Epic, Apple Trade Barbs in Fortnite Fight, While Google Seeks Separation

Epic Games filed another request with the Northern District of California Court on Sept. 4 seeking a temporary injunction against Apple in relation to the removal of its popular battle royale game Fortnite from iOS devices. 

Epic’s popular game has been completely removed from Apple’s App Store after the court rejected a request for a temporary restraining order to keep Fortnite in the app store in late August. In that ruling, U.S. District Judge Yvonne Gonzalez Rogers rejected Epic’s request for protection of Fortnite, noting that the developer could simply roll back an update to be in compliance with Apple’s rules. The judge did bar Apple from revoking Epic’s developer status related to Unreal Engine.

The battle between Epic and Apple began when the developer injected a payment method inside Fortnite that allowed users to buy content directly from Epic at a discounted price. Apple deemed this to be a circumvention of its payment system and a violation of its agreement with the developer.

In its latest filing Epic claims, among other things, that the removal of Fortnite is causing irrevocable harm. 

“By removing Fortnite from the App Store, Apple has cleaved millions of users from their friends and family in the Fortnite community, which entirely depends on connectivity,” Epic’s filing reads. “The user outcry has been deafening, showing real harm to the public interest.  Daily active users on iOS have declined by over 60% since Fortnite’s removal from the App Store.”

Given the rejection of Epic’s last filing for relief, it is unlikely that Judge Rogers will issue a different ruling before the next hearing on Sept. 28.

In a filing Tuesday Apple responded to Epic’s latest filing with one of its own; a countersuit seeking monetary damages from Epic for breach of contract related to the developer redirecting Fortnite in-app purchases without giving Apple its 30% cut. Apple said in its filing that Epic wants to be seen as a modern day “Robin Hood” but really does not want to pay anything for using its platform: “Although Epic portrays itself as a modern corporate Robin Hood, in reality it is a multi-billion dollar enterprise that simply wants to pay nothing for the tremendous value it derives from the App Store.” 

On a related note, Google filed a response to the court trying to differentiate itself from Apple in its battle with Epic over Fortnite and avoid a “combination of both cases.” In its filing the Android platform owner and Google Play store operator said that it sees a number of differences between the iOS App Store and its mobile marketplace.  

“While Apple’s iOS allows the distribution of apps only through Apple’s proprietary app store, Android devices, in contrast, can have multiple app stores simultaneously pre-installed or downloaded and allow for end users to side load apps via the Internet,” Google wrote in its filing.

Google goes on to say that its storefront is more open because it allows apps to be sold on different storefronts on Android devices; for example, Epic has a storefront for Android devices where users can still download Fortnite directly from the developer. The game is also available through other storefronts such as the one Samsung operates for its various mobile devices.

Finally, as Google, Apple, and Epic present arguments to the court this week, an Australian regulator is preparing to take a deep dive into Apple’s and Google’s practices related to their respective app stores. The Australian Competition and Consumer Commission announced Tuesday that it would look at the “use and sharing of data by apps, the extent of competition between Google and Apple’s app stores, and whether more pricing transparency is needed in Australia’s mobile apps market.”

“We want to know more about the market for mobile apps in Australia, including how transparent and effective the market is, for consumers as well as those operating in the market,” ACCC Deputy Chair Delia Rickard said in the announcement. “For app developers and suppliers, gaining a spot in one of the major app stores can result in significant sales, while failing to gain access can be a major setback. We are keen to provide greater transparency on how this process works.”

The ACCC also released an “issues paper” seeking views and feedback from app developers and suppliers, as well as a short survey aimed at Australian consumers. Interested parties will have until Oct. 2, to provide feedback, with a final report to be released in March 2021.

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