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Apple on Epic's retaliation claims: 'The emergency is entirely of Epic's own making'

Apple on Epic's retaliation claims: 'The emergency is entirely of Epic's own making'

August 21, 2020 | By Alissa McAloon




Apple has responded to Epic’s injunction from earlier this week, arguing that Epic’s claim that Apple is unjustly retaliating against Epic is pure fabrication.

In a filing shared online today (via The Verge), the iPhone maker accuses Epic Games of manufacturing an emergency by knowingly violating Apple’s App Store rules then crying wolf when Apple took the standard response of revoking Epic’s developer account for Apple products.

On top of that, Apple now argues that it has offered to reverse its action against Epic if the company agrees to reverse the update that added that unsanctioned payment method into Fortnite to begin with.

“Epic would be free to pursue its primary lawsuit,” reads Apple’s response. “But Epic does not want to remedy the harm that it contends requires immediate relief because it has a different goal in mind: it wants the Court to allow it free ride on Apple’s innovation, intellectual property, and user trust.”

This is all the very very latest in an increasingly complicated back and forth between Apple and Epic, so for the full picture it’s best to read our past coverage on each incident. As a refresher: 

Epic Games updated Fortnite to include a payment method that bypassed the usual platform fees taken out of in-app purchases. (Details here)

Apple fired back that afternoon by pulling Fornite from the App Store, claiming the payment scheme and update violated its App Store Guidelines. (Details here)

Epic filed a lawsuit against Apple arguing its App Store policies were unlawful and anti-competitive. (Details here.)

Apple informed Epic that its access to developer tools would end on August 28, jeopardizing Epic’s ability to run and maintain Unreal Engine on Apple platforms and for MacOS and iOS development. (Details here)

Epic responded, asking the court for an injunction to protect it from what it says is retaliation from Apple: “Not content simply to remove Fortnite from the App Store, Apple is attacking Epic’s entire business in unrelated areas.” (Details here)

Earlier today, Epic also announced an in-game Fortnite tournament themed around its grievances with Apple, and encouraged its userbase to voice their complaints to Apple via social media. (Details here)

In today’s update, Apple has now responded to Epic’s retaliation allegation, saying that the injunction Epic is asking for is against public interest while further countering Epic’s arguments that Epic has suffered “irreparable harm” and that Epic has a high likelihood to succeed in its anti-competitive lawsuit.

“In the wake of its own voluntary actions, Epic now seeks emergency relief. But the ‘emergency’ is entirely of Epic’s own making,” reads Apple’s counter.

“Epic’s agreements with Apple expressly spell out that if an app developer violates the rules of the App Store or the license for development tools--both of which apply and are enforced equally to all developers large and small--Apple will stop working with that developer. Developers who work to deceive Apple, as Epic has done here, are terminated.”

The deception, Apple argues, lies at least partially in the way Epic went about adding another payment method to Fortnite. That update was rolled out as a hotfix according to the filing, and as such didn’t go through the usual update channels where Apple would’ve spotted and flagged the App Store Guideline-violating inclusion. It argues that Epic knew “full well what will happen”, an argument that’s not hard to believe considering how quickly Epic filed a lawsuit once Fortnite was pulled from the App Store. Apple also suggests that Epic has “knowing and purposefully created the harm” at the core of its request for an injunction. 

“All of the injury Epic claims to itself, game players, and developers could have been avoided if Epic filed its lawsuit without breaching its agreements,” argues Apple.

Part of the argument used by Epic to pitch its injunction to protect it from the alleged retaliation is based on the company’s belief that it is “likely to succeed on the merits of its antitrust claim” given antitrust rules outlined in Section 1 of the commerce-regulating law The Sherman Act. 

Apple voices disagreement in its own rebuttal, citing a court case from last week on similar tech markets that highlighted the importance of “elaborate inquiry as to the precise harm they have caused” before declaring a novel business practice unreasonable or illegal. 

Following that, Apple notes that Epic itself pointed out in a blog post this morning that there are other platforms on which players can play Fortnite if it remains blocked on iOS, and adds out that Epic hasn’t addressed the fact that the same logic behind its accusations that Apple is anti-competitive could be applied to Microsoft, Sony, or Nintendo video game platforms.

“The lack of factual, economic, and legal support is unsurprising because Epic’s antitrust theories, like its orchestrated campaign, are a transparent veneer for its effort to co-opt for itself the benefits of the App Store without paying or complying with important requirements that are critical to protect user safety, security, and privacy,” writes Apple.  



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