fortnite ban may have caused permanent harm
Now, Epic’s new filing argues that Apple harmed more than its reputation by banning Fortnite. In the filing, the company says daily active users on iOS declined by over 60 percent after Fortnite was removed from the App Store. It’s important to remember here that people who already had the game could keep playing.
However, a crucial issue was that the game’s removal meant Epic could no longer update Fortnite. As such, when the game’s latest season of content launched, Fortnite on iOS and macOS essentially became a separate game. Players were locked to old content and cross-play, a feature that lets people on different platforms play together, stopped working. In other words, those who play Fortnite on Apple devices can now only so with other Apple device users.
Further, Epic argues that iOS is the biggest Fortnite platform with 116 million registered users, about a third of the 350 million registered users Fortnite has in total. Epic also claims 63 percent of the iOS players only access the game through iOS.
The company says it’s worried the players lost in the 60 percent decline may not come back, and that the Fortnite community was torn apart by Apple’s ban. Finally, Epic says some of its other non-Fortnite customers were collateral damage, referring to Apple’s removal of Epic’s developer account and the subsequent removal of related Epic software from the App Store.
Finally, Epic accused Apple of threatening to deny the company’s attempts to apply for a new developer account “for at least a year.” Epic quotes a communication from Apple and argued that the harm caused by Apple denying it access to the more than one billion iOS users for at least a year is worth creating a preliminary injunction for.
Apple unsurprisingly did not respond to The Verge’s request for comment, or to Epic’s filing, since this all came about on Friday evening ahead of a long weekend.
Those interested in reading the full filing can find it here.
Google looking to dismiss Epic’s lawsuit
Earlier in the week, Google said it would seek to dismiss Epic’s lawsuit in a filing. Similar to the Apple situation, Epic filed a lawsuit against Google after the company removed Fortnite from the Play Store on Android. Of course, the situation is different on Android than on iOS since users can still install Fortnite from outside the Play Store.
Aside from seeking to dismiss Epic’s lawsuit, Google indicated in the filing that it was against merging the lawsuit and Epic’s ongoing battle with Apple into one legal challenge.
That doesn’t come as much of a surprise — it’s a safer play to let Apple go first, take the heat and then build a defence based on the outcome. For example, if Apple wins against Epic, Google has an easy case to make that the Play Store isn’t much different. On the other hand, if Apple loses, Google can argue that Android is more open and allows developers to bypass the Play Store. While true, Epic has previously accused Google of using its control over Android and the Play Store to disadvantage apps from third-party sources.
All this is to say what comes next will be both interesting and important, both in the Apple and Google lawsuits. On the Apple side, where hearings are scheduled for September 28th, the final decision will have a massive and lasting impact on how companies can manage digital storefronts. Considering many digital stores, including those run by Microsoft, Sony and Nintendo on consoles, apply similar rules to Apple and collect 30 percent of sales made on their platform, legal precedent set by this lawsuit could have a wide-sweeping impact.
As for the Google lawsuit, the significance largely depends on whether it merges with the Apple lawsuit or not. If it does, then the verdict will be similarly important. If the Epic vs Google lawsuit remains separate, it could potentially set precedent around what constitutes an open platform. As mentioned above, Android allows for other storefronts and installing apps from outside the Play Store, albeit with limitations. The question is whether those limits help Google maintain a monopoly over digital sales on Android, or if it offers enough competition for Google to dodge antitrust violations.