As Epic’s continuing legal fight with Apple builds toward a coming September 28 hearing, Epic is formally asking for a temporary injunction to force Fortnite back onto the iOS App Store.
In a new motion filed with the court late Friday night, Epic calls Apple a “monopolist” that “retaliated with ferocity” to Epic’s “daring to challenge Apple’s misconduct.” Epic cites precedent to suggest it shouldn’t face such retaliation for fighting against “illegal contract provisions” in Apple’s developer agreements.
More specifically, Epic accuses Apple of using its monopoly in iOS app distribution (via the App Store) “to coerce developers into using [Apple’s in-app purchasing platform].”
“Epic is a would-be direct competitor of Apple in the relevant markets, ready to offer competitive app distribution and competitive payment processing on iOS,” the company writes. “To be clear, Epic does not seek to force Apple to provide distribution and processing services for free, nor does Epic seek to enjoy Apple’s services without paying for them. What Epic wants is the freedom not to use Apple’s App Store or IAP, and instead to use and offer competing services.”
Epic uses its own brief late-August offering of “Epic Direct Payments” in the iOS version of Fortnite as evidence of “consumer demand” for such payment processing competition—53.4 percent of iOS users opted for that direct payment option during the two-week period, Epic writes. The fact that the Direct Payment option came with a 20-percent discount in asking price over Apple’s payment processing may have played into that result, of course.
“Epic may never see these users again…”
Epic also continues to argue that it is already suffering irreparable harm from Apple’s decision to bar Fortnite from the App Store. While players who previously downloaded Fortnite on iOS can still play it, that version can no longer be updated. Thus, iOS players can’t connect with players on other platforms running the latest version of the game, a state of affairs that has “cleaved millions of users from their friends and family in the Fortnite community, which entirely depends on connectivity,” Epic writes.
“People prefer Fortnite over other games in part because Fortnite facilitates a community. When millions of players are forced to drop from the community overnight, Fortnite itself becomes less attractive, not only to the players who now cannot join but also to every other player.”
Daily Fortnite usage on iOS has dropped 60 percent as a result of Apple’s decision, Epic says, while the 63 percent of iOS players that don’t play on other platforms have been left stranded.
Meanwhile, Fortnite can’t attract new users on iOS as the case goes forward, time that the company says it can’t get back. “The continued loss of Fortnite as a gathering place for users on all platforms will lead Epic’s customers to defect,” the company writes. “Epic may never see these users again… Harm like this to Epic’s flagship app cannot be calculated in damages.”
If Apple eventually prevails in the case, Epic argues that regular monetary damages can be used to reimburse any harm to the iOS maker.
In a ruling late last month, Judge Yvonne Gonzalez Rogers largely rejected similar arguments Epic made in seeking a restraining order against Apple regarding Fortnite development on iOS. There was no “irreparable harm” to Epic, Rogers wrote, because “the current predicament appears of [Epic’s] own making.”
“Your client created this situation,” Rogers told lawyers for Epic in an August hearing. “Your client does not come to this action with clean hands… in my view, you cannot have irreparable harm when you create the harm yourself.”
“The court recommended that Epic comply with the App Store guidelines while their case moves forward, guidelines they’ve followed for the past decade until they created this situation,” Apple said in a statement earlier this month.” Epic has refused. Instead they “repeatedly submit Fortnite updates designed to violate the guidelines of the App Store.”
“This is not fair to all other developers on the App Store and is putting customers in the middle of their fight. We hope that we can work together again in the future, but unfortunately that is not possible today.”